OPINION: L-1B Careful: the Difficulties of the Specialized Knowledge Visa

by Elizabeth Brettschneider

If there is anything a seasoned immigration lawyer is sure of, it is to tread carefully with the L-1B visa petition. The L-1B visa is for intra-company transfers of employees who have been working for the foreign parent, subsidiary, or affiliate branch for at least one year. The transferee must be coming to the US branch office of the company to work in a position that requires “specialized knowledge” (whereas an L-1A is for an executive or manager). What exactly “specialized knowledge” means has been a subject so frequently discussed in immigration case law, US Citizenship & Immigration Services (USCIS) memoranda, lawyer forums, conferences, and office water cooler chats, that a person could read for days straight and end up just as confused as they were when they started. After all that, the reader may see no correlation between what they just read and how USCIS currently adjudicates L-1Bs.

USCIS L-1B Memo Offers Guidance

Immigration practitioners have been clamoring for years for better guidance on the L-1B visa. Finally, on March 24, 2015, USCIS released a draft policy memorandum entitled “L-1B Adjudications Policy” for public comment. After consideration of the offered comments, the final memo was published August 17, 2015 and will go into effect August 31, 2015. The published memo updates chapter 32.6(e) of the Adjudicator’s Field Manual (AFM), which is helpful information for lawyers or those who like to get super technical with the immigration process.

Why All the L-1B Denials and RFEs, USCIS?

For years, L-1B adjudications were relatively routine and predictable. A few years ago, however, we started to see a relatively sudden shift in adjudication practices. Approximately thirty-five percent of L-1B petitions were denied in 2014. That was the fourth straight year that figure had risen. In 2006 the denial rate was as low as six percent according to a report from the National Foundation for American Policy (NFAP). Forty-five percent of cases in 2014 received a Request For Evidence (RFE). In 2004, only two percent of cases received a RFE. This is despite the fact that no regulations changed during that time.

Interestingly, the denial rate per nationality of the beneficiary is not consistent. The reported statistics for Indian nationals in comparison with other nationalities is much worse. Indians were denied fifty-six percent of the time compared with twenty-two percent for Chinese, twenty-one percent for Mexicans, and nineteen percent for French according to data obtained by the NFAP through a Freedom of Information Act (FOIA) request. 

What are some of the more commonly-reported denial or RFE justifications? Frequent issues arise when officers think a company can’t possibly have more than a few people with specialized knowledge. It’s important to note that the statue does not necessitate a numerical restriction. In huge companies employing thousands of people in highly specialized fields it wouldn’t be feasible if only a few people in the company had specialized knowledge. Yet inexplicably this is a reported cause of RFEs and denials across the country.  

What Does “Specialty Knowledge” Mean? Please Tell Us Someone!

Another common issue comes from the misunderstanding of what the term “specialty knowledge” means. Officers sometimes view it as a standard much like that of “extraordinary ability.” Extraordinary ability is the O-1 standard, not the L-1B standard. When I attended an open house at the Vermont Service Center a few years ago, we had a round table discussion with adjudicating officers and the topic of L-1B denial rates came up. One of the officers talked about the standard they are looking for to determine if a beneficiary has “specialized knowledge.” The words he was using were those we see everyday—in the O-1 visa applications we submit! He may have even used the word “extraordinary.” Requiring a patent or showing that a beneficiary is famous in their field of expertise is not an L-1B requirement, but those are the types of evidence that some adjudicators expect to see. 

As is common with many visa adjudications across the different visa categories, the requirement of hyper-documentation to meet the burden of proof is contrary to the guiding principle of looking at the totality of the evidence. The standard of review is “preponderance of evidence.” This means the officer has to be convinced that it is “more likely than not” that the evidence meets the statutory requirements. The officer should not require a “beyond a reasonable doubt” standard. The new policy memo from USCIS lays out the standard of review so we’re hopeful this point will finally be hammered home to adjudicators. I am not going to hold my breath, however. 

Is USCIS Just Trying to Protect American Technology Workers?

So what has happened to cause this sudden 180% turnaround in the way L-1B cases are adjudicated? USCIS hasn’t admitted to any intentional re-interpretation of the regulations but in my opinion it appears to be the US government protecting American technology workers. The fact that there exists such a huge difference in adjudication rates for Indian nationals (who often apply to work in the IT field) compared with others seems to back this up. The problem with this is that the denial rationales are developed within the walls of the service centers and not by Congress as our legal system requires. 

The program was originally intended to help employers who could not find skilled workers in the US but had the trained staff working for their offices abroad. Some people, however, think the program helps employers bring over cheaper labor, which some equate to a loss of jobs for potential US workers. Conversely though, statistics frequently show that skilled immigrants complement the American work force. Foreign workers’ contributions to the US economy help create new jobs and opportunities for economic expansion. For instance, if a foreign worker with specialized knowledge allows a business to stay open, that saves the jobs of the US workers currently working for that US company and may allow the business to grow to hire even more US workers. 

With Inconsistent USCIS L-1B Adjudications It's Difficult for Lawyers to Advise Clients

The big problem with the inconsistent denials and overwhelming RFEs for practitioners is that it becomes increasingly difficult to give legal advice. Therefore companies have trouble making plans with the uncertainty of the adjudications. What’s going to happen (and is surely happening already) is that companies will move out of the US to avoid the unreliable and unpredictable US immigration system. For companies contemplating opening an office in the US who become educated in how difficult it is to hire foreign workers, they will think long and hard before setting up shop in the US. 

The complaints of practitioners and business owners themselves have finally been addressed with the new policy memorandum but will this memo ultimately help all of us? The purpose of the memorandum was to provide clear, consolidated guidance on the meaning of “specialized knowledge” to bring greater integrity to the L-1B program and improve consistency in adjudications. These are certainly lofty intentions but the fear is that the content of the memo may not have the result that the government intends. 

AILA Makes Some Great Comments on the USCIS L-1B Draft Memo

Prior to the publication of the final memo, the American Immigration Lawyers Association (AILA) publicly released their comments about the then-draft memo. Many of the concerns they highlighted are valid in my opinion. For instance, they pointed out that when USCIS has a “non-exhaustive” list of possible evidence that could be submitted to prove “specialized knowledge,” the list includes things that by their very listing will likely become de facto requirements. As an example, there is no requirement in the regulations that the beneficiary’s employment abroad have “significantly enhanced the organization’s productivity, competitiveness, image or financial position.” Nor is there any requirement that the beneficiary “possess knowledge that is particularly beneficial to the organization’s competiveness in the marketplace.” Yet USCIS lists these as possible ways to prove specialized knowledge. AILA’s comments and suggested changes were not incorporated into the final memo.

The final memo does say that the list is non-exhaustive and that all listed elements don’t have to be documented but as any rational person knows, by including these concepts in the L-1B vocabulary they start to become ingrained in the minds of adjudicators who expect to see them in submissions. We will have to wait until adjudications under the new guidance memo occur over time to see if the fear becomes reality. 

Is Higher Salary Now a Requirement for L-1Bs?

Another concerning element of the memorandum is the discussion of how the beneficiary’s salary plays into the adjudication. There is no requirement in the L-1B regulations that the salaries of L-1B workers exceed their co-workers; however, the final memo says (in a footnote, but none-the-less it’s there for adjudicators to see) that “Evidence that a significant number of employees within the petitioning organization’s U.S. operations share the beneficiary’s knowledge, yet the beneficiary will be paid substantially less than those similarly situated employees, [it] may indicate that the beneficiary lacks the requisite specialized knowledge.” With this one sentence, USCIS will for all intents and purposes change the L-1B law. The final version of the memo does couch the statement a bit by suggesting that there could be valid business reasons for the wage discrepancy but in my opinion by even suggesting that salary is a factor in the specialty knowledge consideration, the damage is already done. Adjudicators will now understand that salary is a measure of the specialty occupation consideration. Again, we will have to wait to see if cases are denied based on this salary determination. 

Why Aren't Employer Statements Valid for USCIS?

The biggest overall complaint that many (including myself) had with the draft USCIS memorandum released in March was the seeming mistrust of the employer letter to prove the elements of the L requirements. There is repeated times in the proposed memo where USCIS discusses the requirement that there be separate documentation to corroborate statements made in the letter. It says that the employer statement alone is not enough.

To require additional documentation without an accusation of inconsistency or fraud is excessive and gives the impression that USCIS is automatically skeptical of the employer. It flies in the face of the evidentiary standard that USCIS had made clear in an earlier part of the memo. The petitioning employer has the burden of proof, yes, but that burden is not beyond a reasonable doubt. If that were the standard then requiring substantial documentation would make sense, but if the standard is more likely than not/preponderance of the evidence, the evidentiary requirements shouldn’t be so burdensome absent a finding of inconsistency or fraud.

In the final version of the memo, I am heartened to see that USCIS has taken a more reasonable approach regarding the weight of statements made by the petitioner. It now acknowledges that “a petitioner’s statement may be persuasive evidence if it is detailed, specific, and credible.” It also says there may be cases where it will be difficult to provide corroborating evidence beyond the petitioner’s statement. It leaves room for the adjudicators to request further evidence to support a petitioner’s statement but the final memo seems a lot more in line with the regulations and the standard of review than the prior version. I for one am thankful for this change but wish that more of AILA’s comments and suggestions could have been incorporated into the final memo. 

A L-1B Solution Should Be Possible

If indeed the increase in L-1B denials stems from a desire to protect the American economy, then it would be wise for them to heed the warning signs that a continuation in this manner will only be a detriment to the very economy they are looking to protect. As US companies continue to ship more jobs overseas or open offices in other countries because of the unreliableness of our immigration adjudications, it’s not foreign employees who are hurt, it’s the Americans working and living in those communities that formerly housed those companies. What is so frustrating about the current state of affairs is that the solution seems within reach. With a few minor but important changes to the L-1B policy memo, it seems that adjudications could be easier to predict and companies can better be able to make business decisions with reasonably-informed guidance. Until then, we all have to proceed with caution knowing the risks inherent in the current L-1B atmosphere.