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.

While USCIS maintains the new policy is consistent with previous memoranda, upon its effective date, the 2015 Memo will supersede and rescind the following:

• Memorandum of James A. Puleo, Acting Executive Associate Commissioner, Office of Operations, INS,
“Interpretation of Specialized Knowledge (CO 214L-P)” (Mar. 9, 1994);
• Memorandum of Fujie Ohata, Associate Commissioner, Service Center Operations, INS, “Interpretation of Specialized Knowledge (HQSCOPS 70/6.1)” (Dec. 20, 2002);
• Memorandum of Fujie Ohata, Director, Service Center Operations, “Interpretation of Specialized Knowledge for Chefs and Specialty Cooks Seeking L-1B Status” (Sept. 9, 2004); and
• Memorandum of William R. Yates, Associate Director for Operations, “Changes to the L Nonimmigrant Classification Made by the L-1 Reform Act of 2004 (HQ 70/8)” (July 28, 2005).

Standard of Proof

The Memo reiterates that the burden of proving the petitioner qualifies for an L-1B visa is on the petitioner, and that, as before, all required elements must be proven by a preponderance of the evidence. USCIS furthers, “the petitioner must show that what it claims is more likely the case than not,” and that he/she “does not need to remove all doubt from the adjudication. Even if an officer has some doubt about a claim, the petitioner will have satisfied the standard of proof if it submits relevant, probative, and credible evidence…”

Required Elements; Defining “Specialized Knowledge”

The individual facts a petitioner must establish by a preponderance of the evidence are:

(1) that the beneficiary possesses “specialized knowledge”;
(2) that the position offered involves the “specialized knowledge” held by the beneficiary; and
(3) that the beneficiary has at least one continuous year of employment abroad in a managerial, executive, or specialized knowledge capacity with the petitioning organization…within the preceding three years.

What qualifies as “specialized knowledge” has been interpreted in different ways, therefore the Memo clarifies this extensively. USCIS combined the existing statutory definitions, the regulatory meaning, as well as dictionary definitions to come up with two descriptions, one of which a successful petitioner would need to meet:

• special knowledge, which is knowledge of the petitioning employer’s product, service, research, equipment, techniques, management, or other interests and its applications in international markets that is demonstrably distinct or uncommon in comparison to that generally found in the particular industry or within the petitioning employer; or
• advanced knowledge, which is knowledge or expertise in the organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity and understanding than that generally found within the petitioning employer.

The Memo then elaborates on the application of these definitions with examples. Further, USCIS provides a non-exhaustive list of factors to be weighed in determining whether a proposed beneficiary’s knowledge is, in fact, specialized.

Evidence Supporting a Claim of Specialized Knowledge

The Memo reiterates current regulations requiring L-1B petitions to include “a detailed description of the services to be performed,” and documentation of the beneficiary’s “prior education, training, and employment [that] qualifies him/her to perform the intended services in the United States.” Another non-exhaustive list of factors evincing special or advanced knowledge includes, inter alia, proof of: the length of time the petitioner has been using the specialized knowledge; the impact his/her transfer to the U.S. would have on the company; training records; or “evidence of patents, trademarks, licenses, or contracts awarded to the organization based on the beneficiary’s work.”

Finally, the Memo provides guidance regarding the conditions of employment that will qualify for an L-1B visa, including special requirements if the intended beneficiary is to work for the petitioning company, but offsite at another location.

Reaction and Implications

American Immigration Lawyers Association (AILA) President Leslie Holman embraces the Memo as positive step toward consistent adjudication of L-1B visa applications, but cautions that, “training USCIS staff on the guidance laid out in this memo will be critical to making a real difference in how applications are evaluated…” However, AILA also submitted comments to USCIS which point out areas they feel need further development.

Specifically, AILA asserts that “USCIS continues to impose evidentiary standards that are much stricter than the required ‘preponderance of the evidence’ standard and issue requests for evidence (RFEs) and denials containing boilerplate language that fails to describe with particularity why the evidence submitted was insufficient.” Further, language in denials frequently mimic that of cases which are distinguishable (where petitioner statements contradicted evidence in the file) and whose principles are therefore not applicable. These issues are not addressed in the Memo. AILA articulates concerns that language should be added to the Memo that “reaffirm[s] that adjudicators may accept credible statements by the petitioner without requiring corroborating evidence on each statement contained therein.”

AILA adds numerous other specific suggestions, including expanding and clarifying the non-exhaustive list of L-1B factors; adding language that credence should be given to employer statements absent contrary evidence; and clarifying that lists of possible factors are not to be mistaken by adjudicators as requirements.

As there is much more content in the Memo than can be summarized in this overview, attorneys who practice business immigration will need to read it carefully, and be sure to find a finalized copy that incorporates any changes on the effective date of August 31, 2015. Those seeking L-1B visas for their employees should be sure to hire an immigration attorney who has the most up-to-date information on the documentation USCIS seeks in order to approve these visas.

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