Immigration Roundup: The L-1B Guidance Is Finally Here. Now What?

Considering that U.S. Citizenship and Immigration Services had been promising new L-1B guidance for about three years, there was quite a bit of hoopla surrounding its release last week. But is the new guidance a boon or a letdown for employers?

The March 24 policy memorandum (PM-602-0111) applies to the agency’s adjudication of L-1B intracompany transferee visas for workers with “specialized knowledge.” Employers and immigration practitioners have been complaining for some time that the USCIS’s increasingly restrictive view of who qualifies for an L-1B visa has made it difficult to bring foreign workers into the U.S. They claim that the Immigration and Nationality Act’s L-1B provisions were supposed to make transfer of these employees to U.S. branches or subsidiaries easier for employers—but the USCIS has frustrated that intent with the way it adjudicates petitions.

The statistics seem to bear out that view: a National Foundation for American Policy report issued less than a week before the new policy memo concluded, based on data from the USCIS, that L-1B denial rates have been climbing, to a high of 35 percent in fiscal year 2014. Requests for evidence—which employers and practitioners say create unnecessary delays—were issued in 45 percent of cases filed in FY 2014.

The memo purports to address these concerns, stating that the intent of the L-1B provisions of the INA was to “facilitate qualifying personnel transfers for U.S. businesses.” The memo defines the elements of “specialized knowledge,” lists factors for determining whether those definitions have been met, reaffirms the preponderance of the evidence standard, provides a list of types of evidence an employer can submit, describes the special criteria for L-1B employees who work off site and states that adjudicators should give deference to prior adjudications when examining L-1B extension requests.

But now that the memo is here, reviews are mixed.

The U.S. Chamber of Commerce and the American Immigration Lawyers Association both put out statements expressing cautious optimism. The Chamber highlighted parts of the memo that it likes, but said it will look at it carefully before submitting feedback during the comment period that ends May 8. AILA called the memo a “positive step forward,” but stressed that USCIS adjudicators need to be trained on its contents in order for it to filter down through the ranks.

Proskauer Rose attorney David Grunblatt expressed similar sentiments in an interview with Bloomberg BNA. He said what really needs to change is USCIS adjudicators’ attitudes, which appear to be geared toward denials and a restrictive view of “specialized knowledge.”

Berry, Appleman & Leiden attorney Lynden Melmed said the memo’s addition of wage considerations for the first time in L-1B adjudications is “ground-breaking.” The memo says evidence that an employer pays a potential L-1B beneficiary less than U.S. workers with the same or similar specialized knowledge may be an indication that the foreign worker doesn’t have specialized knowledge after all. However, Melmed said in an interview with Bloomberg BNA that the memo doesn’t provide much guidance on how and to what extent wages should be taken into account.

The memo doesn’t go into effect until Aug. 31, so for now it’s a waiting game to see how it operates in practice.

Get up-to-date news and expert analysis from respected practitioners and Bloomberg BNA's legal editors, and practical research tools with a free trial to the Labor & Employment Law Resource Center.