This week, USCIS released a policy memorandum which consolidated previously issued guidance related to the L-1B nonimmigrant visa classification which permits multinational companies to transfer employees who possess “specialized knowledge” to the United States.
The policy memo, which supersedes and rescinds certain prior L-1B guidance, is applicable to all USCIS employees and directs officers adjudicating L-1B petitions to "apply the statutory and regulatory criteria for L-1B classification in a manner consistent with this guidance."
Because many key terms, including "specialized knowledge" itself were left undefined when Congress created the L-1 visa program in 1970, there has been a lack of clarity and consistency in determining who qualifies for L-1B classification. The first statutory definition of "specialized knowledge" was provided by Congress in through the Immigration Act of 1990 which defines “specialized knowledge” as follows:
[A]n alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.
Following this sparse definition, since 1994 guidance on the L-1B classification has been set forth in a series of policy memoranda. 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 NEW GUIDANCE
The memo addresses the standard of review to be applied when adjudicating L-1B petitions, the definition of "specialized knowledge," and the application of the "specialized knowledge" definition. The memo also discusses the employment of L-1B workers at third-party worksites and the standard for readjudicating L-1B status.
“Preponderance of the Evidence” Standard
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.” Rather, an L-1B petitioner will have satisfied the standard of proof if the evidence submitted leads to the conclusion that the claim is “more likely than not” or “probably” true.
Definition of “Specialized Knowledge”
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.
Application of the “Specialized Knowledge” Definition
The bulk of the memo focuses on how adjudicators should determine whether a beneficiary possesses “special" or "advanced" knowledge in a given case. USCIS provides a non-exhaustive list of factors that may be considered when adjudicating L-1B petitions as well as a list of suggested evidence petitioners can provide to demonstrate eligibility for the classification. While the memo confirms that specialized knowledge need not be proprietary nor narrowly held within the petitioning organization, and indicates that a petitioner’s statement may be persuasive evidence to demonstrate that an individual’s knowledge is special or advanced, the memo also provides adjudicators with a wide degree of latitude to impose additional requirements when evaluating claims of "specialized knowledge."
Third Party Worksites
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.
Readjudication of L-1Bs
The memo directs USCIS officers to give deference to prior L-1B approvals when adjudicating extensions of L-1B status involving the same petitioner and beneficiary and the same underlying facts and indicates that USCIS officers should re-examine a L-1B eligibility only where: (1) there was a material error with regard to the previous approval; (2) there has been a substantial change in circumstances since that approval; or (3) there is new material information that adversely impacts the petitioner’s or beneficiary’s eligibility.
WHAT THIS ALL MEANS
The guidance in the policy memo will be used by USCIS for all L-1B petitions pending or filed with USCIS on or after August 31, 2015. Whether this long-awaited guidance will do anything to set right an area of USCIS adjudications plagued by lack of clarity, inconsistent adjudications, and high denial and request for evidence rates remains to be seen.