The President has announced plans to ease the processing of L-1B applications for multi-national companies. The President’s speech on March 23, 2015, stated that such measures would boost foreign investment and further invigorate the U.S. economy. In conjunction with the President’s announcement, the United States Citizenship and Immigration Service (“USCIS”) has announced a Policy Memorandum, which if implemented in its current form, will dramatically alter the way which L-1B adjudications are made. The measures announced will be a boost for companies in the Information Technology Industry who disproportionately rely on such visas to bring in its employees to the United States on short term assignments.
The USCIS Policy Memorandum, released on March 24, 2015 discusses a “L-1B Adjudications Policy” and proposes that the new rules be effective starting on August 31, 2015. While USCIS has invited comments from the public, which is part of the way regulations are implemented in the U.S., it is expected that the new L-1B guidance will be implemented largely through executive action and consequently not have the threat of Congressional roadblocks. There has been judicial decisiosn recently, most notably the Case of Fogo De Chao (Holdings) Inc. v Department of Homeland Security that has bolstered advocates for the types of changes recently announced. Highlights of the proposed changes include:
- Lowering the threshold of evidential proof to a standard of “more likely the case than not” and not the earlier requirement for a “preponderance of evidence.”
- Broader definition of “Specialized knowledge” including a more inclusive interpretation of such knowledge gained from multiple sources and not only restricted by knowledge gained in any one company.
- More expansive application of the definition of “Specialized Knowledge.”
- Interpretation and language specifically allowing employment of L-1B Employment at off-site locations, as long as such employment does not constitute “Labor for Hire.”
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