Visa Lawyer Blog
In the past several months we have received numerous lengthy Requests for Evidence regarding L1B visa cases. We are not alone, many lawyers across the country report similar requests in L1B cases.
The L1B visa is designed for individuals from foreign countries who plan to come to the United States to work. These individuals possess specialized knowledge, skills and experience regarding the procedures, systems, services or products of a firm, corporation, company or other entity. The area of specialized knowledge for the individual includes highly developed technical expertise or professional knowledge. It also relates to a person’s private, exclusive understanding relating to a company’s products, services, methods of production, organizational make up, marketing strategies or other information that’s connected to the successful functioning of the entity in the United States.
Immigration attorneys continue to be concerned about USCIS’s L-1B adjudications and the failure to apply current binding USCIS guidance to these adjudications. Instead, adjudicators are relying on pre IMMACT 90 case law, as well as adjudicatory standards enunciated in a line of non-precedent AAO decisions.
Under INA §214(c)(2)(B), “an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.” USCIS issued two guidance memoranda that define the terms “special knowledge” and “advanced level.” The memoranda are Interpretation of Special Knowledge by James Puleo on March 9,1994, and Interpretation of Specialized Knowledge by Fujie O. Ohata on December 20, 2002.
Current L-1B RFE and denial templates do not give proper or meaningful weight to the Puleo and Ohata guidance, but instead follow the language and reasoning from pre-IMMACT 90 and post-GST cases. Moreover, L-lB petitions ate denied on grounds that knowledge or skills are not “unique,” that the company is too small to require specialized knowledge, and that the position should be more appropriate for an H-18. These considerations either directly contradict the actual language of the Puleo and Ohata memos or contradict the essence ofthe Puleo and Ohata guidance.
The American Immigration Lawyers Association in a recent minutes meeting with USCIS agrees that each petition must be decided on its facts, Puleo and Ohata set forth broadly applicable and flexible standards that allow for case-by-case adjudication, yet still provide petitioners with some measure. Particularly in view of our economy’s desperate need for job creation – which the administration acknowledged comes through small and emerging business – as well as the increasing specialization in technical fields, AILA calls on USCIS to remind and train adjudicators that the Puleo and Ohata memoranda, and not GST, are the standard for L1B cases.
In response USCIS had the following to say:
SCOPS, in collaboration with OP&S and OCC, will soon be conducting training on the adjudications standards for officers who adjudicate L-1B nonimmigrant petitions. This training will address AILA and stakeholder concerns mentioned above and during the May 12, 2011 teleconference. In addition, the RFE templates for the L nonimmigrant classification are currently under review as part of the RFE Project. The templates are being reviewed to not only ensure that they are adaptable to the facts and needs of individual L petitions, consistent, clear and concise, but also that they identify any gaps in policy guidance relating to the adjudication of L nonimmigrant petitions. Once the draft L RFE templates are complete, AILA and other
stakeholders will be provided the opportunity to review and provide comments. standard for adjudication of L-1B cases.
So the good news is that USCIS recognize the need to review the current template requests for evidence, and we are hoping the current RFE trend will change soon. This is unreasonable and only hurts employers seeking important talent to improve operations and increase innovation in the US market.