Search
Contact
Login
Share this article
Two bills have been introduced in the U.S. House of Representatives that would alter the Visa Waiver Program. The program currently allows travelers from 38 countries, mostly in Europe, to enter the U.S. for up to 90 days without applying for a visa.
One bill would expand the program to more countries, while the other would place new restrictions on it, representing two divergent trends in this area. Many countries are attracting investment and tourist dollars by reducing barriers to travel. At the same time, there are rising calls to tighten security on visa-free entry.
The Visa Waiver Program Improvement Act, introduced Jan. 6, would expand the grounds on which a traveler may be ineligible for a visa waiver or for removal of a country from the program. The bill would also require the Secretary of Homeland Security to submit annual reports on the security of the Electronic System for Travel Authorization (ESTA), including the number and nationalities of those denied eligibility for security reasons. ESTA is the electronic system that screens and authorizes eligible foreign nationals to travel to the U.S. without a visa. H.R. 158 is co-sponsored by Rep. Candice Miller, R- Mich., who chairs the House Homeland Security subcommittee on Border and Maritime Security, and Rep. Michael McCaul, R-Texas, who chairs the full House Homeland Security Committee. Both representatives hold authority over immigration hearings, which could influence the success of the bill.
The Jobs Originated through Launching Travel (JOLT) Act, introduced March 17, would allow the Secretary of Homeland Security to grant visa waiver status to any country that meets certain criteria, such as cooperation on security, low overstay rates and low visa denial rates. The bill, H.R. 1401, would also mandate that participating foreign nationals carry electronic passports containing their biometric data and loosen restrictions significantly for Canadian citizens 50 and older who maintain a residence in Canada and own or rent a home in the U.S. The bill also makes some tweaks to consular visa processing, including setting a goal of interviewing 90 percent of all nonimmigrant visa applicants worldwide within 10 days of application receipt and developing a pilot program for processing visas using secure remote videoconferencing technology. Thus far, the bill, sponsored by Rep. Joseph Heck, R- Nev., and Rep. Mike Quigley, D- Ill., has enjoyed some support from states that have a high level of tourism, but it has not yet been scheduled to be considered by committee.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
The United States ranks near the bottom among major economies in terms of policies to allow hiring of highly skilled immigrant workers, according to a recent study by Business Roundtable (BRT). BRT examined the immigration policies of 10 advanced economies to identify and evaluate the best immigration policies to promote economic growth. The United States ranked 9th out of 10 competitor countries, ahead of only Japan. The analysis found that America’s near-bottom ranking among major advanced economies is due to laws and regulations that impose unrealistic numerical limits and excessive bureaucratic rules on hiring workers that the country’s economy needs. The findings come just days before the H-1B cap is expected to be reached. The authors of the report consulted with multiple Berry Appleman & Leiden professionals around the world as experts on immigration policies of the subject countries. The full report can be found here.
On Tuesday, U.S. Citizenship and Immigration Services issued long-awaited guidance regarding eligibility for L-1B status. The L-1B visa category permits multinational companies to transfer employees who possess “specialized knowledge” from their foreign operations to their operations in the U.S. Between 2006 and 2014, the L-1B denial rate skyrocketed from 6 percent to 35 percent.
The memorandum removes from consideration several restrictive interpretations that have plagued L-1B decisions over the past few decades. However, it also states that additional scrutiny will be required of L-1B petitions filed by employers that have many employees in the U.S. with specialized knowledge. Whether these changes succeed in reducing the L-1B denial rate will depend on how USCIS adjudicators interpret and implement the memorandum.
The memorandum becomes effective Aug. 31, and the government is seeking feedback from the public through May 8. Clients should consult their BAL professionals to discuss how the guidance may impact their L-1B programs.
BAL has prepared a detailed Q&A that provides additional analysis of the policy guidance. Below are the key takeaways:
The memorandum removes from consideration several restrictive interpretations that have plagued L-1B decisions over the past few decades.
The memorandum clarifies that (1) the knowledge “need not be proprietary or unique” to the petitioning employer, (2) there is no requirement that the employee be of a certain rank within the organization or that the employee be an officer or supervisor within the company, and (3) eligibility for another nonimmigrant classification (such as H-1B) is not a bar to eligibility for L-1B status.
USCIS will scrutinize an L-1B petition filed by an employer that has many employees in the U.S. with specialized knowledge.
When an employer already has many employees in the U.S. with specialized knowledge, the memorandum directs adjudicators to “carefully consider” the need to transfer the employee to the U.S. USCIS will also consider whether the salary paid to the employee is comparable to similarly situated peers in its U.S. operations, as a lower salary may be evidence that the employee does not have specialized knowledge.
USCIS may consider the number of workers in the relevant industry with the same knowledge when determining whether the knowledge is specialized.
The petitioning employer is not required to demonstrate the lack of readily available workers in the U.S. However, USCIS may ask whether “there are so many workers that the knowledge is generally or commonly held in the relevant industry, and thus not specialized.”
Knowledge will not be considered specialized if it can be easily imparted from one person to another.
A key factor in establishing specialized knowledge is the amount and type of training, work experience, or education required to develop the knowledge. Knowledge will generally be considered specialized if it would be difficult to impart “without significant economic cost or inconvenience” to the employer.
For extensions of status involving the same employer and employee, USICS will give deference to a prior approval, but not if the L-1B worker was admitted under the L-1B blanket program.
USCIS should give deference to a prior L-1B decision and should only reexamine a finding of eligibility where it is determined that there was either a material error with regard to the previous approval for L-1B classification, a substantial change in circumstances since that approval, or new material information that adversely impacts the eligibility of the company or employee. USCIS stopped short of directing its adjudicators to give deference to decisions made by consular officers or inspectors at the ports-of-entry.
There are no new requirements on companies that place L-1B workers at third-party worksites.
The memorandum emphasizes that the employee stationed primarily offsite must be applying specialized knowledge of the petitioning organization’s own services or products. The employee’s knowledge of the third party’s systems may be considered in addition to – but not as a substitute for – his or her knowledge of the petitioning organization’s services or products.
U.S. Citizenship and Immigration Services has released long-awaited draft policy guidance on the adjudication of L-1B visas.
The draft policy memorandum will be used by USCIS officers in making L-1B visa determinations and states that its purpose is to provide “consolidated and authoritative guidance on the L-1B program, superseding and rescinding certain prior L-1B memoranda.”
The draft memorandum addresses the definition of “specialized knowledge,” a requirement to qualify for L-1B visas. The draft memo analyzes the application of the “specialized knowledge” criteria and provides a non-exhaustive list of factors that USCIS may consider when determining whether an individual meets the definition of “specialized knowledge,” as well as the types of evidence a company may submit to prove this element.
The L-1B visa program allows multinational companies to transfer employees possessing specialized knowledge to a U.S. office. L-1B petitions face high denial rates, in part because of the inconsistency in how the standard of “specialized knowledge” is interpreted. Companies have asked USCIS to provide guidance and clarity on this subject for a number of years.
President Barack Obama announced Monday that his administration will “reform the L-1B visa category.” USCIS is soliciting public comment on the draft policy memo until May 8, 2015.
BAL Analysis: BAL is working with clients to analyze how the draft guidance may affect their immigration programs.
The White House has confirmed that reforms to the L-1B visa category, including a long-awaited policy guidance on specialized knowledge, are expected in the coming days.
“My administration is going to reform the L-1B visa category,” President Barack Obama said in a speech to global investors at the SelectUSA Investment Summit in Maryland on Monday.
“U.S. Citizenship and Immigration Services will increase clarity around the adjudication of the L-1B non-immigrant visa that allows international companies to temporarily deploy workers with specialized knowledge to the United States when launching or conducting operations here,” a White House fact sheet stated following Obama’s speech.
The announcements come on the heels of a report showing a steep rise in denials for L-1B visa petitions. L-1B visas are issued for employees of an international company coming to work in a U.S. branch as an intra-company transferee who possesses “specialized knowledge.” That definition has been ambiguous and inconsistently interpreted, and companies have asked for guidance for many years.
While the government has indicated since 2012 that it would clarify the boundaries of “specialized knowledge,” it was not until recently that USCIS director Leon Rodriguez indicated that L-1B guidance is a priority.
In November, as part of his executive actions on immigration, Obama said that USCIS should issue a policy memorandum that provides clear, consolidated guidance on the meaning of “specialized knowledge.” A policy memorandum would give guidance to USCIS officers who adjudicate L-1B visa petitions.
Obama spoke today at a meeting of SelectUSA, a federal effort to stimulate job-creating investment by connecting investors around the world with business and government leaders in the U.S. A policy guidance could help promote L-1 visas as an avenue for multinational companies to bring high-skilled workers to the U.S.
It is expected that stakeholders and members of the public will be able to submit comments on the draft guidance before it is finalized.
BAL Analysis: BAL will assist clients in reviewing and analyzing the proposed guidance to determine whether it eases administrative burdens or imposes new hurdles. BAL will follow up with details of the guidance as soon as it is released.
A hearing earlier this week on high-skilled immigration was more entrenchment than detente as members of the Senate Judiciary Committee dug in on their existing positions on high-skilled immigration.
Billed as a hearing on immigration reforms needed to protect skilled American workers, the committee focused mainly on the H-1B and L-1 nonimmigrant visa classifications as well as Optional Practical Training. The hearing was punctuated by several opposing viewpoints – expressed through competing legislative preferences – on the best path to reform the high-skilled immigration system.
The tone was set by committee chair Sen. Chuck Grassley, R- Iowa, a regular critic of the H-1B program who has long called for tighter requirements and more oversight. Grassley continued to tout legislation that he authored with Sen. Dick Durbin, D-Ill., several years ago as the answer to increasing worker protections and reforming the H-1B program. That bill contained many new employer requirements and has never gained much traction in Congress despite being introduced multiple times since its initial presentation in 2007. The legislation was most recently renewed in 2013, but a fresh bill has not been introduced in the current session of Congress.
Democratic members, on the other hand, pushed comprehensive immigration reform as the solution to high-skilled labor. Led by ranking member Patrick Leahy, D- Vt., they pointed to the nonimmigrant measures in last year’s Gang of Eight Comprehensive Immigration Reform bill as the way to tackle problems with the H-1B and L-1 visa programs.
The committee also placed a significant amount of attention on a current bill that focuses on increasing the number of H-1B visas and other changes. The Immigration Innovation (I-Squared) Act of 2015, sponsored by Sen. Orrin Hatch, R-Utah, would raise the annual cap on H-1B visas and eliminate the green card backlog for most employment-based immigrants, both measures that are generally viewed very favorably by employers of high-skilled technology workers. However, the Senate GOP seems divided on the bipartisan legislation, with Grassley and Sen. Jeff Sessions, R-Ala., publicly voicing their opposition.
While much of the hearing centered on existing ideas and legislative measures, the committee explored some new ideas as well. Grassley suggested the possibility of giving priority to U.S. companies during the H-1B petition process, while Durbin floated the idea of setting entirely different rules for companies whose workforce is heavily reliant on H-1B workers, as opposed to the current practice where they are only subject to additional fees.
BAL Analysis: Unfortunately, this hearing mainly highlighted the deep divisions among members of the committee with regard to high-skilled immigration. Much of the time was spent discussing whether American workers are negatively impacted by high-skilled workers as opposed to offering concrete reform solutions. The committee nevertheless appeared to agree that businesses do need the ability to get highly skilled foreign workers to the U.S. more effectively, although members are finding it difficult to agree on how to achieve that goal. It appears that existing high-skilled immigration legislation will likely need to draw even more support before it can move forward in the Senate.
BAL is monitoring all legislative developments in Congress and will continue to provide updates as additional information becomes available. For more frequent updates and news, follow us on our BAL Government Affairs Twitter page.
For additional information and/or questions:
Lynden Melmed, Partner Washington D.C. Direct 202.842.5830 lmelmed@bal.com
Christiana Kern, Legislative Analyst Direct 202.842.5831 ckern@bal.com
The denial rate for L-1B petitions for intracompany transfers of highly skilled employees has risen to an all-time high of 35 percent for fiscal year 2014, according to data from U.S. Citizenship and Immigration Services. The L-1B denial rate has increased dramatically over the past decade from only 6 percent in fiscal 2006. The statistics were published in a new policy brief released by the National Foundation for American Policy.
The report also confirms that USCIS is denying extension petitions at a higher rate than initial petitions. In fiscal 2014, USCIS denied 41 percent of extension applications for L-1B status, compared with 32 percent of initial petitions for L-1B status. This finding is very surprising, since individuals who extend status have typically already worked in the U.S. with approved L-1B status for three years and are simply seeking to continue that work.
The report also shows the relative denial rates for various foreign nationals. Indian nationals experienced the highest L-1B denial rates at 56 percent from fiscal 2012 through fiscal 2014, compared with an average denial rate of 13 percent over the same period for the rest of the world. The next highest rate of L-1B denial is for Chinese nationals at a rate of 22 percent. This means that Indian nationals are being denied L-1B petitions at more than four times the rate of the worldwide average and more than twice as often as nationals from the country with the next highest denial rate.
The rate that USCIS issued Requests for Evidence also remained high during fiscal 2014 at 45 percent. This reflects another steep rise in numbers over the past decade from 9 percent in fiscal 2005 and fiscal 2006; however, it does represent a drop-off from a spike of 63 percent RFE issuance in fiscal 2011. The data also confirm that Indian nationals experience a higher rate of RFEs than the average, with 65 percent of their L-1B petitions receiving an RFE.
BAL Analysis: Employers justifiably complain that high L-1 denial rates negatively affect their job growth, innovation, and production within the U.S., often forcing them to file under other visa categories that might not be as good a fit or transferring employees elsewhere. In response, since 2012, USCIS has planned to issue guidance on specialized knowledge employees who use L-1B petitions, but it has yet to be released. USCIS Director Leon Rodriguez recently remarked that the L-1B guidance remains a high priority, especially in light of President Barack Obama’s push for business relief via executive action, but no clear timeline for its publication has been set.
Lynden Melmed Partner Washington D.C. DIRECT 202.842.5830 | EMAIL lmelmed@bal.com
Christiana Kern Legislative Analyst DIRECT 202.842.5831 | EMAIL ckern@bal.com
IMPACT – MEDIUM
What is the change? The United States Embassy in Riyadh was closed for the fourth consecutive day March 18 as a result of “heightened security concerns” at American diplomatic facilities in Saudi Arabia.
What does the change mean? Along with the embassy’s closure, consular services in Jeddah and Dhahran have also been suspended and the embassy’s telephone lines have remained offline. Saudi and other foreign nationals should expect delays during the suspension of consular services.
Background: As a result of an unknown security threat against the U.S. Embassy, all diplomatic and consular facilities were closed March 15 and 16. The closure was extended indefinitely March 17. The embassy also warned U.S. citizens in Saudi Arabia to be aware of their surroundings, avoid large gatherings in public and take extra precautions when traveling throughout the country. “The Department of State urges U.S. citizens to carefully consider the risks of traveling to Saudi Arabia and limit non-essential travel within the country,” the U.S. Embassy said in a March 16 statement. An update is expected in the coming days.
BAL Analysis: Depending on the duration of the closures, the suspension of consular services may create a backlog of applications and interviews, which could delay processing in the weeks to come. Business travelers should plan accordingly if required to obtain a visa ahead of travel to the U.S.
This alert has been provided by the BAL Global Practice group and our network provider located in Saudi Arabia. For additional information, please contact your BAL attorney.
In anticipation of the April 1 start of the H-1B cap filing season, U.S. Citizenship and Immigration Services has announced it will begin 15-day premium processing of cap petitions no later than May 11.
Last year, USCIS announced that premium processing would begin no later than April 28. The further postponement from last year’s date indicates that the agency is expecting a very high volume of petitions that is likely to surpass last year’s record numbers and will almost certainly exceed the numerical caps on H-1B visas set by Congress.
Employers may see delayed receipts and may have to wait for adjudication on cap-subject petitions until late May for premium processing cases. Petitioners requesting premium processing are eligible for 15-day processing from the time the premium processing begins. Regular processing cases may take longer than the 15-day period for processing.
On April 1, USCIS will begin accepting H-1B cap-subject petitions for employees starting work Oct. 1. USCIS announced that it expects to receive more petitions than the H-1B cap during the first five business days of filing. If petitions exceed the numerical quotas in the first week, the agency will need time to calculate the petitions and run a computerized lottery system of selection. Last year, petitions reached 172,500 in the first five days of filing, and USCIS used the lottery to randomly select petitions within the quotas. The annual caps are 65,000 for undergraduate degree holders and an additional 20,000 for advanced-degree holders.
BAL Analysis: The USCIS announcement is a reminder that filing volume is expected to be extremely high this year. Employers will not know if a petition has survived the lottery until a premium-processing receipt or a regular-processing receipt is issued. The change in the prior H-1B cap premium processing schedule means employers may be waiting longer to find out if H-1B cap petitions are selected.
The priority cutoff date for the EB-3 category for China will retrogress by almost 10 months to Jan 1, 2011, according to the State Department’s April 2015 Visa Bulletin. EB-2 China and India, by contrast, will see significant advancements.
The EB-3 China retrogression was expected, though perhaps not as soon as April, as priority dates had advanced significantly in recent months, leading to an increase in demand. The Worldwide category may see a hold or retrogression in EB-3 in the coming months as well, according to a Feb. 10 briefing from Charles Oppenheim, the State Department’s chief of the Visa Control and Reporting Division.
As for China, the April bulletin said, “Potential forward movement of this cut-off date during the remainder of the fiscal year is dependent on the amount of demand received for applicants with very early priority dates.”
Priority dates for other countries will move forward in the EB-3 category, but by slightly less than in recent months. Priority dates for EB-3 Worldwide, Mexico and the Philippines will advance by four months to Oct. 1, 2014. EB-3 India will advance by seven days after advancing by 10 days in the March 2015 Visa Bulletin.
The priority date for workers in the EB-2 China category will jump forward by seven months to April 1, 2011. The priority date for EB-2 India will advance eight months to Sept. 1, 2007. All other countries will remain current in the EB-2 category.
The EB-1 category will remain current across all countries.
BAL Analysis: BAL will follow up with affected clients to address the impact of the Visa Bulletin.
A summary of the April 2015 Visa Bulletin: