On August 16, 2022, the United States Citizenship and Immigration Services (USCIS) issued a policy alert regarding updates on eligibility requirements, filing, documentation and evidence, and adjudication procedures for L-1 petitions.1 These updates will be contained within Volume 2 (specifically, chapters 3 and 4) of the USCIS Policy Manual, Part L- Intracompany Transferees (L) and will affect both subclassifications of the L-1 visas (L-1A Manager/Executive and L-1B Specialized Knowledge). USCIS states that their update is intended to consolidate and update guidance that was previously contained in chapter 32 of the Adjudicator's Field Manual (as well as related AFM appendices and policy memoranda). This update is controlling and supersedes any related prior guidance. 2
Summary of Changes for L-1A Visa Requirements:
Many L-1 requirements that were previously issued policy guidance in volume 2, chapter 3, of the Policy Manual remain the same. USCIS specifically cites both previously issued and adopted Administrative Appeals Office (AAO) decisions within the footnotes of the L-1A requirements. This means that practitioners can still refer to these previously issued cases for additional clarifications regarding L-1A requirements and can rely on previously adopted AAO decisions for guidance. Some of these cited cases can provide further clarifications such as the requirement that employees must primarily perform the managerial duties, not day-to-day tasks, and that the job title on its own is not the sole defining adjudicative factor for L-1 visa petitions. Instead, it provides guidance to officers on evaluating job duties to determine whether the proposed L-1A position is more managerial or executive in nature.
These decisions also include Matter of Church Scientology Int'l,3 Matter of Z-A-, Inc.,4 and Matter of Aphrodite Investments.5 Additionally, the Policy Manual reiterates much of the same information known by practitioners regarding the L-1A.
Summary of Changes for L-1B Visa Requirements:
Although many L-1B requirements have remained the same, the Policy Manual incorporates updates that were issued in a policy memorandum (PM-602-0111) on L-1B visa petition adjudications in March 2015. Although many of the requirements have remained the same, the definitions of "advanced" and "specialized/specialized" are not stated as they are in the Policy Manual but are slightly reworded with the same specifications. It is important to note that the definitions specifically stated for "advanced" and "special" knowledge within the 2015 memorandum are not as explicitly cited within the 2022 Policy Manual. They are now simply considered factors or parts of a determination for the USCIS examining officer regarding whether an employee possesses advanced or specialized knowledge. Both the definitions for advanced and specialized knowledge outlined within the policy memorandum and in the Policy Manual are written as factors in determination, which places the burden on the Petitioner and are adjudicated at the sole discretion of the USCIS examining officer. The definitions requiring an examining officer's review are outlined in the Policy Manual and are used to determine whether the Beneficiary has knowledge of the Petitioner's "products or services" and/or "processes and procedures."6
Specifically, there are two requirements outlined in the Policy Manual: that he Beneficiary's knowledge is not commonly held throughout the industry and that this knowledge must be compared/contrasted with knowledge possessed by other employees within the industry. The non-exhaustive list of factors outlined in the policy memo has remained the same in the updated Policy Manual. The Policy Manual does not cite the Merriam-Webster Dictionary for the ordinary and "plain" meaning of "advanced" or "special." The policy memo does reference the plain and ordinary meaning of these terms in context with the regulations, but the 2022 Policy Manual does not refer to these dictionary definitions. This could indicate that the examining officer has sole direction over meaning of these words in considering the totality of the supporting evidence, or it could mean that USCIS no longer finds it necessary to include these definitions.
Lastly, information with respect to documentary evidence needed to support both L-1B sub-classifications are outlined in chapter 8 of the Policy Manual, and lists much of the same information outlined in the policy memo. Please refer to this chapter for information regarding the documentary evidence.
Footnotes
1. Volume 2: Nonimmigrants, Part L, Intracompany Transferees (2 USCIS – PM L).
2. Volume 2: Nonimmigrants, Part L, Intracompany Transferees (2 USCIS – PM L).
3. 19 I&N Dec. 593 (Comm. 1988).
4. Adopted Decision 2016-02 (AAO Apr. 14, 2016).
5. 17 I&N Dec. 530 (Comm. 1980).
6. Volume 2: Nonimmigrants, Part L, Intracompany Transferees (2 USCIS – PM L).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
