come ashore

The United States is restricting the only visa made for the new world order: the L-1

July 3, 2014
July 3, 2014

To be competitive, a company must be able to move talent to where its business is. Otherwise, absent a mobile work corps, today’s global companies would be unable to deliver goods or services on time. The best teams from the biggest companies tend not to all be in one office, let alone one country.

Yet in the US, arguably the world’s most developed mega-economy, the federal government is aggressively restricting one of the most basic of visas—those that allow companies with multiple sites across the world to transfer their key personnel to an affiliated office in the US. This visa category, known as the L-1, dates back to 1970. It was designed to help US-based employers take advantage of seasoned personnel from other global locations, so as to capitalize on proven talent with a background in the company’s service model. This type of intra-company movement occurs across the globe—it’s part and parcel of operating in a global economy.

Congress and the agency formerly known as the INS were fairly specific in the requirements for usage of the L-1. Only employees who have worked for one year out of the past three years for an affiliate of the US employer can qualify, and they must either have operated within the company’s leadership—either as executives (with discretionary authority over the business) or managers (overseeing staff or an essential function) or, alternatively, in a capacity where they have acquired special or advanced knowledge of the company’s service model. So for example, if you worked for an infrastructure company, you might be the only one who “gets” the company’s engineering methodology or quality control systems.

Yet in recent months, the agency administering L-1 reviews, the US Citizenship & Immigration Services (CIS) bureau in the Department of Homeland Security, has launched an unprecedented volume of denials premised on a stated assumption that the L visa should be limited only to a narrow group of persons, who stand out even in the sponsoring company as having “uncommon” knowledge. The standard is tied to a decision from 2010, one that is expressly not binding, concluding that an IBM affiliate in the US attempting to import a volume of SAP specialists from operations in India had not proven sufficiently “special” or “advanced.”

The application of a non-binding decision’s rationale to challenge intracompany mobility across industries in 2014 is wreaking havoc for US companies. At the recent American Immigration Lawyers Association Annual Conference in Boston, some experts cited a more than 60% challenge rate by CIS service centers. While few businesses would fault the government for careful scrutiny of its rules, a challenge rate at that level indicates a different problem. That is, the government is making a change to long-established policy without any advance notice to the business world, and doing so without input from that critical community.

Companies in industries as diverse as financial services, pharma, energy, and hospitality are befuddled. A recurring question is tied to the inconsistency of decisions for identical candidate profiles, including of those with substantially more experience than the expressly-required “one” of the past three years. Experts who provide attestations to assist petitioners in making their case are similarly confused.

In contrast, a number of countries are actively supporting intracompany mobility. With the right precautions in place (e.g., proof of experience, training, knowledge of the language and specialty), they are reaffirming this longstanding category for preferred entry. The UK’s points-based system includes a category that favors certain business classifications for entry. Italy, France and Spain, among others, are similarly focused on inviting seasoned staff of established companies, recognizing how important this influx of mobile talent is to reinvigorate their local economies.

The options for the US are clear. Either the Obama administration elevates the discussion, incorporating a dialogue with the business community, or more jobs will move offshore. In the face of repeated studies that job growth continues to recede in the mature economies, the US is putting up more barriers while most of the developed world is courting those same jobs.

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