USCIS Publishes Final L-1B Specialized Knowledge Policy Memorandum | Practical Law

USCIS Publishes Final L-1B Specialized Knowledge Policy Memorandum | Practical Law

US Citizenship and Immigration Services (USCIS) has published the final version of its policy memorandum on the adjudication of L-1B specialized knowledge petitions. The memorandum is effective for all L-1B petitions pending on or filed on or after August 31, 2015.

USCIS Publishes Final L-1B Specialized Knowledge Policy Memorandum

Practical Law Legal Update 9-618-2495 (Approx. 4 pages)

USCIS Publishes Final L-1B Specialized Knowledge Policy Memorandum

by Practical Law Labor & Employment
Published on 21 Aug 2015 • USA (National/Federal)
US Citizenship and Immigration Services (USCIS) has published the final version of its policy memorandum on the adjudication of L-1B specialized knowledge petitions. The memorandum is effective for all L-1B petitions pending on or filed on or after August 31, 2015.
On August 17, 2015, US Citizenship and Immigration Services (USCIS) published its final policy memorandum concerning the adjudication of L-1B specialized knowledge petitions. The memorandum replaces several prior guidance memoranda on the L-1B category. This final policy memorandum, which is effective August 31, 2015, updates a draft memorandum that was issued March 24, 2015.
The final policy memorandum did not significantly change the draft memorandum's substance. As in the draft memorandum, the final version:
  • Establishes that L-1B petitioners must show that the petition meets a preponderance of evidence standard.
  • Clarifies the definition of specialized knowledge.
  • Describes how the specialized knowledge definition is applied and how it can be documented by petitioners.
  • Draws distinctions between advanced knowledge and specialized knowledge.
  • Clarifies how petitioners can show control and supervision of L-1B workers who will be employed offsite.
The final memorandum did, however:
  • Remove some references that the petitioner show that the worker's knowledge is distinct or uncommon within the petitioner's organization. The memorandum explains that evidence of a worker's advanced knowledge includes a showing that the foreign worker's knowledge of the organization's processes or procedures is above the elementary or basic knowledge held by others in the petitioning organization or in the industry generally.
  • Added a description of what "total compensation" may be considered when considering whether the foreign worker's compensation distinguishes the worker from his peers.
  • Confirms that a petitioner's statement, without more, may support a successful L-1B petition if it is detailed, specific and credible, although officers may request additional evidence when needed.
  • Updates Chapter 32.6(e) of USCIS's Adjudicator Field Manual (AFM). The AFM is used by USCIS adjudicators to evaluate and process immigration benefits, including L-1B petitions.
Employers may find the final memorandum helpful when evaluating the specialized knowledge qualifications of prospective workers being transferred from a qualifying entity abroad. However, it is unclear if this memorandum will alter the current trends of significant requests for evidence and denials for L-1B petitions. How USCIS implements this guidance with adjudicating officers, including the training given on the evidentiary standard and applying subjective criteria in an area where documentary evidence is often in short supply, will determine the effect the memorandum has on L-1B adjudications.
For more information on the March draft memorandum, see Legal Update, USCIS Publishes Updated Policy Memorandum on the L-1B Classification and Seeks Feedback.