Virginia, US
Before they have even finished reviewing stakeholder feedback on their draft policy memorandum on L-1B adjudications standards, U.S. Citizenship and Immigration Service (USCIS) officials issued a draft L-1B RFE template which reproduces verbatim the same imprecise specialized knowledge factors articulated in the draft guidance memorandum. If we were cynical, we might think this indicates that the solicitation of input on the policy memo was nothing more than lip service. While there are many shortcomings in both the draft policy memo (detailed in an earlier blog post) and the RFE template, the most disturbing aspect of both is this: that USCIS will apparently discount the credibility of employers’ sworn statements.
 
USCIS acknowledges in its draft policy memorandum that the agency is best able to perform its L-1B adjudicatory function when the petitioner “explains with clarity the specific nature of the industry or field involved, the nature of the petitioning organization’s products or services, the specialized knowledge required to perform the beneficiary’s duties and the need for the beneficiary’s specialized knowledge.”  And yet the RFE template suggests to adjudicators that it must seek voluminous—and mostly irrelevant—documentary evidence to support the petitioner’s statements.
 
But the truth is that the petitioner’s statements, made under penalty of perjury, along with the petitioner’s signed letters of support, are persuasive evidence of the organization’s need for the beneficiary and how the beneficiary serves the employer’s business purposes. The employer’s explanatory statements alone, if probative and credible, are sufficient to satisfy the preponderance of the evidence (“more likely than not”) standard. As such, adjudicators must be clearly instructed to accord the petitioner’s statements significant evidentiary weight.
 
This is not merely word play. The petitioner’s own statements are always the best evidence of a proposed beneficiary’s specialized knowledge. Indeed, many types of specialized knowledge can only be documented in this way. The employer is in the best and often only position to explain how and why the beneficiary’s knowledge and experience are advanced or specialized within the context of the employer’s business. A reality of “the fluid dynamic of the business world,” as USCIS itself terms it in its draft guidance memo, is that an L-1B worker’s specialized knowledge of the company’s products, processes, services, methodologies and the like is rarely expressed in pre-existing documents of the kind USCIS lists in the draft RFE template. If the RFE template is adopted without change, it will prompt adjudicators to ignore petitioners’ sworn statements and make burdensome requests for supporting documentation that would not be relevant or probative, and which in many cases is unavailable or simply nonexistent.
 
Here are just a few examples of the types of evidence the RFE template instructs adjudicators to request which are unduly burdensome, and are neither probative, available nor relevant:
 
  • Contracts, statements of work or other documentation that shows that the beneficiary possesses knowledge that is particularly beneficial to the organization’s competitiveness in the marketplace.  It is rare that documents such as contracts, client statements of work and the like will name a specific L-1B beneficiary, specifically enumerate his or her specialized knowledge, or demonstrate how that knowledge aids the organization’s competitiveness. Furthermore, petitioning organizations should not be asked to submit confidential business information to demonstrate a beneficiary’s specialized knowledge.
  • Documentation of training, work experience or education establishing the number of years the individual has been utilizing or developing the claimed specialized knowledge as an employee of the organization or in the industry. Though knowledge of a company’s processes, procedures, techniques and methodologies may be taught in formal classroom training, records of any training are unlikely to reveal more than the date, time and general subject of training. It is highly unlikely that most employers will have training records that reflect a beneficiary’s specific knowledge. Certainly, the petitioner is unlikely to have access to documentation of any training the beneficiary underwent with other employers in the industry. Furthermore, classroom instruction is usually brief and supplemented by actual experience, and it is through on-the-job experience that employees gain the competencies that endow them with specialized knowledge. Finally, the petitioner itself is the best judge of whether the individual’s education and experience qualify him or her for the L-1B position, and its sworn statements should be accorded significant evidentiary weight on this score.
  • Payroll documents, federal or state wage statements, resumes, organizational charts, or similar evidence documenting the positions held and the wages paid to the beneficiary and parallel employees in the organization. Requiring a petitioner to submit payroll records is both burdensome and irrelevant to the specialized knowledge inquiry. Moreover, wage is not indicative of specialized knowledge and has been rejected by Congress as a basis for determining L-1B eligibility. 
  • Evidence, such as correspondence or reports, establishing that the beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the organization’s productivity, competitiveness, image or financial position. As noted above, the petitioner is unlikely to possess documentation showing the relationship between the beneficiary’s specialized knowledge and the organization’s competitiveness, nor was it ever Congress’s intent to require such a showing. Neither the statutory nor the regulatory definition of specialized knowledge contains any reference to the beneficiary’s contributions to the petitioning organization’s competitiveness in the marketplace, productivity, image or financial position. Proving these factors would require the petitioner to speculate on the connection between the beneficiary’s knowledge and specific company gains or to conduct an exhaustive economic analysis, neither of which is required by law.
 
Similar comments could be made about each and every one of the suggested types of evidence set out on page 12 of the draft RFE template.
 
USCIS’s draft guidance memo on L-1B adjudications policy falls far short of respecting Congressional intent, clarifying the definition of specialized knowledge, or providing stakeholders with clear guidance on the agency’s adjudication standards.  Similarly, the draft L‑1B RFE template prompts adjudicators to ignore petitioners’ sworn statements and make burdensome requests for supporting documentation that would be not be relevant to the determination of specialized knowledge, and which in many cases is simply nonexistent. An employer’s sworn statements as to the facts relevant to a beneficiary’s specialized knowledge meet the preponderance of the evidence standard of proof which applies in these matters.
 
Neither the draft policy memo nor the draft RFE template is clear enough to serve as guidance—neither to adjudicators nor to stakeholders.  In fact, in their current forms they actually hinder rather than further the government’s stated goals to facilitate intracompany transfers of specialized knowledge workers by making such transfers faster and simpler. Instead, they would make them slower and more complicated.
 
USCIS really needs to go back to the drawing board.