USCIS published the final version of a new policy memorandum that provides additional guidance to its officers on adjudication of L-1B “specialized knowledge” petitions. The guidance becomes effective on August 31, 2015. USCIS had previously provided a draft of the policy memorandum for stakeholder comment and a number of organizations, including the American Immigration Lawyers Association (AILA), submitted detailed suggestions for improvements. The L-1B memorandum is one of the items promised by President Obama as part of his November 2014 Executive Action announcement to improve the high-skilled immigration system.
The L-1B memorandum contains certain improvements from the original draft, including a statement confirming that an L-1B “petitioner’s statement may be persuasive evidence if it is detailed, specific, and credible.” The draft guidance appeared to encourage adjudicators to disregard statements of the employer in favor of independent documentation, such as training records, contracts, and related items. This kind of approach by USCIS would have been particularly problematic for smaller companies that often don’t have these types of formalized records for employees. However, while the finalized guidance contains some improvements, USCIS chose to leave in place other concerning language that could be misapplied by adjudicators to narrow L-1B approval standards more than the existing statute and regulations allow. Ultimately, it will be necessary to monitor L-1B adjudications following the implementation of this guidance to determine how USCIS will implement the new memorandum. If you have questions about an L-1B petition or need assistance with this process, please contact SPS Immigration PLLC to discuss your specific situation.