L-1 Visa

USCIS Expands Flexibility for Responding to USCIS Requests

In response to the Coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services announced that it adopted measures to assist applicants and petitioners who are responding to certain Requests for Evidence (RFE) and Notices of Intent to Deny (NOID).
This alert clarifies that this flexibility also applies to certain Notices of Intent to Revoke (NOIR) and Notices of Intent to Terminate (NOIT) regional investment centers, as well as certain filing date requirements for Form I-290B, Notice of Appeal or Motion.

Notice/Request/Decision Issuance Date:

This flexibility applies to an RFE, NOID, NOIR, NOIT or appealable decision within AAO jurisdiction and the issuance date listed on the request, notice or decision is between March 1, 2020 and May 1, 2020, inclusive.

Response Due Date:

Any response to an RFE, NOID, NOIR, or NOIT received within 60 calendar days after the response due date set in the request or notice will be considered by USCIS before any action is taken.

Any Form I-290B received up to 60 calendar days from the date of the decision will be considered by USCIS before it takes any action.

USCIS and CBP Extend Form I-129 Pilot Program for Canadian L-1 Nonimmigrants

USCIS and U.S. Customs and Border Protection (CBP) are extending the joint agency pilot program for Canadian citizens seeking L-1 nonimmigrant status under the North American Free Trade Agreement (NAFTA) through April 30, 2020.

Last year, the USCIS California Service Center and the CBP Blaine, Washington, port of entry (POE) announced this pilot program, which was scheduled to run from April 30, 2018, through Oct. 31, 2018, and was later extended for six months.

This pilot program allows, but does not require, Canadian citizens to request that USCIS remotely adjudicate their petitioning employer’s Form I-129, Petition for a Nonimmigrant Worker, or Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, prior to their arrival or when they arrive at the Blaine POE.


USCIS Clarifies the L-1 One-Year Foreign Employment Requirement

From uscis.gov on 11/29/18: USCIS has published a policy memorandum (PDF, 121 KB) (PM) clarifying the requirement that a qualifying organization employ a principal L-1 visa beneficiary abroad for one continuous year out of the three years before the time of petition filing (“one-year foreign employment requirement”).

This clarification is intended to ensure consistent adjudication of L-1 petitions by providing a standard basis for calculating time for the one-year foreign employment requirement.

The L-1 nonimmigrant classification allows a U.S. employer to transfer an executive or manager (L-1A) or an employee with specialized knowledge (L-1B) from one of its qualifying foreign offices to one of its offices in the United States.

This classification allows a foreign company that does not yet have a qualifying U.S. office to send an executive or manager, or specialized knowledge employee, to the United States to establish one.

Specifically, this PM explains that:

  • The L-1 beneficiary must be physically outside the United States during the required one continuous year of employment, except for brief trips to the United States for business or pleasure; and
  • The petitioner and the beneficiary must meet all requirements, including the one year of foreign employment, at the time the petitioner files the initial L-1 petition.

Except as noted in the PM, the one year of foreign employment must occur within the three-year period preceding the date the L-1 petition is filed. USCIS will calculate the three-year period during which the beneficiary must meet the one-year foreign employment requirement.

The PM also clarifies what time will be taken into consideration in determining when the three-year period begins.

In support of the Buy American and Hire American Executive Order, USCIS is reviewing all employment-based immigration programs to eliminate fraud and ensure consistent adjudications.

USCIS has not previously provided specific policy guidance with respect to the conditions by which the three-year clock may be stopped for purposes of determining whether the one-year foreign employment requirement for L-1 beneficiaries has been met.

This PM improves the process for adjudicating the L-1 nonimmigrant benefit by clarifying the calculation guidelines to ensure they are applied consistently to all L-1 petitions.

Program for Canadian L-1 Nonimmigrants Extended

USCIS and CBP Extend Form I-129 Pilot Program for Canadian L-1 Nonimmigrants

U.S. Citizenship and Immigration Services and the U.S. Customs and Border Protection (CBP) are extending the joint agency pilot program for Canadian citizens seeking L-1 nonimmigrant status under the North American Free Trade Agreement (NAFTA) through April 30, 2019.

Earlier this year, the USCIS California Service Center (CSC) and the CBP Blaine, Washington, port of entry (POE) announced this pilot program which was scheduled to run from April 30, 2018, through Oct. 31, 2018.

This pilot program allows, but does not require, Canadian citizens to request that USCIS remotely adjudicate their petitioning employer’s Form I-129 or I-129S prior to their arrival or when they arrive at the Blaine POE.

USCIS continues to encourage these Canadian citizens and their petitioning employers to email public.engagement@uscis.dhs.gov with feedback on their experience with the pilot program.

Over the next six months, USCIS and CBP will continue to work together to determine the efficiency of the program, identify shortcomings, and look for ways to improve it.

USCIS to Raise Premium Processing Fee to $1,410 (starting 10/1/18)

This document is scheduled to be published in the Federal Register on 08/31/2018 – “The Department of Homeland Security (DHS) is increasing the premium processing fee charged by U.S. Citizenship and Immigration Services (USCIS). DHS is increasing the fee by 14.92 percent, the percentage change in inflation since the fee was last adjusted in 2010 according to the Consumer Price Index for All Urban Consumers (CPI-U). The adjustment increases the fee from $1,225 to $1,410. DATES: This rule is effective on [INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. Applications postmarked on or after that date must include the new fee.”

This affects some H-1B and L-1 visas, and some I-140 petitions.

USCIS Policy Memorandum 10/23/17. USCIS is no longer giving deference to a prior approval at the time of an extension.

As of 10/23/2017 USCIS is no longer giving deference to a prior approval at the time of an extension.

This applies to all non-immigrant visa petitions (H-1B, L-1, H-3, TN, etc.).

L-1A Visa Client Approval – 29 Days

We filed an L-1A visa petition with USCIS (regular processing, not premium processing) on 7/31/2017 and received the final approval notices on 8/29/2017.

USCIS Filing Date: 7/31/2017

USCIS Approval Date: 8/29/2017

Processing time from USCIS Filing to Approval: 29 Days

USCIS #: WAC-17-212-51068

USCIS Releases New Form Versions, Effective Immediately

From AILA.

Today, December 23, 2016, USCIS posted a large number of new form versions. The forms all have an effective date of today, December 23, 2016, and the website indicates that no other versions of the forms are acceptable, with the exception of Form I-129. It appears USCIS is accepting prior version of Form I-129. No prior notice of these changes was given, and there was no alert sent to stakeholders today.

AILA reached out to USCIS and made it clear that it should have given notice to stakeholders and to demand a grace period during which prior form versions could be submitted. AILA also noted that form vendors need time to reprogram the case management software systems. USCIS responded that while it strongly encourages people to use the new version of the forms, as indicated on its website, it is aware that there may be older editions of the forms that have already been completed and are in the queue to be mailed and/or filed. USCIS said that it will be flexible and will apply discretion when receipting forms, rather than rejecting them outright.

Affected forms include the following: I-90, I-102, I-129, I-129CW, I-129F, I-130, I-131, I-131A, I-140, I-191, I-192, I-212, I-290B, I-360, I-485, I-485 Supplement A, I-525, I-539, I-600, I-600A, I-601, I-601A, I-612, I-690, I-694, I-698, I-751, I-765, I-800, I-800A, I-817, I-824, I-910, I-924, I-924A, I-929, I-942, I-942P, N-300, N-336, N-400, N-470, N-600, and N-600K.

L-1A Visa Client Approval – USCIS Approval in 13 days

We filed a L-1 Visa petition with USCIS (California Service Center – Premium Processing) on November 2nd, 2016 and received the USCIS approval notice on November 15th, 2016:

Visa Type: L-1A

Job Title: VP Mobile Platform

USCIS Filing Date: 11/2/2016

Received I-797C Notice of Action for I-129: 11/8/2016

Received I-129 Approval Notice: 11/15/2016

Processing time from Filing with USCIS to Approval: 13 days

I-129 USCIS I-797 Receipt #: WAC-17-023-50209

If you have an L-1 Visa / intracompany question, please use the form below. We will do our best to answer it for you:

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    Unannounced USCIS site visits for L-1 Visa holders

    The Fraud Detection and National Security (FDNS) unit of USCIS has begun inspecting L-1 visa holders as planned.

    L-1 petitions are selected at random for an unannounced site visit at the worksite address that is listed on the petition and USCIS will not target individual companies or industries.

    The visits will be conducted exclusively by federal immigration officers (the use of contractors has been phased out), and FDNS officers are required to identify themselves as government officials performing an immigration site visit.

    The officer must present credentials and provide a business card to the interviewee that lists the District Director with jurisdiction.

    FDNS has inspected (and likely is continuing to inspect) H-1B holders for several years.

    L-1 visa holders and their employers are the latest target.

    FDNS is concerned that the information submitted to USCIS is accurate and is focused on detecting fraud in applications for immigration benefits.

    The FDNS officer conducting the review will be trained to initially ask the L-1 beneficiary a standard set of 10 questions, which should be answerable based on information submitted in the L-1 petition. Although USCIS has not yet released these questions, these questions are likely to include:

    What is your job title?
    What is your salary?
    What is your length of service?
    Do you have direct reports? If so, what is their education level?
    Who do you report to?
    Have you paid for any of the filing fees or attorneys fees in conjunction with the L-1 application?
    Have you filed for permanent residence (I-140)?
    Has there been any discussion of such filing?
    Is any other application pending with USCIS?
    What is your current residence?
    What is your marital status?
    What is your email address?
    Have you been in the U.S. in any other status before, including visitor?

    The officer will also give a written request for information to be completed in a certain period of time and returned.

    As with all site visits, USCIS noted that participation by the petitioner or beneficiary is completely voluntary and that they are entitled to have an attorney present in person or by phone.

    If either the petitioner or beneficiary indicates an unwillingness to proceed at any point during the site visit, the officer will terminate the visit and complete the site visit report.

    In addition to the on-site interview of the petitioner and beneficiary, the FDNS officer may rely on other methods to verify petition legitimacy, including a review of public records, contact with the petitioner or beneficiary via phone or email, and internet research.

    Employers should be prepared to submit and/or comment on any information submitted with the original petition. Based on the information gathered, FDNS will ultimately make a finding of “verified” or “not verified” in the site visit report.

    What should you do when an FDNS officer arrives?

    We recommend that no one speak with FDNS (other than a general greeting) without an attorney present or on the phone.

    You may say that it is a company policy and offer to call the attorney at that time.

    You may offer to set up another time if the attorney is not available.

    Keep in mind that you have a right to counsel that the FDNS officer cannot refuse to recognize.

    You have no obligation to speak to the FDNS officer without your attorney present.

    Before answering questions, we advise that you review the I-129 and exhibits and note any changes so you can point them out in your answers.

    Before submitting information to the government, we also advise that you consult your counsel or have counsel prepare the response directly.

    Although usually FDNS inspections are brief encounters and although you have nothing to hide, miscommunications can result from these inspections.

    The officer is not authorized to re-adjudicate a petition, make a finding of fraud based on the site visit itself, or accept a withdrawal of the petition.

    A finding of “not verified” does not automatically result in petition revocation, but the data will be forwarded to the USCIS Service Center, which can, in turn, issue a Notice of Intent to Revoke (NOIR).

    In such a situation, the petitioner will be provided 30 days to respond to the Notice of Intent to Revoke (NOIR).

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