Posts Tagged ‘L-1B’

L-1 Pilot Program Follow-Up Meeting With USCIS and USCBP

Friday, October 12th, 2018 by W. Scott Railton

I attended a follow-up engagement meeting today with USCIS and CBP at the Blaine Peace Arch, concerning the L-1 Pilot Program.  Here is a brief summary of the meeting.

The L-1 Intracompany Transfer visa/status is a work authorization granted to certain Executives, Managers, and employees with “Specialized Knowledge.” It is an immigration tool used for multi-national businesses, to move key personnel around. The L-1 status is a part of Chapter 16 of NAFTA and the new USMCA agreement, and is also authorized by the Immigration and Nationality Act.

The L-1 Pilot Program was commenced on April 30, 2018, and terminates at the end of October. The basic goal of the program is to promote uniformity of adjudication of petitions by first routing them to USCIS’s California Service Center. Canadians have the option of choosing to submit these applications in person at a port of entry, or by mail/courier to USCIS.

15 submissions in 6 months; 80 Percent RFE Rate

At the meeting, USCIS reported they have had 15 submissions over the past six months. Ordinarily, they were getting at least that many a week at the Blaine crossings, and I think many more. Conclusion: nobody is using the program. This must be a conscious decision by Canadian businesses and their attorneys. Indeed, attorney comments during the meeting said as much. “People are voting with their feet,” one said.

USCIS reported that they issued 12 Requests for Additional Evidence (RFE) on the 15 cases. So far, they’ve approved seven cases and denied three, with the other five pending. They “outright” approved three cases, without RFEs.

RFEs are very common for USCIS right now. Even so, an 80 percent RFE rate is very high, even for USCIS. RFEs mean substantial extra expense for employers (thousands of dollars sometimes), as well as lengthy delays (months), with no certainty of eventual approval. Such is immigration these days.

Pilot cases submitted to USCIS seem to be handled similarly to Premium Processing cases at the Service Center. Premium Processing is the program where employers pay $1410 for 15 day initial adjudication. In this case, petitioners did not have to pay this expense, but of course the process is automatically slower than the same day adjudication some Canadian companies are used to. Most of the cases have been receipted within days—the agency reported two or three days. When an RFE is issued, typically the Petitioner is given three months or so to respond.

Attorneys seemed universally opposed to the program. East Coast attorneys, calling in on the phone, expressly said they would not like to see this program move their way. Representatives of both agencies suggested they might try expanding the program to the Vancouver Airport or other ports of entry, but no decision has been made.

The meeting itself was well organized, with video and phone lines open for all, and both agencies seemed to genuinely want feedback, offering many opportunities for comment.

Concerns with Process, Concerns with Adjudication

From my point of view, there are two larger issues at play here: process and adjudication.

From a process standpoint, Canadian businesses receive no benefit from taking away the option of on-the-spot adjudication. There are times when this is very valuable, such as when an important employee of a Canadian company needs to work in the U.S. fast (e.g. this weekend). Also, there is a benefit to being able to make your case to a live officer, rather than have everything done on paper. Frankly, USCIS has gotten too far into the weeds with adjudications, abandoning the preponderance of evidence standard applicable to all nonimmigrant work authorization petitions.

On the adjudication side, the agencies are pushing for “uniformity of adjudication.” They say that USCIS has the expertise for adjudicating L-1 petitions, which is true at some level. However, border adjudications are nothing new, and they have worked for Canadian/U.S. businesses for decades. Uniformity is also a myth–USCIS adjudicators handle matters very differently, from cubicle to cubicle.

Perhaps the biggest concern for Canadian businesses in this niche is USCIS’s extensive use and abuse of the RFE. Their templates are many pages long, and employers can spend the same amount of time they might in preparing an environmental impact statement, just trying to explain the technical aspects of one of their experts and why they are “specialized” or how they qualify as a “manager”. The RFEs are bogging down USCIS too, which has record wait times on many very-ordinary types of cases.

What Next?

Speakers at the meeting said they will take the feedback from the meeting, confer, and make next decisions.  They could close the program, but I think I suspect the Pilot Program is not done yet. I think CBP would like to punt adjudications to USCIS, and will keep looking for ways to do so.  I would like to see the agency embrace this responsibility as part of their northern border mission, because its good for business and U.S.-Canadian relations.  That may be wishful thinking, I’m afraid. My concern over the next few years is that the U.S. government may try to move all immigration benefits adjudication to USCIS, including TNs.  We’ll keep an eye on it.

Tags: , , ,
Posted in General, Scott Railton |

L-1 Intracompany Transfer Petitions under NAFTA–The Latest

Wednesday, January 11th, 2012 by W. Scott Railton

The North American Free Trade Agreement (NAFTA) permits Canadians to submit L-1 intracompany transfer petitions at ports of entry and pre-flight inspection for immediate adjudication by U.S. Customs and Border Protection (CBP). This past week, CBP published on its website standards for accepting and adjudicating such petitions.

Their “standards” provide little indication of the actual complexity of L-1 petitions, as the agency does not nothing to spell out fundamental points, such as the differences between filing for an Executive (L-1A), a Manager (L-1A), or for a person with Specialized Knowledge (L-1B).  Submitting an L-1 petition at the border can be something like walking into a minefield, for the uninformed.

The good news is CBP’s published standards include new procedures for making sure a petition submitted to the agency is subsequently forwarded to U.S. Citizenship and Immigration Services (USCIS). USCIS issues the I-797 notices for L-1 petitions.  I’ve heard of cases where the issuance of the approval notice can take months, or may never actually occur. If approved, CBP will provide an L-1 work authorized stamp on an I-94 admission card, but the I-797 is needed too, especially in the case of a denial at the border, for purposes of appeal.

So, Canadians have the choice–submit at the border to CBP, or by mail to USCIS.  This is a significant choice in managing an L-1 application successfully.  I usually discuss a number of factors with clients, before making a recommendation on which way to go.

One obvious factor is timing.  A CBP-submitted petition can lead to a fast “Yes” or “No”.  In the case of a Yes, this can be absolutely terrific, as the decision is made typically the same day you go to the border. A USCIS petition will take months to adjudicate. For $1225 fee, petitioners can purchase “premium processing” from USCIS, and buy their way to an initial adjudication in 15 days.

Another factor is the strength of the petition.  If CBP has an issue with the petition, they may ask the petitioner to come back with more documents. Or, they may deny the petition outright. They may in fact grill the applicant at great length, pursuing suspicions of misrepresentation or fraud. Or, they may approve quickly. The fact is, there can be a great deal of variation in the quality of adjudication of L-1s by CBP officers.

USCIS can also be unpredictable with adjudications. Although I typically get good results, I think most long time immigration attorneys would agree that requests for additional evidence have become much more common with L-1s over the past five years. However, a request for evidence does provide petitioners with opportunity to respond at their convenience, in a limited time window, without the pressure of cross-examination.

One final factor I’ll mention here is the culture of the agencies.  In the big picture, I think it is good to recognize that CBP’s mission is primarily enforcement based, whereas USCIS’s mission is much more focused on immigration benefits.

While quick adjudications are desirable, even more desirable is an approval.

Tags: , , , , ,
Posted in General |

“Specialized Knowledge”: A Moving Target

Friday, June 17th, 2011 by W. Scott Railton

One common but increasingly difficult nonimmigrant option for employers is the L-1B intracompany status. For qualifying international organizations, it is sometimes possible to transfer a foreign employee to work in the United States if they have “specialized knowledge.”  USCIS recently held a stakeholder meeting on the L-1B, and has subsequently published minutes, which can be found here.

The Immigration and Nationality Act states that a person can be transferred to the United States to work at the same employer or a subsidiary or affiliate “in a capacity that is managerial, executive, or involves specialized knowledge…”

The regulations define specialized knowledge to mean “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.”

Read closely, it is clear this is a vague and yet broad definition.  In practice, however, “specialized knowledge” has always been something of a moving target.

In recent years, particularly in light of the recession, it has become increasingly difficult to satisfy DHS that a person has such specialized knowledge, and therefore merits L-1B status. Adjudicators apply disparate definitions, and rely on their own interpretations of all sorts of administrative guidance which has been issued over the years.

At the end of the day, the approval or denial of an L-1B petition often comes down to the gut feeling of the adjudicator—a gut feeling which may well be based on shaky legal premises, such as the application of some sort of de facto labor market test.  It has become routine for new and novel expressions of the above stated regulation to find their way into requests for evidence, which ultimately are just another way of the adjudicator saying, “I don’t think so…..but let’s hear what else you have to say. ”

A successful L-1B petition therefore is an exercise in advocacy and persuasion, and typically needs to anticipate the reservations an adjudicator might have which aren’t plainly written into the regulations and other administrative guidance.

 

Tags: , ,
Posted in General |