USCIS Clarifies Use of Irrevocable Proxy Vote for L-1 Intracompany Transferee Petition

January 4th, 2018

US Citizenship and Immigration Services (USCIS) issued an updated policy guidance on January 3, 2018, clarifying that a proxy vote must be irrevocable to establish the requisite control of a company in an L-1 visa petition.

L-1 visas are available to persons who have worked abroad for one continuously year within the preceding three years in an executive, managerial, or specialized knowledge capacity for a firm or corporation or other legal entity, or a parent, subsidiary or affiliate thereof, and who are being transferred temporarily to the United States to work in an executive, managerial, or specialized knowledge capacity for the same employer or a parent, subsidiary or affiliate thereof. The L-1B specialized knowledge visa has a maximum period of stay of five years, compared to the L-1A managerial/executive visa of seven years.

In determining if a qualifying relationship exists, USCIS will evaluate the ownership and control of the respective entities, including the use of proxy votes. Proxy votes are secured when one or more equity holders irrevocably grant the ability to vote their equity to another equity holder, thereby effectively and legally giving the other equity holder “control” over the company or companies in question.

The new policy memorandum states that when proxy votes are a determining factor in establishing control, the petitioner must provide evidence that proxy votes are irrevocable from the date of filing through the time USCIS makes a decision on the petition, along with evidence the relationship will continue during the approval period requested. If there a change in the ownership or control of the organization after the L-1 petition is approved, then the petitioner must file an amended petition that complies with the clarified guidance on irrevocable proxy votes.

Approval of L-1B Specialized Knowledge Intracompany Transferee Visas

April 20th, 2012

“Remarkably” I was able to recently obtain approvals for several L-1B specialized knowledge petitions for an IT company.  It was remarkable since USCIS has created such a narrowly restrictive interpretation of specialized knowledge and now defines specialized knowledge as knowledge that is unique or rare in an organization.  They pulled this from an old dusty case that should never have been brought back to life.  What was the purpose of renewing such a rigid view?  Is it politics or USCIS’s unreasonable fear of rampant fraud?  How are US employers supposed to help grow the economy and create jobs if H-1B numbers are capped and L-1Bs are virtually impossible to obtain?  Even in this weak economy, there are many skilled positions that are going unfilled because of a dearth of US workers with advanced skills.  With foreign nationals now deciding to stay in or return to their home countries such as India and China, because of their growing economies, we must become more competitive and try to attract as many necessary and highly educated and skilled workers as possible.

New $2,000/$2,250 H-1B/L-1 Fee for Certain Employers

October 8th, 2010

On August 13, 2010, USCIS implemented a new $2,000 fee, under Public Law 111-230, for H-1B petitioners with 50 or more employees and more than 50% of its employees in H-1B and L-1 nonimmigrant status. This new law also imposes an additional $2,250 fee for L-1A and L-1B petitioners with 50 or more employees and more than 50% of its employees in H-1B and L-1 nonimmigrant status.  The fee applies to new petitions for initial nonimmigrant H-1B and L-1 status and change of employer H-1B and L-1 petitions.  This fee is in addition to the petition fee ($320), Fraud and Detection fee ($500) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee ($1,500 for employers with more than 25 employees and $750 for those with 25 or fewer employees).  The employer must pay this new fee.