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EIG Dispatch – March 27, 2015

April 10, 2015

Highlights

  • USCIS Issues L-1B Policy Guidance
  • Changes to the Requirements for Philippine 47(a)(2) Visa Holders
  • Thailand Clarifies the Definition of “Working”

USCIS Issues L-1B Policy Guidance

On March 24, 2015, USCIS released a Policy Memorandum which provides guidance on L-1B adjudications and which consolidates and supersedes previously issued policy memos.  It is hoped that this guidance will stem the increasing rate of “redundant and unduly burdensome” Requests for Evidence (RFEs). L-1B visas are available to intracompany transferees with specialized knowledge.  The Policy Memo breaks specialized knowledge into 2 categories:

Special Knowledge:
Knowledge of the petitioning employer’s products or services that is distinct or uncommon in comparison to that generally found in the particular industry or within the petitioning employer.  USCIS officers will review the beneficiary’s knowledge of how the company develops its products or services in determining whether that knowledge is specialized.

Advanced Knowledge:
Knowledge of the organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity, and understanding than that generally found within the petitioning employer.  USCIS officers will review the beneficiary’s knowledge of the specific processes used by the company in determining whether that knowledge is advanced.

Key Takeaways:

  • L-1B petitions require the petitioner to compare and contrast the beneficiary’s knowledge with that of others similarly employed in the organization or in the industry.
  • Knowledge may be considered specialized if it is difficult to transfer without significant economic cost or inconvenience.  Conversely, knowledge may not be considered specialized if it easily imparted to another individual.
  • The petitioner does not have to show that the specialized knowledge is narrowly held, but a large number of workers in the industry possessing the knowledge in question may indicate the knowledge is not specialized.  However, there may be instances where a company works with technology so complex that nearly all employees in the organization possess specialized knowledge.
  • L-1B petitioning companies do not need to show that the beneficiary has obtained a high rank or earned an elevated salary compared to his/her peers.
  • There are no additional requirements for L-1B employees placed off site at third-party worksites.  The Policy Memo emphasizes that the beneficiary must possess and utilize specialized knowledge specific to the petitioner, and not the third-party organization.
  • When adjudicating L-1B extension petitions, USCIS should give deference to USCIS’s prior determination granting approval.

This guidance is open for public feedback until May 8, 2015 and will take effect August 31, 2015.  EIG is working with individual clients to determine how this new policy guidance may impact their L-1B petitions.

Changes to the Requirements for Philippine 47(a)(2) Visa Holders

On March 23, 2015, the Philippine Economic Zone Authority (PEZA) released a memorandum explaining positive changes to the requirements for PEZA-endorsed Special Non-Immigrant Visas, also known as 47(a)(2) visas. These visas are typically issued to foreign investors or foreign employees of Regional Headquarters, Regional Operating Headquarters, or foreign workers assigned to special projects in economic zones.

Holders of the 47(a)(2) visa will now be exempt from obtaining alien certificates and all types of BI clearances such as the Emigration Clearance Certificate (ECC) and the Special Return Certificate (SRC). Accordingly, this exemption includes payment of associated fees for both the ECC and the SRC. 47(a)(2) visa holders whose visas have been stamped with “Subject to Payment of ECC and SRC Fees” are immediately exempt and do not need to have their visa re-stamped. However, these individuals are advised to carry a copy of the memorandum and attached Bureau of Immigration (BI) Operations Order in case they are questioned by a BI officer on departure. These exemptions are also applicable to spouses and dependents of 47(a)(2) visa holders.

Thailand Clarifies the Definition of “Working”

On March 5, 2015, the Employment Department of Thailand announced an expanded list of activities that are considered as “not working” under the Work of Aliens Act (2008). Foreign nationals entering Thailand to engage in the following activities are no longer required to obtain a work permit:

  • Attending meetings or seminars;
  • Attending exhibitions;
  • Visiting business operations or attending business meetings;
  • Listening to special lectures or academic lectures;
  • Participating in technical training or seminars;
  • Purchasing goods at trade exhibitions; or
  • Attending a company board meeting.

The Cabinet approved the Employment Department’s expanded list of activities in an effort to promote Thailand as a center of trade and investment. The aim is to encourage foreign companies to set up Regional Operating Headquarters, International Headquarters, or International Trading Centers in the country.