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Gunster – Immigration Alert, February 2005

In December 2004, President Bush signed the Omnibus Appropriations Act for FY 2005, which included the L-1 Visa Reform Act of 2004 that made significant changes to the L-1 non immigrant category. The L-1 classification pertains to intracompany transferees and may be used for executives, managers, or persons with specialized knowledge who have been employed overseas by an parent, subsidiary, affiliate or branch of the petitioning U.S. employer and who are coming to the U.S. to perform either managerial, executive or specialized knowledge functions.

First, the L-1 Visa Reform Act imposes a new Fraud Prevention and Detection Fee of $500, which must be paid by employers seeking either a beneficiary’s initial grant of L-1 nonimmigrant classification, or those seeking to change a beneficiary’s employer within the classification. This fee, which takes effect on March 8, 2005, will be in addition to the other L-1 fees.Therefore, come March 8, 2005, an employer will have to pay $685 in filing fees in order to file an initial L-1 Petition. The fees may be as high as $1,685 if the employer wishes to use the United States Citizenship and Immigration Services (“USCIS”)’s Premium Processing program. ($185, I-129 fee + $500, Fraud fee + $1,000, Premium Processing fee =$1,685).

Additionally, the L-1 Visa Reform Act amended the “L Blanket” requirements. Potential intracompany transferees who work for employers who have an L Blanket approval in place must now be employed by the qualifying company abroad for no less that one year in order to qualify for the transfer. Previously, participants in this program could apply for a transfer to the U.S. after completing at least six months of employment with the qualifying entity abroad. This change applies to petitions forinitial L-1 classification that that are filed on or after June 6, 2005.

Finally, this law addresses the issue of “outsourcing.” Specifically, it addresses situations where L-1 transferees with specialized knowledge (L-1Bs) work “offsite.” According to the new provisions, L-1B employees can no longer work primarily at a worksite other that their petitioning employer if the work will be controlled and supervised by a different employer or if the offsite arrangement is essentially to provide labor for hire, rather than service related to the specialized knowledge of the petitioning employer. This limitation will apply to all L-1B petitions filed on or after June 6, 2005 andincludes extensions and amendments involving individuals currently in L-1 status.

We want all clients to be aware that there has been and will continue to be increased scrutiny on all immigration fronts for the foreseeable future. Immigrationlaws and policies are in flux and practices and procedures that were routine for many years are now changing. Human Resources Directors and Managers needto remain informed, as do foreign employees that the company may be sponsoring. This advisory is not legal advice and does not substitute for legal advice inan individual case. If you have any questions concerning these changes or any other procedures or policies concerning foreign nationals within your company,please contact:

Sarah Lea Tobocman – Chair, Immigration Practice Group
Phone: 305-376-6065 – E-mail: stobocman@gunster.com

Armando A. Olmedo – Senior Associate, Immigration Practice Group
Practice Group Phone: 305-376-6061 – E-mail: aolmedo@gunster.com

Jennifer H. Estrella – Associate, Immigration
Phone: 305-376-6031 – E-mail: jestrella@gunster.com

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