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New Policy May Provide Hope to Employers Frustrated by Historically High Denial Rates for High-Skilled Specialized Employee Transfers

Over the past decade, in a trend that has caused concern among many U.S. employers, denial rates for high-skilled foreign national employee transfer visa petitions have increased substantially. In fact, according to a recent report from the National Foundation for American Policy, the denial rate for L-1B high-skilled international transfer visas increased to an historic high of 35 percent in FY 2014. This represents more than a fivefold increase in denial rates since FY 2006, though there was no change in the official eligibility criteria.

This development often left international companies unable to transfer key employees from abroad to drive growth and maintain competitiveness in the U.S. market, and unsure what steps they could take to improve their chances of receiving an approved visa petition. Hopefully, this may soon change, as on March 24, 2015, U.S. Citizenship and Immigration Services (USCIS) issued long-awaited policy guidance on its adjudication of L-1B “specialized knowledge” visa petitions that may make it easier for companies to bring their essential employees to the United States.

The L-1 category allows a U.S. multinational company, or a foreign company establishing a new office in the United States, to transfer talented employees, who have worked for a related entity abroad for at least a year, to work in the United States temporarily either as managers or executives (L-1A) or as “specialized knowledge” workers (L-1B). This category enables companies to be more competitive in the global marketplace because they can place their valuable employees in the United States when needed to accomplish their business objectives when managerial acumen or specialized knowledge of their products or procedures is needed.

In recent years, employers have faced mounting uncertainties when needing to transfer specialized workers from abroad to meet business needs, as USCIS began applying increasingly strict standards that were not required by statute. The agency appears to be applying an even stricter set of criteria, such as “proprietary” and “unique” knowledge—standards that no longer should apply after the Immigration and Nationality Act of 1990, which broadened the L-1B visa category. As denial rates increase, particularly for certain nationalities (such as Indians), international employers have often been unable to bring in key employees with crucial skills and knowledge of their products or procedures, making expansions and growth in the United States increasingly difficult.

USCIS appears to have finally recognized in the L-1B policy memo that “Congress has determined that the ability to transfer company personnel with specialized knowledge is important to fostering the growth and competitiveness of U.S. businesses.” Further, the USCIS memo acknowledges that companies should be able to transfer specialized knowledge employees in order “to do business in an increasingly global marketplace.”

The memo seems to relax the standards for the L-1B visa, noting that the knowledge required of the foreign national need not be “proprietary,” “unique,” or “narrowly held within the petitioning organization.” In other changes likely to be welcomed by employers, the policy memo notes that the appropriate L-1B standard need not require a showing that local workers are not readily available to fill the job, and indicates that deference must be given to previously approved visas when extensions are requested. However, under the governing statute, the worker must still have knowledge that is “distinct or uncommon” when compared to others in the industry, and more “advanced” than that normally found among the petitioner’s workforce. In addition, according to the memo’s criteria, it must be the case that the worker’s knowledge cannot be easily imparted to others.

While encouraging, this policy guidance still leaves much to the agency’s interpretation, and previous memos with similarly generous (but vague) criteria have been ignored by later vagaries of agency adjudicatory policy. However, the acknowledgment by USCIS of the importance of employee mobility in this increasingly competitive global marketplace is a hopeful sign that international companies will no longer be faced with such daunting odds when attempting to bring key employees to the United States from abroad to meet their business needs.

USCIS is currently accepting feedback on the L-1B policy memo, which will become effective on August 31, 2015. Ogletree Deakins will monitor developments as USCIS implements this policy guidance and will provide employers with an analysis of evolving trends and recommendations for global employee mobility needs.

NOTE: This article was published in the February/March 2015 issue of the Immigration eAuthority. / Compliments of EACCNY Member Ogletree Deakins.

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