USCIS yesterday issued its official policy guidance on eligibility for the L-1B specialized knowledge visa category, some five months after seeking the public’s comments on a draft policy. The final guidance incorporates favorable changes suggested by the business immigration community, but retains interpretive language that may weaken many of the agency’s positive statements and gives agency adjudicators discretion to question the business needs of petitioning employers and request extensive corroborating evidence.
The L-1B guidance is the product of intensive effort within USCIS and was identified by the White House as one of its key employment-based executive actions on immigration. It comes after many years of increasingly restrictive legal standards and a surge in costly requests for evidence (RFEs) and petition denials.
The new guidance will take effect on August 31, 2015.
Defining and Documenting Specialized Knowledge
The final memorandum retains a number of significant policy statements that acknowledge the importance of the L-1B specialized knowledge category in the current global business environment. The agency reaffirms that specialized knowledge need not be narrowly held within an organization – an important recognition that global companies, and particularly professional services firms, may employ large numbers of specialized knowledge workers, and that the sheer number of such specialists does not militate against a finding of specialized knowledge.
But elsewhere, the guidance continues 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 others in the U.S. organization possess the same knowledge.
The final guidance acknowledges that a petitioner’s own statements may be persuasive evidence of a beneficiary’s eligibility, and that in some circumstances, may be the only available evidence of an L-1B’s specialized knowledge. But USCIS continues to give officers troubling leeway to request additional evidence, even if the petitioner’s statement is detailed, credible, and uncontradicted by the rest of the record in the case.
The guidance retains an extensive list of suggested evidence that stakeholders have long argued would not generally reflect an employee’s specialized knowledge, including end-client contracts, training documentation and payroll records. Though USCIS cautions that this evidence is not mandatory, the failure to submit it could potentially lead to RFEs and petition denials.
The guidance also gives adjudicators the authority to review an L-1B’s wages and benefits, and suggests that discrepancies between the value of an L-1B’s total compensation and that paid to employees in comparable positions could indicate that the beneficiary’s knowledge is not specialized. Originally, USCIS sought to focus on an L-1B beneficiary’s salary alone as an evidentiary factor, but after significant advocacy from the business immigration community, USCIS will now review a beneficiary’s full compensation package, including bonuses, benefits, housing allowances and even non-monetary privileges – a better outcome, but one that still poses concerns in view of the fact that Congress created the L-1 category with no wage requirements.
Offsite Placement of L-1B Employees
In the final guidance, USCIS more definitively states that the L-1B Visa Reform Act permits the placement of L-1B employees at end-client sites. It reconfirms that end-clients may assign work to L-1B employees, provided that the petitioner retains principal authority over the manner in which the work is performed and other key indices of employment. And where the petitioner is in the business of providing its clients with customized solutions, the guidance specifies that a beneficiary’s knowledge of a client’s own systems can be considered along with, though not as a substitute for, the requisite knowledge of the petitioner’s products and services.
Extensions of L-1B Status and Deference to Prior Adjudications
Extensions of L-1B status continue to be a significant concern for stakeholders, which the guidance does little to alleviate. Though the final guidance directs USCIS adjudicators to give deference to the agency’s prior petition approvals when reviewing L-1B extensions, a number of exceptions to this general rule could lead to extensive readjudication of a beneficiary’s eligibility in the extension context.
Despite stakeholder feedback, USCIS declined to direct adjudicators to give deference to case approvals granted by other U.S. government agencies. USCIS officers will merely “take note” of approvals of NAFTA L-1s granted at the Canadian border by U.S. Customs and Border Protection and blanket L applications approved at U.S. consulates. Similarly, USCIS may not give deference to prior adjudications where there has been a substantial change in circumstances, which the memo suggests could include a change in offsite placements.
What the Final Guidance Means for Employers and Foreign Nationals
Though the final L-1B guidance contains some improvements over the agency’s earlier draft, many issues of concern identified by stakeholders earlier this year remain largely unchanged. USCIS adjudicators remain authorized to examine new avenues of inquiry – including beneficiary compensation and the genuineness of the petitioner’s need for sponsored workers – that could pose more uncertainty for employers.
The guidance continues to emphasize types of evidence that may not effectively reflect the knowledge of a qualified beneficiary. And though the agency took steps to recognize an organization’s own statement of its business need for an L-1B beneficiary, it fell short of recognizing the full evidentiary weight of such statements. Finally, the lack of deference paid to the L-1B adjudications of sister immigration agencies may do little to improve adjudication of L-1B extensions, which continue to be denied at a higher rate than initial filings.
Courtesy of Fragomen.