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Final L-1B Policy Memo Issued

8/20/2015

U.S. Citizenship and Immigration Services (USCIS) recently the much-anticipated final L-1B Adjudication Policy Memorandum. In late March of 2015, USCIS released a draft Policy Memorandum, with requests for comments. USCIS released the final version of the L-1B Policy Memo on August 17, 2015, which “supersedes and rescinds” some prior various L-1B memoranda.

The new L-1B Policy Memo follows years of increasingly strict adjudication of L-1B petitions, and was one of the White House’s initiatives on immigration.

Background

L-1 visas are issued to intracompany transferee, coming to work in the US from a related entity overseas. The L-1A category is for managers and executives, and L-1Bs are issued to employees with “specialized knowledge”. An increasingly strict interpretation of “specialized knowledge” is what caused a spike in L-1B denials in recent years, to the concern of employers and immigration lawyers.

“Specialized Knowledge” Definition

The L-1B memo provides a detailed description of the history of changes to the definition of “specialized knowledge” over the years, through legislation and earlier (now superseded) memoranda. The L-1B Memo then explains that a petitioner must establish eligibility by a “preponderance of the evidence” standard.

The memo explains the difference between “specialized” and “advanced knowledge.”

Special knowledge is

“…distinct or uncommon in comparison to that normally found in the particular industry.” (emphasis added).

“…concerns knowledge of the petitioning organization’s products or services and its application in international markets.” (emphasis added).

Advanced knowledge is

“ …greatly developed or further along in progress, complexity and understanding than that general found within the employer.” (emphasis added).

“ knowledge of a petitioning organization’s processes and procedures that is not commonly found in the relevant industry…” (emphasis added).

The memo explained that an employee can have both special and advanced knowledge, but that one type is enough for L-1B eligibility.

Further, the L-1B Policy Memo allows for the possibility where all of a company’s employees may possess “specialized knowledge”, particularly when these employees work on technologies or techniques that are so advanced or complex that nearly all employees working in this area have specialized knowledge.

Proving Specialized Knowledge

The memo states that the …”petitioner’s statement may be persuasive evidence if it is detailed, specific and credible” Nevertheless, we strongly advise using supporting evidence, and these are examples provided by USCIS:

Documentation of training, work experience, or education establishing the number of years the individual has been using or developing the claimed specialized knowledge as an employee of the petitioning organization or in the industry.
Evidence of the impact, if any, the transfer of the individual would have on the petitioning organization’s U.S. operations.
Evidence that the alien is qualified to contribute significantly to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the petitioning organization’s U.S. operations.
Contracts, statements of work, or other documentation that shows that the beneficiary possesses knowledge that is particularly beneficial to the petitioning organization’s competitiveness in the marketplace.
Evidence, such as correspondence or reports, establishing that the beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the petitioning organization’s productivity, competitiveness, image, or financial position.
Personnel or in-house training records that establish that the beneficiary’s claimed specialized knowledge normally can be gained only through prior experience or training with the petitioning organization.
Curricula and training manuals for internal training courses, financial documents, or other evidence that may demonstrate that the beneficiary possesses knowledge of a product or process that cannot be transferred or taught to another individual without significant economic cost or inconvenience.
Evidence of patents, trademarks, licenses, or contracts awarded to the petitioning organization based on the beneficiary’s work, or similar evidence that the beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily proprietary or unique to the petitioning organization.
Payroll documents, federal or state wage statements, documentation of other forms of compensation, resumes, organizational charts, or similar evidence documenting the positions held and the compensation provided to the beneficiary and parallel employees in the petitioning organization.

The memo states that “…the petitioner is required in all cases to compare the beneficiary’s knowledge to that of others.”

Some factors that USCIS states will demonstrate specialized knowledge are:

The beneficiary possesses knowledge of foreign operating conditions that is of significant value to the petitioning organization’s U.S. operations.
The beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer’s productivity, competitiveness, image, or financial position.
The beneficiary’s claimed specialized knowledge normally can be gained only through prior experience with the petitioning organization.
The beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another individual without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience, or education).
The beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the petitioning organization.
The beneficiary possesses knowledge that is particularly beneficial to the petitioning organization’s competitiveness in the marketplace.

Tomorrow’s blog posting will discuss the remainder of the memo, covering offside L-1B employment and extensions of status.

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What are "preference categories" and "priority dates" - and why are they important?

8/13/2015

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PREFERENCE CATEGORIES

There are 2 main routes to permanent residence (green card) in the United States: employment-based and family-based. Less common routes include asylum, diversity lottery and investment.

Employment and family-based applicants are divided into different categories. In family cases, the categories depend on the family relationship. The highest priority in family cases are “Immediate Relatives”, and these are not subject to the quotas and backlogs. Immediate Relatives are spouses, children (under 21) and parents of US citizens.

Employment cases are divided based on the type of position and job requirements.

Briefly, the categories are:

FAMILY CATEGORIES

First (F1) Unmarried Sons and Daughters of U.S. Citizens.

Second:
A. (F2A) Spouses and Children of Permanent Residents
B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents.

Third: (F3) Married Sons and Daughters of U.S. Citizens.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens.

EMPLOYMENT CATEGORIES

First (EB-1) Priority Workers – multinational managers; foreign nationals with extraordinary ability; and outstanding researchers.

Second (EB-2) In general, foreign nationals in positions that require a master’s degree OR a bachelor’s degree and 5 years of experience. This category also includes workers who qualify for a national Interest waiver.

Third (EB-3) Skilled Workers, Professionals, and Other Workers. Usually people in positions that require a bachelor’s degree or "skilled workers" whose jobs require at least 2 years of training

Fourth (EB-4). Special immigrants, e.g. religious workers.

Fifth (EB-5). Investor Visa.

PRIORITY DATES

Your priority date is generally the date that the first step in permanent residence (PR) was filed for you. This usually means the date that (a) labor certification was filed; (b) an I-140 was filed (if no labor certification was required); or (c) an I-130 was filed in a family-based case. Priority dates are important because they determine your place in the queue for the final step of the PR process. The Department of State publishes a Visa Bulletin every month, showing which priority dates are “current” for the following month. You can only file the final step of the PR process if the priority date is current. The waiting periods vary depending on your preference category and your country of birth. The length of time you must wait in line before receiving an immigrant visa or adjusting status depends on:

The demand for and supply of immigrant visa numbers
The per country visa limitations
The number of visas allocated for your particular preference category

For more details on priority dates and wait times, see these links:

http://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates here.
http://www.uscis.gov/green-card/green-card-through-job/questions-answers-pending-employment-based-form-i-485-inventory

The latest Visa Bulletin, showing the current priority date, is here.

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September 2015 Visa Bulletin - EB-2 Retrogression

8/12/2015

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The US Department of State has published the Visa Bulletin for September 2015. Most family-based categories advanced a little, but Philippines 1st preference retrogressed by 6 months, from March 2000 in August to October 22, 2000 in the September Bulletin.

In the employment-based categories, the biggest changes were significant retrogression for China and India second preference. India moved back almost 3 years, and China retrogressed almost 8 (yes, eight!) years. This is a huge disappointment to foreign nationals from those countries.

On a positive note, the Phillipinnes, India and China EB-3 categories all advanced by over 6 months.

DOS Visa Bulletins
Priority Date Checker Tool

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Update on 3-Year DACA Work permits

8/6/2015

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USCIS has issued an update on its effort to retrieve the three-year DACA (Deferred Action for Childhood Adjudication) work permits that were issued by mistake. As of 8/5/15, USCIS states that it has accounted for over 99% of the approximately 2,600 identified invalid work permits. Twenty-two recipients failed to respond to the recall, and their DACA has been terminated.

Not all 3-year permits are invalid. You must return your 3-year work permit if you:

Are a DACA recipient who was issued a 3-year work permit after Feb. 16, 2015; and
Receive a letter and/or notice from USCIS to inform you of the action you must take.

USCIS update
DACA information
Prior blog posts

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Final L-1B Policy Memo Issued

What are "preference categories" and "priority dates" - and why are they important?

September 2015 Visa Bulletin - EB-2 Retrogression

Update on 3-Year DACA Work permits

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