Daily Labor Report®

Foreign Worker Transfers to U.S. Get Tougher for Companies

Nov. 29, 2018, 8:51 PM

Multinational corporations will see tighter rules dictating when they can transfer their foreign workers to the U.S., under a new government policy.

The policy applies to L-1 guestworker visas, which allow multinational companies to transfer executives or managers and workers with “specialized knowledge” to the U.S. With tighter limits on how prior work abroad qualifies an employee for the visa, companies are likely to see a rise in visa denials and have a more difficult time bringing in foreign talent.

The move is part of U.S. Citizenship and Immigration Services’ implementation of President Donald Trump’s April 2017 Buy American and Hire American executive order, which directs federal agencies to ensure that U.S. workers aren’t being displaced by foreign labor.

Since that order, the agency has brought additional scrutiny to employment visa programs, particularly the H-1B skilled guestworker visa—the only visa specifically mentioned in the order. But the L-1 visa hasn’t escaped attention.

The two skilled-visa programs have been the target of fraud claims, and have been the subject of overhaul legislation repeatedly introduced by Sens. Charles Grassley (R-Iowa) and Richard Durbin (D-Ill.).

Work Abroad Requirement

Under the law, a company can’t transfer workers on an L-1 visa unless they’ve worked for that company—or a parent, subsidiary, or affiliate—outside the U.S. for at least one of the preceding three years.

The three-year clock must run backward from the date the company files the L-1 visa petition, U.S. Citizenship and Immigration Services said in a policy released Nov. 29. Any time spent working in the U.S. doesn’t count toward the one-year requirement, even if the employee was working for and paid by the foreign branch of the company.

Time spent in the U.S. for business or pleasure will be counted against the one-year employment requirement and have to be made up before the worker is eligible for an L-1 visa, the USCIS said.

The clock operates differently for employees who are already working for the company in the U.S. on a different type of temporary visa, such as the H-1B. In those instances, the three-year period when the one year of employment abroad must have been completed runs backward from the date the employee started working in the U.S. for that company.

“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,” the agency said Nov. 29. The new policy is meant to clarify the guidelines on timing “to ensure they are applied consistently to all L-1 petitions,” it said.

But the policy “is another move to close off any discretion or provide any additional benefits to employers seeking to transfer talent to the U.S.,” American Immigration Lawyers Association President Anastasia Tonello told Bloomberg Law in a Nov. 29 email. It’s likely to lead to more visa denials and more lawsuits by affected companies, she said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editors responsible for this story: Phil Kushin at pkushin@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.