New L-1B Visa Guidance to be Released Soon: Obama

"President Barack Obama on Monday announced that a long-awaited update for L-1B visas — which allow companies to temporarily transfer skilled foreign workers to the U.S. — is soon on its way, and he also unveiled new tools for foreign investors and touted current trade deals.

Obama, speaking at the SelectUSA Investment Summit at a convention center in National Harbor, Maryland, said that his administration plans to “reform” the L-1B visa category, although the president didn’t provide details on the changes.

“[T]his could benefit hundreds of thousands of nonimmigrant workers and their employers; that, in turn, will benefit our entire economy and spur additional investment,” Obama said of the L-1B visa update.

According to the White House, new policy guidance on L-1B visas will be released by U.S. Citizenship and Immigration Services, with the aim of increasing clarity on its adjudication process. A spokeswoman for USCIS told Law360 that the guidance could come out as early as this week.

Better clarity on L-1B adjudications can’t come soon enough for many businesses, as rejections of L-1B visa petitions are at historic levels, according to a new report.

The report, issued by research organization the National Foundation for American Policy, found that the denial rate for L-1B petitions hit 35 percent in the 2014 fiscal year, representing an eye-popping increase from the fiscal year 2006 denial rate of 6 percent.

A sticking point for the report’s authors was the fact that USCIS has yet to provide updated guidance on the definition of “specialized knowledge” for L-1B petitions. In order to qualify for an L-1B visa — which allows a company to transfer a foreign employee to a U.S. office for up to five years — the foreign worker must have specialized knowledge connected to the company’s goals, according to USCIS.

But just what exactly qualifies as specialized knowledge can sometimes be a bit hazy. In the most notable recent case, the D.C. Circuit reversed a decision denying steakhouse chain Fogo de Chao (Holdings) Inc.’s bid to bring in a Brazilian chef on a L-1B visa, in a dispute over specialized knowledge.

The Administrative Appeals Office found that the chef’s cultural background and training could not be considered specialized knowledge, but the appeals panel was unable to pinpoint a “sufficiently reasoned path” regarding the AAO’s bar against “culturally based skills.”

The upcoming guidance from USCIS, then, may very well shed some light on the specialized knowledge issue — although the NFAP warned in its recent report that any guidance that narrows L-1B eligibility will undercut the Obama administration’s goal of boosting the U.S. economy through immigration policy.

On Monday, the president also gave a nod to new trade deals being hashed out with Asia and Europe, and said that he was “confident” that the Export-Import Bank of the United States can be reauthorized.

Obama also unveiled several tools for foreign investors, including a website that provides data aimed at helping them pinpoint specific industries, or find possible business partners, according to the White House. Additionally, U.S. Secretary of Commerce Penny Pritzker will create an advisory committee to gather comments on foreign investment strategies and programs, the White House said.

Monday’s SelectUSA Investment Summit was the second of its kind, and comes just four years after the program was launched by an executive order. The program seeks to entice companies from abroad to invest in the U.S., and create more jobs, according to Obama." - Allissa Wickham, Law360, Mar. 23, 2015.