USCIS issues final L-1B policy guidance

18 Aug 15

UNITED STATES

On Tuesday, U.S. Citizenship and Immigration Services issued final guidance regarding L-1B adjudications policy. 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. The new policy memorandum applies to all L-1B petitions pending or filed with USCIS on or after August 31, 2015.

The agency released an earlier version of the policy in March and solicited public feedback. Though the structure of the final guidance remains unchanged, USCIS made several substantive changes that are likely to affect how USCIS adjudicators apply the policy. Below are key changes that companies should be aware of as they prepare for implementation of the new binding policy guidance:

  • Definition of “specialized knowledge”:
    • When explaining whether knowledge is advanced, the government added language emphasizing that “[i]t is not sufficient to demonstrate that the beneficiary has general knowledge of processes and procedures common to the industry; the focus here is primarily on whether the beneficiary’s knowledge of the processes and procedures used specifically by the petitioning organization is advanced.” (Emphasis in original.)
  • Wage obligations for L-1B transfers:
    • The government clarified that an officer should consider whether “the total compensation provided to the beneficiary is comparable in dollar value to similarly situated peers in such U.S. operations.” Total compensation may include “guaranteed forms of payment made to an employee for services rendered for the petition. Such compensation may be paid in the form of money, a commodity, a service, or a privilege, including food, transportation and housing allowances, as well as guaranteed bonuses. The payment must be principally for the convenience or benefit of the employee and be agreed upon by the petitioner and beneficiary before the petition is filed.”
  • Evidence of specialized knowledge:
    • When addressing evidentiary criteria for an L-1B petition, the final guidance adds language stating that a “petitioner’s statement may be persuasive evidence if it is detailed, specific and credible. Adjudicators may, in appropriate cases, however, request further evidence to support a petitioner’s statement, bearing in mind that there may be cases involving circumstances that may be difficult to document other than through a petitioner’s own statement.”
  • Deference for prior approvals:
    • The earlier draft guidance did not address how USCIS should treat a prior L-1B approval by the U.S. Department of State or Customs and Border Protection (CBP). The final guidance states that “USCIS will take note of a previous determination of L-1B eligibility made by the Department of State or U.S. Customs and Border Protection, but will make a determination on the instant petition based on the record before it, consistent with the guidance provided in this memorandum.”
  • Change in off-site work location:
    • USCIS retained the footnote language that says that “a change in off-site employment, depending on the circumstances, may constitute a substantial change or new material information requiring readjudication by USCIS to ensure compliance with the L-1 Visa Reform Act.”

BAL Analysis: In light of the subjective nature of the L-1B visa category, it is difficult to predict how USCIS adjudicators will interpret the nuanced and lengthy 15-page guidance. Though the final policy memorandum retained important provisions, such as affirming the preponderance-of-evidence standard, other provisions could result in sustained or elevated rates of Requests for Evidence (RFEs) or L-1B denials. BAL will continue to work with the agencies and monitor the government’s implementation of the guidance. Clients should consult with their BAL professionals to discuss how the guidance may impact their L-1B programs.

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