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August 2012
The Invisible Fence?
By Steven H. Garfinkel

The Invisible Fence?

     The L-1B (Intracompany Transfer) Visa allows employees who possess “specialized knowledge” to transfer from a company abroad to a properly related U.S. business. The L-1B has been the “go-to visa” for multinational businesses seeking to relocate talent to the U.S. and maintain a globally competitive workforce.

     To qualify for an L-1B visa, an employee must be transferring from a foreign parent, subsidiary, affiliate, or branch to a properly related U.S. company. The individual must have served in a “specialized knowledge” capacity with the overseas company for at least one year within the preceding three years and must be transferring to the U.S. entity to serve in a similar capacity.

     Specialized knowledge has been defined as particular knowledge possessed by an individual of the 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. Specialized knowledge is not widely known, even within the company.

     Recently, however, U.S. Citizenship & Immigration Services (USCIS) adjudicators have been interpreting specialized knowledge extremely narrowly. In doing so, the agency is creating a barrier to employers seeking to transfer key employees to the U.S. By issuing Requests for Evidence (“RFE’s”) in approximately seventy percent of L-1B cases filed, the USCIS is requiring international companies to spend additional time, effort and expense to bring specialized workers to their U.S. locations. Further, adjudications are often inconsistent, with the same company receiving one approval and one denial for workers with identical experience, training and knowledge to perform the same job.

     This lack of predictability makes it difficult for multinational companies to plan. As a result of ever-increasing denial rates, companies are reconsidering whether to expand U.S. operations or send work overseas, a trend that will lead to a decline in U.S. job creation and which will undoubtedly harm the U.S. economy. Until the USCIS ameliorates its restrictive interpretation, multinational employers must continue to expect challenges in obtaining L-1B status for key employees.




Good news for “DREAMers”—Bad news for Employers?

     The term “Dreamer” comes from the “DREAM Act” (short for Development, Relief, and Education for Alien Minors), legislation which has been introduced repeatedly in Congress since 2001. The legislation would provide permanent residency to aliens brought to the U.S. as minors who meet certain requirements.

     On June 15, 2012, the Department of Homeland Security announced that it will issue guidance within 60 days to implement the Obama Administration’s policy to grant “deferred action” to “Dreamers.” Deferred action is an administrative policy, as opposed to a law. The policy announced will grant a status for a period of two years, subject to renewal.

     The policy, announced by the President the same day, allows Foreign Nationals without legal status in the U.S. to apply for work authorization and avoid deportation.


In order to qualify, applicants must prove they were under the age of 30 on June 15 and must meet the following conditions:

·        Continuous residence in the U.S. for at least 5 years and physical presence in the U.S. on June 15, 2012;

·        Current student, high school graduate, GED recipient, or honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and

·        No conviction for a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or threat to national security or public safety.


     An employer may be approached by one or more employees seeking assistance in applying for deferred action (i.e. requesting confirmation of employment to satisfy proof of continuous residence or physical presence). If previously thought to be “work authorized,” requests by such employees can be problematic. Careful thought should be made and legal counsel should be considered in determining whether potential liability exists in connection with I-9 compliance and issues resulting from continuing to employ such a worker before proper authorization is obtained.

Steven H. Garfinkel, J.D., is the Managing Partner of Garfinkel Immigration Law Firm.
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