May 7, 2015 Via Email - [email protected]
Department of Homeland Security
U.S. Citizenship and Immigration Services Office of Public Engagement
Washington, DC 20529
Re: PM-602-0111: L-1B Adjudications Policy
To the Office of Public Engagement:
Fragomen, Del Rey, Bernsen & Loewy, LLP (Fragomen) is grateful for the opportunity to offer comments on U.S. Citizenship and Immigration Services’ draft memorandum on L-1B adjudication policy. We thank USCIS for the obvious effort and deep consideration that it devoted to an issue of critical importance to the growth and competitiveness of multinational companies, namely, their ability to transfer specialized knowledge employees reliably and efficiently.
With more than 40 offices in the United States and abroad, Fragomen is principally devoted to advising employers, including multinational corporations, on immigration law and global mobility. The firm’s chairman, Austin T. Fragomen, Jr., was directly involved in the creation of the L visa category, serving as Staff Counsel to the Immigration Subcommittee of the House Judiciary Committee when the category was enacted in 1970. During the development of the Immigration Act of 1990 (IMMACT), he played a significant role through his representation of several major accounting firms, and worked closely with Rep. Bruce Morrison (D-CT), then Chairman of the House Immigration Subcommittee, to draft the amendments that opened the L visa program to accounting, consulting and other professional services firms. In 2003, he testified before the Senate Judiciary Committee’s Subcommittee on Immigration, Nationality and Refugees on the L-1 Visa Reform Act. Over the years, he has written numerous scholarly articles on the L-1 category and specialized knowledge.
I. The L-1B Program and Congressional Intent
As an initial matter, we welcome the draft memorandum’s unequivocal affirmation that Congress intended to broaden the L-1 visa category when it enacted the Immigration Act of 1990 and the statutory definition of specialized knowledge, so that the category could meet the workforce needs of multinational organizations.
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In particular, we applaud the explicit recognition that Congress expanded the visa category to allow professional services firms – including accounting and consulting organizations – to participate in both the L-1A and L-1B programs. One of IMMACT’s key drivers was a shift in the global economy from trade in goods to trade in services. In 1990, Congress was keenly aware of this worldwide development. It sought to make the L-1 program into an even more effective tool for businesses competing in the professional services sector, declaring that these organizations “adhere to the same quality standards, techniques and methodology which are associated with an intracompany transferee … .” H.R. Rep. No. 101-723, 1990 USCCAN 6710. But Congress knew that simply opening the L-1 category to professional services organizations would not fully accomplish its purpose. The legislature appreciated that these firms needed their workforce to be encompassed within the L-1B classification. Therefore, Congress intentionally enlarged the definition of L-1B specialized knowledge to include “advanced knowledge of the processes and procedures of the company.” This definition facilitated the entry of professional services specialists, and remained a key tool later on, when in 1999 Congress again broadened the L-1 category to include consulting firms that had separated from international accounting firms. Nursing Relief for Disadvantaged Areas Act of 1999, § 6, Pub. L. No. 106-95 (Nov. 12, 1999). The Act was and remains intended to permit companies to facilitate the movement of a broad array of advanced knowledge specialists – a goal that has only grown in relevance as the global professional services business model has flourished and matured in the years since.The “advanced knowledge” prong of the statutory definition recognizes the specific nature of the professional services specialist’s skills: advanced knowledge of his or her organization’s particular methodologies and techniques for applying a body of professional or industry rules and principles – for example, the organization’s particular methodologies for applying accounting standards, laws, management tenets or information technology principles, or its products and services that exemplify those techniques, such as complex software that embodies the organization’s specific interpretation of accounting principles or tools and methodologies for developing and implementing enterprise software solutions. This type of knowledge is not commonly known in the marketplace, but is not necessarily narrowly held within the organization. If Congress had failed to recognize this type of knowledge, the companies for whom the L-1 category had been expanded would have been foreclosed from using the L-1B program for a critical part of their workforce.
Though USCIS’s draft guidance acknowledges the inclusion of professional services firms in the L-1 program, we are concerned that the memorandum does not fully recognize the impact of these amendments as it relates to the types of knowledge that qualify a professional services specialist for the L-1B subcategory. As we will discuss below, aspects of USCIS’s draft memorandum do not adequately reflect the character and quality of specialized knowledge as it is held and applied in these organizations. Without further refinements, the memorandum will be less effective in meeting its stated goals: furthering a “practical approach … that reflects the L-1B classification’s broad statutory and regulatory definitions, while serving the purpose of the L-1B program and recognizing the fluid dynamic of the business world in which petitioning organizations operate.”
II. The Definition of Specialized Knowledge
We appreciate USCIS’s work in explicating the definitions of “special knowledge” and “advanced knowledge.” We are concerned, however, that the definitions proposed in the draft guidance
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effectively impose stricter standards than intended by Congress. We also note that the agency’s list of specialized knowledge factors in many cases conflates, rather than distinguishes between, the two types of knowledge.A. USCIS’s Guidance Must Not Exceed Statutory L-1B Standards
The Immigration and Nationality Act defines “specialized knowledge” as “special knowledge of the company product and its application in international markets or … advanced level of knowledge of processes and procedures of the company.” INA § 214(c)(2)(B). The regulatory definition is similar: “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 or procedures.” 8 CFR § 214.2(l)(1)(ii)(D).
We are concerned that the draft memorandum incorporates additional requirements into these definitions. Though USCIS contends that the definitions proposed in the guidance merely expand on the dictionary meanings of the terms “special” and “advanced,” a closer examination reveals that they effectively raise the standard of L-1B eligibility. For the reasons discussed below, we urge the agency to adhere closely to the regulatory and statutory definitions of special and advanced knowledge.
USCIS proposes that “special knowledge” is “demonstrably distinct or uncommon in comparison to that generally found in the particular industry or within the petitioning employer.” Neither the statute nor the current regulations require a beneficiary’s special knowledge to have a specific level of distinction, but USCIS’s addition of the word “demonstrably” suggests a higher evidentiary burden than the appropriate “preponderance of the evidence” standard. We urge the agency to strike this terminology.
USCIS proposes to define advanced knowledge as “knowledge or expertise in the organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity and understanding than that generally found within the petitioning employer.” We point out that advanced knowledge of an organization’s processes and procedures can only be gained through experience with the organization. Comparisons to others in the industry are inapposite and, as such, this element of the definition should be removed. Requiring a comparison of the beneficiary to others in the organization is also inappropriate because it subverts the policy underlying the concept of advanced knowledge. As we discuss above, the advanced knowledge definition was devised by Congress to aid professional services firms in transferring their specialist employees to the United States. Congress recognized that, while the knowledge possessed by these employees is specialized, it is not necessarily narrowly held within the organization, as USCIS recognizes explicitly elsewhere in the draft guidance.
Furthermore, the proposed definition of advanced knowledge contains varying standards that could lead to inconsistent adjudications. “Greatly developed” appears to be a higher standard than “further along.” The proposed requirement that the beneficiary’s knowledge demonstrate an advancement in “progress, complexity and understanding” is an overly stringent standard that could result in unwarranted denials, such as where an adjudicator concludes that the beneficiary’s knowledge meets some but not all of these three criteria.
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B. Specialized Knowledge Factors Must Clearly Delineate Special and Advanced Knowledge and Include Illustrative Examples
1. Specialized Knowledge Factors
We appreciate USCIS’s effort to craft a non-exhaustive list of factors indicative of L-1B specialized knowledge. We note, however, that this list conflates special and advanced knowledge. As such, it is not clear which criteria are suggestive of which type of knowledge. We recommend that USCIS revise the list to make the distinction between special and advanced knowledge more clear.
We also urge USCIS to strike the following factors, which are not based on legal requirements or reflective of a beneficiary’s specialized knowledge:
The beneficiary possesses knowledge that is particularly beneficial to the employer’s
competitiveness in the marketplace.
The beneficiary has been employed abroad in a capacity involving assignments that
have significantly enhanced the employer’s productivity, competitiveness, image or financial position.
Neither the statutory nor the regulatory definition of specialized knowledge contains any reference to the beneficiary’s contributions to the petitioning organization’s competitiveness in the marketplace, productivity, image or financial position. Proving these factors would require the petitioner to speculate on the connection between the beneficiary’s knowledge and specific company gains or to conduct an exhaustive economic analysis, neither of which is required by law.
2. Illustrative Examples
We recommend that USCIS add illustrative examples of L-1B specialized knowledge to its guidance. Specific examples do much to instruct adjudicators in applying policy to real-world business scenarios.
Examples are particularly helpful to demonstrate how advanced knowledge is applied in the professional services context. The agency’s 1994 memorandum on specialized knowledge by then-Executive Associate Commissioner James A. Puleo included the following useful hypothetical, which clearly illustrates how knowledge of an organization’s specific techniques and methodologies, combined with knowledge of a body of professional rules and principles, is advanced knowledge: *
A foreign firm in the business of purchasing used automobiles for the purpose of repairing and reselling them petitions for a foreign national 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 the basis for determining the proper price to be paid for the vehicle. The beneficiary also has knowledge of various United States customs laws and
*We note that, though the agency’s new memorandum formally supersedes the Puleo specialized knowledge guidance, much of the language of the new policy document is drawn from Puleo. This is appropriate, as the legacy memorandum was one of the agency’s most robust, detailed and concrete explications of subject.
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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 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 possesses specialized knowledge.We urge USCIS to reincorporate this example into its guidance. We note that it is consistent with the recent decision of the U.S. Court of Appeals for the District of Columbia Circuit in Fogo
de Chao (Holdings) Inc. v. DHS, 769 F.3d 1127. (D.C. Cir. 2014). There, the Court found that
knowledge can be considered specialized if it would be difficult to impart to another without significant cost or inconvenience to the petitioning organization. 769 F.3d. at 1142.
C. USCIS Must Not Impose Labor Market, Genuineness or Wage Tests on L-1B Petitioners
We applaud USCIS’s confirmation that L-1B specialized knowledge need not be narrowly held within the petitioner’s organization or require a labor market test. However, we are deeply concerned about other statements in the draft guidance that contradict and undermine these declarations of policy.
Troublingly, the draft guidance gives USCIS adjudicators the authority to question the petitioner’s need for the L-1B beneficiary where the adjudicator deems that “many” others in the U.S. organization possess the “same” specialized knowledge. This assertion is problematic on several levels and must be stricken from the guidance. First, it directly contradicts USCIS’s clear statement, discussed below, that the requisite knowledge need not be narrowly held within the petitioner’s organization. Furthermore, it imposes a de facto labor market test on petitioning organizations. This is in direct contravention of Congress’s intent, as U.S. Court of Appeals for the District of Columbia Circuit noted in Fogo de Chao. 769 F.3d 1127 at 1145. It improperly accords adjudicators the authority to determine the genuineness of the petitioner’s need for the beneficiary, effectively allowing an adjudicator to substitute his or her own judgment for the business judgment of the organization. Organizations devote significant effort and expense to transfer their employees internationally and do so only after making a considered determination of their business needs and plans. To permit adjudicators to second-guess the needs of a petitioner is to subvert the sound policies behind the L-1 category – enhancing the ability of multinational organizations to transfer their personnel efficiently and with a reasonable degree of predictability. Lastly, it unjustifiably gives adjudicators broad authority to determine whether the specialized knowledge a beneficiary possesses is the “same” as that held by other employees. This directive fails to recognize that the nature of a specific beneficiary’s knowledge cannot be determined by reference to indicators such as his or her job title or list of duties.
We are also deeply concerned by the suggestion that a beneficiary’s wage should be scrutinized as an indicator of specialized knowledge. There is no legal basis for this line of inquiry. When it devised the L-1 classification in 1970, Congress intentionally declined to impose wage requirements, in distinction from the H-1B category, which is subject to detailed
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wage rules. We note that Congress has consistently rejected a wage requirement for the L-1 category since then, most recently in S. 744, a comprehensive reform bill passed by the Senate in 2013 without L-1 wage provisions.Furthermore, comparing the wages of “similarly situated peers” is not relevant in an assessment of specialized knowledge. Wages are often set by objective factors and policies. For instance, many employers follow a lockstep salary structure that sets wage according to the duration of employment. Specialists and non-specialists may be earning the same amount if hired in the same year. USCIS must also be mindful that many L-1B beneficiaries are from developing countries and remain on home country payroll, but are typically provided with salary supplements to cover housing, transportation, tax equalization and other costs while they are in the United States.
III. Evidence of Specialized Knowledge
A. The Probative Value of the Petitioner’s Sworn Statement
As USCIS acknowledges in the draft memorandum, the agency is best able to perform its L-1B adjudicatory function when the petitioner “explains with clarity the specific nature of the industry or field involved, the nature of the petitioning organization’s products or services, the specialized knowledge required to perform the beneficiary’s duties and the need for the beneficiary’s specialized knowledge.”
We strongly concur with this unequivocal declaration of the importance of the petitioner’s own statements in the petition, made under penalty of perjury. These, and the petitioner’s signed letters of support, are persuasive evidence of the organization’s need for the beneficiary and how the beneficiary serves the employer’s business purposes. As such, adjudicators must be clearly instructed to accord the petitioner’s statements significant evidentiary weight.
Where the petitioner’s statements are detailed, specific and credible, and adequately place the beneficiary’s knowledge within the context of the employer’s specific business purpose, they are more than sufficient on their own to meet the "preponderance of the evidence" standard. Adjudicators should not issue requests for further evidence (RFEs) or deny petitions merely because the petitioner has not provided additional evidence. RFEs are appropriate only if the petitioner’s attestations are mere conclusory statements or unless the record contains evidence that weighs against eligibility.
The petitioner’s own statements are particularly crucial evidence because many types of specialized knowledge can only be documented in this way. A reality of “the fluid dynamic of the business world,” as USCIS itself terms it, is that an L-1B’s specialized knowledge of the company’s products, processes, services, methodologies and the like is rarely expressed in pre-existing documents of the kind USCIS lists later in the draft guidance. This is particularly true when a beneficiary’s knowledge has been gained through experience on the job with the employer, rather than through a formal classroom training program.
B. Supplemental Evidence of Specialized Knowledge
As we emphasize above, the best evidence of a beneficiary’s specialized knowledge is the petitioner’s own detailed, specific and credible statements thereof. Though some kinds of supplemental documentary evidence may be helpful to demonstrate specialized knowledge, we
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strongly urge USCIS to recognize that many of the items it lists are not probative of that issue, as we discuss in detail below. As such, they must be stricken from the guidance. 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. Though knowledge of a
company’s processes, procedures, techniques and methodologies may be taught in formal classroom training, records of training are unlikely to reflect a beneficiary’s specific knowledge. The petitioner is unlikely to have access to documentation of any training the beneficiary underwent with other employers in the industry. Furthermore, classroom instruction is usually brief and supplemented by actual experience. Finally, the petitioner itself is the best judge of whether the individual’s education and experience qualifies him or her for the L-1B position and its sworn statements should be accorded significant evidentiary weight on this score.
Evidence of the impact, if any, the transfer of the individual would have on the
organization’s U.S. operations. Neither the statute nor the regulations require the
petitioner to show the impact of the beneficiary’s transfer on U.S. operations. However, the petitioner’s own statements describing the importance of a project or business process have probative value.
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. The petitioning organization is not likely to have
independent documentation of an L-1B beneficiary’s ability to contribute to this type of organizational knowledge, but its own statements concerning the beneficiary’s knowledge must be given due weight. We note that this type of evidence is relevant only to assess whether the beneficiary’s knowledge is “special,” but is not an appropriate inquiry to determine “advanced knowledge.
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. It is rare that documents such as contracts, client statements of
work and the like will name an L-1B beneficiary, specifically enumerate his or her specialized knowledge or demonstrate how that knowledge aids the organization’s competitiveness. Furthermore, petitioning organizations should not be asked to submit confidential business information to demonstrate a beneficiary’s specialized knowledge.
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. As we note
above, the petitioner is unlikely to possess documentation showing the relationship between the beneficiary’s specialized knowledge and the organization’s competitiveness, nor was it Congress’s intent to require such a showing.
Curricula and training manuals for internal training courses, financial documents or other
evidence that may demonstrate that the beneficiary possess knowledge of a product or process that cannot be transferred or taught to another individual without significant
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and financial documents are unlikely to reflect a beneficiary’s specific knowledge. This is particularly true when a beneficiary’s knowledge has been gained through experience on the job with the employer, rather than through a formal classroom training program. 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.
This type of evidence directly contradicts USCIS’s proper statement that specialized knowledge need not be proprietary or unique.
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. Requiring a petitioner to submit payroll
records is both burdensome and irrelevant to the specialized knowledge inquiry. As we note above, wage is not indicative of specialized knowledge and has been rejected by Congress as a basis for determining L-1B eligibility.
In addition to revising the list of suggested evidence, we urge USCIS to instruct adjudicators in the proper way to evaluate that evidence, based on the preponderance of the evidence standard. We discuss application of the evidentiary standard below.
IV. Offsite L-1B Employment
We commend USCIS for reaffirming its recognition of the legitimacy of offsite employment in the L-1B context. This is consistent with the clear purpose of Congress when it admitted accounting, consulting and other professional services organizations to the L-1 program.
We applaud USCIS’s recognition that end-clients are not prohibited from giving day-to-day direction to the petitioner’s L-1B employees, provided that the petitioning employer principally controls the beneficiary. We recommend that, when assessing whether the petitioner maintains the requisite control over the beneficiary, adjudicators be instructed to recognize that management and control in the current business environment may take many forms, including remote supervision.
We commend the agency for recognizing that a beneficiary can qualify for the L-1B classification through a combination of knowledge of the petitioning organization’s product or service and knowledge of an end-client’s own systems.
V. The Preponderance of the Evidence Standard
We appreciate the agency’s clear statement that “preponderance of the evidence” is the appropriate standard for adjudication of L-1B petitions. We are concerned, however, that a statement of the evidentiary standard without specific, practical guidance on its application will not sufficiently assist adjudicators.
In weighing whether a petitioning organization has proven its case by a preponderance of the evidence, adjudicators must be instructed first to review the sworn statements of the petitioner. As we emphasize above, a petitioner’s detailed, credible attestations of its need for the beneficiary and beneficiary’s eligibility for the classification are strongly probative on their own. We note that the Administrative Appeals Office held similarly in Matter of Chawathe, 25 I&N
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Dec. 369 (AAO, October 20, 2010), an adopted decision in which the appellate tribunal favorably viewed the probative weight of an employer’s attestations, where credible and uncontroverted by other evidence.As we emphasize above, if a petitioner’s statement is detailed and credible on its own, the adjudicator should not issue requests for further evidence or draw any negative inference simply because the employer has not submitted additional documentation. Additional evidence is necessary only if the petitioner’s attestations are mere conclusory statements or unless the record contains evidence that weighs against eligibility.
Lastly, adjudicators must be directed not to substitute their own opinions for the petitioner’s considered business judgment.
VI. Deference to Prior Adjudications
The new guidance appropriately recognizes that prior USCIS adjudications of L-1B eligibility are entitled to significant deference. We strongly urge the agency to explicitly accord the same deference to the prior L-1B adjudications of its sister agencies, the U.S. Department of State (DOS) and U.S. Customs and Border Protection (CBP).
A foreign specialist may obtain L-1B status in any of three ways: (1) an individual petition filed with USCIS; (2) an L-1B visa application filed with a U.S. consulate pursuant to the petitioning organization’s USCIS-approved corporate blanket petition; or (3) an individual or blanket application submitted at the border to CBP.
The blanket L program is a collaboration between USCIS and DOS, established to streamline the ability of global organizations to transfer their personnel to the United States. The blanket program recognizes that certain classes of employee clearly qualify for the L-1B classification and do not need to be subjected to the petition process. Once USCIS adjudicates an organization’s eligibility for admission to the streamlined program, it delegates the adjudication of beneficiary applications to DOS through its consulates. Consular officers assess blanket L applications against the “clearly approvable” evidentiary standard, a higher burden of proof than preponderance of the evidence. The North American Free Trade Agreement (NAFTA) established a similar streamlined program for the admission of Canadian and Mexican transferees. USCIS delegates the adjudication of Canadian L-1 applications to CBP and Mexican applications to DOS and CBP. After a NAFTA L-1 applicant enters the United States, USCIS ratifies the admission by issuing a formal notice of approval. Failure to accord DOS and CBP decisions the deference they are due as USCIS’s partners subverts Congress’s intent in creating the blanket L and NAFTA L programs.
Lastly, we are concerned by the suggestion that the transfer of an L-1B employee to a new end-client location might cause a prior L-1B adjudication to be deprived of deference and urge USCIS to strike this statement. Nothing in the L-1 statute or regulations suggests that such a change requires readjudication of eligibility, nor do the regulations deem an end-client or location change to be material to eligibility. We note that the regulations appropriately give L-1 employers the flexibility to transfer beneficiaries freely, in keeping with the larger purpose of the L-1 program. Authorizing officers to readjudicate L-1B eligibility after a change in client assignment could cause significant disruption for the petitioning organization, potentially impeding business continuity and its ability to deploy employees to meet clients’ urgent needs.
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VII. CONCLUSION
We thank USCIS once again for the opportunity to offer feedback on an issue of such crucial importance to multinational organizations. It is our hope that USCIS will find our views helpful as it works to refine agency guidance and standards for the adjudication of L-1B specialized knowledge petitions.
Yours truly,
FRAGOMEN, DEL REY, BERNSEN & LOEWY, LLP By: Austin T. Fragomen, Jr.
cc: Hon. León Rodríguez, Director, U.S. Citizenship and Immigration Services Lori Scialabba, Deputy Director, USCIS
Denise Vanison, Chief, Office of Policy and Strategy, USCIS Ur Jaddou, Chief Counsel, USCIS
Mariela Malero, Assoc. Director, Customer Service and Public Engagement, USCIS Donald Neufeld, Assoc. Director, Service Center Operations, USCIS
