DOS Reminds Consulates of L-1 Criteria
Posted Mar 05, 2004

The U.S. Department of State (DOS) recently released a cable to remind consular officers of the criteria for issuance of an L-1 visa. The February 2004 reminder was prompted by several factors that recently have brought L-1 visas into the spotlight. The Cable was sent out shortly before the H1B cap was reached. The Cable was prompted in large part by the fact that the H1B cap of 65,000 would be met imminently (As regular MurthyDotCom and MurthyBulletin readers know, the H1B cap was reached on February 17, 2004.), and by the fact that companies may look into L-1 visas in lieu of H1Bs. The DOS specifically referenced an article that appeared in a major foreign newspaper suggesting that an L-1 visa could be sought instead of an H1B. 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.

Consulates issued 57,245 L-1 visas in fiscal year 2003. Of that number, 18,124 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.

Job Shops and Specialized Knowledge

The DOS Cable advises consulates to check for two items in particular. The first is known as a "job shop." 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 L1Bs must have specialized, company-specific knowledge regarding the sponsoring employer. The Cable 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.

Conclusion

While the H1B cap is frustrating to businesses and their prospective H1B employees, we recommend that employers seek the advice of a qualified immigration attorney before applying for L-1 visas. For the L-1 to be appropriate, the employer and employee must meet all of the criteria. As we always advise our clients, it is important to follow the rules and conditions and avoid any appearance of fraud.