We Are Not Open For Business – the Death of the L-1B Visa Program

At the request of Senator Charles Grassley, the Department of Homeland Security Office of Inspector General² examined the potential for fraud or abuse in the L-1 intracompany transferee program and concluded among other things:

Although U.S. Citizenship and Immigration Services regulations and headquarters memorandums provide guidance regarding the definition of specialized knowledge, they are insufficient to ensure consistent application of L-1 visa program requirement in processing visas and petitions.

AND,

We determined that (1) training for Customs and Border Protection Officers that will enable them to fill their L-1 gatekeeper role at the northern land border more effectively, (2) improving internal controls of the fee collection effort at the northern land border, (3) more rigorous consideration of new office petitions to reduce fraud and abuse, (4) providing an adjudicative tool that is accessible to all Federal personnel responsible for L-1 decisions, and (5) consistently applying Visa Reform Act³ anti “job-shop” provisions to L-1 petitions.

These findings are consistent for the most part with what practitioners have known all along. The L-1 Visa program is broken, USCIS adjudicators are clueless as to how to adjudicate ‘specialized knowledge’ petitions and overall, decisions are arbitrary and inconsistent.

However, the Report is worth a read for not what is obvious, but what is still clearly missing from the findings and recommendations – a business friendly, customer centric approach to processing. Clearly, the Report has not considered (since it was not mandated to) how the lack of consistency in the adjudicative process affects a multinational company’s business and its ability to transfer highly specialized and qualified individuals.

For instance, the report states (page 5):

Some observers have expressed concern that the L-1 visa program, which has no numerical limit, may be used to avoid the more stringent H-1B program requirements…However, the data we reviewed provides no conclusive evidence that the L-1 visa program is being used to avoid H-1B restrictions.

Since FY 2008, the ratio of H-1B to L-1B submissions has actually increased, as shown in Appendix E. More H-1B petitions were submitted per each L-1 petition in FY 2011 than in the previous six FYs.

If these numbers are accurate as they obviously are, isn’t the need for this Report and the underlying brouhaha over abuse in the L-1 Visa program simply based on the unfounded fears of the likes of the good Senator from Iowa?  Numbers don’t lie. According to Appendix E (of the Report) in 2011, against 262,480 H-1B petitions, the Service received a mere 15,913 L-1B petitions.

In discussing the adjudicative process, the Report states:

ISOs told us that when adjudicating specialized knowledge petitions, the general principle is “you know it when you see it.”

Really?!

If this is the standard of the present adjudicative process, the hours spent in preparing a Petition would seem a complete and total waste of time. Why should petitioners and their representatives spend time, effort and money in providing the Service with reams of paper trying to document the specialized knowledge acquired by an individual with the company when all that seems to matter is the perception of eligibility in the minds of the ISOs?
Serious thought must be given to the fact that legitimate businesses are seriously affected by a lack of integrity in the adjudicative process.

From personal experience, I know that the lives and futures of several legitimate employees have been seriously affected by this callous approach to adjudication.

It is very hard to zealously represent one’s client when it is a known fact that the system is broken.

1 And news of its demise is NOT grossly exaggerated.

2 Mission: Congress enacted the Inspector General Act of 1978, as amended, to ensure integrity and efficiency in government. The Homeland Security Act of 2002, as amended, established an Office of Inspector General (OIG) in the Department of Homeland Security (Department). The Inspector General is appointed by the President and subject to Senate confirmation. The OIG serves as an independent and objective inspection, audit, and investigative body to provide independent oversight and promote excellence, integrity, and accountability within DHS programs and operations.

3 L-1 Visa and H-1B Visa Reform Act of 2004 requires employees in offsite locations be controlled and supervised by the petitioning company, and the placement of the foreign national will not be an arrangement to provide labor for hire, but rather will be a placement in connection with the provision of products or services. See INA § 214(c)(2)(F). Pub. L. No. 108-447, Sec 412(a).