New L-1 Visa Form Probes Further into Work History

Employers seeking L-1 visas for managerial and specialist employees under "blanket" approval will soon have to use a new, longer form with increased scrutiny of workers' employment histories.

Beginning Aug. 29, companies with an approved blanket L-1 petition must use the latest version of Form I-129S, which allows employers to secure L-1A or L-1B visas for executive and managerial staff or workers with "specialized knowledge" so these workers can transfer to U.S.-based worksites.

Large multinational companies that frequently transfer workers to the United States use the blanket L option to prequalify the organization and its affiliates for L-1 visas.

Once approved, the company no longer has to file a separate I-129 petition with U.S. Citizenship and Immigration Services (USCIS) for each prospective L-1 employee and instead can send its L-1 visa applicants directly to U.S. consulates abroad, where adjudication is less rigorous.

Important changes to the new version of Form I-129S include:

• It asks for more detail about prior employment and wages received in U.S. dollars.
  
• It asks for the percentage of time the transferee will spend doing job duties on a daily basis.
  
• It probes into third-party client worksite scenarios.
  

"The updated I-129S doubled in length—going from four pages to eight  pages—and requires the employer to provide specific details about the applicant's prior employment history," said Ian Macdonald, a shareholder in the Atlanta office of Greenberg Traurig and the firm's business immigration and compliance practice group lead. "We believe these updates are designed to allow the consular officer to more quickly review employment history details on the front end of the application process and make a gut determination on whether the individual qualifies based on … previous job titles and yearly salaries converted from local currency into U.S. dollars."

Beth Carlson and Sarah Kilibarda, immigration attorneys in the Minneapolis office of Faegre Baker Daniels, agreed that expediency is most likely behind the additions to the form. "Most L-1 blanket interviews last for no more than three to five minutes and are sometimes even quicker at the busiest posts," Carlson explained. "The layout and information asked on Form I-129S will allow for quick review by the consular officers without having to review additional documents or ask more questions of the applicant."

The new information demands on the updated form might also be used to intensify scrutiny of applications. "The new fields requiring employers to enter detailed employment history information directly on the form, including wages, is likely to lead to more scrutiny for would-be L-1s in a way they have not in the past," said Justin Storch, manager of agency liaison at the Council for Global Immigration.

That's in line with USCIS guidelines released last year, with their increased emphasis on wages and language prohibiting "labor for hire" arrangements, Storch said. 

Some of the new form's changes are minor: It asks for the foreign worker's gender, maiden name and past aliases. But it also asks for new and specific information about the beneficiary's foreign employment, including job title, start and end dates, job duties, wages, and hours worked per week.

"These requests are aimed at obtaining very specific information to ensure that the applicant meets the criteria of the L-1 category—working abroad for at least one continuous year, specific job titles to verify specialized knowledge for the L-1B category and managerial capacity for the L-1A category," Kilibarda said. "Salary is asked to confirm wages commensurate with the nature of the prior positions."

Some are questioning the requirement to submit previous salaries in U.S. dollars.

"Due to differences in the economies of an applicant's home country when compared to the United States, a manager's previous salaries may seem like a low yearly wage and, therefore, not indicative of a managerial-level position within the organization," Macdonald said. "The same may be true for L-1B specialized knowledge applicants, which could result in an adverse decision against the applicant and company."

Similarly, L-1A blanket petitions involving managers may come under more scrutiny based on the listing of prior job titles. "If the job title does not seem to line up with the managerial nature of the duties, this could be a quick way for the consular officer to deny the L-1 blanket petition," Kilibarda said. 

Even more worrisome to employers are the questions concerning third-party placements of L-1 workers. The issue of using L and H visa holders for outsourcing arrangements has received significant attention in recent years.

"Specifically, in cases where the L-1B specialized knowledge applicant will be placed at a third-party worksite, the forms specifically require the employer to provide the supervisor's name, the nature of the supervision and control of the applicant's work, and reasons justifying why the third-party placement is necessary," Macdonald said. Additionally, the employer must explain why placing the applicant at the third-party worksite is not a "labor for hire" arrangement.

"These kinds of questions immediately put an employer [at a disadvantage] and leave the applicant in a very precarious situation, having to answer questions on third-party placement issues without any attorney present or ability to reach out for assistance," Macdonald said. "The reality is, for third-party placement applications, employers must have strong reasons justifying the third-party worksite arrangement, and applicants had better be extremely prepared for a litany of questions about the nature of their work, who will control their work and why their specialized knowledge is needed in this kind of arrangement."

Immigration attorneys see a glimmer of hope in the revised form. "One silver lining is that more information will be given upfront," Carlson said. "This will allow employers to review the necessary qualifications in better detail upfront so only those L-1 blanket applicants that are the most qualified and needed are being sent for assignments to the U.S."

The modified form may also eliminate or reduce inconsistencies in the review process, Macdonald said. "By providing more detailed information to the consular officer in advance of the interview, we hope to see more consistent review processes and results across the consulates. We currently see inconsistent results among consulates with the L-1 category, particularly the L-1B specialized knowledge category."