What to Expect When You Pass Through U.S. Immigration: A Guide for Non-immigrant Employees and Other Business Travelers (Part 1)

INTRODUCTION:

This briefing will cover a range of issues and problems that nonimmigrant employees in the H-1B, L-1, and B-1 categories may encounter at Ports-of-Entry to the United States.

In previous decades, most business travelers found the process of clearing U.S. Immigration was quick, easy and non-intrusive. Few persons working for legitimate businesses encountered serious problems. Not many were ever closely questioned about the nature or location of their employment, their qualifications, or sources and amount of compensation; questions were rarely raised about the business activities of the employer. It was assumed that these questions and issues had already been satisfied before USCIS approved a petition and the U.S. Consul issued the visa.

In recent years, however, that has changed for many non-immigrants. Now, particular problems are encountered by a substantial number of arriving passengers from countries in Asia that provide the majority of H-1B skilled temporary workers. Similar questions are raised with some managers and specialized-knowledge employees of multinationals being transferred into the U.S. in the L-1A and L-1B categories. Arriving B-1 Visitors for Business also face much closer scrutiny than previously. We will cover some of the specific issues that arise for these categories of travelers in the sections below.

The basic process of U.S. Immigration inspections has not essentially changed. Before anyone can be granted admission into the United States, all international passengers must be screened by an officer of Customs and Border Protection (CBP). Upon encountering a nonimmigrant visa holder, the CBP officer may ask questions and take other steps to determine two essential requirements. To be admitted, the arriving alien must:

1. hold a lawful visa; and if already in non-immigrant status, that must have be lawfully maintained; and,
2. have "bona fide non-immigrant intent" consistent with their visa status.

Upon being satisfied of those issues, the person will be admitted in most cases for the duration of status without any delay. On most occasions the questions will be brief and to the point, such as "Do you still work for X-Y-Z Corporation in Chicago, Illinois?", or "How many H-1B visas have you held?" If, however, the officer develops reason to doubt the bona fides of the job offer or that the person has violated status in the past, the applicant will be sent to "secondary inspection" for further, more in-depth, questioning.

The pages that follow will go through that initial encounter and any secondary inspection so that the arriving nonimmigrant knows what to expect, can provide the proper documents, and is best able to respond to questions in a fully-informative and honest fashion that satisfies the requirements of the law, as well as the particular informal rules that CBP and other agencies have developed.

NOTE: As the reader will find, the actual agency rules are, increasingly, different from those written in the federal statutes and published agency regulations. In addition, the situation is further complicated by interpretations of the law drawn by CBP and ICE that differ in some particulars from those accepted by the other two agencies involved in immigration, the U.S. State Department and USCIS. Obtaining admission in H-1B, L-1 or B-1 status means that the person must satisfy several sets of standards. The knowledge of how these standards differ, and how they overlap, is essential to the ability of foreign workers to continue employment and their companies to operate in the United States.

I. OVERVIEW

• For several years, H-1B multinational managers and specialty workers arriving at U.S. ports-of-entry have experienced a rise in what many perceive as harassment and intimidation by CBP and ICE officers.
• The numbers of admissions refusals and visa revocations have risen sharply in recent years, at the same time that demand for these visas has dropped by more than 40 percent. There is a correlation.
• Agency policy has changed dramatically, but without a corresponding change in the underlying statute and published regulations. Most notably, the January 8, 2010 USCIS policy memo, the "Neufeld memo" alarmed many Indian nationals working on H-1B and L-1 visas for IT companies. That memo restated an informal USCIS policy that petitioning companies must document "control" over H-1B workers at all times, and placed strict limits on H-1B placements at Third-Party work sites. The memo also laid out several categories of applications that will not be approved, including so-called "body shops", staffing firms that place H-1B contractors at company sites for work that is unrelated to the petitioner's own line of business. This restriction, imposed by administrative edict, is similar to an outsourcing ban placed on L-1B Specialized Knowledge workers by law, the 2005 L-1B Reform Act. Off-site assignments for both categories remain legal, under certain limited circumstances. While there is no such explicit ban in the law that governs H-1B, nonetheless, USCIS, ICE and CBP enforce a de facto ban on H-1B outsourcing with varying degrees of strictness, and this variation in interpretation causes problems for arriving visa holders, and considerable anxiety because of uncertainty about how the law will be interpreted in any particular, individual case.
• Fears appear to have been well-founded. Within 72 hours, Customs and Border Protection (CBP) officers at Newark Airport Port-of-Entry (POE), reportedly citing the memo, detained and interrogated a number of lawfully employed IT consultants and technical workers arriving on a flight from India. A number of persons who were determined to be working off-site had their visas cancelled, many were forced to withdraw their applications for admission, and some were summarily removed, barred from reentry for at least five years. While there have not subsequently been similar mass interrogations and removals, and CBP has been retrained in implementation of the memo, arriving nonimmigrant visa holders must still be prepared to deal with questions and potential misunderstandings by CBP officers about the rules governing off-site work assignments.

II. STEPS EMPLOYERS MUST NOW TAKE TO BE COMPLIANT WITH USCIS/ICE/CBP RULES, AND TO ASSURE H-1B READMISSION AT THE P.O.E.

In times past, the questions raised at the POE with returning nonimmigrant workers were usually restricted to the issue of ongoing employment. This was normally addressed by producing a signed letter from the petitioning company confirming continued employment of the beneficiary, the job title, a brief job description, salary, and date started and expected completion date of employment. More recently, the documentation requirements for the entry letter increased to include a copy of payroll records or other confirmation that the employee has, in fact, received the wage offered on the last petition.

Now, after the Neufeld memo, one must be prepared for a far wider range of potential CBP/ICE inquiry at the POE. The following section details the additional issues and documents that the returning nonimmigrant should carry and be prepared to present upon Immigration inspection.

• The H-1B employer must now file an amended I-129 petition/LCA for all but the shortest term off-site assignments (see, Sec. III, below) – and, employers should give a copy of amended filings to workers as part of documentation to establish compliance.
• If the worker has worked off-site during the previous 3 years, provide that worker with a detailed accounting of all off-site assignments and evidence that amended petitions and/or LCAs were filed, if required. The itinerary must be consistent with the USCIS record and the employee must be familiar with the details. The employee must be prepared to present these records, and answer questions about them at the POE, if issues are raised by CBP about unauthorized off-site employment.
• CBP may also inquire about the individual's previous nonimmigrant employment and immigration histories. The employee should be prepared to provide at least a copy of all previous approval notices for prior periods of employment or education in the U.S. (I-797, I-20s EAD Forms for periods of Practical Training), along with documentation such as copies of passports, visas and entry stamps for any other periods of presence.

• H-1B and L-1B workers may have to prove that their work is otherwise controlled by the petitioner. Provide employee with a copy of amended I-129s, petition support letter and any relevant documentation related to the following that were provided to USCIS with petition filings or amendments, or which might be filed at the time of next visa renewal:

NOTE: If this paper copy of the record is exceptionally bulky or difficult to carry, a copy of electronically scanned copies contained on a disc, USB flashdrive or other portable memory device may be acceptable. [See, Appendix I, below, for additional information about CPB policies regarding border inspection of computers and potential seizure of laptops and other electronic storage devices and players, and procedures for their return or destruction.]

EMERGING ISSUE: The Neufeld memo requirement for employer "control" also bans self-employed contractors. H-1B, L-1, and other non-immigrants who have a substantial ownership interest in the companies that petition for them must be able to show they are not self-petitioning sole proprietors. These "working directors" must show that other members of a Board can vote to control company, including removal of the beneficiary. This is an issue that must be overcome at the USCIS Examinations stage, and potentially also with the Consul. It is not the sort of issue that is routinely re-adjudicated at the border. Nonetheless, if the CBP is looking for grounds to deny admission to the applicant, it is a topic that may arise, and those potentially at-risk should be prepared to address it by producing corporate documents, such as the company's relevant Articles of Incorporation and/or Board Minutes, along with other documentation of ongoing employment by the company and the company's continued operations (including the parent of affiliate abroad, if L-1A or L-1B).

III. Some Do's and Don'ts for H-1B Workers

H-1B Roving Employees and Temporary Offsite Assignments: Know What's Legal, and What Is Not

Employers in the IT consulting industry and the Immigration Bar are seeing federal investigators focus on alleged frauds in the hiring and assignments of temporary foreign workers in the H-1B visa category. Particular investigatory interest is being shown consulting firms that employ so-called "roving employees."

There is some concern that this means that hiring consulting firms that employ H-1B workers for assignments at employer sites is now illegal or will get the contracting company and the subcontractor (along with their employees) into trouble. That is simply not the case, provided that certain common sense legal standards are adhered to. We will briefly outline these legal standards for you in a moment.

Unfortunately, the risks of criminal prosecution for violations of changed USCIS policy and interpretation are very real, and the new policy need not even be one that was ever published as a formal change in law or agency regulation for prosecution to result. A very recent example of this the case of U.S. v Vision Systems Group, Inc. ("VSG"); see, 11 arrested, indicted in multi-state visa fraud - US Immigration.

On October 14, the U.S. District Court for Central Iowa accepted a plea agreement in a case that has been watched nervously by some in the IT-BPO outsourcing industry. The case is seen as a test for whether the U.S. government can successfully criminalize certain practices that have long been used by some staffing firms in the global Information consulting sector, particularly those who recruit staff in India. [For additional background on the VSG case, see Appendix II]

How could this have been avoided? There are two answers to that question: things that IT contractors may still do with H-1B workers, and things they must never do.

WHAT'S ILLEGAL- Let's tackle the easier part of that: Things an IT Contractor Must Never Do With H-1B workers:

• Never start an H-1B worker at a client worksite without first filing an amended I-129 petition and LCA for that site, unless that assignment is short-term (lasting no more than 10 days in a row during any year at any particular site for regular employees, five days for itinerate or "roving" employees who need not return to a designated primary work site).
• Never "bench" an H-1B worker – even if there is no assignment available, and it costs money out of pocket, the H-1B worker MUST continue to be paid at least the wage specified on the current petition for as long as he remains an H-1B employee.
• Never, EVER falsify tax statements, withholding reports, immigration records, or any document or paper that is going to be filed with the federal government – if it goes to one federal agency, assume it goes to all of them – because, today, it can and it does, and it is easily accessed from interlinked gov't data bases. The employer must keep a complete and up-to-date LCA public inspection file for each employee. It should also keep a separate H-1B compliance file with complete records of any outside assignments, apart from the LCA public inspection file and the I-9 compliance file. The employer should be auditing its own records (or hire a competent firm to do so), and filing corrected statements if it finds any discrepancies. Self-audits and resulting affirmative voluntary disclosure by employers of compliance problems will not have the same dire consequences as falsification or "flubbing" of information requested by auditors and inspectors.
• Never, EVER lie or make misleading statements at the Port-of-Entry. False statements by employees at the Port-of-Entry can have extremely serious consequences for the employer and the employee. The employee should never "wing it" about answers to CBP questions, and should be instead thoroughly familiar with potential issues or simply respond, "I do not know the answer to that question. That is something to ask my employer about. I would like to contact my employer now so they can answer these questions for you."

WHAT'S LEGAL - And, Finally, Things that H-1B Workers Can Safely and Legally Do:

• H-1B employees can be legally assigned to client sites as either short-term placements or as "roving employees". This may be done legally for short-term assignments without filing any additional paperwork with USCIS or the Department of Labor. The specific USCIS regulation that allows that is as follows:

1. SHORT-TERM PLACEMENTS: A Question of Time

Whether filing an amended petition is required by the original employer is required depends upon the period of time the worker will be assigned off-site.

The regulations at 20 CFR Part 655.735 impose further conditions on such short-term assignments, as follows: [Also, see, Appendix III]

2. ROVING EMPLOYEE - The regulations define a type of H-1B employee whose work is "peripatetic" (roving) in nature, in that the normal duties of the occupation require frequent travel.

20 CFR §655.17. "Peripatetic" is included under the definition of "place of employment."

Peripatetic workers may travel constantly, but may not spend more than five consecutive days in one place, and no more than 30 days total in a calendar or fiscal year. For such peripatetic workers, a new location is not considered a new "worksite," and therefore does not require a new LCA. [See, Appendix IIIB]

Similarly, normal H-1B workers (who return to a fixed work site) who travel occasionally on a casual short-term basis not exceeding 10 consecutive days to a new location, 60 days total in a year, in any location are not considered to have a new worksite with new LCA requirements.

Id. This type of situation is also covered under the "place of employment" definition.

Although, in these cases the employer is not required to file an amended petition or obtain a new certified LCA for each new location to maintain compliance, the employer is required to pay travel expenses for each day the H-1B employee is traveling (both weekdays and weekends).

The short-term placement rules permit an H-1B worker to travel up to 30 or 60 days per year to another "place of employment." However, the employer may not use the short-term placement rules in any area of employment for which the employer has a certified LCA for the occupational classification. If there is an open slot on an approved "basket LCA", that must be used.

If the employer has such a certified LCA with an open slot, then the employer must use that and add a copy of that LCA to the employee's public access file. If the employer has a certified LCA for that location and occupation, but it doesn't have any open slots, then the employer must file a new LCA for that worker.

The regulations specifically prohibit employers from continuously rotating H-1B employees to short-term placements in a manner that would defeat the stated purpose of these rules to give employers flexibility and enough time to file a new LCA.

Consult the regulations for a detailed description of this rule.

Also note that the filing of a new LCA will likely require the filing of an amended H petition due to material change in employment.

Companies that have had compliance issues, are heavy H-1B and L-1 users, or routinely assign non-immigrant workers to third-party sites need to consult with counsel, and may be advised to always file an amended petition before any H-1B or L-1 placement.

4. LONG-TERM ASSIGNMENTS: A Question of Control

Any external assignment presupposes that the original H-1B employer continues to maintain control over the employment of the H-1B worker while (s)he is assigned at the client site. In general, the regulatory definition of control over employment for this purpose is contained in the following definition [8 CRF Sec. 214(h)(4)(ii)]:

In any filing of an amended petition or second petition, USCIS will look for evidence that the terms of control over the employment and activities of the H-1B employee are clearly spelled out in an agreement between the original employer and the end client. If a copy of a contract or other binding agreement is not included with a petition filing, the Service will likely issue a Request For Evidence (RFE). That notice normally includes boilerplate language stating "[t]his Service accepts that you are the employer, not an agent, and that you retain control over the beneficiary's employment. A copy of the agreement(s) are needed to establish that the employment of the beneficiary is not speculative in nature, and that the beneficiary will be employed in fact. Service regulations specify that aliens admitted to the United States as nonimmigrant workers must have services to perform...."

Questions may also arise as to which entity, the petitioner or its client, controls day-to-day supervision of the work product. While the client may have significant input into that product, and the work that went into it, ultimate control over the terms and conditions of the H-1B employee's work – hours worked, performance review standards, specification of the job duties – ultimately rests with the employer, in fact, as specified in the contract between the H-1B petitioner and its client. The relevant terms of the contract for services between the H-1B petitioner and its client should mirror those specified in any employment contract with the worker.

The January 8, 2010 Neufeld memo lays out an elaborate list of 38 types of documents in five categories that petitioners must supply at the time of filing to satisfy the memo's "control" requirements, and a long list of other documents that must be filed for renewals to establish continued compliance and maintenance of lawful nonimmigrant status.

This is not the place for an extended discussion of the Neufeld memo, the requirements and implications of which are far reaching. Nonetheless, the employee who will be reentering the U.S. at a Port-of-Entry should be prepared with a copy of documents that establish his or her ongoing employment control by the petitioner. These documents will also help to establish the non-immigrant worker's maintenance of status under that interpretation document that has been adopted as guidance by other agencies, including CBP.

A GREY AREA: TEMPORARY ASSIGNMENT OF H-1B EMPLOYEES TO CLIENT WORK SITES OF MORE THAN 30/60-DAYS CUMMULATIVE PERIOD WITHIN THE SAME YEAR

The Neufeld memo's "complete itineraries" requirement casts the continued viability of the short-term assignments and roving H-1B practices into doubt in some cases. Without a complete itinerary, it is problematic that USCIS will now approve initial petition filings and amended petitions that don't credibly specify the agenda for all worksites for the entire duration of the validity period. Furthermore, the VSG fraud prosecution for setting up an office in a low-wage location in Iowa, and then assigning H-1B workers to other work sites in higher-wage cities, highlights the potential dangers of a strict application of that rule. [See, Appendix II, "Plea Agreement in H-1B Criminal Case Raises New Worries About U.S. Crackdown on I.T. Outsourcing"]

For longer-term assignments, where a complete itinerary can be provided, the employer may continue to file an amended petition for the H-1B worker along with a new LCA. These new filings are now mandatory under the Neufeld memo for any assignment lasting more than ten consecutive days, or more than five days for roving H-1Bs.

Amended filings are also required if a normal H-1B worker is to spend more than 60 days cumulative during the year at a client site (this applies to normal workers on short-term assignments who return to a permanent office). A new LCA filing is required for "roving H-1Bs" without a permanent office who spend more than five consecutive days at a particular client site or 30 or more total days as a roving H-1B at a particular work site.

If the petitioning company is filing an amended H-1B petition to allow the worker to carry out longer-term duties at a client site, the employer must demonstrate that it maintains full control at all times over the work of the employee. Demonstration to USCIS of that factor can be difficult and complicated.

[This raises the question, how will USCIS, Consuls and CBP deal with an H-1B employee who has in the past been assigned to client sites for periods that exceed the letter of the rule? A second, and related question, is how far back will these agencies look for non-compliance, and how will that impact the admissibility of the employee? [See, Sidebar]]

As a general rule, voluntary disclosure of past compliance errors is preferable to the making of any false statement. This is a compliance issue that must be dealt by the company in consultation with expert legal counsel.

Q. How will USCIS, Consuls and CBP deal with an H-1B employee who has, in the past, been assigned to client sites for periods that exceed the letter of the rule for short-term assignments and "roving H-1B"?

A second, and related question, is how far back will agencies look for noncompliance, and what impact does that have on the admissibility of the employee?

Unfortunately, the answer to those questions is largely conditional on the compliance history of the employer -- non-immigrants who work for companies that have been targeted for serious compliance problems should be expect that they will be looked at much more closely than those whose employers have no serious problems, as evidenced by enforcement activity, program debarment, high rates of visa denials and visa revocations. Generally, inquiries are limited to the previous 3-year period, but there is actually no binding rule or statute of limitations on fraud investigations, particularly in LCA compliance issues – such as benching, and underpayment -- the 7^th Circuit has found. See, Alden Management Services, Inc. v. Chao, 532 F3d 578, (7^th Cir., 06/25/08 No. 07-2838)

A GREY AREA: TEMPORARY SWITCH OF H-1B EMPLOYMENT TO A THIRD-PARTY CLIENT

In some cases, particularly for assignments lasting more than 60 days, it may therefore be more practical for the client company to directly hire that employee.

The H-1B employment may start work with a new petitioning H-1B employer on the day the I-129 notice of receipt is obtained from the USCIS Service Center where it was filed. Regardless of whether or not that new petition is approved, it is completely legal for the worker who is in lawful H-1B status to start work for a new petitioning company the day the receipt is issued. That lawful practice is known as "porting", allowed under the INA section and USCIS interpretation of regulation, below:

• The nonimmigrant was lawfully admitted to the United States;
• The nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and
• The nonimmigrant has not been employed without authorization since his or her lawful admission to the United States, and before the filing of the nonfrivolous petition. In order to port, an alien must meet all the requirements of INA § 214(n), including the requirement that the new petition must be filed while the alien is in a "period of stay authorized by the Attorney General." Cite as: USCIS Memo on AC21/ACWIA — Guidance for I-140 and I-129 H-1B Petitions, and Form I-485 Applications (June 7, 2008), http://thevisabulletin.com/2008/ac21-acwia-memo-from-uscis-neufeld/

In the past, this approach of transferring employment directly to the end-user client was more likely to succeed without USCIS challenge (and attendant delays, and the real possibility of visa denial). It is still legal for an end-user client to file a new H-1B petition for the worker, and directly employ that worker. However, this may raise issues related to the control over the employee if payment of salary is provided out of funds in the existing contractual or other provider-client relationship with the worker's current H-1B employer. USCIS may look at the terms of continuing relationship that indicates co-employment, and is likely to rule that the new petitioner does not have requisite "control" over the H-1B worker, and may deny the petition. Difficulty may also be encountered later, at the end of the period of an assignment with the client, at which time the original employer would be required to again petition for the worker, if the beneficiary is to continue H-1B employment. An H-1B employee who returns to the original employer at the completion of an assignment at a client site may raise red flags that the original petitioner is operating a "job shop", a practice that has been increasingly discouraged under the Neufeld memo.

As with all matters involving compliance with complex regulatory requirements, the employer should work closely with competent immigration attorney before making any application for benefits under the Immigration & Nationality Act.

The company that refers its own H-1B worker for subsequent assignment at the work site of a client firm will be treated under the law as a referring agency, and maintains a duty that the worker maintains lawful immigration status.

Accurate and complete records showing maintenance of legal status must be kept. That entails Due Diligence steps such as keeping and maintaining legal contracts and accurate records covering the company's customer relationship with the client, as well as the employer-employee relationship. These records should include the maintenance of an up-to-date itinerary and documentation of the employee's actual place of employment, the work performed, the dates (and hours) worked at any particular site, the source and amount of all payments made to the employee, and documentation or a descriptive record of the ongoing means by which the employing firm maintains control over the work of the H-1B employee. In addition, if these documents are to be filed with USCIS as part of a possible renewal or other filing, a copy of that same record should also be provided to the employee prior to any international travel, even if the worker is returning on the same visa.

Employees benefit from the H-1B visa program and as such must do their utmost to safeguard and uphold the requirements with the sponsoring company.  If you are interested in obtaining more specific information on the H-1B/ LCA requirements' please feel free to contact the author.

RELATED ISSUES: BAN ON SELF-EMPLOYMENT IN H-1B, L-1, AND O-1 CATEGORIES

Immigration practitioners have seen the spread of the Neufeld "control" doctrine to other nonimmigrant classes and to the I-140 context. About four years ago, we first saw AAO decisions that in effect overruled the precedent decision, Matter of Aphrodite, 17 I&N Dec. 530 (BIA 1980) (and 30 years of other precedent decisions), in an L-1 context where the Director owned both the petitioning company and its foreign parent or affiliate.

Of course, these USCIS decisions defy the accepted definition of affiliated, ie. two companies with a common owner. In recent years, there have instances where the "control" doctrine has been applied to deny petitions or visas to owner-directors of firms where corporate papers do not make it clear that other partners or Board members have the right to control the petitioner, and by implication the company.

This interpretation has now spread from L-1 cases to H-1B, as well as to some scattered O-1 petitions and First-Preference I-140 petitions.

With Neufeld memo, USCIS now demands evidence to prove in all instances the percentage of ownership and other elements of control in H-1B cases.

Furthermore, there is a threat for staffing firms that use the one-person 'corp-to-corp' independent contractors ("C2C" staffing model). Persons who have a long history of self-employment as independent consultants, or who are senior experts in their fields, need to be aware that the bona fides of a claimed employment relationship may be challenged if where there does not appear to be adequate evidence that the petitioning company is actually employing the beneficiary.

Such a beneficiary may be questioned about "accommodations" made by the petitioning firm, and the applicant must be clear in indicating that he or she will, in fact, be working under the control of the petitioning firm as an employee, rather than with complete independence.

Self-employed consultants may still enter the U.S. on a B-1 Visitors visa, or on a Visa Waiver, for legitimate short-term business purposes such as consultations with clients. However, they should be aware that any representations they made to a Consul or at the border about self-employment may become an issue later if that person is hired by a U.S. entity and is sponsored for an H-1B, L-1 or O-1 visa. The burden is on the applicant to overcome the bar on self-employment in those categories.

RELATED ISSUES: Elevated Standards for L-1B "Specialized Knowledge"

In the case of L-1B "specialized knowledge" visas, USCIS has taken a similar approach to implementing new policy without publishing regulations. A number of recent AAO decisions bearing on L-1B issues appear to contradict statute and previous interpretation rendered by USCIS headquarters' policy memos. As with H-1B, the agency is again attempting to implement changes in policy without promulgating formal regulations. In this case, the policy is to deny L-1B petitions for most employees using informal interpretation to reduce the potential pool of applicants. The result of this is discourage all applicants for L-1B save an elite few who can be shown to have high-level knowledge of proprietary company-owned technologies, processes, or other closely-held company information.

A recent Administrative Appeals Office (AAO) decision contradicts the 1990 Immigration Reform and Control Act and disavows guidance of the former INS Associate Commissioner, the "Puleo Memo", that had been in place as controlling agency directive for some 15 years.

In effect, USCIS has abandoned post-1990 Act interpretations and returned to the restrictive standards that it applied with the original 1970 statute, which entails a much more stringent definition of "specialized knowledge" and requirements that the beneficiary hold a substantially higher level of proprietary knowledge than I.R.C.A. mandates.

The issue of L-1B "specialized knowledge" increasingly presents a problem in adjudications, at consular interviews, and can even come up upon questioning at the Port-of-Entry. The arriving L-1B visa holder may be questioned about his position within the company and his background, with a particular focus upon confirming that he or she, in fact, possesses an unusually high degree of specialized knowledge about proprietary or closely-held company technologies, processes or other specialized business information, and is one of the few within the company with such knowledge.

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Footnotes

1. See, http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf

2. For a more in-depth discussion on the subject of placement of H-1B workers at client sites, please see, http://www.employmentimmigration.com/publications/Is_IT_Consulting_Now_Illegal_for_H1B_Visas.pdf

3. For a discussion of the practical issues and related Q&A, see, Rami Fakhoury on IT Immigration - The Neufeld Memo; the legal implications of the Neufeld memo, see, The Neufeld H-1B Memo: Legally Enforceable Policy Directive or Grounds for a Lawsuit...

4. See, Matter of GSTechnical Services, Inc (AAO, July 22, 2008) (unpublished), reproduced on AILA InfoNet at Dec. No. 08081964 (posted Aug. 19, 2008)

5. Memo by James A. Puleo, Acting INS Exec. Assoc. Comm'r, "Interpretation of Special Knowledge" (Mar. 9, 1994).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.