U.S. Citizenship and Immigration Services issued a long awaited memo on L-1B adjudications. L-1Bs are intracompany transfers who are transferred due to their specialized knowledge. Adjudications in this area are notoriously inconsistent, with far-reaching implications for global companies that need to be able to move their talent into the United States.
The memo itself is an interim memo. The agency is accepting feedback on it until May 8th. The agency will also be hosting a stakeholder call concerning the memo on April 9th.
The first five pages of the memo are largely a history lesson in the back and forth guidance that the agency has given on the subject since 1994. In recent years, requests for evidence at Service Centers have been as common as not on L-1B petitions. Literally. Approximately 2/3 of California Service Center applications are issued Requests, and 1/3 are denied, despite steep costs. Border applications for Canadians under NAFTA can be wildly erratic.
The memo focuses first on the preponderance of evidence standard, which is a good start. This standard only requires proof that an applicant more likely than not has specialized knowledge.
The memo then focuses on the definition of specialized knowledge, and emphasizes that it can include “advanced level of knowledge or expertise”. It then says knowledge should be distinct or uncommon as compared to that generally found in the industry; or advanced knowledge that “is greatly developed or further along in progress, complexity and understanding than generally found within the petitioning employer.”
The memo provides a non-exhaustive list of factors to look at, and notes that specialized knowledge cannot be easily imparted, but does not need to be proprietary knowledge and the U.S. labor market need not be tested. Further, the memo says the knowledge need not be narrowly held within the petitioning organization, and the person need not have a high salary or be in management. Finally, eligibility for other nonimmigrant classifications should not preclude L-1B eligibility.
The memo, 15 pages in all, discusses other relevant issues such as off-site employment, qualifying employment, and examples of indicia of knowledge.
The memo offers a great deal of information that can be useful for making a case for L-1B eligibility. The Adjudicator’s Field Manual will ultimately be amended to incorporate the final memo.
Historically, the agencies have really struggled in implementing guidance such as this. USCIS is largely funded by user fees, and so at some level, there is incentive to adjudicate narrowly, so as to encourage the receipt of more applications.
The pessimistic view is that complexity breeds complexity in a bureaucracy, and so a 15 page memo of guidance may simply lead to longer requests for additional evidence and denials. A more optimistic view is if the agency begins truly adjudicating based on the preponderance of evidence standard, the memo could result in more predictable outcomes.