27 March 2015
On March 24, 2015, the United States Citizenship and Immigration Services (“USCIS”) issued long-awaited proposed guidance to its officers on the adjudication of L-1B visa petitions for “specialized knowledge” transferees. The agency has invited comments from the public by May 8, 2015. The memorandum will become effective on August 31, 2015, and its guidance will be incorporated in the USCIS Adjudicator’s Field Manual.
The policy memo supersedes and rescinds four policy memoranda on L-1B adjudication dating back to 1994, though much of the new guidance is consistent with those memoranda. While the memo does not mention adjudication by State Department consular officers or US Customs and Border Protection inspectors of applications under L-1 blanket petitions and port of entry cases, the expectation is that those agencies will follow the new guidelines as well.
Highlights of the new guidance include the following:
- IMMACT 90. The memo acknowledges the fact that the L-1 amendments included in the Immigration Act of 1990 (IMMACT90) were intended to expand the use of the L-1 visa category. Prior law had required that the beneficiary possess an advanced level of expertise, as well as proprietary knowledge not available in the US labor market. The memo makes clear that specialized knowledge need not be proprietary or unique to the petitioning organization and that the L-1B classification does not require a test of the US labor market.
- Standard of proof. The memo confirms that the L-1B petitioner must meet each eligibility requirement by a “preponderance of evidence.” This is a lower standard than “clear and convincing evidence” or “beyond a reasonable doubt.” The memo specifically states, “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, considered individually and within the context of the totality of the evidence, that leads to the conclusion that the claim is more like than not or probably true.”
- Specialized knowledge. A petitioner may meet its burden of proof through (1) evidence that the beneficiary has knowledge that is demonstrably distinct or uncommon in comparison to the knowledge of other similarly employed workers in the particular industry or within the petitioning organization or (2) evidence that the beneficiary has knowledge or expertise that is greatly developed or more complex in comparison to other workers in the petitioning organization.
- Evidentiary requirements. A non-exhaustive list of evidence is provided. In order for an adjudication to be conducted effectively, a petitioner must submit “a detailed description of the services to be performed” and evidence that the beneficiary’s education, training and/or employment qualifies him/her for the position. A mere statement that the beneficiary has highly developed skills does not alone establish specialized knowledge.
- Cost of training US workers. The memo cites to the recent decision of the US Court of Appeals for the District of Columbia in Fogo De Chao (Holdings) Inc. v. DHS, 769 F.3d 1127, 1142 (D.C. Cir. 2014), in advising adjudicators that, “knowledge generally may be considered specialized if a petitioner can demonstrate through credible and relevant evidence that the knowledge possessed by the beneficiary would be difficult to impart to another individual without significant economic cost or inconvenience to the petitioning organization.”
- Specialized knowledge need not be narrowly held within the petitioning organization. According to the memo, the mere existence of other employees with similar knowledge should not, in and of itself, be grounds for denial. The memo goes on to note, however, that in cases where there are already many employees in the US organization who possess the same specialized knowledge as the beneficiary, officers should carefully consider the organization’s need to transfer the beneficiary to the United States. This latter provision presumably is directed toward companies that are high volume users of the L-1B visa category.
- Salary considerations. The petitioning employer need not show that the beneficiary occupies a managerial or supervisory position within the organization. While rank and salary are factors to be considered in assessing specialized knowledge, according to the memo, there is no requirement that the beneficiary be at a higher rank or command a higher salary compared to the beneficiary’s peers.
- Offsite L-1B employment. The memo discusses the provisions of the 2004 L-1 Visa Reform Act, including the following:
- A beneficiary holding L-1B status may only be placed at an unaffiliated company’s worksite if there is a documented business relationship involving the provision of products and services between the petitioning organization and the unaffiliated company.
- Furthermore, the petitioner must demonstrate that in the placement at the unaffiliated company the beneficiary will utilize his/her specialized knowledge of the petitioner’s products or services.
- Therefore, a petitioner cannot simply supply workers to an unaffiliated organization and issue paychecks in a “labor for hire” arrangement but must demonstrate that it, the petitioner, has the right to control the beneficiary.
- Deference to earlier decisions. If an L-1B extension petition involves the same parties and underlying circumstances, USCIS officers are advised to give deference to the prior affirmative determination.
On the Horizon
In general, the guidelines incorporated in the March 24 memo should result in a more expansive approach to L-1B visa adjudication if officer training and quality control are effective. Public comments likely will include requests for more clarity on the types of evidence officers should expect to see in considering whether a beneficiary possesses specialized knowledge. The memo undoubtedly will be revised based on comments from the public, and we will keep you apprised of any such revisions.