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Strategies for Obtaining Permanent Residency for L-1(b) workers
Business Immigration Quarterly, Summer 2002
Michael F. Hammond
Multi-national corporations frequently transfer key employees from overseas
offices into the U.S. on L-1(b), intra-company transferee visas. The L-1(b)
visa category allows the transfer of those employees who have gained
“specialized knowledge” while working abroad. Most employees who transfer to
the U.S. stay for a temporary period of a couple of years and then return to
their previous place of assignment. In some instances, however, moving
L-1(b) employees to permanent resident status is desired. The reasons for
filing for permanent residency for an L-1(b) worker can vary, but the most
common reasons are (1) a request by the employee to provide his or her
family stability; (2) provide educational opportunities, such as
scholarships, for older children; (3) as a retention technique to discourage
the employee from moving to a competitor; or (4) a desire for the employee
to remain in the U.S. for a period of time longer than the L-1(b) permits.
Unlike the filing of a permanent residency application for an H-1(b) worker,
which focuses solely on a labor market test, or for an L-1(a) worker, which
focuses only upon the position, the filing for an L-1(b) worker presents
additional issues which often prove cumbersome and will become even more
difficult if the newly proposed PERM regulations become law.
The key additional issue which must be considered is the inherent
inconsistency between the L-1(b) visa category and the permanent residency
process. The L-1(b) specialized knowledge worker has by definition, “an
advanced level of knowledge or expertise in the organization’s processes and
procedures.” See 8 CFR 214.2(l)(1)(ii)(D). Department of State guidelines
for the issuance of L-1(b) visas describe further that the specialized
knowledge worker is to be distinguished from skilled workers stating, “being
a skilled worker does not in itself qualify an alien for the specialized
knowledge category. Specialized knowledge capability is based on the
beneficiary’s special knowledge …… that is not readily available in the U.S.
labor market.” See FAM 41.54 N 8.3 They further state that the knowledge
level needed is the type that can only be gained by previous experience with
the overseas employer. See FAM 41.54 N 8.2-2. Contrast that with the
Department of Labor regulations governing the permanent residency process
and you quickly note the inherent contradiction. The DOL regulations state
that all positions must be clearly open to any U.S. worker. See 20 CFR
656.20 (c). If an individual can only qualify for the position by being
employed by the foreign office abroad, how is it possible for a U.S. worker
to obtain the experience necessary to qualify for the position? In spite of
this absurdity, the INS rules specifically assume that L-1(b) workers will
file for and obtain approval of permanent residency applications. See INA
214 (h).
There are typically two strategies used in filing permanent residency
applications for L-1(b) workers to avoid the issue raised above. The first
strategy is to identify those skills which may be considered “specialized”
and which were used for the L-1(b) petition approval and not include those
in the permanent residency application but instead include only those core
skills which the DOS might describe as those that would be possessed by a
“skilled worker”. For example, if an employee is skilled at developing
computer applications using object oriented design methodologies but is
being transferred into the U.S. to assist with the implementation of an
applications project of which he was part of the development team, his being
a part of the development team would form the basis of his classification as
an L-1(b) worker i.e. his “specialized knowledge,” but his skills developing
applications using object oriented methodologies could be one of the skills
used in his permanent residency application.
The second strategy is to argue that the experience gained while the worker
was employed by the entity abroad can be used to support his permanent
residency application under the theory that his position in the U.S. is in a
different occupation than his position abroad. The general DOL rule is that
experience gained with the same employer can not be used to support a
permanent residency application. See 20 CFR 656.21(b). An exception to this
rule was carved out by the Board of Alien Labor Certification Appeals (BALCA)
in Delitizer. The Board in Delitizer said that experience could be counted
if gained in a different occupation. They defined an occupation as being
different if the positions were “sufficiently dissimilar” and set forth
eight different factors to consider including such things as job duties,
level of responsibility, and salary. In order to utilize this strategy, it
is critical to carefully review the prior visa petition and the employee’s
progression within the organization.
Both of the aforementioned strategies may become moot if the newly proposed
PERM regulations become law as they contain provisions that would
essentially overturn Delitizer and prohibit the use of any experience gained
with any overseas affiliated company. If strictly interpreted, the new PERM
regulations would essentially eliminate the possibility of obtaining
permanent residency for a company’s L-1(b) employees. Our firm has placed on
record, in our comments to the DOL, our disagreement with this proposal and
are hopeful that the DOL will re-think its position. In the meantime, all
employers who process permanent residency applications for its L-1(b)
workers are encouraged to move forward quickly.
Michael F. Hammond, Esq.
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