Analysis of L-1B policy guidance

26 Mar 15

UNITED STATES

On Tuesday, U.S. Citizenship and Immigration Services issued long-awaited guidance regarding eligibility for L-1B status. The L-1B visa category permits multinational companies to transfer employees who possess “specialized knowledge” from their foreign operations to their operations in the U.S. Between 2006 and 2014, the L-1B denial rate skyrocketed from 6 percent to 35 percent.

The memorandum removes from consideration several restrictive interpretations that have plagued L-1B decisions over the past few decades. However, it also states that additional scrutiny will be required of L-1B petitions filed by employers that have many employees in the U.S. with specialized knowledge. Whether these changes succeed in reducing the L-1B denial rate will depend on how USCIS adjudicators interpret and implement the memorandum.

The memorandum becomes effective Aug. 31, and the government is seeking feedback from the public through May 8. Clients should consult their BAL professionals to discuss how the guidance may impact their L-1B programs.

BAL has prepared a detailed Q&A that provides additional analysis of the policy guidance. Below are the key takeaways:

The memorandum removes from consideration several restrictive interpretations that have plagued L-1B decisions over the past few decades.

The memorandum clarifies that (1) the knowledge “need not be proprietary or unique” to the petitioning employer, (2) there is no requirement that the employee be of a certain rank within the organization or that the employee be an officer or supervisor within the company, and (3) eligibility for another nonimmigrant classification (such as H-1B) is not a bar to eligibility for L-1B status.

USCIS will scrutinize an L-1B petition filed by an employer that has many employees in the U.S. with specialized knowledge.

When an employer already has many employees in the U.S. with specialized knowledge, the memorandum directs adjudicators to “carefully consider” the need to transfer the employee to the U.S. USCIS will also consider whether the salary paid to the employee is comparable to similarly situated peers in its U.S. operations, as a lower salary may be evidence that the employee does not have specialized knowledge.

USCIS may consider the number of workers in the relevant industry with the same knowledge when determining whether the knowledge is specialized.

The petitioning employer is not required to demonstrate the lack of readily available workers in the U.S. However, USCIS may ask whether “there are so many workers that the knowledge is generally or commonly held in the relevant industry, and thus not specialized.”

Knowledge will not be considered specialized if it can be easily imparted from one person to another.

A key factor in establishing specialized knowledge is the amount and type of training, work experience, or education required to develop the knowledge. Knowledge will generally be considered specialized if it would be difficult to impart “without significant economic cost or inconvenience” to the employer.

For extensions of status involving the same employer and employee, USICS will give deference to a prior approval, but not if the L-1B worker was admitted under the L-1B blanket program.

USCIS should give deference to a prior L-1B decision and should only reexamine a finding of eligibility where it is determined that there was either a material error with regard to the previous approval for L-1B classification, a substantial change in circumstances since that approval, or new material information that adversely impacts the eligibility of the company or employee. USCIS stopped short of directing its adjudicators to give deference to decisions made by consular officers or inspectors at the ports-of-entry.

There are no new requirements on companies that place L-1B workers at third-party worksites.

The memorandum emphasizes that the employee stationed primarily offsite must be applying specialized knowledge of the petitioning organization’s own services or products. The employee’s knowledge of the third party’s systems may be considered in addition to – but not as a substitute for – his or her knowledge of the petitioning organization’s services or products.

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