Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: My employer has a business in my home country and wants to send me to the United States to work in a branch office he is opening up. However, it would require that I work at different locations in the U.S. Is there a problem with doing this?

Answer: Since you will not actually be running the company, but rather, worker as a person who has specialized knowledge of the products of your company, you would fall under the L-1B category. Previously, there might not have been a problem. However, a new law regarding L-1B’s has just come into effect. The USCIS has just implemented the L-1 Visa Reform Act of 2004. The changes were mandated by L-1 Visa Reform Act of 2004 which became law last December as part of the Omnibus Appropriations Act for FY 2005. The L-1 Visa Reform Act amends previous legislation to address the “outsourcing” of L-1B temporary workers. An L-1B nonimmigrant is an alien who has been employed overseas by a firm with an affiliated entity in the U.S., who comes to the U.S. to perform services for the international entity that involve specialized knowledge.

Question: What are the changes mandated by this law?

Answer: L-1B temporary workers can no longer work primarily at a worksite other than that of their petitioning employer if either: (a) the work is controlled and supervised by a different employer or (b) the offsite arrangement is essentially one to provide a non-petitioning party with local labor for hire, rather than a service related to the specialized knowledge of the petitioning employer. USCIS will interpret the “control and supervision” provisions of the new law to require an L-1B petitioning employer to retain ultimate authority over the worker. The determination as to whether an alien is or will be employed primarily at a worksite other than that of the petitioner will depend on the specific facts presented. In addition, the bar will not apply if the satisfactory performance of such off-site employment duties requires that the L-1B temporary worker must have specialized or advanced knowledge of the petitioning employer’s product, service, or other interests, as defined under current USCIS regulations. General skills or duties that relate to ordinary business or work activities would not meet the test of whether specialized knowledge is required for the work.

Question: Therefore, what exactly is meant by this outsourcing provision?

Answer: The “outsourcing” provisions described above apply to all L-1B petitions filed with USCIS after June 6, 2005, and include extensions and amendments involving individuals currently in L-1 status. The Act also requires that all L-1 temporary workers must have worked for a period of no less than one year outside the United States for an employer with a qualifying relationship to the petitioning employer. Previously, participants in the “blanket L-1” program could participate after as little as six months of qualifying employment. This change applies to petitions for initial L-1 classification filed with USCIS after June 6, 2005; extensions of status under the blanket program are not affected by this new provision.

Question: Are the filing fees the same?

Answer: No. As with other applications, there is now a fraud related fee. There is the base filing fee of $185.00 plus the new $500.00 Fraud Prevention and Detection Fee as applicable. [Employers seeking a worker’s initial grant of H-1B or L nonimmigrant classification and employers seeking to hire an existing H-1B or L worker currently employed by another employer must pay the $500 Fraud Prevention and Detection Fee. The $500 fee does not need to be submitted by: 1) employers who seek to extend a current H-1B or L alien’s status where such an extension does not involve a change of employers; 2) employers who are seeking H-1B1, Chile-Singapore Free Trade Act nonimmigrants; or 3) dependents of H-1B or L principal beneficiaries.

Therefore, while there are changes, the L-1B still exists and you should go forward with the application assuming you qualify.

Filed under: Immigration Law, immigration provisions, L-1B Provisions, Temporary Workers, USCIS | Tagged: L-1B, Temporary Workers | Leave a comment »