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EIG Dispatch | August 21, 2015

August 21, 2015

HIGHLIGHTS

  • USCIS Releases New L-1B Policy Memo
  • Canada Implements New Penalties for Employers Not Complying with Temporary Foreign Worker Program
  • India Extends e-Tourist Visa to More Countries

USCIS Releases New L-1B Policy Memo

On August 17, 2015, USCIS issued its new L-1B policy memorandum to provide consolidated and authoritative guidance on the L-1B program. This new guidance applies to all L-1B petitions pending or filed with USICS on or after August 31, 2015. This new memo offers a few changes from the draft version released in March and supersedes and rescinds prior L-1B memoranda.

USCIS has clarified a few key points:

  • Advanced knowledge: This analysis should focus “primarily on whether the beneficiary’s knowledge of the processes and procedures used specifically by the petitioning organization is advanced.”
  • No prevailing wage requirement: An officer may consider whether the beneficiary’s compensation is comparable to similarly situated peers, but the wage need not be higher in comparison.
  • Evidence of specialized knowledge: tThe “petitioner’s statement may be persuasive evidence if it is detailed, specific, and credible,” but adjudicators may request additional evidence to support that statement. Evidence that can demonstrate specialized/advanced knowledge includes documentation of training, work experience, education, contracts, statements of work, and reports of assignments where the employee significantly enhanced the petitioning organization’s productivity, competitiveness, image, or financial position.
  • Previous L-1B approvals: USCIS will note “previous determinations of L-1B eligibility made by the Department of State or U.S. Customs and Border Protection, but will make a determination on the instant petition based on the record before it, consistent with the guidance provided in this memorandum.”
  • Off-site work locations: For any changes in an off-site work location, USCIS states that “a change in off-site employment, depending on the circumstances, may constitute a substantial change or new material information requiring re-adjudication by USCIS to ensure compliance with the L-1 Visa Reform Act.”

Only time will tell if any of these new provisions will decrease or actually increase the already elevated rates of Requests for Evidence (RFEs) and denials. While there are not many changes, the memo will still provide companies with some basis for challenging denials at the Administrative Appeals Office or federal court, if adjudicators applied any of the new policies incorrectly.


Canada Implements New Penalties for Employers Not Complying with Temporary Foreign Worker Program

New penalties for Canadian employers in non-compliance with the Temporary Foreign Worker Program and the International Mobility Program will take effect December 1, 2015. Under the new regulations, employers who do not comply with the program may face a one to ten year ban from use of the program, depending on the type of violation, history of violations that occurred on or after December 1, 2015, and the severity of the violation. The new regulations also include greater monetary fines that can reach as much as $100,000. The purpose of these new regulations is to encourage compliance and prevent abuse of foreign labor and misuse of the program.


India Extends e-Tourist Visa Program to More Countries

As an update to our earlier report, effective August 15, 2015 India has extended its e-Tourist Visa (“eTV”) to an additional 36 countries and added seven more Indian airports as designated entry points for this immigration status. A full list of eligible countries can be found here. An eTV provides entry for international travelers from eligible countries who are visiting India for short tourist or business stays. The visa is valid for up to 30 days from the date of arrival in India.