On March 24, 2015, the U.S. Citizenship and Immigration Services (USCIS), published “PM-602-0111″ a.k.a. the USCIS Draft Policy Memorandum on L-1B Adjudication Policy. Ostensibly, it “provides guidance on the adjudication of the L-1B classification.” As I read it, I was listening to the Strokes. (Please don’t think I’m slacking, I attribute my best thinking to combinatory play.) Indeed, the lyrics summed up my reaction as a member of the immigration bar: “You get taken all the time for a fool, I don’t know why.” This article takes a look at current L-1B challenges, responding USCIS policy memoranda and the effect, if any, of such pronouncements on adjudications.

By way of background, the L-1 nonimmigrant classification was created by Congress to facilitate the intracompany transfer of qualifying employees of a foreign subsidiary, parent, affiliate or joint venture entity to its related U.S. entity. The qualifying employees are transferred: via (1) the L-1A sub-classification, which is reserved for executives or managers or via (2) the L-1B sub-classification, which is intended for specialized knowledge employees. What, specifically, USCIS consider specialized knowledge in the context of L-1B nonimmigrant petitions has been hard (particularly by the USCIS’s own employees) to identify over the past 40 years. Presumably, resolving the question of what adjudicators ought to consider “specialized knowledge” was the impetus behind this Draft Policy Memorandum.

Draft, Not Policy

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