USCIS Interim Policy Memorandum Addressing L-1B Adjudications to Become Effective August 31, 2015

L-1 Visa Background Information

L-1 visas are non-immigrant visas specific to the employees of multinational corporations. These visas provide a means to transfer employees currently working for the company abroad to an affiliated U.S. operation. L-1A visas allow higher-level employees such as executives and managers to transfer to a U.S. company. The L-1B category encompasses other current employees who hold “specialized knowledge” in the field or of the company.

The L-1 visa program began in 1970 to further U.S. business interests by expanding the limited options available to bring workers from the international business community stateside. The requisite “specialized knowledge” was not explicitly defined, however, until the Immigration Act of 1990. Since 1990, USCIS has issued several policy memoranda to clarify the specific criteria required to demonstrate specialized knowledge. Each of these memos sought both to clarify the evidence that a petitioner needs to present, and to reflect more clearly the congressional intent of the L-1 visa program. In creating the L-1 program, Congress sought to “promote the United States as a global business destination” by facilitating international business through the expansion of opportunities for foreign nationals to work for their international company within the United States.

Contrary to the intent of Congress to increase international business, and efforts by USCIS to clarify the L-1B adjudication process, petition denial rates skyrocketed from six percent in FY2006 to thirty-five percent in FY2014. While a confluence of factors likely contributed to this pattern, in November of 2014, President Obama’s vowed that a final memorandum that would clarify L-1B decision-making and help rectify the issue as part of his executive actions on immigration. It has been the hope of stakeholders that new guidance would finally provide predictability to the adjudication process.

USCIS’s Latest L-1B Policy Memo

USCIS posted their Interim Policy Memorandum on L-1B Adjudications Policy on March 24, 2015 (Memo). A period of feedback on the proposed changes was open to stakeholders until May 8, 2015. USCIS is currently taking feedback under advisement, and the Memo, as published or possibly incorporating suggested changes, will go into effect August 31, 2015.

The Memo seeks to clarify the following in respect to L-1B claims: the applicable standard of proof; the elements necessary for approval; the definition of and evidence determining specialized knowledge; factors to be considered in corroborating proof of specialized knowledge; and how qualifying employment (both regular and offsite) can be demonstrated.

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