Fragomen on Immigration: Toward a Workable Standard of L-1B Specialized Knowledge
May 15, 2015
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The public comment period has just closed on U.S. Citizenship and Immigration Services’ much-discussed draft guidance memorandum on adjudication policies for the L-1B specialized knowledge visa category. Stakeholders throughout the business immigration community – including the Council for Global Immigration, the U.S. Chamber of Commerce and our own firm – have weighed in on USCIS’s deeply considered, though at times problematic, explication of the L-1B legal standard.
The draft policy memorandum – several years in the making – seeks to accomplish what has proven to be a difficult task for USCIS in recent years: articulating a consistent and workable policy for deciding what specialized knowledge is, who is eligible for the L-1B category, and how eligibility is proven. Over the last seven years, USCIS adjudicators and the agency’s Administrative Appeals Office (AAO) revived long-superseded and highly restrictive interpretations of the legal standard, in response to a perception that the L-1B category was being improperly used by so-called job shops. The rate of requests for evidence (RFEs) and denials of L-1B petitions skyrocketed, and multinational organizations – particularly providers of consulting and other professional services – found themselves severely hampered in their ability to transfer their foreign specialists. This was in direct conflict to the goals Congress set out to achieve when it created the L-1 intracompany transferee category in 1970 and broadened it in 1990.
The draft memorandum makes a number of important, and heartening, policy statements that seem to put to rest the positions taken by the AAO and adjudicators. For example, USCIS makes clear that specialized knowledge need not be narrowly held within an organization. This represents an extremely important recognition that global companies, and particularly professional services firms, may employ large numbers of specialists in their workforces, and that the sheer number of such specialists does not militate against a finding of specialized knowledge. USCIS also states definitively that the L-1B category is not subject to a test of the labor market to determine whether U.S. workers are available.
USCIS also affirms the legitimacy of offsite employment in the L-1B context. This was previously a source of friction between the government and the professional services firms whose business model entails the deployment of specialists to end-client sites to develop and implement solutions to their clients’ needs. Finally, the guidance reminds adjudicators that the appropriate burden of proof for L-1B cases is the preponderance of the evidence standard, implicitly directing adjudicators to stop employing a de facto “clear and convincing” standard for L-1B petitions.
But of course the devil is in the details. A close examination of the draft policy reveals some interpretive language and suggested evidence that contradict and undermine many of the agency’s strongly positive statements. Wise immigration lawyers saw plenty of fodder for restrictive adjudications and have spent the weeks since the draft memo was released analyzing it and advocating for changes. As USCIS works toward finalizing and implementing the guidance, multinational corporations and their counsel are looking for a number of essential changes, including the following:
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Definitions of specialized knowledge that adhere to Congressional intent instead of imposing heightened eligibility standards. Though the memorandum takes an important step toward clarifying the types of knowledge that may be considered specialized, it contains imprecise and sometimes contradictory language that effectively raises the bar beyond what Congress envisioned.
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The removal of adjudicative factors that directly conflict with the proper legal standard. For instance, though USCIS states definitively that specialized knowledge need not be narrowly held within the petitioner’s organization, elsewhere in the memorandum it improperly seeks to give adjudicators the authority to question whether a petitioning organization has a genuine need for an L-1B employee if the adjudicator determines that “many” others in the U.S. organization possess the same knowledge.
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Recognition that the best evidence of specialized knowledge is the petitioning employer’s own sworn statements. When a petitioner makes a detailed, specific and credible explanation of the beneficiary’s knowledge and how it fits into the organization’s business purposes, adjudicators should be directed not to request further evidence unless the record contains other evidence that weighs against eligibility. Adjudicators must also be admonished not to substitute their own opinions for the considered business judgment of the petitioning organization.
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The removal of suggested evidence that is not probative of specialized knowledge. Though USCIS apparently believes otherwise, documents such as end-client contracts, payroll records and financial documents are not probative of whether an L-1B beneficiary has the requisite knowledge to qualify as a worker with specialized knowledge. And though some types of documentary evidence can help illustrate a beneficiary’s eligibility, a detailed, credible statement from the employer will in many cases be the best – and indeed only – evidence of specialized knowledge, particularly where employees gain that knowledge through on-the-job experience.
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Deference to the prior L-1B adjudications of sister agencies. L-1 beneficiaries can attain their status in one of three ways: (1) through their employer’s USCIS petition; (2), by means of an L-1B visa application submitted under the employer’s USCIS-approved “blanket” petition, which allows some L-1 employees to bypass the USCIS petition process and apply directly at a consulate; or (3) through an application made directly at the U.S. border pursuant to the North American Free Trade Agreement (NAFTA). Though the draft guidance gives deference to USCIS’s own prior adjudications of L-1B eligibility, the agency should be explicitly directed to accord the same deference to the prior L-1B adjudications of its partners in the L-1 program (i.e., the State Department and U.S. Customs and Border Protection). Failure to accord deference to State Department and CBP adjudications subverts Congress’s goals in creating streamlined L-1 visa options for qualifying global organizations.
We commend USCIS for the obvious effort and deep deliberation it devoted to the draft policy memorandum. But more work is needed to achieve USCIS’s stated goals: furthering a “practical approach … that reflects the L-1B classification’s broad statutory and regulatory definitions, while serving the purpose of the L-1B program and recognizing the fluid dynamics of the business world in which petitioning organizations operate.”
