USCIS has released a draft of its L-1B policy memorandum which seeks to clarify eligibility for the L-1B “Specialized Knowledge” nonimmigrant visa, an area of USCIS adjudications that has been plagued by inconsistent adjudication, high denial rates, and a lack of clarity regarding the definition of “Specialized Knowledge.”
WHO THIS IMPACTS
With the L-1B denial rate reaching 35%, this long-awaited policy memo seeks to provide “consolidated and authoritative guidance on the L-1B program…” with the hope that it will clarify how L-1B petitioners may demonstrate that an employee qualifies for L-1B classification.
The memo affirms that a beneficiary seeking L-1B classification should possess either:
(1) 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
(2) 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 clarifies that the standard of review adjudicators should apply when reviewing L-1B petitions is whether the petitioner meets each eligibility requirement by a “preponderance of the evidence,” and directs officers not to apply higher standards of review such as “beyond a reasonable doubt” or by “clear and convincing evidence.” The memo also confirms that the specialized knowledge need not be proprietary nor narrowly held within the petitioning organization in order for a position to qualify.
Further, the memo confirms that L-1B employees are not prohibited from working off-site, provided the employer/petitioner maintains the principal control and supervision of the employee.
THINGS TO KEEP IN MIND
Although the memo clarifies a number of points often used by USCIS adjudicators when issuing challenges and denials, it also gives officers the authority to consider the “spectrum of employees in the U.S. operations who possess the requisite specialized knowledge” and consider the beneficiary’s wage as a factor when determining the organization’s need to transfer the beneficiary to the United States. This inherent subjectivity could continue to result in inconsistent adjudications in this visa classification.
USCIS has issued the draft memorandum for public review and feedback and will be accepting comments on the draft through May 8, 2015. The memorandum is scheduled for final publication on August 31, 2015.