Comment on India's The Economic Times Article Titled -- "Worried about H-1B visa? Take the L1 route"
I recently came across an article by "An Immigration Lawyer From Mumbai" in India's The Economic Times (Online Edition). The article is titled "Worried about H-1B visa? Take the L1 route". The author writes passionately regarding the L-1B visa; by way of background, this is a visa that in limited instances is a good replacement for the H-1B. The article, however, paints an incomplete portrait.
The author neglects to mention the two most basic and substantial obstacles which stand in the way of L-1B visa aspirants and their sponsors: 1) the L-1B visa holder cannot be 'body-shopped' and 2) the visa holder must possess 'specialized knowledge' which is defined as "special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures." This is obviously a difficult burden to bear during processing, especially in heavy traffic consulates such as Chennai or New Delhi. Requirements such as these unfortunately preclude a great majority of the software consulting companies that place workers at third-party job sites from sponsoring these visas.
Cases such as the Matter of Colley, Matter of Penner, and Matter of Sandoz Crop Protection Corporation stated that the beneficiary of an L-1B petition must possess proprietary or unique knowledge. In these cases, a beneficiary would qualify only where their employers were using unique or specially patented software or equipment not used by other employers in the same industry. For example, a beneficiary proficient in using software developed by his or her employer would qualify for L-1B status, but a beneficiary with expertise in highly sophisticated software developed by another company would not qualify.
The author neglects to mention the two most basic and substantial obstacles which stand in the way of L-1B visa aspirants and their sponsors: 1) the L-1B visa holder cannot be 'body-shopped' and 2) the visa holder must possess 'specialized knowledge' which is defined as "special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures." This is obviously a difficult burden to bear during processing, especially in heavy traffic consulates such as Chennai or New Delhi. Requirements such as these unfortunately preclude a great majority of the software consulting companies that place workers at third-party job sites from sponsoring these visas.
Cases such as the Matter of Colley, Matter of Penner, and Matter of Sandoz Crop Protection Corporation stated that the beneficiary of an L-1B petition must possess proprietary or unique knowledge. In these cases, a beneficiary would qualify only where their employers were using unique or specially patented software or equipment not used by other employers in the same industry. For example, a beneficiary proficient in using software developed by his or her employer would qualify for L-1B status, but a beneficiary with expertise in highly sophisticated software developed by another company would not qualify.
Posted by Ashwin Sharma at 3/21/2006 6:36 PM 
Categories: L-1 Intracompany Visas, Articles and Commentaries
Categories: L-1 Intracompany Visas, Articles and Commentaries
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