Finally, US Citizenship and Immigration Services offers some clarity on L1B visa petitions

The recent policy announcement by the US Citizenship and Immigration Services (USCIS), the draft memorandum on L1B visas, defines how petitions for the work permit category, which was created by the US government so that MNCs could transfer foreign employees with specialised knowledge to work in their US operations, should be adjudicated. So far, the USCIS had not clearly stated what constitutes “specialised knowledge” for L1B workers, as a result of which the adjudication of L1B petitions has been erratic, leading to unpredictability and loss of business for many companies. But now, the 2015 draft L1B memo seeks to “provide consolidated and authoritative guidance on the L1B programme, superseding and rescinding certain prior L1B memoranda.”

The USCIS will accept feedback on the draft until May 8, 2015 and this policy memo will go into effect on August 31 as it is unless the USCIS modifies it after it receives public feedback.

Earlier this month, the National Foundation for American Policy had released a study on the dramatic increase in L1 petition denial rates in recent years, which mentioned that Indians faced the highest refusals in the L1B programme.

The report said that 56% of L1b cases filed for Indian nationals are denied whereas the denial rate for nationals of Canada, Britain and China is 4%, 16,% and 22%, respectively.

In its analysis, the NFAP study found that the increase in denial rates for L1B petitions was the way in which they are adjudicated, and not any changes in the rules for L1B visas. This is the reason why Indian IT companies with US operations and US companies that deploy a large number of staff members in the US are happy about the recent announcement by the USCIS. However, not everyone is hopeful that the memorandum will bring any big advantage to help L1B applicants from India.

“I’m not sure whether this new policy memo will help L-1B adjudications across the board, or for Indian employees. The memo establishes a clearer standard of adjudication and provides that, when adjudicating L1B petitions, USCIS officers must apply a preponderance of the evidence standard, by which an employer must show that it is more likely than not that the employee is eligible for this category,” says Mumbai-based immigration lawyer Poorvi Chothani. She explains that the “preponderance of the evidence standard” was what officers were supposed to apply and the memo only reminds them or requires them to apply this standard. “Hopefully, this will result in more equitable adjudications within the regulatory parameters,” Chothani adds.

The good news, of course, is that the L1B memo expressly asks officers not to apply higher standards such as “clear and convincing evidence” or “beyond a reasonable doubt” that some USCIS officers seem to have been applying when reviewing L1B petitions.

“The new announcement provides more clarity and guidance on the definition of specialised knowledge, which needs to be demonstrated for eligibility for the L1B visa. It reaffirms that applicants may demonstrate that they have specialised knowledge through the more liberal preponderance of evidence standard rather than the clear and convincing evidentiary standard. It also confirms that the knowledge need not be proprietary in nature or narrowly held within the employer’s organisation,” says Cyrus Mehta, Manhattan-based immigration attorney and adjunct associate professor of law, Brooklyn Law School. He adds that the erroneous notion that the employer must be the only company where the employee could have acquired the specialised knowledge has also been done away with.

“The employer is also not required to demonstrate the lack of readily available workers to perform the relevant duties in the US. Finally, even if a worker is eligible for the H1B visa (which is subject to an annual quota) or another non-immigrant visa, that in itself should not lead to a denial of the L1B visa. The guidance correctly acknowledges that one may be eligible for more than one visa classification,” Mehta added.

While most IT companies now hope that once the new guidance takes effect on August 31, 2015, the disadvantage for Indians when it came to L1B visa adjudications, based on preconceived notions that the visa was being misused as a substitute for the H1B visa, will be eased; concerns still remain over the directive that still holds L1B workers, who are assigned to client sites, to a tougher standard.