1. Very Different Functions
for U.S. Businesses
There are some major differences between the
H-1B visa and the L-1 visa. The H-1B visa program allows U.S. employers to
hire highly educated foreign professionals on a temporary basis who provide
specialized or unique skills/expertise and relieve temporary U.S. worker
shortages.
In contrast, multinational employers use the L-1
visa to transfer to U.S. their own foreign national executives or managers
or employees who possess specialized or advanced knowledge. To be eligible for
L-1 visa, the employee must be hired by a multinational foreign company at
least one year during the last three years.
The L-1 and H-1B visa
programs serve very different functions for U.S. businesses. The
requirements
for the two visa categories reflect these differences. H-1B visas are granted
to professionals in specialty occupations to provide needed specialized or
unique skills, relieve temporary worker shortages, and supply global market
expertise. To be eligible for an H-1B visa, a foreign national must possess at
least a U.S. bachelor’s degree or its equivalent in a specific field.
By contrast, the L-1 visa is designed for the more narrow purpose of helping international
companies transferring managers, executives, and employees with specialized
knowledge to assist affiliated U.S. based operations.
No degree must be met for L-1 eligibility, because
an
applicant’s general educational qualifications are not relevant to this visa
category. Instead,
the L-1 visa is used to enhancing an international business’s flexibility
and productivity, such as the length and type of specific experience gained
with the affiliated business entity.
2.
Very Different Employer's
Obligations
Employers must pay an
H-1B worker the higher of the prevailing wage for the position, or the actual
wage paid to similarly employees. They must also file a petition form with the
U.S. Labor Department agreeing to certain conditions. As part of the process,
they must fulfill other obligations such as publicly posting a notice of the
offered position at the place of employment, and providing notice of the hire
to any union representatives.
L-1
employers are not
required to make similar petitions with
the U.S. Labor Department,
because L-1 employees technically do not constitute new hires that could
displace U.S. workers. Rather, the L-1 employee is being transferred
temporarily within
the
company to add value or provide expertise based on their international
experience with the company.
H-1B employers must
satisfy additional obligations if they employ a certain number or percentage
of H-1B employees. These employers are considered to be H-1B dependent and
must demonstrate that their hires of H-1B employees have not resulted in the
displacement of U.S. workers.
The L-1 program does
not limit the number of L-1 employees that can be hired. The L-1 visa usage is
much lower than the H-1B visa usage. Unlike the H-1B visa, there are no provisions
under the L-1 category allowing for portability of
employment
to unaffiliated entities, and no extensions of L-1 stay beyond the maximum
five-year or
seven-year
limit. Thus, the L-1 category is more restrictive than the H-1B visa category
in some ways.
The number of H-1B
visas available in any fiscal year is capped. U.S. Congress has not
placed any limit on the number of L-1 visas that can be issued in a given year,
because the number of new L-1 visa applicants in a given year is
insignificant. Such a cap would be unwise, because it would unnecessarily limit
the flexibility of U.S. or foreign employers who need to bring in L-1 visa
holders to fulfill specific tasks.
3.
U.S. Department of State Reminds Consulates of L-1 Criteria
The
U.S. Department of State (DOS) has issued a Cable to remind consular officers
of the criteria for issuance of an L-1 visa. The reminder was prompted by
several factors that have brought L-1 visas into the spotlight. The Cable was
prompted in large part by the fact that companies may look into L-1 visas in
lieu of H-1Bs.
The DOS specifically noted that an L-1 visa could be sought instead of an
H-1B. DOS considered this Cable necessary because of increased Congressional
and media scrutiny of L-1 visas, and to deter efforts to inappropriately use
the L-1 program.
Many L-1 visas were approved for Indian nationals. The DOS is of the opinion,
therefore, that Indian posts should pay particular attention to the Cable. The
UK follows India in the number of L-1s approved. Other countries with high
levels of L-1 visa issuance were Japan, Germany, Mexico, France, Brazil,
Australia, Venezuela, and China.
The DOS reminds the consulates that the employer/employee relationship is
defined in the Foreign Affairs Manual (FAM) and has specific requirements
beyond mere payment of salary. Any other relationship does not meet these
criteria and does not qualify for the L-1 visa. The second area is specialized
knowledge. Those seeking to enter the United States on L-1Bs must have
specialized, company-specific knowledge regarding the sponsoring employer.
DOS explains that an applicant who will be working for a third-party,
nonaffiliated company in the U.S. should only do so to work with the
petitioner's specialized product or service. Work with a third-party client of
the sponsor utilizing the nonaffiliated company's product or services, or a
generic or commonly used product, would not qualify.
4. Understand
the Potential Request For Evidence (RFE) for Your L-1A Visa or L-1B Visa
Application or Extension
After the USCIS Form I-129 -
Petition for a Nonimmigrant Worker submission, it is not very rare that the
petitioner receives a Request For Evidence (RFE) notice from an USCIS Service
Center for your L-1A / L-1B visa application or extension. In some occasional
situations, a few petitioners may receive a letter of Intent to Deny (ITD).
The possibility that an L1 visa application may get RFE changes from one USCIS
Service Center to another USCIS Service Center.
The RFEs’ contents also
very significantly. Usually, there are two kind of RFEs. The first kind of RFE
is called the “broad brush” RFE by immigration community, which generally
asks the petitioner to prove the beneficiary's eligibility for the L-1A or
L-1B category according to the basic criteria setup in the regulation.
For this kind of broad RFEs,
it seems like that the USCIS Service Center believes that the petitioner did
not submit any noteworthy supporting materials at the initial petition
submission to prove their beneficiary's eligibility for L1 visa. USCIS had
regulations and internal memos to require a supervisor’s approval for any
adjudicator to issue such “broad brush” RFE. But in the practical
circumstances, even this kind of RFEs violate the USCIS’ regulations, the
petitioner still needs to reply the RFE requests one by one, with new evidence
and related supporting materials.
Another
kind of RFE will ask the petitioner to submit specific supplement materials,
such as evidence to show the U.S.
company will grow to a size to support a managerial position, or submit
evidence for the duties of general managerial functions, or submit probative
evidence verifying that the beneficiary’s specialized knowledge is uncommon
and noteworthy. For
this kind of RFEs asking for particular evidence or supporting materials,
sometimes it is difficult for a petitioner to provide the exact required
documents.
If you get a Request For Evidence (RFE) notice for your L1 visa application or extension from an USCIS Service Center, it is necessary that you must work hard to provide requested evidence in a short time, and persuade the USCIS adjudicators to approve your case. It is critical to appropriately and proficiently reply the Request For Evidence. Incorrect response of the RFE will directly result in your L1 visa application or extension rejection.
To help you replying the RFE, we provide the high quality and case-proven "Complete Do-It-Yourself Package of Request For Evidence for L-1A / L-1B Visa Application or
Extension". In the RFE package, we present methods of analyzing RFE questions, RFE replying strategies, means of strengthening your case, detailed RFE cases analysis, sample cover letters, and more. With the RFE package, you get all the information you need and step-by-step knowledge and strategies of how to prepare an efficient, professional, and complete response to your RFE notice of L1 visa application or extension, and eventually get your L1 visa approval.
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