USCIS Issues Draft Guidance on L-1B Specialized Knowledge Visas

The L-1 (“intracompany transferee”) nonimmigrant visa classification permits multinational companies to transfer certain categories of employees from their foreign operations to their operations in the United States. Specifically, the L-1A classification is available for intracompany transfers of corporate managers and executives, while the L-1B visa classification enables intracompany transfers of employees who possess “specialized knowledge.”

On March 24, 2015, U.S. Citizenship and Immigration Services (USCIS) issued a 15-page draft policy memorandum setting forth its policy regarding the L-1B classification for workers with specialized knowledge. Clarifying this policy was one of the initiatives announced by President Barack Obama as part of his executive actions on immigration on November 20, 2014. The draft memorandum will be subject to feedback until it becomes effective on August 31, 2015. Therefore, it is too early to tell what the memorandum will look like in its final form.

The memorandum provides consolidated and authoritative guidance on the L-1B program, superseding and rescinding prior L-1B memoranda. It interprets existing statutory and regulatory authorities to promote consistency and efficiency in L-1B adjudications. It provides clarification regarding how L-1B petitioners may demonstrate that an employee possesses specialized knowledge. In the case of off-site employment, it also provides greater clarity regarding compliance with the requirements of the L-1 Visa. The memorandum also clarifies that the standard of proof is “preponderance of the evidence” and that the petitioner must only prove that its claims are more likely than not. The petitioner does not need to remove all doubt from the adjudication.

To date, policy on the L-1B classification has been set forth in a series of policy memoranda dating back to 1994. The updated USCIS memorandum is consistent with those policy memoranda but provides consolidated and authoritative guidance on determining whether specialized knowledge has been established in L-1B petitions and ensuring compliance with the L-1 Visa Reform Act. As such, USCIS supersedes and rescinds prior memoranda on the subject. The complete 15-page memorandum can be found here.

L-1B petitions are very complex. They require extensive supporting documentation and a thorough legal analysis to help convince the USCIS adjudicator that the facts of the case meet L-1B regulatory standards. Therefore, it is not recommended that employers apply for L-1B classification without the benefit of experienced immigration counsel.

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