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.
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history of changes to the definition of “specialized knowledge” over the years, through legislation and earlier (now superseded) memoranda.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:
Some factors that USCIS states will demonstrate specialized knowledge are:
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:
First ( ) Unmarried Sons and Daughters of U.S. Citizens.
A. () Spouses and Children of Permanent Residents
B. () Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents.
: ( ) Married Sons and Daughters of U.S. Citizens.
: ( ) Brothers and Sisters of Adult U.S. Citizens.
(EB-1) Priority Workers – multinational managers; foreign nationals with extraordinary ability; and outstanding researchers.
(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.
(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
(EB-4). Special immigrants, e.g. religious workers.
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:
For more details on priority dates and wait times, see these links:
The latest Visa Bulletin, showing the current priority date, is here.
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
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:
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.