DHS updates guidelines for L-1B specialized knowledge

Over the past decade L-1B specialized knowledge petitions for foreign national employees have slowly become the bane of multinational companies’ existence.  

The L-1B non-immigrant visa was introduced in 1970 as a way to facilitate international businesses’ ability to facilitate the management and transfer of foreign national employees from offices abroad and thus more efficiently manage their workforce.  The L-1B program allows multinational companies to temporarily transfer foreign national employees from a corporate parent, subsidiary or affiliate abroad to a U.S. office. In order to qualify, the company must establish that the foreign national employee possesses specialized or advanced knowledge of the company’s products and processes.

Since the introduction of the L visa, the definition of “specialized knowledge” has been defined, re-defined and clarified by statute, regulation and memorandum.  Over the past decade, the U.S. Citizenship and Immigration Service (USCIS) has employed increasingly difficult and unpredictable standards of what knowledge qualifies as “specialized” leaving companies frustrated with the process.  In 2006, USCIS requested additional evidence of specialized knowledge in just 9% of L-1B petitions. By 2014, the agency was requesting additional evidence in 45% of L-1B applications.  Similarly, denials of L-1B petitions increased from 6% to 35% during that same period.

In November 2014, President Obama announced that, as a part of his administration’s executive immigration action, USCIS would issue clear guidelines to clarify “specialized knowledge” for purposes of the L-1B Intracompany Transferee Program.  It was hoped that the guidelines would set clear standards to assist employers utilizing the L-1B program and help to ensure consistency across L-1B adjudications by USCIS.

On March 24, 2015, USCIS released the long-awaited proposed guidelines for L-1B adjudications.  The proposed guidelines provide some good news for employers.  First, the agency delineates the standard of review for L-1B petitions as a “preponderance of the evidence” standard, meaning that it is “more likely than not” that the evidence provided establishes that the L-1B beneficiary possesses “specialized knowledge” of the company’s product and its application in international markets or advanced knowledge of the processes and procedures of the company. Additionally, the proposed guidelines explicitly supersede prior agency memoranda on the issue, thus providing employers with one clear source of guidance regarding the evidence necessary to establish specialized knowledge and the standard of review.  However, the proposed guidelines suggest burdensome evidentiary requirements and appear to leave L-1B adjudications susceptible to the subjective perspective of the USCIS officer reviewing the petition.

The Agency has requested feedback to the proposed guidelines prior to May 8, 2015.  The guidelines will become effective on August 31, 2015.  The guidelines are available at http://www.uscis.gov/sites/default/files/USCIS/Outreach/Draft%20Memorandum%20for%20Comment/2015-0324-Draft-L-1B-Memo.pdf.

At Kolko & Associates, P.C., we are more than happy to review the proposed guidance regarding the L-1B Program and its impact on your business. Please contact Kolko & Associates, P.C. at (303) 371-1822 to set up a consultation with of our licensed and experienced attorneys to review your case.