By Attorneys Angela K. Ho & Nancy E. Miller
U.S. Citizenship and Immigration Services (USCIS)’s recently released policy guidance for L-1B nonimmigrant visas, provides much needed clarity in the adjudication process. The L-1B is a viable alternative to the H-1B work-visa which is important since there are so many more applicants for them than there are visas. L-1B visa allows international companies to temporarily transfer workers with specialized knowledge to their parent, affiliate, subsidiary or branch offices in the United States. Unfortunately, the L-1B denial rate in recent years has been about 35% in part due to inconsistent and restrictive interpretations applied by USCIS officers. The policy memorandum clarifies what evidence is needed for L-1B approval and sets out appropriate standards for evaluation.
An L-1B beneficiary must be employed abroad by the petitioning organization (or an affiliate, subsidiary, parent, or branch of the petitioning organization) on a full-time basis for one continuous year within the three years preceding the filing of the petition. The required employment abroad must have been in a managerial or executive capacity, or a capacity involving specialized knowledge.Although the U.S. position does not need to be the same position as the one abroad, the L-1B visa requires the beneficiary to have specialized knowledge. The standard of review for establishing eligibility requirements of the L-1B remains a preponderance of the evidence. In other words, the petitioner must show that what it claims is more likely true than not.
The majority of the memorandum focuses on clarifying eligibility requirements related to “specialized knowledge.” Under the new guidance, specialized knowledge is broken into special knowledge and advanced knowledge (or both). The analysis for each is separate, but possessing either should satisfy the specialized knowledge requirement. “Special knowledge” is the beneficiary’s knowledge of how a company manufactures, produces, or develops its products, services, research, equipment, techniques, management, or other interests. “Advanced knowledge” is the beneficiary’s knowledge of the specific employing company’s processes and procedures. In the guidance, USCIS specifically notes that the specialized knowledge does not need to be proprietary in nature or narrowly held within the employer’s organization. This is good news since interpretations to the contrary resulted in numerous denials of L-1B eligibility in the past.The memorandum does note, however, that if a company employs many individuals in the U.S. who possess similar specialized knowledge, the employer has the burden of proving the necessity of transferring an employee from abroad. Employers who employ many employees with the same specialized knowledge should be wary of how USCIS will implement this directive. Overall, USCIS asserts that it will assess L-1B specialized knowledge in the totality of the circumstances.
This standard is reflected in the policy guidance which removes certain bright-line interpretations of L-1B eligibility that USCIS officers have used to deny applications in the past. For example, USCIS sometimes considered evidence that a product or process was not unique to the petitioning employer as proof that the knowledge was not sufficiently specialized. In the new guidelines, USCIS states that L-1B beneficiaries do not necessarily need to command high salaries or occupy managerial positions; the specialized knowledge does not necessarily need to be narrowly held, proprietary or unique in order to the petitioning organization and eligibility for another visa status will not result in a finding of ineligibility.
The last major clarification refers to L-1B extensions. The memorandum states that USCIS officers should give deference to the prior determination by USCIS. In the past, even if the initial L-1B petition was approved, extension requests would be adjudicated as if there had been no prior approval. Thus, there was no reasonable guarantee of approval despite the prior approval and unchanging circumstances. The updated guidelines highlight deference to the prior approval should be given unless a material error in the previous approval for L-1B classification is found; or there has been a substantial change in circumstances since the approval; or there is new material information that adversely impacts the petitioner’s or beneficiary’s eligibility. This is welcome news for employers with multiple L-1B employees.
Overall, the updated policy guidance demonstrates USCIS’ commitment to creating a more open and predictable process in L-1B adjudications. USCIS’s open period for comments and feedback ends May 8, 2015 and the new guidelines take effect August 31, 2015. Anyone with an international company, or a company that is considering opening a branch in the United States, should contact a knowledgeable and experienced immigration attorney to discuss the potential impact or options for your company and your employees.