Social media flamed with expressions of outrage, relief and tepid optimism ever since President Obama announced on March 23, 2015 the release of long-awaited policy guidance on a key temporary worker visa category:
Today, I’m pleased to announce a new action I’m also taking to make it easier for global companies who are present here today to launch and invest in the U.S. My administration is going to reform the L-1B visa category, which allows corporations to temporarily move workers from a foreign office to a U.S. office in a faster, simpler way. And this could benefit hundreds of thousands of nonimmigrant workers and their employers; that, in turn, will benefit our entire economy and spur additional investment. (Applause.) [Bolding added.]
Released the next day by U.S. Citizenship and Immigration Services (USCIS), the L-1B policy guidance, published in draft form with a request for feedback accepted until May 8, will take effect on August 31.
Outrage burned from the usual quarters, namely, folks on the right who oppose every immigration initiative the President has floated, including NumbersUSA (“American Tech Workers Would Compete With Hundreds of Thousands of New Guest Workers Under Obama’s L-1B Visa Proposal“); Freedom Outpost (“Obama Continues Loosening the Reins on Illegal Aliens in the US“); Byron York, Chief Political Correspondent for the Washington Examiner, a Fox News contributor, and author of The Vast Left Wing Conspiracy (“Did you know Obama just took new executive action on immigration?”); and the Daily Caller (“Obama Announces Unilateral Action To Bring In More Guest Workers“).
Others heaved sighs of relief or cautious optimism — the American Immigration Lawyers Association (“Welcome Changes to Business Visas but Implementation Means Everything” and “the memo’s guidance may ‘be solid ground work for consistency in adjudications,'” quoting Robert Deasy, AILA’s Deputy Director of Programs, as reported in an otherwise oppositionist article by Patrick Thibodeau of Computerworld); the Council for Global Immigration, through Justin Storch, its Manager of Agency Liaison (“We are hopeful that the memo will provide some clarification for both employers and adjudicators so the denial rates will decrease“), and the U.S. Chamber of Commerce, through Randel K. Johnson, its Senior Vice President of Labor, Immigration, and Employee Benefits (“We are particularly pleased to see the guidance proposal reiterate that the burden of proof is the preponderance of the evidence standard and that the agency must give deference to its prior decisions“).
Frankly, after waiting years for new guidance on L-1B eligibility, I’m deeply disappointed. Here’s my take on this poorly reasoned, and inartfully articulated rehash of long-accepted principles now burdened with a perverse array of contradictory, extra-legal and impractical notions:
- Cherry-Picked Definitions of “Special Knowledge” and “Advanced Knowledge or Expertise.”
The phrase, “specialized knowledge” is defined virtually identically in the Immigration and Nationality Act and USCIS regulations as “special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or, an advanced level of knowledge or expertise in the organization’s processes and procedures (bolding added).” The L-1B guidance memo purports to adopt dictionary definitions of the words, “special” and “advanced,” but then contorts the adopted definitions to make them more onerous than common parlance would require.
According to the guidance , dictionaries define “special” as “surpassing the usual,” “distinct among others of a kind,” “distinguished by some unusual quality,” “uncommon,” or “noteworthy.” The memo then adopts its own definition of “special knowledge” as “knowledge of the petitioning employer’s product, service, research, equipment, techniques, management, or other interests and its applications in international markets that is demonstrably distinct or uncommon in comparison to that generally found in the particular industry or within the petitioning employer (bolding and italics in original, underlining added).” USCIS does not explain the insertion of the word, “demonstrably.” The word is gratuitous, given that elsewhere the memo confirms that the standard of proof on the petitioning employer is by the “preponderance of the evidence” or a “more probable than not” standard. The only reason for sticking “demonstrably” before “distinct or uncommon” is to give adjudicators with a mind to issue a Request for Evidence (RFE) or deny the L-1B petition a chance to continue with that proclivity (I can foresee it now, “Petitioner’s evidence was distinct and uncommon, but not demonstrably so”).
Moreover, the agency does not explain the justification for using the more difficult definition of “advanced” knowledge or expertise — which, as USCIS notes in the memo, dictionaries variously define. One of the linked definitions of “advanced” is “being beyond the elementary or introductory.” Given that the President expects the new guidance memo to “benefit hundreds of thousands of nonimmigrant workers,” adoption of the easier standard, “being beyond the elementary or introductory,” would best satisfy this presidential expectation.
Also troublesome, the memo provides an inconsistent, alternative definition of “advanced”: “greatly developed or further along in progress, complexity and understanding.” “Further along” (which likewise would better comport with the President’s expectations) seems a less difficult standard to prove than “greatly developed.” Moreover, USCIS should treat knowledge that is further along in any one of the three alternative requirements “progress,” “complexity” or “understanding.” Here too the agency may give unsympathetic or “just say no” adjudicators a way of denying the L-1B petition by emphasizing that the advanced knowledge is not “greatly developed” or “further along in progress, complexity and understanding.” (Bolding added.)
- A Mandate to Make Irrelevant, Impossible or Unnecessarily Strict Comparisons.
The policy memo ignores the statutory definition of “special” knowledge by instructing adjudicators to compare the beneficiary not only with other workers in the same L-1 qualifying organization (which is proper because the category, after all, is expressly dubbed the “intracompany transferee”) but also a comparison of other workers in the same industry. The memo states:
Demonstrating whether knowledge is “special” or “advanced” inherently requires a comparison of the beneficiary’s knowledge against that of others. The petitioner bears the burden of establishing such a favorable comparison. Because “special knowledge” concerns knowledge of the petitioning organization’s products or services and its application in international markets, the petitioner may meet its burden through evidence that the beneficiary has knowledge that is demonstrably distinct or uncommon in comparison to the knowledge of other similarly employed workers in the particular industry or within the petitioning organization. Alternatively, because “advanced knowledge” concerns knowledge of a company’s processes and procedures, the petitioner may meet its burden through evidence that the beneficiary has knowledge or expertise that is greatly developed or more complex in comparison to other workers in the petitioning employer’s operations. (Bolding added.)
The only reference in the statutory definition of “special knowledge” to actions outside the company is the allusion to knowledge of the petitioning employer’s product, service, research, equipment, techniques, management, or other interests and its applications in international markets.” (Bolding added.) Nothing in this definition makes it “inherent” that USCIS must compare workers in the particular industry. Rather, requiring a comparison of workers in the same industry will merely saddle petitioners with the nearly impossible challenge of providing inaccessible or nonexistent evidence. How can one company in an industry (the petitioner) gain access to data about the level of knowledge held by its competitors’ employees of the petitioner’s “product, service, research, equipment, techniques, management, or other interests.” Any company with valuable trade secrets or intellectual property will take affirmative steps to make sure that no outsider has access to such highly coveted and valuable documents or data. Companies routinely require all employees to sign non-disclosure/non-use agreements at the outset of employment, and keep their prized IP under wraps. There is no way in virtually all cases that others in the same industry could possibly access it. This is a fool’s errand, and USCIS has no business forcing L-1B petitioners to chase the nonexistent or unattainable.
- One Hand Giveth, While the Other Taketh Away.
The USCIS memo offers the welcome reaffirmation of prior policy that specialized knowledge need not be proprietary, subject to patent or copyright protection, or “narrowly held” within the petitioner’s organization. It also seems to debunk the myth (bereft of support in statute, regulation or legislation) perpetrated by the State Department that “[If] everyone is specialized, then no one is.” Readers of the memo are warmed by the following excerpt:
Multiple employees within a company may have obtained the experience, training, or education necessary to possess the same type of specialized knowledge. Some companies may use technologies or techniques that are so advanced or complex that nearly all employees working on the relevant products or services possess specialized knowledge. The mere existence of other employees with similar knowledge should not, in and of itself, be a ground for denial.
That warmth quickly turns into a chill, however, when in the very next paragraph the memo authorizes adjudicators to consider irrelevant factors which flatly contradict and neuter the “not-necessarily-narrowly-held” acknowledgement. These factors (bolded below) are extra-legal and clearly beyond the reach of permissible interpretation of statute, regulations, and legislative history:
[O]fficers generally should carefully consider the organization’s need to transfer the beneficiary to the United States. The officer may consider, for example, the need for another individual with similar specialized knowledge in the organization’s U.S. operations and the difficulty in transferring or teaching the relevant knowledge to an individual other than the beneficiary. The officer should also consider . . .whether the salary to be paid to the beneficiary is comparable to similarly situated peers in such U.S. operations. Where many employees within the organization’s U.S. operations share the beneficiary’s knowledge, yet the beneficiary will be paid substantially less than those similarly situated employees, this may indicate that the beneficiary lacks the requisite specialized knowledge. As described infra, however, there may be valid business reasons for the wage discrepancy, but justification for the [wage] variance generally should be evaluated in light of the skills, experience, and other factors pertinent to the entire spectrum of employees in the U.S. operations who possess the requisite specialized knowledge. (Bolding supplied.)
The “need” of the petitioner to transfer a specialized-knowledge worker is a factor that can only be interpreted subjectively. Which business needs are to be considered worthy and which must be rejected as unnecessary? In a hotly competitive industry where customer loyalty is hard to achieve and maintain, is a customer’s emphatic preference for speedier fulfillment of a contract a sufficient “need” to transfer another L-1B worker? Is greater profit? Is avoidance of staff burnout? Is the obligation to cut payroll to avoid bankruptcy a sufficient need? The memo doesn’t say. Instead it leaves the decision to the unguided discretion of adjudicators who would be authorized to tell businesses that their needs are not meritorious.
Likewise, unworkable and unlawful is the requirement in the memo that adjudicators compare the wages of “similarly situated peers” with the proposed wage of the L-1B beneficiary. How much of a wage variance is required to be “substantial” and how “similar” must other peers be to the L-1B transferee in knowledge, expertise, duties, seniority, performance rating or other factors of subjectively perceived similarity? Again the guidance doesn’t say — but leaves a door wide open for adjudicators to apply inconsistent, subjective standards to reject L-1B petitions at their individual whim (for we all know that there is virtually no supervisory review of draft denials).
Moreover, unlike the H-1B work visa category and its mandate that employers pay the “required wage” (the local prevailing or actual wage at the job site, whichever is higher), there is no legal basis under the L-1 category for USCIS to require submission of evidence of wages paid (indeed, the memo acknowledges that high salaries are not required) or to evaluate their sufficiency. These subjectively determined dictates considered in relation to other workers — the business’s need for the L-1B worker, and the adequacy of wages paid — will force petitioners down rabbit holes of burden, delay, cost and distraction. USCIS should delete these factors.
- Confounded Conflation.
The USCIS memo provides a laundry list of evidence that may be submitted to establish specialized knowledge. The list is illustrative but not exhaustive. Unfortunately, it does not distinguish which items on the list would constitute proof of the alternative forms of specialized knowledge, i.e., “special knowledge” or an “advanced level of knowledge or expertise”). By conflating the two alternative definitions, the agency blurs the adjudicator’s field of vision. For example, conflation occurs in the following excerpt, the memo’s ill-advised definition of “special knowledge,” which (as noted above) requires a comparison of the knowledge held by other workers in the same company AND in the particular industry, whereas “advanced knowledge or expertise” quite properly requires no such comparison to others in the same industry:
Evidence that the alien is qualified to contribute to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the industry or the petitioning organization’s U.S. operations. (Bolding added.)
This incautious wording raises the specter that adjudicators when considering the “advanced,” alternative definition of specialized knowledge will require a comparison of workers in the same industry, even though such a demand cannot be not supported by the definition of that term in the memo.
- May Morphs into Must.
One of the most disturbing aspects of memo is the USCIS’s list of factors to prove specialized knowledge and the evidence the memo suggests might be probative. For example, as my colleague, Austin Fragomen, observed in a recent webinar hosted by the Council for Global Immigration, “how do you show that the beneficiary’s work is particularly relevant to the company’s competitiveness in the marketplace? . . . [Why do we need] a microeconomic analysis of the impact of that one employee”? He’s right: The only part of the statutory and regulatory definition of specialized knowledge that refers to external factors is the sub-definition for “special” knowledge, but that only asks essentially whether the beneficiary has special knowledge of the petitioner’s “product, service offering or ‘secret sauce’ [my phrasing]” and “its application in international markets.” Even more troubling is the daunting list of types of allegedly probative evidence that a petitioner may be asked to submit. Imagine the forest of trees converted to paper that will be consumed in assembling initially to accompany the L-1B petition or responding to an adjudicator’s RFE that may (but likely now must) include:
- Documentation of training, work experience, or education establishing the number of years the individual has been utilizing or developing the claimed specialized knowledge as an employee of the organization or in the industry;
- Evidence of the impact, if any, the transfer of the individual would have on the organization’s U.S. operations;
- Evidence that the alien is qualified to contribute to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the industry or 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 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 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 that employer;
- 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 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; and
- Payroll documents, federal or state wage statements, resumes, organizational charts, or similar evidence documenting the positions held and the wages paid to the beneficiary and parallel employees in the organization.
How will this list — which seems likely to require concurrent violations of the spirit if not the letter of the Environmental Protection Act and the Paperwork Reduction Act — fulfill the President’s March 23rd description of the L-1B category as allowing “corporations to temporarily move workers from a foreign office to a U.S. office in a faster, simpler way (bolding supplied)”? Simply put, the memo’s laundry list makes an L-1B petition neither fast nor simple. Instead, it gives adjudicators a license to prolong the dreadful status quo.
- Show Us, Don’t Just Tell Us.
The existing policy guidance on specialized knowledge, the 1994 Puleo Memo, which the new L-1B memo expressly revokes, offered helpful examples of quotidian fact patterns:
A specific example of a situation involving specialized knowledge would be if a foreign firm in the business of purchasing used automobiles for the purpose of repairing and reselling them, some for export to the United States, petitions for an alien to come to the United States as a staff officer. The beneficiary has knowledge of the firm’s operational procedures, e.g., knowledge of the expenses the firm would entail in order to repair the car as well in selling the car. The beneficiary has knowledge of the firm’s cost structure for various activities which serves as a basis for determining the proper price to be paid for the vehicle. The beneficiary also has knowledge of various United States customs laws and EPA regulations in order to determine what modifications must be made to import the vehicles into the United States. In this case it can be concluded that the alien has advanced knowledge of the firm’s procedures because a substantial amount of time would be required for the foreign or United States employer to teach another employee the firm’s procedures. Although it can be argued that a good portion of what the beneficiary knows is general knowledge, i.e., customs and EPA regulations, the combination of the procedures which the beneficiary has knowledge of renders him essential to the firm. Specifically, the firm would have a difficult time training another employee to assume these duties because of the interrelationship of the beneficiary’s general knowledge with the firm’s method of doing business. The beneficiary therefore possess[es] specialized knowledge. . . .
A specific example of [specialized knowledge] is if a firm involved in processing certain shellfish desires to petition for a beneficiary to work in the United States in order to catch and process the shellfish. The beneficiary learned the process from his employment from an unrelated firm but has been utilizing that knowledge for the foreign firm for the past year. However, the knowledge required to process the shellfish is unknown in the United States. In this instance, the beneficiary possesses specialized knowledge since his knowledge of processing the shellfish must be considered advanced.
The common theme which runs through these examples is that the knowledge which the beneficiary possesses, whether it is knowledge of a process or a product, would be difficult to impart to another individual without significant economic inconvenience to the United States or foreign firm. The knowledge-is not generally known and is of some complexity.
Regrettably, the L-1B draft memo is prolix in its verbiage but devoid of any helpful examples by which to guide adjudicators and stakeholders in understanding what constitutes specialized knowledge in the real world.
- Where Are Your Compatriots?
The new L-1B memo creates a measure of predictability and reliability when petitioners seek to extend the status of a foreign worker whom USCIS previously found to satisfy the requirements for specialized knowledge. In the following prescribed situation the memo declares that USCIS officers should not readjudicate the previously established underlying facts unless gross error in the prior determination or material changes are identified:
In matters relating to an extension of L-1B status involving the same parties (i.e., the same petitioning organization and beneficiary employee) and the same underlying facts, USCIS officers should give deference to the prior determination by USCIS approving L-1B classification [except in cases involving work at third-party locations].
The memo offers no indication that USCIS has consulted and achieved buy-in on the memo’s pronouncements from the two other federal agencies which must decide whether specialized knowledge has been proven in a particular case, whether in a previously approved petition or a new request, namely, the U.S. Department of State (when deciding blanket L-1B visa applications) and U.S. Customs & Border Protection (when considering applications for admission to the U.S. in L-1B status). Presumably, the three deciders of L-1B eligibility ought to have engaged in interagency discussions of the subject before the memo’s release. In any case, when the memo is released in final form, USCIS should expressly note that all three units are in agreement with the ultimate product.
- No Disparate Treatment or Impact Tolerated.
Another glaring omission is a much-needed admonition by USCIS that all L-1B petitions must be decided impartially, i.e., without regard to the national origin or citizenship status of the beneficiary or the country of corporate headquarters or incorporation. Sadly, a recent study published by the National Foundation For American Policy reveals that the denial rate for Indian citizens topped out at 56% in 2014 although the denial rate for beneficiaries hailing from all other countries was a mere 13%. Indeed, given the gravity and proliferation of the problem of anti-Indian bias, an admonition is not enough. USCIS should make clear that adjudicators’ L-1B decisions (grants, denials, RFEs and revocations) will be individually tabulated, not only by the country of the beneficiary’s nationality but also by the degree to which their adverse decisions reflect non-compliance with whatever USCIS headquarters’ interpretation of L-1B eligibility criteria, standard of proof or degree of boilerplate, kitchen-sink demands for additional evidence. Reprobate behavior must then be the subject of discipline, including termination of employment for the most recalcitrant and unrepenting.
On that score, notwithstanding the President’s lofty expectations concerning the “hundreds of thousands” of L-1B visa holders who will achieve temporary work visa status “in a faster, simpler way,” the leadership of DHS and USCIS must make sure these laudable expectations are not sabotaged by “get to no” adjudicators who “grouse” (my word) or “whine” (Sen. Harry Reid’s phrasing) to Sen. Chuck Grassley, as they did in their unjust effort to smear the good name and reputation of former Director of USCIS, Alejandro Mayorkas (now, Deputy Secretary of Homeland Security), as depicted in the recent hatchet job of a DHS Office of Inspector General report on a small number of EB-5 case adjudications. Without constant oversight, these USCIS first-line adjudicators will remain as obstreperous as ever, much like the insubordinate U.S. Immigration and Customs agents who sued the Obama Administration over its deferred-action and prosecutorial-discretion policies but who’ve justly received their comeuppance from the Fifth Circuit Federal Court of Appeals.
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So that’s my take on the USCIS’s draft L-1B policy memo. Be sure to share your view, not just in the comments section below. Submit your timely your feedback to USCIS at Public.Engagement@uscis.dhs.gov.