USCIS Final Guidance on L-1B Adjudications Offers Some Comfort-But No Cure-for Employer Concerns

 

By: Whitney Larson, Jordan C. Mendez

 

On August 17, 2015, U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum aiming to clarify the standard required for L-1B specialized knowledge visas. The memorandum notably begins by reminding adjudicating officers that the L-1B visa category, which allows for the transfer of company personnel with specialized knowledge, is critical in fostering the growth and competitiveness of U.S. businesses in an increasingly global marketplace. By clearly articulating this context, the memorandum may yield some comfort to employers that have had to contend with oppressive Requests for Evidence and denials of L-1B petitions. The memorandum also offers a refined definition of specialized knowledge, lists factors to be considered during the adjudication process, provides guidance for offsite L-1B employment, and presents standards for examining L-1B extensions.

 

Specialized Knowledge Clarified

 

The new policy memorandum clarifies the definition of specialized knowledge. To qualify for an L-1B visa, an employer must demonstrate that the relevant employee meets at least one of two standards: (1) “special” knowledge or (2) an “advanced” level of knowledge.

To demonstrate “special” knowledge, employers must compare the beneficiary’s knowledge to that of other similarly situated workers in the specific industry. USCIS defines “special” knowledge as:

knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets that is distinct or uncommon in comparison to that generally found in the particular industry (emphasis in original)[.]

Employers may instead elect to establish the employee’s “advanced” knowledge. To meet this burden, the employer must present evidence that the beneficiary’s knowledge of the processes used specifically by the company surpasses the basic level of knowledge obtained by others in the company and the industry. USCIS defines “advanced” knowledge as:

knowledge or expertise in the petitioning 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 employer (emphasis in original).

In determining whether an employee has specialized knowledge, be it “special” or “advanced,” USCIS has identified a non-exhaustive list of factors that adjudicating officers should consider. These include the time-sensitivity of the employer’s business need and the employee’s record of improving the employer’s business.

The memorandum clarifies that the beneficiary’s knowledge need not be proprietary in nature or narrowly held within the petitioning organization. However, if a company employs a significant number of employees with the same claimed specialized knowledge, the agency will question whether the knowledge is, in fact, specialized.

 

Off-Site Employment

 

The memorandum also addresses the employment of workers with specialized knowledge who will primarily work off-site. In those cases, the petitioning employer must demonstrate that it retains the right to control the employee and that, while off-site, the employee will be using the specialized knowledge that serves as the basis for the L-1B petition.

 

L-1B Extensions

 

USCIS further provides guidance to adjudicators reviewing L-1B extensions. Deference should be given to petitions initially approved by USCIS unless substantial changes have been made or a material error in the initial approval is discovered. However, if an employer seeks to extend an L-1B petition previously approved as a blanket petition by the U.S. Department of State or U.S. Customs and Border Protection, USCIS may reevaluate the employee’s eligibility and make a determination solely based on the extension petition. Employers submitting L-1B petition extensions that were not initially adjudicated through USCIS will face a higher level of scrutiny.

Throughout the memorandum, USCIS references the importance of providing employers with the opportunity to transfer specialized knowledge employees in order to create growth and competitiveness in the U.S. market. However, it will take time and extensive training for USCIS to effectively implement this new policy guidance and for employers to see relief from the current practice of unduly burdensome Requests for Evidence and high denial rates of L-1B petitions filed with USCIS.

 

Whitney Larson is an associate in the Raleigh office of Ogletree Deakins.

 

Jordan Mendez is a staff attorney in the Raleigh office of Ogletree Deakins.


The information above has been redistributed by Emigra Worldwide with permission from Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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