Intracompany Transferees (L-1 and Permanent Residence)

In the spring of 2013, Customs and Border Protection changed its procedures and implemented an automated process for generating I-94 admission records electronically. As such, foreign visitors to the U.S. arriving via air or sea no longer need to complete paper Customs and Border Protection Form I-94 Arrival/Departure Record or Form I-94W Nonimmigrant Visa Waiver Arrival/Departure Record (for those using visa waiver/ESTA).

This not, however, relieve foreign nationals from their obligation to present documents evidencing their status in the U.S.   Proof of status may be needed by employers, schools/universities or government agencies.  Accordingly, foreign visitors MUST access their CBP arrival/departure record information online to retrieve a paper print out.

We recommend that all foreign travelers access their electronic I-94 records by visiting www.cbp.gov/I94 and printing a hard copy of the record as soon as possible upon your arrival into the U.S. This is now the only mechanism by which foreign nationals can retrieve I-94 record information, if no paper I-94 card was issued into the passport upon arrival into the U.S.

It is important that foreign nationals retrieve and review their I-94 record as soon as possible after entry to verify that the record reflect the correct visa status and expiration date.   The I-94 record controls the term and length of admission to the U.S. so accuracy in the record is critical to every foreign national’s status in the United States.

In generating the electronic I-94 record, CBP converts travelers’ arrival/departure information automatically from their electronic travel records. This means that, by and large, the information imported into the I-94 records system is information entered by hand by airline personnel (not government officials).  As such, it is imperative that you are precise when providing your information to the airline and vigilant with regard to managing flights (if you fail to cancel a booked flight without enough notice, it could cause an incorrect record to be generated indicating a departure, which will then have to be corrected.)

CBP continues to issue a paper form I-94 at land border ports of entry.

Information from CBP on the I-94 Process:

Upon arrival, a CBP officer stamps the travel document of each arriving non-immigrant traveler with the admission date, the class of admission, and the date that the traveler is admitted until. If a traveler would like a paper Form I-94, one can be requested during the inspection process. All requests will be accommodated in a secondary setting.

Upon exiting the U.S., travelers previously issued a paper Form I-94 should surrender it to the commercial carrier or to CBP upon departure. Otherwise, CBP will record the departure electronically via manifest information provided by the carrier or by CBP.

This automation streamlines the entry process for travelers, facilitates security and reduces federal costs. CBP estimates that the automated process will save the agency $15.5 million a year.

For more information and for answers to frequently asked questions, see the I-94 Fact Sheet.

The CBP INFO Center offers questions and answers for I-94.

 

Happy travels!

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

 

There was a time, FY 2006, when 92% of all L-1B Specialized Knowledge visa petitions were approved. 

 In FY 2014, the L-1B approval rate is down to 65%. 

 A study published by the National Foundation for American Policy cites the chilling USCIS statistics as to the adjudication of L-1B applications over the course of time—material changes in the numbers are reported, with no regulatory change.

 The L-1 visa status is for intra-company transferees, individuals who are being transferred from a company’s affiliate, branch, subsidiary or parent overseas to the US to perform executive, managerial or “specialized knowledge” work in the US.  The L-1A is for transferred executives or managers; the L-1B is for those with “specialized knowledge”.  The NFAP report focuses on L-1B visa petitions, but that does not mean that L-1A applications have not suffered from similar trends.  

 Based on data from the US Citizenship and Immigration Service (USCIS), the report’s revelations include:

 * USCIS L-1B denial rates are higher for specialized knowledge employees who are already in the US and seeking to extend their status (41% in FY14) than for  initial L-1B petitions (32 %).

* The denial rate for Indian nationals was 56% for FY2012-14, as compared to Canadian nationals who were denied at a rate of only 4% during the same time period.

*The rate of issuance of Requests for Evidence (RFEs) in FY 2014 was 45%, as compared with only 2% in FY 2004.

 As to the RFEs, AILA’s Bob Deasy is quoted as follows:  “What is most concerning is that RFE and denial templates and rationales are developed behind the scenes in a policy vacuum; moreover, hyper-exacting evidentiary and documentary demands made by USCIS undermine the principle of ‘totality of the evidence’ and the preponderance of the evidence standard.

 The report concludes: ”The significant increase in denial rates and requests for evidence in recent years illustrates that USCIS adjudicators have made it difficult for companies to transfer their own employees within a company to work in America.  In a highly competitive global marketplace, the consequence is that companies become more likely to move out of the United States-or to invest in America in the first place-to avoid the difficulties of the U.S. immigration system.”      

 Transfer with caution!

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Robert S. Whitehill is the Chair of the Immigration Practice Group at Fox Rothschild LLP.  He may be reached at rwhitehill@foxrothschild.com.

 

Much has been reported regarding President Obama’s Immigration Accountability Executive Action (IAEA). And, of course, there is still uncertainty regarding when and exactly what measures will be implemented by the Immigration Service.

With so much speculation on the topic, and an abundance of DACA and DAPA information, it’s not particularly easy to understand what the Immigration Executive Action contains relating to the country’s legal immigration system. Below is a quick summary of USCIS’s January 29, 2015, notice [http://www.uscis.gov/immigrationaction].

In the notice, USCIS indicated that it will work toward to goals of:

• Using all available immigrant (i.e., greencard) visa numbers when there is sufficient demand.

• Simplifying the Visa Bulletin system with regard to determinations of visa number availability.

• Clarifying I-485 portability (i.e., adjustment portability) to remove uncertainty relating to job mobility/career progression of the individual worker.

• Clarifying the National Interest Waiver I-140 (NIW I-140) greencard standard for foreign inventors, researchers and founders of start-up companies.

• Providing parole eligibility to certain inventors, researchers and founders of start-up companies who are not eligible for the NIW I-140, but who:

o Have been awarded substantial financing from US investors, OR

o Demonstrate promise of innovation and job creation through new technology development OR through the pursuit of “cutting-edge research”.

• Finalizing H-4 work authorization for the spouse of an H-1B worker whose greencard paperwork is in progress.

• Expanding and extending Optional Practical Training (OPT) for certain foreign students.

• Consolidating and clarifying L-1B Specialized Knowledge employee guidance to improve consistency in adjudications. Using these as a basis, there is great potential for an improved immigration system.

For now, we eagerly await additional details from USCIS regarding the provisions.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP. She may be reached at cwadhwani@foxrothschild.com.

 

With the holiday season in full swing, and with the President’s recent announcement of the Immigration Accountability Executive Action (IAEA), it’s a time of anticipation and optimism for many.  It’s also a time to be extra cautious.  The IAEA brings not only hope for potential for many, but also an opportunity for those who are unscrupulous to take advantage of unwitting victims. 

The American Immigration Lawyers Association (AILA) recently updated its public service announcements to help inform the public about notarios and other unauthorized consultants offering promises and advice that is fraudulent.  The fact is that the IAEA will not benefit everyone and filings are not currently being accepted under any part of the IAEA’s framework.  The full details regarding implementation of the IAEA have not yet been released.  Further, the IAEA is being vigorously challenged, causing uncertainty, at minimum with regard to timing. 

For more information, check out the AILA website (www.aila.org) and www.stopnotariofraud.org

Have a safe and happy holiday.

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Ms. Wadhwani is a partner in the Immigration Practice at Fox Rothschild LLP. She may be reached at cwadhwani@foxrothschild.com.

 

The President has taken Executive Action in an attempt to fix our country’s broken immigration system…or at least to bandage it.

What will H-1B season be like now?  Will the Immigration Accountability Executive Action plan (IAEA) have any effect to alleviate the concerns faced by cap-subject employers petitioning for H-1B workers? 

While the details regarding implementation of the IAEA remain unclear, parts of the IAEA may indirectly relieve some of the pressure that comes with H-1B cap season.  That is because the IAEA opens up the possibility for employment authorization through a few other channels. 

In addition, don’t forget that there are and have long been many other working statuses for highly skilled workers other than the H-1B.  For a summary of possible alternatives to H-1B status, please see the article that Robert Whitehill and I co-authored, Visa Options: Hiring in the Wake of Executive Action, which was recently published in the Legal Intelligencer.  (Note that a subscription to the Legal Intelligencer may be required for full access to the article.). 

I wish you a Happy Thanksgiving.

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Catherine Wadhwani is a partner in Fox Rothschild’s Immigration Practice Group.  She may be reached at cwadhwani@foxrothschild.com.

What is “specialized knowledge” for an L-1B intracompany transferee?   A recent US Court of Appeals decision provided guidance on this question.

The facts were as follows:

  • Plaintiff Fogo de Chao, is a chain of Brazilian-style steakhouses specializing in preparing and serving meats in the “churrasco” style of the gauchos of Brazil.
  • Fogo de Chao had successfully filed more than 200 L-1B visas for the specialized chefs, until…
  • USCIS denied the L-1B petition Chef Rones Gasparetto  in 2010 on the basis that his cultural background, knowledge and training did not constitute “specialized knowledge”  as a matter of law.
  • Fogo de Chao appealed until the case ultimately reached the US Court of Appeals for the District of Columbia.

The Court of Appeals reversed the denial and remanded the finding that culturally based skills do not constitute specialized knowledge.  In doing so, the Court  referred to the dismissal of the restaurant’s argument that training another employee to perform these specialized duties would cause economic hardship to the restaurant, opining that:

“Consideration of evidence of this type provides some predictability to a comparative analysis otherwise relatively devoid of settled guideposts…that specialized knowledge may be ultimately a ’relative and empty idea which cannot have plain meaning’ …is not a feature to be celebrated and certainly not license for the government to apply a sliding scale of specialness that varies from petition to petition without explanation.  Suddenly departing from policy  guidance and rejecting outright relevance of Fogo de Chao’s evidence of economic evidence threatens just that.”   

The Court rejected the government’s categorical disregard??? of culturally acquired knowledge and refused to give deference to the agency’s interpretation of “specialized knowledge”  as the decision was the product of informal adjudication within USCIS rather than formal adjudication or notice and comment rulemaking.

 

The U.S. Department of State’s Consular Consolidated Database (CCD), a system critical to visa issuance operations, is continuing to experience technical problems, which is limiting the State Department’s visa processing capacity.  As a result, are widespread delays in nonimmigrant visa issuance worldwide.  In conjunction with the Department of State (DOS), U.S. Customs and Border Protection (CBP) has indicated that in order to ease the situation, it will exercise its legal authority to waive nonimmigrant visa requirements for admission on a case-by-case basis.

CBP and DOS have provided the following information regarding the procedures that are being put in place to assist individuals who have applied for but have not been issued nonimmigrant visas due to ongoing CCD problems:

  • A nonimmigrant visa applicant whose U.S. travel is urgent because it either involves an “emergency” or impacts U.S. national interests, may request consideration for special travel permission to the United States if their visa issuance is delayed as a result CCD systems problems.
    • “Emergencies” in this instance include urgent humanitarian travel and life-and-death situations.
    • Upcoming business engagements and U.S. employment needs are not typically considered humanitarian emergencies and likely will not be considered as such in most cases. They may, however, be considered on a case-by-case basis.
  • DOS and CBP joint task force teams will confer on a 24/7 basis, regarding individual emergency travel requests in order to process such requests as      expeditiously as possible.
  • Travel permission, if approved jointly by DOS and CBP, will be facilitated by DOS. The consular post that accepted the visa application will release the traveler’s passport and will issue a transportation letter, which can be presented to common carriers to allow boarding of international U.S.-bound      flights. Upon arrival to a U.S. port of entry and presentation of the transportation letter, CBP will execute an I-193 application to waive the nonimmigrant visa requirement for admission. This will include waiving the $585 processing fee for the I-193.
  • Individuals requesting emergency travel must have a pending visa application with DOS, and the visa must be issuable but for CCD system problems. Applicants who have been issued a 221(g) notice indicating pending administrative processing on their visa applications are not eligible to request      emergency travel accommodations.
  • DOS may not directly inform visa applicants whether or not the delay in visa issuance is the result of CCD problems. Those who have emergency U.S. travel needs should affirmatively communicate with DOS to provide proof of their circumstances. This can occur during the visa interview, or through      e-mails after visa appointments to consular mailboxes or facilitation centers (whichever is the preferred method of communication for each individual consular post, as stated on its website).
  • If a request for emergency travel is not approved and facilitated by DOS, CBP strongly discourages petition-based applicants from traveling to the United States of their own accord using a visitor’s visa or Electronic System for Travel Authorization (ESTA) registration. CBP sent guidance to all ports of entry regarding the above-referenced procedures and will only consider CCD-related I-193 waiver through its joint interface with DOS. Individual requests made at ports of entry will be referred back to DOS. If an applicant is found to have previously requested travel permission that was not granted by DOS, it will be a significantly negative factor and could result in denial of the applicant’s I-193 request.

Currently reported on DOS website: “We have made significant progress and issued most of the worldwide backlog of nonimmigrant visa cases. We are working to bring the Consular Consolidated Database back to full operational capacity. We continue to prioritize immigrant visas, adoption cases, and emergency nonimmigrant visa cases. We are printing visas for these cases and all cases with very few delays. Please check with the embassy or consulate where you will apply for additional information. Please see our FAQs for more information.”

From DOS’ FAQs:  “Q: What is the outlook for NIVs [NonImmigrant Visas]?  When do we estimate the backlog will be processed? A: Current efforts are focused on restoring the system to normal operations, while continuing to adjudicate new applications.  We are committed to reducing the number of pending visa cases as quickly as possible. Applicants should anticipate that visa issuance may be delayed 10-14 days until the system is restored to full functionality and pending applications are printed.”

Since the CCD system continues to function in a limited state, travelers should expect delays in the issuance of visas and U.S. passports, and should plan accordingly.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

As many of you already know, the U.S. Customs and Border Protection (“CBP”) implemented an electronic Form I-94 process in 2013, which means that (most) nonimmigrant U.S. travelers no longer fill out a paper Form I-94 Arrival/Departure Record when they arrive in the U.S.  Instead, the CBP gather travelers’ arrival/departure information automatically from their electronic travel records and, once in the U.S., travelers must log onto the I-94 webpage in order to access and print their admission record information.

On May 1, CBP launched a new service which offers nonimmigrant U.S. travelers access to their arrival/departure records going back five years.  This online travel-history function is designed to permit travelers to avoid the need to file Freedom of Information Act requests to receive their arrival/departure history, greatly speeding this process.

Travelers may visit the I-94 webpage to retrieve their I-94 arrival/departure record number and/or five-year travel history by entering their required name, date of birth, and passport information.

Clicking on “Get Most Recent I-94” will return the current I-94 number, most recent date of entry, class of admission and admit-until date.  (Please recall that this does not reflect any changes of status, extension of stay or adjustments of status granted by U.S. Citizenship and Immigration Services after arrival into the U.S.).

Clicking on “Get Travel History” will return their five-year travel history based on their I-94 records, listing the date and port of entry of arrivals and departures.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

As reported by the American Immigration Lawyers Association (AILA), US consulates in Canada will be limiting visa appointments for 3rd-country nationals during the months of June, July and August of this year.  This will not affect those with already-scheduled appointments.

Demand for visa appointments is reportedly increasingly high during these months, resulting in difficulty for 3rd-country nationals to schedule visa interview appointments.

AILA reports that emergency cases may seek consideration for scheduling an interview at a Canada post by visiting canada.usembassy.gov.

Otherwise, 3rd-country nationals are encouraged to schedule their visa applications at US consulates other than those located in Canada (e.g., applying through the US consulate in one’s home country) during the 3-month period.

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Ms. Wadhwani is a partner in the Immigration Practice of Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

Analysis of new data obtained from U.S. Citizenship and Immigration Services (“USCIS”) reveals a dramatic increase in the number of L-1B Non Immigrant visa petitions filed, approved and denied, as well as the number of Requests for Evidence (“RFEs”) issued by the two Service Centers responsible for processing L-1 petitions, the California Service Center (“CSC”) and the Vermont Service Center (“VSC”). This data was released in response to a Freedom of Information request filed by the American Immigration Law Association (“AILA”).

As you can see from the chart below, the data reveals an increase in L-1B denial from 27% in FY2011 to 30% in FY2012 and 34% in FY2013.  These rates mark a distinct trend in steep increases from prior years:  7% in 2007, 22% in 2008, 26% in 2009, and 22% in 2010, despite the fact that there has been no change in the law or regulations related to L-1B visa.

L-1B Chart

The information indicates that USCIS has clearly changed its internal standard for adjudicating L-1B petitions and further, that there may be different internal standards at each of the Service Centers, given the higher number of RFEs and denials from the CSC.

The L-1B visa classification is available to key employees, with specialized knowledge, of multinational companies (called “intracompany transferees”). The L-1B visa requires that the employee has been employed abroad for one full year during the preceding three years by a foreign entity related to the U.S. company as a parent, branch, subsidiary or affiliate who has acquired specialized knowledge of the company’s business, operations, services and/or products.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.