El-dorado

Date: Monday, May 05, 2003 4:41 PM

JOB DESTRUCTION NEWSLETTER

www.ZaZona.com

There seems to be a consensus among H-1B lobbyists and immigration
lawyers that it won't matter if the H-1B yearly cap drops down to
65,000 in 2004. That's because they think that they can make up the
difference by using L-1 visas. The L-1 visa is so much easier to obtain
than H-1Bs it's a wonder that they haven't overtaken H-1Bs in number.

One of the things we hear is that L visas can only be used for specific
specialized skill sets. What this actually means is that someone that
majored in orchestral flute could come to the US on an L-1 visa to be a
corporate executive. The law actually sounds very much like the H-1B
"equivalent experience" loophole that allows just about anyone to get a
visa.

Note the following statement by immigration attorney Sheela Murthy:

While most L-1s will be educated, the degree does not
need to be in any specific specialized field. The person
who studied liberal arts, but was able to obtain a
managerial or executive position, could qualify as an L-1.

A person with any degree, or even without the equivalent
of a bachelor's degree, may have reached a level of specific
company expertise to qualify as an L-1 under the
specialized knowledge provisions.

Here some of the advantages of the L1 (from the point of view of
immigration attorneys and companies that want to replace American
workers):

No Employer Attestations
No Prevailing Wage Requirement
Blanket Petition Option Available for L
requires no govt certification

http://economictimes.indiatimes.com/cms.dll/html/uncomp/articleshow?msid=45303497

El-dorado
SHEELA MURTHY

TIMES NEWS NETWORK[ SUNDAY, MAY 04, 2003 08:50:27 AM ]

H1Bs have long been the visa of choice for those bringing specialty
occupation employees to the US. to work temporarily. However, with the
dramatic decrease of the H1B cap from 195,000 to 65,000 this fall (from
October 1, 2003) it is the perfect time to consider other alternatives
to the H1B program. The L-1 visa is often an attractive option for
employers.

Background of L-1

Congress created the L-1, intra-company transferee, classification in
1970. Its main purpose was to enable large organizations with
international operations to shift certain personnel to the United
States temporarily, even if the jobs they fill are not temporary in
character. The main impetus was to enable large, multinational
companies to function in the US by allowing them to bring in critical
personnel from abroad. The category allowed for the transfer of senior
executives or managers, as well as specialized knowledge workers.
Executives and managers are categorized as L1As and specialized
knowledge workers are L1Bs.

These specialized knowledge workers are individuals who are not
executives or managers, but who possess valuable specialized knowledge
of the company's product or advanced knowledge of processes and
procedures within the company.

In 1992, there were 75,347 admissions in L-1 status and 45,501 in L-2
status. Since 1985, admissions in L-1 status each year have exceeded
60,000. By 2001, the number of nonimmigrants admitted in L-1 status had
grown to 328,480. Since L-1s are not subject to a cap, many more
eligible employees could enter in L-1 status.

Similarities to H1B

Both the L-1 and H1B are non-immigrant business visas for individuals
who have talents beyond those of the unskilled worker pool. In
addition, both the H1B and L-1 carry dual intent. A foreign national
who is allowed to enter on a dual intent visa may enter the US as a
non-immigrant, even if s/he has filed, or intends to file for permanent
residence. This is not allowed in other non-immigrant categories.

Further, both the L-1 and H1B petitions can be filed via premium
processing, ensuring that, for a fee of an additional $1000, review of
the petition occurs by the BCIS within 15 days of the filing. This
feature is particularly useful for employers who need a vital employee
quickly.

Differences in education & degree

There are a number of differences between the L-1 and H1B visa
programmes. An L-1 must be an intra-company transferee. This is defined
as an employee who worked with the company abroad for one continuous
year in the last three years. If the company is not multinational, or
the individual has not worked for the company abroad, this option is
eliminated. Of course, multinational companies could place the
individual in their foreign office for at least a year before
transferring him/her to the US. Additionally, some companies
considering opening foreign branches may benefit sufficiently from the
ability to use the L-1 once the foreign branch becomes a viable option.

The H1B beneficiary must be in a specialty occupation. This is a person
with a bachelor's degree or equivalent in a "field of specialized
knowledge" whose services are sought in a position requiring a
bachelor's degree or equivalent in the specialized knowledge field.
Essentially, the job must require a particular, narrow range of study
at the bachelor's degree level or above and the beneficiary must
possess the required degree. The L-1 does not contain the degree
requirement. While most L-1s will be educated, the degree does not need
to be in any specific specialized field. The person who studied liberal
arts, but was able to obtain a managerial or executive position, could
qualify as an L-1.

A person with any degree, or even without the equivalent of a
bachelor's degree, may have reached a level of specific company
expertise to qualify as an L-1 under the specialized knowledge
provisions. This may be particularly helpful to individuals with
three-year bachelor's degrees, which are not equivalent to the
four-year US degree.

Many of these people may have extensive knowledge of a proprietary
company product or proprietary techniques. Almost every office has
vital personnel, often at the administrative level, who may not have
four-year degrees, but who have special, in-depth understanding of how
the company must function.

Timeframes for L-1 and H-1

Another important difference between the L and H is the maximum time
that the beneficiary may spend on each visa. An L1A manager or
executive may spend a total of 7 years on an L-1; an L1B specialized
knowledge employee may spend a maximum of 5 years on an L-1; and an H1B
beneficiary may spend up to 6 years on an H1B visa. The time previously
spent in H and L is counted toward the maximum if a person changes
status from H to L or vise versa. The time is aggregated toward the
total time allowed. Accordingly, a person cannot expect to come to the
U.S. as an L1A, stay 7 years, and then change to H-1 for an additional
6 years.

H1B beneficiaries have an advantage that L-1 beneficiaries do not with
respect to extensions beyond the time limitations. If the H1B
beneficiary has a labor certification or I-140 filed for 365 days or
longer prior to the expiration of the 6th year of the H1B, the H1B
beneficiary may apply for extensions of the H1B for one year at a time
with his/her H1B-sponsoring employer. L-1s are not given this option
under currently existing law.

Advantages of the L1

No Employer Attestations Required: While the H1B is more attractive for
the extension options beyond the 6th year, as described above, the L-1
wins out in a number of other comparisons. L-1 employers never have to
show that qualified U.S. workers are unavailable, while H1B dependent
businesses must make attestations regarding this matter on the Labor
Condition Application that is necessary to file with each H-1 case.
Neither the L nor H category requires advertising and recruitment
proof, as is required for a labor certification in connection with a
green card.

No Prevailing Wage Requirement: A key feature of L-1 petitions is that
they do not have a prevailing wage requirement. Conversely, H1B
petitions require that the position be offered at the prevailing wage
or the actual wage at the employer's workplace; whichever is higher.
Another favorable L-1 factor is that L-2 dependents may obtain
Employment Authorization Documents (EADs) and work in the US, while H-4
dependents are prohibited from working.

Blanket Petition Option Available for L

Companies that regularly file L petitions may be eligible to file for a
blanket L petition to simplify the process of approving and admitting
additional individual L1A and L1B workers. The blanket L petition must
be filed by a U.S. employer who will be the single representative
between the BCIS and the qualifying organizations.

It must be filed with copies of evidence that: the petitioner and its
branches, subsidiaries, and affiliates are engaged in commercial trade
or services; the Petitioner has an office in the United States that has
been doing business for one year or longer; the petitioner has 3 or
more domestic and foreign branches, subsidiaries, or affiliates; and
the petitioner and its qualifying organizations have obtained approved
petitions for at least ten L-1 professionals during the previous year
or have US subsidiaries or a US workforce of at least 1000 employees.
There is, however, no blanket procedure for H1B employees.

L-1 requires no govt certification

Unique documentation that must be submitted for the H1B includes the
Labor Condition Application (LCA) from the Department of Labor (DOL).

While there is no DOL involvement in the L-1 petition, the L-1 employer
must submit key corporate documents to verify that the business entity
abroad and the business entity in the U.S., both, exist and are
qualifying entities. The 'qualifying relationship' between the foreign
and U.S. companies means that the relationship is either one of parent
/ subsidiary or affiliate. While the L-1 can be used for new companies
if the US company is less than 1 year old, there must be proof of
physical premises in the US. Evidence of the qualifying relationship
between the US and the foreign employer which addresses ownership and
control (such as an annual report), copies of articles of
incorporation, financial statements, or stock certificates must be
filed with the petition.

As the end of this 2003 fiscal year approaches and Congress is yet to
address the H1B cap reduction to start on October 1, 2003, it is
appropriate for employers to consider other means of bringing needed
workers to the US. The L-1 can be a viable option and offers some key
advantages as outlined above.

The author is a top attorney and the president of a law office
specialising on US immigration law based at Owings Mills, Maryland. Her
website address is www.murthy.com.

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