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New USCIS policy memorandum issued regarding adjudication of L-1B applications – part 1

Written By The Shapiro Law Group on May 06, 2015

The United States Citizenship and Immigration Services has recently issued a policy memorandum that attempts to clarify the basis that will allow U.S. company’s overseas employees to qualify for being classified as L-1B specialized knowledge employees. Presently, the L-1B visa category is intended to allow international companies to bring specialized workers to the U.S. The L-1A visa category allows the transfer of international executives and managers, while the L-1B classification focuses on the transfer of international employees who possess specialized knowledge. The L-1B visa is not for permanent relocation, and most applications are for one- to three-year periods of time.

Rising L-1B applications and denials

According to CNN Money, the numbers of applications for L-1B visas are growing. In 2012, 124,000 applications were filed; in 2013, 172,500 applications submitted; and this year, the number has jumped to 233,000. At the same time, however, it has become much more difficult for an overseas employee to be classified as an L-1B nonimmigrant. USA Today states that application denials on L-1B visas have risen from 6 percent in 2006 to 35 percent in 2014. The rising number of denials became significant in 2008 with the country’s recession. At that point, USCIS began denying more visas to workers with advanced technology backgrounds. Data concerning L-1B visas also shows that requests might not be treated equally.

Applications to transfer employees from India were denied 56 percent of the time between fiscal years 2012 and 2014. During the same period, the average denial rate for all other countries was 13 percent. Rejections on L-1B visa applications have resulted in the inability of corporations to complete research projects or serve customers, lowering their ability to compete in the global marketplace and negatively affecting the U.S. economy.

USCIS and determining what constitutes “specialized knowledge”

An immigration lawyer in Chicago knows that part of the challenge in acquiring an L-1B visa is determining whether an employee has specialized knowledge. When the L-1 visa program was first enacted in 1970, the original idea for L-1B was to include employees with “specialized knowledge.” However, specialized knowledge was not defined, and interpretation developed through agency regulations and precedent decisions. As requirements were added, adjudication became increasingly restrictive.

Congress attempted to define specialized knowledge more clearly in the Immigration Act of 1990. According to this bill, aliens could be transferred to the U.S. if they had special knowledge of the following:

  • Company products, services, research, equipment, techniques, management or other interests
  • Knowledge of the applications of these in international markets
  • An advanced level of knowledge of processes and procedures of the company

The employee no longer had to have proprietary knowledge unavailable in the U.S. labor market, according to the 1990 bill.

L-1B visa petition adjudication policy changes: 1994 to 2004

Memoranda issued in later years attempted to clarify specialized knowledge further. The Puleo Memo of 1994, entitled “Interpretation of Special Knowledge,” explained that the beneficiary’s knowledge was specialized if it could only be acquired through experience in that company, or if it included knowledge of a specific project or process that was not easily taught to another individual. Advanced knowledge no longer had to be proprietary or unique, but it was required to be “advanced, highly developed or complex.” A 2004 memo required consideration of whether the company would suffer economically or operationally if a new employee had to be hired rather than the particular overseas employee.

Congress enacted new legislation in 2004 that affected adjudication by addressing the placing of L-1B beneficiaries at third-party worksites. The requirements in these situations include the following:

  • The employee must be solely under the supervision of the petitioning organization
  • The employee must not be considered “labor for hire” by the unaffiliated company
  • Labor must be exchanged for products or services from the unaffiliated company
  • The employee must be stationed primarily at the location of the petitioner

For example, a software developing company may send an employee to the site of its client for the purpose of setting up a new computer system.

USCIS 2008 unpublished decision increases restrictions

In 2008, a company petitioner protested after an L-1B visa application, which sought to bring a technology consultant into the U.S., was denied. The Administrative Appeals Office of the USCIS in its decision, In re GS Technical Services, Inc., upheld the decision to deny the L-1B application, stating that the company did not prove the potential beneficiary’s knowledge differed from that of other workers in the industry, and within the petitioning company. Essentially, the specific skill set of that employee was not in itself sufficient to establish specialized or advanced knowledge.

Additionally, the AAO stated that L-1B visas should only be granted for beneficiaries whose roles include unusual duties, skills or knowledge, and that “experienced” or “skilled” were not correct interpretations of the terms “specialized” or “advanced.” Rather than clarifying the matter for companies, however, this decision led to further confusion over the definition of specialized knowledge. As a result, the AAO sent a clear message that it was no longer using the previous memos issued and began denying L-1B visa applications at a higher rate than ever before, citing this unpublished decision.

L-1B Adjudications Policy memorandum of 2015

This year, Congress has acknowledged the need to further clarify these terms due to the rising number of petitions and subsequent denials, as well as the increasing confusion petitioners encounter when attempting to gather evidence. This has led to the USCIS’ newest memorandum, which provides guidance on the current L-1B program and reflects the importance of allowing employees with specialized knowledge to transfer to the United States.

This memo is currently available for review, and is expected to go into effect August 31, 2015. Under this guidance, a petitioner may be able to prove special or advanced knowledge through a comparison to other professionals with similar knowledge. For more information about the changes made in this USCIS memorandum and how it will affect businesses, please refer to the posting, “New USCIS policy memorandum issued regarding adjudication of L-1B applications – part 2.”