DHS Report Points Out Flaws in L-1 Program (Part 1 of 2)

The U.S. Department of Homeland Security’s Office of Inspector General (OIG) released a report analyzing the current state of the L-1, intracompany transferee program. The report, entitled Implementation of L-1 Visa Regulations, addresses perceived problems with the processing of L-1 cases, and provides suggestions to make the program more secure, and to make the adjudication process more consistent and efficient.

Background: Intracompany Transferees

The L-1 category is for intracompany transferees. L-1 status can be granted to a qualifying employee of a multinational corporation who is being transferred from an employer abroad to work for a branch, subsidiary or affiliate of that company in the United States. L1A status is available to an employee who will serve in a managerial or executive role, while L1B status is intended for an employee who will serve in a specialized knowledge capacity for the U.S. company. Some larger companies are eligible to apply with the U.S. Citizenship and Immigration Services (USCIS) for “blanket” L-1 petitions, which permit qualified employees to file L-1 visa applications directly at U.S. consulates without employers having to first file a petition for each individual with the USCIS. The requirements for L-1 status are discussed in greater detail on the MurthyDotCom‘s page for L-1 Visas & Statuses.

Overview of OIG Report

In preparing its report, the OIG interviewed numerous USCIS, U.S. Customs and Border Protection (CBP), and U.S. Department of State (DOS) managers and employees, and observed the related L-1 processing issues. The OIG issued recommendations that are aimed at improving the efficiency and security of the L-1 program. The USCIS, CBP, and DOS were also given the opportunity to respond to the OIG’s recommendations. The responses are included in the report.

Clarification Needed on Specialized Knowledge

The OIG recommended that the USCIS publish new instructions for the adjudication of L1B specialized knowledge petitions. The OIG noted that the existing guidance on what constitutes specialized knowledge is vague and confusing, which mirrors the points raised in the MurthyDotCom NewsBrief, Attempting to Define Specialized Knowledge for L1B Approvals (11.June.2013). The OIG found confusion on this issue amongst the USCIS, CBP, and DOS officers involved in such matters. This, in turn, results in inconsistent L1B decision-making. The OIG recommended that the USCIS create new guidelines that are “sufficiently explicit to give adjudicators an improved basis for determining whether employees of a petitioning entity possess specialized knowledge.” In its formal response, the USCIS agreed with the OIG recommendations, and stated that a policy memorandum regarding specialized knowledge petitions has already been drafted and is currently under review.

Greater Cooperation Needed Between USCIS and DOS

The OIG recommended that the USCIS and DOS incorporate a greater level of cooperation and data sharing in the adjudication of L-1 petitions. First, the OIG suggested that USCIS officers who are adjudicating individual L-1 petitions should determine if the DOS has already denied the beneficiary’s request for an L-1 visa under a blanket L-1. In the report, the OIG concluded that this would reduce the possibility of fraud by flagging beneficiaries who have been denied visas by the DOS based on a personal consular interview. Secondly, the OIG recommended that the USCIS and DOS engage in more frequent cross training and communication regarding L-1 issues to encourage more uniformity in decision making.

The USCIS agreed with the OIG recommendations regarding increased cross training and communication with the DOS, and stated that such meetings would be planned. The USCIS also agreed with the OIG recommendation regarding increased data sharing, but stated that implementation is hampered by the incompatibility of the USCIS and DOS software systems. The USCIS noted that this recommendation would be implemented when the USCIS updates its electronic immigration system in 2015.

Training at Canadian Ports of Entry

Canadian L-1 applicants are not required to file petitions with the USCIS or obtain visas from U.S. consulates. In general, Canadians may apply for L-1 status directly at U.S. ports of entry, either at an airport preclearance station, or at a land border crossing. These are the only L-1 cases adjudicated by the CBP. Since CBP officers do not uniformly have extensive training or experience in adjudicating L-1 cases, the OIG recommended that CBP officers processing Canadian L-1 applications receive more comprehensive training related to L-1 requirements.

CBP stated, in its formal response, that L-1 training procedures had already been improved. CBP further noted that CBP officers already have access to sufficient guidance and instructional materials to perform their duties. In response to this, the OIG stated that providing access to instructional materials was not equivalent to training, and ultimately found that the CBP response to the OIG recommendations was inadequate.

Fee Confusion with USCIS and CBP

The proper fees to be paid by L-1 petitioners vary from case to case, depending, in part, on the number of people a petitioner employs in the United States and the percentage of those employees in L-1 status. The OIG concluded that there is substantial confusion among CBP officers regarding how to determine which fees to collect in any given case. The OIG found that CBP officers frequently do not collect the correct fees, and sometimes erroneously collect duplicate fees. The OIG recommended that the USCIS and CBP collaborate to create clear guidelines on the collection of required L-1 fees, create a system to accurately record the collection of said fees, and train CBP officers on the correct procedures for fee collection. The USCIS and CBP accepted the OIG recommendations, and stated that they would collaborate to implement effective measures to insure proper fee collection.

Conclusion

The OIG found significant problems pervading the L-1 classification. It remains to be seen whether the OIG recommendations will be implemented, and what effect they will have in regard to L-1 adjudications at USCIS, DOS and CBP. Part two of this article will discuss additional issues identified by the OIG in its report. Employers who have concerns about filing L-1 petitions may wish to schedule a consultation with a Murthy Law Firm attorney.

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