The Evolution of Intracompany Transferees Visas—Has is Become a Two-Prong Process?
By Michael Wildes, Esq.
The recent American economic collapse is a story that does not need retelling. Our nation’s major businesses have suffered extensively, and are now undergoing drastic transformations to reestablish themselves in the global market. This process often involves reaching out beyond our borders to recruit international talent with specialized knowledge in their respective fields. Now more than ever, a diverse array of skills and experiences is vital in keeping US companies competitive amongst their global counterparts. Accordingly, in response to the effects of globalization, many American companies already have incorporated such men and women in their branches throughout the world, where foreign personnel are willing and able to come stateside and help revive domestic locations. Unfortunately, given the dual effect of our struggling job market and the increased volatility at U.S. ports of entry, the federal government has resisted efforts to employ international transferees. Recently, petitioners have been burdened with voluminous requests for evidence to demonstrate their exclusivity within the company. Once again, rather than dwelling on this hurdle to economic recovery, the focus instead should now be on overcoming this obstacle and developing a system to effectively address the increased scrutiny on this particular category of visas petitions.
L-1 visas pertain to non-immigrants employed overseas by an American company’s parent or affiliate branch. Their transfer to the US is contingent on their continued employment with that company and their serving either in a managerial or executive capacity—or a particularized position requiring “specialized knowledge”. While establishing the qualifying branch connection is often relatively simple to prove, problems frequently arise when attempting to provide sufficient evidence that the applicant will undertake a managerial, executive, or “specialized” role once transferred over.
Recently, immigration lawyers have noted a dramatic increase in the number of Denials and Requests for Evidence (RFEs) issued by the Department of Homeland Security (DHS), United States Customs and Immigration Service (USCIS) authorities. The recent incidents may be attributed to the government’s efforts to enhance enforcement of the rules governing the off-site employment of foreign workers and to prevent fraud by requiring companies to demonstrate stronger employer-employee relationships, roles and responsibilities. It appears that in recent years, a majority of L-1 petitions have been submitted by IT and outsourcing firms, especially those having an employment base in India. Some of these firms exist for the sole purpose of furnishing their transferees to the U.S. market. Accordingly, HR personnel should take into consideration the following tips during their L-1 filing process to minimize denials, time and costs, consistent with each firm’s goals of economic progress when seeking to bring in foreign labor:
1. Quantity over Quality: While a well drafted petition is an obvious leg up in avoiding an RFE, immigration officials have been placing increased emphasis on the comprehensiveness of the application. An ad nauseum explanation of the transferee’s particular duties, knowledge and experience, complete with specific, targeted examples of his or her current and future role with the company and its affiliate is vital to the application’s success. Be certain to include documentation such as the employment contract, invoices, and any other relevant documentation signed by the employee.
2. Diverse Evidentiary Support: The application should include well focused aids to highlight the beneficiary’s most distinguished traits for the adjudicator to examine upon review. Examples include charts/graphs of the employee’s promotions and contributions to the business, tracking changes in company profit margins, comparisons to similarly situated employees in other related fields, etc.
3. Maintain your ‘D&B’: Dun and Bradstreet provides inspectors with a comprehensive analysis of a company’s credit and financial stability. Its reliability has made it popular with the USCIS, which has, in turn, established the Verification Instrument for Business Enterprises (VIBE) system that uses D&B databases to verify the business information of employers who submit immigration petitions. Originally, the system was used only to cross check the more glaring inconsistencies in the application. However, the government’s efforts to tighten the vice on L-1s has caused VIBE to be used with increased regularity—thus placing an extra burden on employers to maintain their financial status via this online system. Given that most businesses’ profit margins are in a state of constant flux (especially under current market conditions) employers are responsible to ensure that their D&B business projections are up to date and accurate.
4. Plan ahead – Recently, increased L-1 scrutiny has yielded so many more RFEs that this trend is becoming more the rule than the exception. Prudent planning for all overseas employees in any kind of managerial/supervisory capacity is crucial to ensuring that future visa issues with those employees (however many) will not be impeded due to a lack of evidentiary support. In exchange for the financial benefits of a foreign worker, the employer is responsible for organizing and maintaining employee files and keeping those documents updated for a possible future visa petition.
As with any large company, the maintenance of business records, personnel evaluations, and other employee files to assure their relevancy and weight in an immigration matter can be a tedious and time consuming process. Still, the extensiveness of the application and its sufficiency to convince the particular reviewing authority is critical. If not handled in a strategic and efficient manner, the petition’s evidentiary burdens following its first submission can be directly counterproductive to the company’s goal of saving resources when deciding to transfer a foreign worker.
While these tips have proven helpful in cases of multiple requests for evidence, consultation with an experienced lawyer within this specific field will help alleviate the aches and pains of this rather burdensome process, without needlessly draining company funds in the process. These are precarious times for non-immigrant visa holders and their employers. We are here to assist you in navigating the intricacies of non-immigrant visas and to answer any questions that you might have.
Michael Wildes is the managing partner of the leading U.S. immigration law firm, Wildes & Weinberg, P.C., www.wildeslaw.com which specializes in employment and investment-based immigration, business and treaty visas, labor certification/job offer sponsorship for permanent residence, naturalization/U.S. citizenship, Form I-9 compliance, family-based immigration, student and religious worker visas, and all other temporary and permanent visas. Mr. Wildes is a former Federal Prosecutor and recently completed two terms as the Mayor of Englewood, NJ where he resides. Feel free to email him at michael@wildeslaw.com or call at (212) 753 -3468 if he can be of any assistance to you or someone you know.