Misuse of L-1B Visa Category?

In the past the GT Newsletter has discussed the availability of L Visas (intra-company manager or Executive visas). U.S. companies with international operations are eligible to bring foreign workers to the U.S. to perform work either as multi-national managers or executives (L-1A) or as a specialized knowledge employee (L-1B). Alleged recent misuse of the L-1B visa category not only jeopardizes U.S. workers but also the L-1B visa category.

Specialized knowledge is defined in immigration regulations as special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interest and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures. Further guidance suggests that specialized knowledge is described as a level of knowledge which must be different from or surpass the ordinary or usual knowledge of an employee in the particular filed, and must have been gained through significant prior experience with the petitioning organization. Additionally it is noted that a specialized knowledge employee must possess an advanced level of expertise in his or her organization’s processes and procedures or special knowledge of the organization which is not readily available in the U.S. labor market.

The L-1B visa category is now allegedly being stretched to include foreign workers in the IT staffing industry. Foreign workers are entering the U.S. as L-1B employees and being assigned to IT/software projects at work sites of customers of the transferring company. These offsite projects for customers seemingly have no direct relationship to the specific company or its business and appear to be a simple contract labor arrangement. The L-1B program is potentially enticing to IT staffing companies as there is no prevailing wage requirement as required by the H-1B program, however, such misuse places the category at risk of being attacked by restrictionists.

There are signs that both the Department of State and the Department of Homeland Security are scrutinizing L-1B petitions on the foreign national’s specialized knowledge. This has resulted in a recent flood of Requests for Evidence ("RFE’s) as well as delays and denials.

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