Siskind Susser is excited to announce that Lynn Susser was recently elected to ABIL, the Alliance of Business Immigration Lawyers. ABIL is comprised of over 20 lawyers from top tier immigration practices with years of expertise and a comprehensive understanding of immigration law. For more information on ABIL, including a map of ABIL attorneys worldwide, visit their website at www.abil.com.
The following articles are excerpts from ABIL’s monthly Immigration Insider, available here on their website.
New L-1B Memo Addresses Some Issues, But Concerns Remain
A new L-1B policy memorandum issued by U.S. Citizenship and Immigration Services (USCIS) provides guidance on the adjudication of the L-1B classification, which permits multinational companies to transfer employees who possess “specialized knowledge” from their foreign operations to their operations in the United States. It provides consolidated and authoritative guidance on the L-1B program, superseding and rescinding certain prior L-1B memoranda. Some practitioners expressed concerns that the memo still gives adjudicators broad discretion to issue requests for evidence (RFEs) and denials.
The memo notes the following “non-exhaustive” list of factors USCIS may consider when determining whether a beneficiary’s knowledge is specialized:
- The beneficiary possesses knowledge of foreign operating conditions that is of significant value to the petitioning organization’s U.S. operations.
- The beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer’s productivity, competitiveness, image, or financial position.
- The beneficiary’s claimed specialized knowledge normally can be gained only through prior experience with the petitioning organization.
- The beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another individual without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience, or education).
- The beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the petitioning organization.
- The beneficiary possesses knowledge that is particularly beneficial to the petitioning organization’s competitiveness in the marketplace.
The memo notes that specialized knowledge generally cannot be commonly held, lacking in complexity, or easily imparted to other individuals. Specialized knowledge need not be proprietary or unique to the petitioning organization. The memo also notes that the L-1B classification does not involve a test of the U.S. labor market, and that specialized knowledge workers need not occupy managerial or similar positions or command higher compensation than their peers.
MEMO, issued August 17, 2015
Federal Prosecutors Drop Criminal Case Based on Evidence Seized From Laptop
Federal prosecutors have dropped a criminal case against Jae Shik Kim, a Korean businessman, who was charged with violating economic sanctions based on evidence seized from his laptop. On August 11, 2015, prosecutors told the U.S. Court of Appeals for the D.C. Circuit that they would not pursue the criminal case or challenge an order U.S. District Judge Amy Berman Jackson made in May ruling that the evidence, seized without a warrant at the Los Angeles airport, could not be used.
Judge Jackson had noted, ” Given the vast storage capacity of even the most basic laptops, and the capacity of computers to retain metadata and even deleted material, one cannot treat an electronic storage device like a handbag simply because you can put things in it and then carry it onto a plane.” Jeff Ifrah, one of Kim’s lawyers, speculated that the federal government didn’t appeal the decision because it “could have resulted in some bad precedent about the type of searches that are going on every day at airports. I think they don’t want to be responsible for having a circuit court of appeals rule that those searches are illegal.” He called the case “clearly a violation of the Fourth Amendment.”
JUDGE JACKSON’S MAY 2015 ORDER
DHS Announces Security Enhancements to Visa Waiver Program
On August 6, 2015, Department of Homeland Security (DHS) Secretary Jeh C. Johnson announced the agency’s intent to implement security enhancements to the Visa Waiver Program (VWP). He said that DHS, along with the Department of State and other federal agencies, will begin introducing “a number of additional or revised security criteria” for all VWP participants, to apply to both new and current members of the program. The VWP currently has 38 participating countries.
Most significant among the new security requirements, he said, would be required use of e-passports for all VWP travelers coming to the United States; required use of the INTERPOL Lost and Stolen Passport Database to screen travelers crossing a VWP country’s borders; and permission for the expanded use of U.S. federal air marshals on international flights from VWP countries to the United States.
U.S. Customs and Border Protection (CBP) has noted that DHS is concerned about the risks posed by the situation in Syria and Iraq, where increasing instability has attracted thousands of foreign fighters, including many from VWP countries. Such individuals could travel to the United States for operational purposes on their own or at the behest of violent extremist groups in Syria, CBP warned. Among other things, DHS has expanded the amount of information collected by its Electronic System for Travel Authorization (ESTA).
USCIS Discontinues Legacy E-Filing System
U.S. Citizenship and Immigration Services (USCIS) recently announced that it is discontinuing its legacy “e-Filing” system to maintain data security standards and focus resources on a replacement Electronic Immigration System.
The legacy e-Filing system offered online filing for several USCIS forms. After the legacy system is decommissioned and before the new system is fully operational, applicants must use paper forms when filing all categories of:
- Form I-131, Application for Travel Document
- Form I-140, Immigrant Petition for Alien Worker
- Form I-765, Application for Employment Authorization
- Form I-821, Application for Temporary Protected Status
- Form I-907, Request for Premium Processing Service
The last day to start new forms in the e-Filing system was August 30, 2015. Applicants must complete and submit all forms by September 20, 2015, or file a paper form. Those who have a pending case submitted through the legacy e-Filing system do not need to take any action. USCIS said it will adjudicate those cases to completion.
USCIS noted that the forms being removed from the legacy e-Filing system will not be available immediately in the new Electronic Immigration System, but the agency plans to add them in the future. USCIS did not indicate when the new system would be fully implemented.
This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers (www.abil.com), of which Lynn Susser is an active member.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.