The L-1 Visa Reform Act renders ineligiblility for L nonimmigrant classification as a specialized knowledge worker if the worker will be “stationed primarily” at the worksite of an employer other than the petitioner or an affiliate, subsidiary, or paren, and either:
- The alien will be “principally” under the “control and supervision” of the unaffiliated employer, or
- The placement at the non-affiliated worksite is “essentially an arrangement to provide labor for hire for the unaffiliated employer”, rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.
This is also referred to as section 214(c)(2)(F) bar. This includes petitions for initial, amended, or extended L classification. This includes both individual as well as blanket L1 petitions.
Several conditions must be met in order for this ground for ineligibility to apply:
- First, the alien worker must be a specialized knowledge worker. In other words, this ineligibility is for L1B visa. It does not apply to L-1A Visa (managers and executives)
- Second, the worker must be stationed primarily at a worksite outside the L organization. Thus, so long as the worker is to be stationed and actually employed within the L organization, this particular ground for ineligibility does not apply. Moreover, even if the worker is stationed outside the L organization, the worker must be “stationed primarily” outside the organization. It means that, as a threshold matter, a majority of the alien’s work-related activities must occur at a location other than that of the petitioner or its affiliates. In this regard, even if the majority of an alien’s time is physically spent at the petitioner or its affiliates’ location, to the extent that such time can be considered to be “down time” rather than time actually performing the services described in the petition, an alien might be subject to ineligibility. (Since, in this example, the majority of the alien’s actual work time is spent at an unaffiliated company or companies’ work site). The number of non-affiliated worksite locations where the alien might be stationed, by itself, is not relevant; what is relevant is the location where the alien will actually be engaged in employment as specified in the underlying petition.
If the alien worker is “stationed primarily” outside the L organization, as described above, then there are two independent means by which the alien worker may be rendered ineligible for L status:
- The first means relates to the control and supervision of the worker. Even if the alien worker is to be stationed “primarily” outside the L organization, that fact alone does not establish ineligibility for L classification. In order for the ground for ineligibility to apply, “control and supervision” of the worker at the non-affiliated worksite must be “principally” by the unaffiliated employer. Again, the common dictionary meaning of the term “principally”, would be used, which means “first and foremost.” Thus, even if the non-affiliated entity exercises some control or supervision over the work performed, as long as such control and supervision lies first and foremost within the L organization, and the L organization retains ultimate authority over the worker, the ground for ineligibility does not apply. For example, an L-1 worker may be stationed primarily outside the L organization but receives all direction and instruction from a supervisor within the L organization structure. The non-L organization client may provide input, feedback, or guidance as to the client’s needs, goals, etc., but does not control the work in the sense of directing tasks and activities. So long as the ultimate authority over the L-1 worker’s daily duties remains within the L organization, the fact that there may be some intervening third party supervision or input between the worker and the L organization does not render the worker ineligible for L-1B classification.
- The second means relates to the nature of the alien worker’s placement outside the L organization. Such an alien worker is ineligible for L classification if the placement at the unaffiliated worksite is “essentially an arrangement to provide labor for hire” for the unaffiliated employer rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary. What constitutes “essentially” such an arrangement is inherently a fact question, and USCIS would look at the all aspects of the activity or activities in which the alien will be engaged away from the petitioner’s worksite. In general, if the off-site activity or activities do not require specialized knowledge of the petitioner’s product or services, or if such knowledge is only tangentially related to the performance of such off-site activities, the alien will fall within the ambit of the section 214(c)(2)(F) bar. For example, an alien would be ineligible for L classification if a petitioner is essentially in the business of placing workers with various unaffiliated companies, irrespective of the alien’s specialized knowledge of the petitioner’s particular product or service, where the off-site activities to be performed do not require such specialized knowledge. On the other hand, if the petitioner is primarily engaged in providing a specialized service and typically sends its specialized knowledge personnel on projects located on the work site of its unaffiliated clients to perform such services, then, assuming the alien remains under the principal control and supervision of the petitioning employer and otherwise meets the basic requirements for L classification, the alien would not be subject to the section 214(c)(2)(F) bar.
