USCIS Releases New Guidance Concerning L-1B Workers

On March 24, 2015, USCIS released a long-anticipated Policy Memorandum on the L-1B visa category, which allows for an intra-company transfer of current foreign employees with “Specialized Knowledge” of the company.  USCIS has faced criticism for its high denial rates of L-1B visa petitions, with a recent National Foundation for American Policy report finding denial rates of 35% in 2014, up from 6% in 2006.  The Obama Administration has promised to reform the L-1B category, and this new USCIS Policy Memorandum appears to be the first step in fulfilling that promise.  USCIS will take comments on the Memo until May 8, 2015, with the final version going into effect on August 31, 2015.

The Memorandum proposes to rescind all prior USCIS internal guidance on the L-1B category, replacing it with clearer guidelines on specific aspects of L-1B adjudication, including:

• Clarifying that the evidentiary standard for Specialized Knowledge is a “preponderance of the evidence,” a relatively lower standard
• Providing that, according to the regulatory definition, a sponsored worker may qualify by possessing “special knowledge” of a company’s products or services OR “advanced knowledge” of a company’s processes and procedures
• Noting that Specialized Knowledge is not limited to knowledge that is proprietary or absolutely unique to the transferring company, nor does such knowledge need to be narrowly held within the transferring company
• Moreover, the petitioner is not required to demonstrate an absence of U.S. workers available to perform the duties of the L-1B worker
• The Memo also provides a list of possible evidence that petitioners may submit to demonstrate Specialized Knowledge

Gibney will work with its clients to understand the implications of this new Policy Memo before the effective date of August 31, 2015, and to develop effective strategies to comply with the guidelines set forth.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.