Yesterday, USCIS issued a Memorandum relating L1-B adjudications. This is an interim Memorandum, meaning that the government is asking for comments from the public. The comment period will end on May 8, 2015 and the Memorandum will be effective on August 31, 2015. As you may recall, President Obama made this one of his priorities in his November 20, 2014 announcement.
Perhaps the best thing in the Memorandum is the clarification of the applicable burden of proof. I have handled several of these cases where the AO asked for more information than necessary. These officer often forget that immigration is a civil matter and the applicable burden of proof is “preponderance of evidence” and is not “beyond a reasonable doubt” as it is in criminal cases. This is a very important distinction since a violation of this burden is arguably a violation of a Petitioner’s due process rights.
The Memorandum tries to clarify the meaning of the terms “advanced” and “specialized” knowledge. The Memorandum also lists things that the L1-B beneficiary does not have to possess. For example, the memorandum mentions that an L1-B beneficiary does not have to be a manager or executive, and the Petition does not have to test the US Labor market. The Memorandum also mentions that the specialized knowledge does not have to be narrowly held in the petitioning organization. Lastly, the Memorandum also mentions that eligibility for another non-immigrant classification does not bar someone from holding the L1-B classification. The Memorandum also lists some needed documentation that would help a Petitioner show that the Beneficiary is eligible for L1-B classification.
The one great thing about the Memorandum is the fact that it adds much more details regarding the issue that its predecessors. For example, the 12/02/2002 Memorandum regarding the same issue was less that one page long. However, there ares some issues relating to the present Memorandum that should be addressed. For example, I am afraid that the list of evidence would be used by adjudicators as the all inclusive list and would not allow other evidence to be admitted. Additionally, there is always the issue of misinterpretation. For example, I had an case where the adjudicator asked for patents held by the Petitioner, when the Memorandum clearly states that knowledge does not have to be exclusive to the Petitioner.
I welcome the Memorandum because it is desperately needed. I think the problem as I see it is not a problem of Memos, but a problem of adjudicators not following the law and applying their own interpretations. What do you think?