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specialized knowledge

Still an Uphill Battle for L-1B Petitioners

On January 13, U.S. District Judge Stephen V. Wilson refused, Chain-Sys Corp.’s, a Michigan technology company, motion for summary judgment accusing U.S. Citizenship and Immigration Services officials of improperly denying an L-1B visa for a programmer from India, saying the agency had a reasonable foundation for its decision. Chain-Sys, which creates software applications, most notably for software giant Oracle Corp., had sought an L-1B visa for its employee, Anbarasan Murugan, a senior project manager and technical specialist at Chain-Sys who had worked for the company in India for eight years. Chain-Sys has been arguing two points. First, the agency was wrong to determine both that Murugan’s knowledge of the company’s proprietary software was not itself specialized knowledge; and second that Chain-Sys hadn’t shown that others employed in the industry couldn’t easily acquire Murugan’s knowledge.

As to the first argument, the judge noted that the fact that a person works with proprietary information or has a high level of technical skill is not enough to establish specialized knowledge under the USCIS’ interpretation of federal immigration law. As to the second argument, the judge said he couldn’t conclude that USCIS “was compelled to find that it would take years to impart Murugan’s knowledge alone on another individual already in the industry.” In general, it is safe to assume that your company’s propriety technology is not commonly held, is complex and is difficult to impart to others. However, this decision shows that when petitioning for an L-1B employee it is still best to demonstrate as many as the factors that show specialized knowledge as possible, even though the presence of one or more of these (or similar) factors is sufficient in some cases to establish that a beneficiary has specialized knowledge.

Sen. Charles Grassley “troubled” by a new L-1B policy memo

The main reason Senator Grassley was troubled was because he believed that the new memo could result in hundreds of thousands of temporary foreign workers being admitted into the U.S. … wouldn’t that be terrible! Senator Grassley also believed that “A more liberal definition of ‘specialized knowledge’ that causes hundreds of thousands of additional L-1B workers to be admitted to the country will also accelerate the offshoring of jobs from the United States.” I am not sure which memo Senator Grassley read but the new L-1B has not “opened the flood gates” in the L-1B category. The memo still provides too much subjective review by Officers. The memo also does not provide bright line definitions of specialized knowledge as was originally hoped. However, if read carefully the memo provides guidance to petitioners as to what evidence best demonstrates specialized knowledge in USCIS’ eyes. Please see my article in ILW.com for a detailed review of the L-1B memo and a breakdown of the factors that tend to demonstrate specialized knowledge.

Changes to the L-1b visa

HLG attorney Matt Minor was recently published on ILW.com. His article explored the differences between the L-1b visa pre and post the Aug 17, 2015 policy guidance.

Final Version of L-1B Adjudication Policy Memorandum Released

On August 17, 2015 USCIS released the final version of its policy memo that will guide the future adjudication of the L-1B visa classification. This memo will apply to all L-1B petitions pending or filed with USCIS on or after August 31, 2015. If petitioners will have a petition pending with USCIS beyond August 31, 2015 they should be using this memo as guidance to prepare their petitions if they are already not doing so.

Denied a Visa because of the color of your skin ?

It seems like an absurd headline doesn’t it ? We are in 2015 in what we claim is one of the most enlightened countries in the world and this current administration certainly talks a good game about equality, transparency and fair treatment for all. The reality is far different at the USCIS. In a not so surprising discovery, the National Foundation for American Policy, released a report that disclosed that if you happen to be an Indian national that your odds of being denied an L-1 visa are 5 times greater than if you were from another country. From 2012-2014, the USCIS denied an astounding 56% of L-1b petitions for persons from India. Is there an explanation other than blatant discrimination ? Sure there is but, not a credible one. USCIS examiners at the urging of powerful political interests have linked outsourcing (which is the devil incarnate) to the L-1b visa and USCIS examiners have been doing their “patriotic duty” by denying as many L-1b visas as they can. The legal standard and meritorious nature of the case be damned. The economic impact to US business is irrelevant. The argument that denials actually eliminate US jobs and force greater outsourcing, often forcing US citizens and residents to be transferred overseas falls on deaf ears. When you don’t want to hear that a certain class of person should be treated fairly, there is no reason to listen. Deny! Deny! Deny! is the rally cry in the halls of the Vermont and California Service Centers ! In 2006, the denial rate for L-1b petitions was 6%; in 2014, it was 35% without a single regulatory or statutory change. It’s time to call it what it is ! Disparate treatment of one petition over another simply by virtue of one’s national origin.

USCIS Releases L-1B Adjudications Policy Memo

The big day is here! USCIS released the first glimpse of what the new L1B guidance will look like, which includes definitions for special and advanced knowledge:

• special knowledge, which is 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; or
• advanced knowledge, which is 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.

In meeting these definitions, the main criteria will be a comparing the beneficiary’s knowledge against that of others, particularly those within the petitioner’s organization.
Other big developments from this memo include: the ability to easily and inexpensively impart the specialized knowledge to other individuals will continue to be a factor considered. Specialized knowledge need not be proprietary or unique to the petitioning organization. USCIS will not be adding a labor market test to the L1B. Specialized knowledge need not be narrowly held within the petitioning organization but how many hold it within the US organization will be “considered carefully” by officers.

Remember, this is not a final rule yet and some things might still change but it looks like we are getting a solid foundation to build future L-1B petition on. Hammond Law Group will provide its clients with a detailed analysis.

Ever been late by 30 minutes ?

This really isn’t directly relevant to IT workers but, I found it interesting so I thought I would share. Often, we talk about the “Culture of No” that is so pervasive at the USCIS and US Consulates and we struggles to understand how someone can have been found to possess specialized knowledge the last 3 times their case was reviewed but, the latest L-1b extension was denied ? Or how a systems analyst has been deemed to be a specialty occupation for umpteen years but, now the California Service Center says it is not ? Or how they can, with a straight face claim that an H-1b employee who moves to a new building across campus warrants revocation ? If those questions puzzle you, check this story out. A backpacker here on a B tourist visa was arrested and detained because he was leaving the US 30 minutes past midnight on the day his visa expired.  I feel so much safer that he is behind bars !

USCIS Releases a 48 Page L-1B Denial Template

USCIS recently released a 48 page California Service Center (CSC) L-1B denial template in response to a Freedom of Information Act (FOIA) request from the American Immigration Lawyers Association (AILA).  The 48 denial template covers every conceivable way to deny an L-1B petition, whether or not supported by law, and even includes the kitchen sink.  Although a few of the pages do in fact cite to the immigration regulations, the vast majority of the template is cookie cutter, cut and paste and insert here.  This includes guidance to the adjudicator to [Insert name of petitioner] and [Insert CBP analysis of why petitioner/beneficiary failed to establish eligibility].  One of the many problems with this type of large template is that too much cut and paste and [insert here] leads to laziness, intended or not, on the part of the adjudicator.   Ultimately, what we have seen in practice is that even after a comprehensive review of the denial, we are unable to determine exactly why the petition was denied.  Which makes it tough to draft a motion to reconsider or motion to reopen.  Other times we find that the denial includes the wrong petitioner or beneficiary or discusses facts not specific to the particular case that was denied.  While USCIS states that such a template is needed for consistency of its decisions, we know that in real life, no two petitions are the same and thus, no two decisions should be the same.

Federal Court Upholds L-1b denial

If you had received 251 L-1b approvals in a row, wouldn’t you feel pretty confident about your next L-1b filing ? As the Brazilian restaurant Fogo discovered, not in this current culture of no.  For many years, Fogo had brought genuine Brazilian gaucho chefs from its restaurants in Brazil to work at its US restaurants using the L-1b visa. However, in 2010, that string of approvals ended and the USCIS determined that the position of a gaucho chef no longer met the definition of specialized knowledge. There was no change in the statue or regulations that preceded this change in interpretation of specialized knowledge and the outcome of its petitions. One day a genuine gaucho chef has specialized knowledge and the next day they don’t.  Fogo thought that being genuine was important enough to pursue Federal litigation over this change in interpretation and brought an action in the Federal District Court for Washington DC.  Unfortunately, the judge issued an opinion that upheld the denial.  Although the decision does not directly impact IT employers, the continued tightening of the L-1b category is troubling.

DHS Ombudsman office hosts call on L-1b issues

Several HLG attorneys attended the DHS Ombudsman open forum on L-1b petitions.  At some point in the future, an official summary will be posted on the Ombudsman web-site. Until then, below are some items of interest. The DHS acknowledged that there has been a tremendous narrowing of the interpretation of the definition of “specialized knowledge” without any statutory or regulatory changes. The denial rates for L-1b petitions have now risen to 27% whereas, it had never exceeded 7%  prior to 2008. The rate of denials is much higher for IT petitions. The RFE rate has now reached over 66%. The DHS also acknowledged inconsistent treatment of petitions between the 2 service centers with the California Service Center having higher denial rates.  It was speculated that the standard being used by the service centers stems from a 2008 AAO case, GST which many scholarly experts have posited is possibly the most legally defective decision to ever be issued by an administrative law judge. The essential point of the GST opinion was that “if everyone is specialized, no one is specialized” Although, the merits of this policy remain without legal support, the reality is that this is the current policy being applied by the USCIS.   The Ombudsman office acknowledged that new training materials were provided to the USCIS in Oct of 2011 however, to date, the USCIS has refused to release those materials. The Ombudsman office re-affirmed that new L-1b guidance was being developed by USCIS headquarters however, no timetable was provided for the release of such guidance. Overall, it was an excellent session and it was heartening to have a DHS official listen and accept input from stakeholders. We applaud the efforts of the Ombudsman’s office and look forward to closer scrutiny of the USCIS service centers treatment of  L-1b petitions.