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Customs and Border Protection has Designated (optional) Ports of Entry for First Time Canadian TN (NAFTA) and L Visa Applicants

via http://www.cbp.gov

Traveling on a TN or L-1 Visa From Canada?

Optimize Your Processing at these U.S. Ports of Entry

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H-1B Opponents continue onslaught against Immigration of the Educated

This week, Bill Snyder, a blogger for the anti-H-1B propaganda site Infoworld posted an article attacking Immigration of the Educated.  What is especially interesting about Mr. Snyder’s position is the fact that it signals the resumption of the 2008 attack on the Optional Practical Training program (OPT).  OPT being a temporary work authorized status granted to eligible F-1 students who may thus gain professional work experience post graduation, and perhaps a portion back of 20+ billion dollars in tuition they pay into our coffers each year.

Unjustified ire towards OPT is peaking only because the program may be utilized by eligible F-1 Science/Technology/Engineering/Math (STEM) graduates.  Apparently, for Mr. Snyder, it is only then that the program transforms into what he terms “a sleazy end run around the law”.  Mr. Snyder claims that these new STEM graduates, supported by their “tech company” employers, enter the U.S. workforce en masse to undercut IT wages.  Said wages, which he admits in the first sentence, are already “climbing to more than $87,000 a year”.

The fact that Mr. Snyder’s argument against OPT flies in the face of the concept of American Exceptionalism and two basic economic principles, or that it is entirely bereft of any unbiased and relevant data is moot.  The most significant takeaway from his article is that STEM OPT is nothing more than a scapegoat: this attack is actually and truly directed against the H-1B program itself.  Mr. Snyder and other IT protectionists seek justification to undermine the OPT program not because of any alleged misuse, but because OPT allows a post graduate STEM worker precious time to find a good employer who may agree to pay government fees of up to $5,550.00 (plus attorney fees) to file an H-1B petition on their behalf.  (There are no guarantees of approval, nor is the worker forced to even ultimately take up employment with the H-1B petitioner.  As well, in the future, the H-1B worker, for any reason, may transfer to a new H-1B employer in as little as one week.)

Our immigration policy is increasingly hobbled by protectionists who, for short term gain (or perhaps unknowingly), damage our nation’s international lead in the STEM fields.  Our insufficient H-1B cap that does the same: tens of thousands of highly qualified, valuable STEM professionals were rejected in last year’s random selection process (H-1B lottery), and sadly the scene is set be repeated again this year in April.

Our repeated rejection of STEM professionals is untenable and is certain to diminish our ability to attract the worlds best and brightest, unless we make drastic changes.  Already, other nations are eagerly recruiting STEM workers (sometimes from within our own borders).  The bottom line: the yearly H-1B cap must be increased to an amount commensurate to demand, or at the very least, to a level that isn’t exhausted in one week.

Read Bill Snyder’s Article

Data Reveals USCIS Increasing Number of Requests for Evidence on L-1B Cases, California Service Center Continues to Lead Vermont Service Center in RFEs and Case Denials

FOIA_L-1B_RESULTS

Responding to a Freedom of Information request submitted by The American Immigration Lawyers Association Liaison, USCIS revealed interesting data on L-1B nonimmigrant petitions receipted, approved, denied, and those subjected to a Request for Evidence (“RFE”) for FY2012 and FY2013.  The data, when compared with USCIS statistics and a National Foundation for American Policy report, both released in 2012, reveals that the L-1B denial rate increased from 27% in FY2011 to 30% in FY2012 and 34% in FY2013.

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TITLE IV OF THE SENATE’S S.744 IMMIGRATION REFORM BILL – RELATING TO CHANGES IN H-1B, L-1, E-2 NONIMMIGRANT VISAS

TITLE IV–REFORMS TO NONIMMIGRANT VISA PROGRAMS

 

Subtitle A–Employment-based Nonimmigrant Visas

 

SEC. 4101. MARKET-BASED H-1B VISA LIMITS.

 

(a) In General- Section 214(g) (8 U.S.C. 1184(g)) is amended–
(1) in paragraph (1)–
(A) in the matter preceding subparagraph (A), by striking `(beginning with fiscal year 1992)’; and
(B) by amending subparagraph (A) to read as follows:
`(A) under section 101(a)(15)(H)(i)(b) may not exceed the sum of–
`(i) the base allocation calculated under paragraph (9)(A); and
`(ii) the allocation adjustment calculated under paragraph (9)(B); and’;
(2) by redesignating paragraph (10) as subparagraph (D) of paragraph (9);
(3) by redesignating paragraph (9) as paragraph (10); and
(4) by inserting after paragraph (8) the following:
`(9)(A) Except as provided in subparagraph (C), the base allocation of nonimmigrant visas under section 101(a)(15)(H)(i)(b) for each fiscal year shall be equal to–
`(i) the sum of–
`(I) the base allocation for the most recently completed fiscal year; and
`(II) the allocation adjustment under subparagraph (B) for the most recently completed fiscal year;
`(ii) if the number calculated under clause (i) is less than 115,000, 115,000; or
`(iii) if the number calculated under clause (i) is more than 180,000, 180,000.

 

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U.S. Mission in India Expands Interview Waiver Program

USA B1/B2 Visa

USA B1/B2 Visa (Photo credit: Wikipedia)

New Delhi | November 19, 2012

In March of 2012, the United States Mission to India unveiled the Interview Waiver Program (IWP) which allows qualified individuals to apply for additional classes of visas without being interviewed in person by a U.S. consular officer.  Following the success of the IWP, as part of continuing efforts to streamline the visa process, and to meet increased visa demand in India,  the U.S. Mission is pleased to announce an expansion of the IWP.  We expect this expansion to benefit thousands of visa applicants in India.

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Information on Consulates’ use of 221(g) refusals

Section 221(g) of the INA allows consular officers to issue a temporary refusal of a visa petition in cases where an otherwise eligible visa applicant is missing a specific document, or in case where a consular officer concludes that additional security clearance measures are warranted. Consular officers utilize 221(g) to allow applicants the opportunity to supplement their applications to overcome a visa denial.  Once the deficiency is satisfied, or the concern resolved, 221(g) refusal is “overcome” and the visa may be issued.  
In practice, the following are some situations that often give rise to a 221(g) refusal: 
1. Additional support documents are required, such as proof of local employment; 
2. An applicant is employed in a field listed on the Technology Alert List and the consular officer requests a Visas Mantis Security Advisory 
Opinion (“SAO”). (Common in India, China and elsewhere where applicants are advised that their applications require “administrative processing.”) 
3. The consular officer requests an Advisory Opinion from the Visa Office on the applicability of one of the statutory grounds of inadmissibility. 
4. There are no empty visa pages in the applicant’s passport, or the applicant’s photograph is of bad quality.
5. Applicant’s PIMS profile has not been updated.
A consular officer, upon refusing an application under 221(g), will commonly provide the applicant with a refusal letter.  However, it is possible that an applicant may be temporarily refused under 221(g) and not know it.  
The use of 221(g) is growing extremely common; the US Department of State has suggested that such refusals are overused by consular officers.  According to the Report of the Visa Office, in FY 2008 a staggering 589,000 221(g) refusals were issued against nonimmigrant visa applications.  About 87% of these were eventually overcome and visas were issued.
221(g) impacts subsequent visa applications because a client must indicate yes to the DS form question, “Have you ever been refused a US Visa?”.  Even a 221(g) that was caused by something as insignificant as a PIMS database issue is still considered, technically, a refusal.

A National Foundation for American Policy report finds Indian applicants for L-1 and H-1Bs are most likely to be denied or issued an RFE query; L-1 cases for Indian Professionals have been denied up to five times as often as someone from a different count

First page of the US Chinese Exclusion Act

First page of the US Chinese Exclusion Act (Photo credit: Wikipedia)

A National Foundation for American Policy report which analyzed official data from USCIS revealed evidence that Adjudicating Officers have dramatically increased the issuance of denials and requests for evidence in L-1 (intra-company transferees) and H-1B cases over the last four years, in spite of the fact that there were no changes in law or regulations during the same period. USCIS Officers have, over the last four years, arbitrarily & en masse, increased the difficulty of obtaining H-1B or L-1 status, most particularly for Indian applicants.

Again, this is so despite no new laws or regulations authorizing a change in adjudication protocols. It may be therefore objectively stated that this data is prima facia evidence that Indian IT professionals and their employers have been, over a sustained period, selected for profiling and targeting profiled and targeted as the primary victims of this and other related USCIS “policy changes” since 2008, along with a widely noted increase in visa denials/221(g) queries for H-1 & L-1 non-immigrants at U.S. Consulates [on a related note; see the new “H-1B Beneficiary attestation” evidently now in use at the U.S. Consulate, Hyderabad, ostensibly to be used in justifying mass visa denials for H-1B IT Consultants with end-client job sites].

By way of background, the primary basis for U.S. Immigration law today is the Immigration and Nationality Act of 1965 (“INA”). The INA is tremendously significant because it reversed America’s then (longstanding) racist Immigration policies, including the Page Act of 1875, the 1882 Chinese Exclusion Act and the “National Origins Formula” which had effectively limited immigration from Mediterranean Europe, Latin America and Asia to token levels so as not to change America’s “national character”. It is then truly ironic that adjudicators at the USCIS and U.S. Consulates appear to have been granted unchecked autonomy in systematically countermanding both the INA and its underlying legislative intent by effectively re-proportioning visas or “spots” to countries other than India.

Indians utilize a large number of available H-1B and L-1 numbers, however, they cannot be legally denied on that basis. On October 3, 1965, on the occasion of the signing of the INA, at the foot of the Statue of Liberty, President Lyndon B. Johnson declared that it was a “cruel and enduring wrong” that “…Men of needed skill and talent were denied entrance because they came from southern or eastern Europe or from one of the developing continents. [The old quota based Immigration] system violated the basic principle of American democracy–the principle that values and rewards each man on the basis of his merit as a man…”

Contrast these words with the following excerpts from the NFAP report:

“Companies believe that denials either at U.S. Citizenship and Immigration Services or at consulates, particularly involving Indian nationals, share the common attribute of new (unwritten) arbitrary standards that go beyond the statute and regulations. 

 Country specific data on new (initial) L-1B petitions indicate U.S. Citizenship and Immigration Services is more likely to deny a petition from an Indian-born  professional than nationals of other countries. The denial rate for Indian-born applicants for new L-1B petitions rose from 2.8 percent in Fiscal Year 2008 to 22.5 percent in FY 2009, a substantial increase that resulted in many employers being unable to transfer their employees into the United States to work on research projects or serve customers. In comparison, the denial rate for new L-1B petitions for Canadians rose from 2.0 percent in FY 2008 to only 2.9 percent in FY 2009. Illustrating the abrupt change, U.S. Citizenship and Immigration Services denied more L-1B petitions for new petitions for Indians in FY 2009 (1,640) than in the previous 9 fiscal years combined (1,341 denials between FY 2000 and FY 2008).

Concern that L-1B petitions for Indians have been singled out might be alleviated if the data showed other countries have experienced similar increases in the rates of denial for L-1B petitions with U.S. Citizenship and Immigration Services. However, the data show that while other foreign nationals experienced an increase in denial rates for new L-1B petitions starting in FY 2009, those denial rate increases were far lower than for Indian nationals. L-1 visa issuance declined at U.S posts in Indian in FY 2011 but rose overall for the rest of the world.” 

Read the NFAP findings (.pdf)

 

Transcript: Press Conference on Initiatives to Promote Startup Enterprised and Spur Job Creation, Aug. 2, 2011

Press Conference
U.S. Citizenship and Immigration Services
Aug. 2, 2011
USCIS ANNOUNCES INITIATIVES TO PROMOTE STARTUP ENTERPRISES
AND SPUR JOB CREATION
Press Conference
Moderator: Edna Ruano, Chief, Office of Communications
U.S. Citizenship and Immigration Services (USCIS
August 2, 2011
3 P.M. EDT
Coordinator: Welcome and thank you for standing by. At this time, all participants are in a
listen only mode until the question and answer session. If you would like to
ask a question at that time, please press star 1 on your touchtone phone and
clearly record your name when prompted. Todays’ conference is being
recorded. If you have any objections, you may disconnect at this time.
 I’d like to go ahead and turn the call over to your host for today, (Edna
Ruano), USCIS Chief of the Office of Communications. You may begin.
(Edna Ruano): Thank you, Jose. This is (Edna Ruano), the Chief of the Office of
Communications. I am happy to welcome everybody onto the phone call. As
to the format and the time frame, we have about 30 minutes with USCIS
Director Alejandro (Ali) Mayorkas. So we will have him introduce the topic
of today’s announcement and then open it up to questions when his remarks
are finished.
 Thank you again for joining us today.

Teleconference: L-1B Specialized Knowledge

Overview

On May 12, 2011, the Office of Public Engagement, the Service Center Operations Directorate, and the Office of Policy and Strategy hosted a stakeholder engagement to discuss issues related to the L-1B nonimmigrant classification. More specifically, USCIS was seeking feedback on the interpretation of the term “specialized knowledge” within the regulatory framework and what standards and evidentiary requirements should be followed in determining eligibility for this classification.

Principal Themes

Interpreting Specialized Knowledge

An overwhelming majority of stakeholders asserted that the existing regulatory definition of “specialized knowledge” and USCIS policy memoranda which relate to this issue are fine as written, and there is no need to issue any new policy memorandum. Some stakeholders provided feedback indicating that the definition of “specialized knowledge” should be interpreted more broadly than is currently being practiced at the Service Centers. Stakeholders noted that USCIS is interpreting the definition too narrowly as evidenced by the Requests for Evidence (RFE) and denials which are being received by many petitioners for this category. One stakeholder stated that it appears that USCIS has made a change in its interpretation in recent years without any change in the law.

USCIS also sought feedback from stakeholders on whether the current interpretation being used by Service Centers meets the needs of employers. Some stakeholders stated that the current interpretation did not meet the needs of employers because it was being too strictly and narrowly interpreted. They suggested that it would better serve employers if there was an increased flexibility and a broader interpretation of the term specialized knowledge.

Requests for Evidence

One stakeholder commented that petitioners were unsure of what documentation to submit with L-1B petitions at this time because it appeared that USCIS officers were making determinations as to required evidence on a case by case basis rather than having a general requirements list for all cases. They requested that USCIS provide stakeholders with a list of recommended initial evidence as well as additional evidence that should be included with a petition for an L-1B nonimmigrant so as to help petitioners avoid receiving so many Requests for Evidence.

Some stakeholders indicated that petitioners are overwhelmed by the information being requested in RFEs and that some RFEs requested evidence associated with O-1 requirements. They commented that these RFEs are too burdensome and costly and may lead petitioners to withdraw their petitions. Stakeholders also commented that this may lead to highly qualified individuals deciding to go to other countries rather than sharing their expertise to strengthen the U.S. economy.

Several stakeholders commented that USCIS should provide additional training on the proper adjudications standards for USCIS officers working on L-1B nonimmigrant petitions in order to avoid lengthy and repetitive RFEs in the future. Stakeholders suggested that this training should include input from various industries so as to provide USCIS officers with real life examples of how companies utilize L-1B nonimmigrants. It was further suggested by stakeholders that USCIS officers are not following the “preponderance of the evidence” standard, and that this evidentiary standard should be reinforced through training. It was also suggested that the Service Centers should implement a more rigorous supervisory review on all potential RFEs and denials on L-1B adjudications.

Factors in determining Specialized Knowledge

USCIS also asked stakeholders to provide feedback on what relevant factors should be considered in determining if a beneficiary possesses specialized knowledge. One stakeholder commented that the specialized knowledge held by the beneficiary may be of the petitioner’s already existing product rather than of a product the beneficiary is producing or developing for the petitioner.

Another stakeholdercommented that in some cases, an individual is brought in to lead the implementation of a product and to guide the team rather than to create a new product. In other cases, the knowledge relates to the industry rather than a particular company. It is not unique to the company, but rather enhances a company’s competitiveness. Another stakeholder commented that in certain industries such as the software industry, the information is not unique to the company in that there are other individuals who have knowledge of the software as well. The goal, however, is to bring skilled individuals from the overseas market in order to be more competitive.

Stakeholders also indicated that specialized knowledge is different from proprietary knowledge and should not be confused. Some stakeholders reminded USCIS that the L-1B nonimmigrant classification did not require the individual to be extraordinary, and that specialized knowledge need not be proprietary. It was pointed out that specialized knowledge is a special knowledge of the product or processes of a company. Stakeholders also stated that specialized knowledge need not to be narrowly held by a select few individuals within a company. Furthermore, stakeholders stated that specialized knowledge should not be determined by country of origin or by the petitioner’s business model.

Next Steps

USCIS will provide additional guidance and training to USCIS officers adjudicating L-1B petitions.

‘US violated GATS by increasing H1B, L1 visa fee’ – Via The Economic Times

Via The Economic Times

An article in the Economic Times discusses the findings of a think-tank which indicated that the United States may have violated its obligations unde the General Agreement on Trade in Services (GATS) by the newly implemented H and L fee increase for certain US Petitioners,  “As a result, a WTO Member whose companies use H-1B and L-1 visas to perform services in the United States may challenge this provision at the World Trade Organization.”

USCIS Implements H-1B and L-1 Fee Increase According to Public Law 111-230

On Aug. 13, 2010, President Obama signed into law Public Law 111-230, which contains provisions to increase certain H-1B and L-1 petition fees. Effective immediately, Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010, and will remain in effect through Sept. 30, 2014.  

These additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.  Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:

  • Initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15), or 
  • To obtain authorization for an alien having such status to change employers. 

USCIS is in the process of revising the Petition for a Nonimmigrant Worker (Form I-129), and instructions to comply with Public Law 111-230. To facilitate implementation of Public Law 111-230, USCIS recommends that all H-1B, L-1A and L-1B petitioners, as part of the filing packet, include the new fee or a statement of other evidence outlining why this new fee does not apply.  USCIS requests that petitioners include a notation of whether the fee is required in bold capital letters at the top of the cover letter. Where USCIS does not receive such explanation and/or documentation with the initial filing, it may issue a Request for Evidence (RFE) to determine whether the petition is covered by the public law. An RFE may be required even if such evidence is submitted, if questions remain.

The additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee, needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.

USCIS will work with its stakeholders to effect a smooth transition given this legislation’s new requirements. For more information on USCIS and its programs, please visit www.uscis.gov.

H-1B bill unlikely to come up in Congress, says Nasscom

Via Livemint.com


“The ‘H-1B and L-1 Visa Fraud and Abuse Prevention Act’, co-sponsored by Senators Richard J. Durbin (Illinois) and Charles E. Grassley (Iowa) earlier this year aimed to “overhaul the H-1B and L-1 visa programs to give priority to American workers and crack down on unscrupulous employers who deprive qualified Americans of high-skill jobs.”

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