ABCs of Immigration: L-1B Adjudications

After years of waiting, the promised USCIS L-1B policy memorandum was released today. L-1Bs are intracompany transfer visas for individuals who possess “specialized knowledge” of a company’s operations. The new memo supersedes and rescinds various prior policy documents and is being released now as part of President Obama’s pro-business visa modernization efforts announced last November. According to USCIS, the memorandum’s goal is to “promote consistency and efficiency in L-1B adjudications.” The memorandum also provides important information on placing L-1Bs at third party sites and on providing deference to prior decisions when extensions are adjudicated.

The following is a summary of the guidance memorandum.

 

When does it take effect?

The memorandum will not take effect until August 31. 2015.

 

What is the standard for adjudicating L-1B petitions?

L-1B petitioners must demonstrate by a preponderance of the evidence that the petition meets the requirements for L-1B classification. This means that the claim is “more likely true than not” or “probably” true and is a lesser standard than “beyond a reasonable doubt” or “clear and convincing evidence.”

 

What three requirements must an L-1B beneficiary demonstrate?

1. The beneficiary posses “specialized knowledge”;
2. The position offered involves “specialized knowledge” held by the beneficiary; and
3. The beneficiary has at least one continuous year of employment abroad in a managerial, executive or specialized knowledge capacity with the petitioning organization or a qualifying foreign organization within the prior three years.

 

And if the employee is going to be located at the workplace of an unaffiliated company, the petitioning company must show that the beneficiary qualifies under the L-1 Visa Reform Act which requires such positions be (1) controlled and supervised by the petitioning organization and (2) provided in connection with an exchange of products or services between the petitioning organization and the unaffiliated company.

 

What is “specialized knowledge”?

The existing statute is vague, simply defining “specialized knowledge” to apply to individuals who have (1) “special” knowledge of the company product and its application in international markets; or (2) an “advanced” level of knowledge or expertise of the processes and procedures of the company. INA 214(c)(2)(B). The corresponding regulation at CFR 214.2(l)(1)(ii)(D) defines “special knowledge” to be that which is possessed by an “individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.”

The new guidance looks to common dictionary definitions and defines “special” as “surpassing the usual,” “distinct among others of a kind,” “distinguished by some unusual quality,” “uncommon,” or “noteworthy.”

Advanced is defined in dictionaries as “greatly developed beyond an initial stage,” or “ahead or far or further along in progress, complexity, knowledge, skill, etc.”

Taken together, USCIS now will use the following definitions:

• Special knowledge, which is knowledge of the petitioning employer’s product, service, research, equipment, techniques, management, or other interests and its applications in international markets that is demonstrably distinct or uncommon in comparison to that generally found in the particular industry or within the petitioning employer; or
• Advanced knowledge, which is knowledge or expertise in 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.

 

Does an L-1B need to possess both “special knowledge” and “advanced knowledge”?

No. A beneficiary need only possess one or the other.

 

Is the new definition easier to meet than prior ones?

USCIS makes clear that it is applying a more reasonable standard when it states

With respect to either special or advanced knowledge, the petitioner ordinarily must demonstrate that the beneficiary’s knowledge is not commonly held throughout the particular industry or within the petitioning employer… However, such knowledge need not be proprietary in nature or narrowly held within the company’s organization.

A beneficiary can meet the definition of “special knowledge” by presenting evidence that he or she has knowledge that is demonstrably distinct or uncommon in comparison to the knowledge of other similarly employed workers in the particular industry or within the petitioning organization. To show “advanced knowledge,” the beneficiary can show he or she has knowledge or expertise that is “greatly developed or more complex in comparison to other workers in the employer’s operations.”

 

What factors may USCIS consider in determining whether a worker’s knowledge is specialized?

The memorandum contains a non-exclusive list of factors USCIS may consider when determining specialized knowledge:

• The beneficiary is qualified to contribute to the US operation’s knowledge of the foreign operation’s conditions as a result of having knowledge not usually found in the industry or the organization’s US operations.
• The beneficiary has knowledge that is particularly beneficial to the employer’s competitiveness in the marketplace.
• 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 that employer.
• The beneficiary possesses knowledge of a product or process that cannot be easily taught to another individual without significant economic cost or inconvenience.
• The beneficiary has knowledge of a process or product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the firm.

 

What evidence may be submitted which would show these factors?

Petitioners should submit a detailed description of the services to be performed as well as evidence of the beneficiary’s prior education, training and employment qualifying him for the position. Other documentation which will show specialized or advanced knowledge includes:

• Evidence of training, work experience, or education establishing the number of years the individual has been using the specialized knowledge at the employer;
• Evidence of how the transfer of the beneficiary will help the organization’s U.S. operations;
• Proof the beneficiary is able to contribute to the U.S. operation’s knowledge of foreign operating conditions because he or she has knowledge not generally found in the industry or the organization’s U.S. operations;
• Contracts, statements of work, or other documentation showing the beneficiary’s background would be particularly beneficial to the organization’s competitiveness in the marketplace;
• Evidence, such as correspondence or reports, showing the beneficiary has had assignments that have significantly enhanced the organization’s productivity, competitiveness, image, or financial position;
• Personnel or in-house training showing the beneficiary’s knowledge can only be gained through prior experience or training with that employer;
• Curricula and training manuals for internal training courses, financial documents, or other evidence showing knowledge of a product or process that cannot be transferred or taught to another individual without significant economic cost or inconvenience;
• Evidence of patents, trademarks, licenses, or contracts awarded to the organization based on the beneficiary’s work, or similar showing beneficiary’s knowledge is sophisticated or complex, or of a highly technical nature, although not necessarily proprietary or unique to the petitioning organization; and
• Payroll documents, federal or state wage statements, resumes, organizational charts, or similar evidence showing the positions held and the wages paid to the beneficiary and parallel employees in the organization.

 

Does specialized knowledge need to be proprietary or unique?

USCIS says it need not be proprietary or unique to the petitioner.

 

Does the L-1B petitioner need to test the US labor market?

No. Though the petitioner needs to show the beneficiary’s knowledge is not generally or commonly held in the relevant industry, it specifically notes that this does NOT involve a test of the US labor market and a petitioner doesn’t need to show a lack of readily available workers to perform the relevant duties in the US. The test is not whether workers in the US are available, but whether there are “so many such workers that the knowledge is generally or commonly held in the relevant industry, and thus not specialized.” If there are a lot of workers in the US with similar knowledge to the beneficiary’s, the petitioning employer must show the beneficiary’s knowledge is truly specialized.

 

Does the specialized knowledge need to be narrowly held within the petitioning company?

No. This was a requirement in prior memoranda, but USCIS says that while such comparisons with other employees may be useful, such knowledge need not be narrowly held within the company. Multiple employees within a company may possess the same specialized knowledge and the mere existence of other employees with a similar knowledge should not, in and of itself, be a ground for denial.

Note, however, that if there are many employees in the US with the same specialized knowledge, USCIS may consider the organization’s need to transfer the beneficiary to the US.

 

If there are other workers in the US operation with the same specialized knowledge, what factors should a USCIS examiner consider?

• How the duties to be performed by the beneficiary that require his or her specialized knowledge may or may not differ from those already employed in the US operations;
• The extent to which the petitioner would suffer economic inconvenience or disruption to its US or foreign-based operations if it were unable to transfer the beneficiary;
• Whether the salary to be paid to the beneficiary is comparable to similarly situated peers in the US operations.

Being paid much less than US peers may indicate a lack of specialized knowledge and the employer will need to show valid business reasons to explain the discrepancy.

 

Does the specialized knowledge worker need to occupy a managerial or similar position or command a high salary compared to his or her peers?

No. Rank and salary might be factors considered when analyzing whether a beneficiary has specialized knowledge, but there is no requirement that a beneficiary be of a certain rank or have a salary “elevated” compared to his or her peers. This is especially true for start ups.

 

Does it matter than an L-1B applicant might quality for another non-immigrant classification?

No. The fact that another classification may be available is irrelevant.

 

Does the one year of work outside the US need to be the same type of work the beneficiary will perform in the US?

No. For example, a manager abroad could qualify for a specialized knowledge, non-managerial position in the US.

 

How does working offsite affect an L-1B adjudication?

As noted above, the L-1 Visa Reform Act of 2004 requires the petitioner to show that the beneficiary: (1) will not be “controlled and supervised principally” by the unaffiliated employer; and (2) will be placed “in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.” In short, the law is designed to prevent “labor for hire” arrangements.

To meet the law’s requirements, a petitioner must show that it is providing products and services and not merely supplying workers. The new memo notes than an L-1B beneficiary may be located at a third-party worksite if, based on the “totality of the circumstances,” the unaffiliated employer does not principally control and supervise the beneficiary’s activities. Factors that may be considered include

• The petitioner at all times retains the authority to dictate the manner in which the work is to be performed.
• The petitioner may reward or discipline the worker for his or her work performance.
• The petitioner provides the worker’s salary and any normal employer- provided benefits such as health insurance.

L-1Bs must be using their specialized knowledge in connection with providing the petitioner’s products or services to the third-party client in order to show that the arrangement is not merely labor for hire.

 

Does USCIS need to give deference to its prior decisions when adjudicating L-1B extensions?

Yes. In matters relating to an extension involving the same petitioner and employee and the same underlying facts, USCIS should give deference to prior approvals. Re-adjudications should only happen when there was a material error in a prior case or there has been a substantial change in circumstances since that approval or there is new material information that adversely impacts eligibility.

 

 

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