8/8/2006

The USCIS has begun the implementation of the L-1 Visa Reform Act. Changes in the legislation were primarily aimed at restricting contract placement of L1B workers through agreements between the L-1 sponsoring employers and unrelated third-party worksite employers.

The provisions apply to L1B workers and their employers. L1Bs are inter-company transferees of multinational companies who possess specialized knowledge pertaining to the particular sponsoring company product or advanced level knowledge of the processes and procedures of the company. Essentially, a multinational company is permitted to transfer a worker to its U.S. branch or affiliate if that person has some particular knowledge about the company's product or its operations. Controversy arose, however, as L1B sponsors did not limit the use of the services of L1Bs to direct work for the company or within the area of specialized knowledge.

For a variety of reasons, some L1B petitioning employers engaged in the practice of placing the L1B employees at various client sites for contracted work. This raised the question of whether they were really working on matters that required the specialized knowledge required of an L1B. Concerns arose for a variety of reasons, including the fact that L1Bs, unlike H1B workers, are not subject to prevailing wage requirements or to limitations on how many L1Bs can work within the United States. Therefore, restrictions have been added that address the need to continue an employer-employee relationship between the L1B sponsor, or the L1B worksite employer, and the L1B employee.

The L1B Visa Reform Act prohibits the L1B employee from working primarily at a location other than the petitioning employer's physical location in two situations. The first prohibited situation is one in which the individual's work is controlled and supervised by a different employer. The second is where the arrangement is in the nature of providing local labor for hire to an employer other than the petitioner, rather than a service that is related to the required specialized knowledge regarding the petitioning employer.

The required control and supervision of the L1B worker are interpreted by ultimate authority over that worker. The bar to offsite placement does not apply if the offsite work could not be performed without the specialized knowledge of the petitioning employer's product, service, or operations, as defined by regulation. This knowledge must be beyond ordinary job skills.