Included within the Obama administration’s Executive Actions on Immigration announced in November, 2014 was a directive to the U.S. Citizenship and Immigration Services (USCIS) from DHS Secretary Johnson to issue a long-awaited L-1B policy memorandum that provided clear, consolidated guidance on the meaning of “specialized knowledge.” That memo has now been issued, and is implemented through an update to the immigration service’s Adjudicator’s Field Manual.
The L-1B nonimmigrant visa category for “specialized knowledge” intracompany transferee employees has been much maligned in the press and in Congress over the past several years, and has faced overly stringent adjudicatory review by U.S. immigration officers with Requests for Evidence running at 50% and denials of close to 30%. This has mainly been due to lack of clear statutory or regulatory guidance as to what is considered “specialized knowledge” in the L-1B context. Immigration adjudicators and petitioners instead have had to rely on a series of memorandums from various immigration officials dating back to 1994, all of which remained valid and authoritative. Frustration mounted for multinational employers as it became increasingly difficult to utilize the L-1B process to transfer to their U.S. operations key employees who possess specialized knowledge of the company’s products or procedures.
On August 17, 2015, the USCIS issued a Policy Memorandum on L-1B Adjudications Policy. The memo claims to be consistent with the earlier immigration service memos, but specifically supersedes them. This memo is meant to provide “consolidated and authoritative guidance on determining whether specialized knowledge has been established in L-1B petitions . . . .”
Standard of Review
Significantly, the memo first establishes that the USCIS officer’s standard of review on an L-1B petition should be one of “preponderance of the evidence”, rather than the higher standards of proof of “clear and convincing” or “beyond a reasonable doubt”. The petitioner must show that what it claims is more likely the case than not. It does not need to remove all doubt from the adjudication.
Two key elements to a successful L-1B petition are a showing that the foreign national beneficiary possesses “specialized knowledge”, and that the position offered involves the “specialized knowledge” held by the beneficiary. Under the immigration statute, a beneficiary is deemed to have specialized knowledge if they have 1) “special” knowledge of the company’s product and its application in international markets, or 2) an “advanced” level of knowledge of the processes and procedures of the company.
The memo now defines “special knowledge” as that “which is knowledge of the petitioning organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets that is distinct or uncommon in comparison to that generally found in the particular industry.
It defines “advanced knowledge” as that “which is knowledge of or expertise in the petitioning 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 an employer.”
The memo then goes on to explain how to determine whether a beneficiary possesses such special or advanced knowledge, providing a non-exhaustive list of factors for the USCIS adjudicator to consider, as well as suggested evidence that petitioners may want to provide to make such a showing.
L-1B adjudicator’s are instructed to look at these factors 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 also instructs and corrects L-1B adjudicator’s on several problem areas where adjudicator’s have been seen to consistently misapply the law and regulations:
- 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.
- L-1B classification does not involve a test of the U.S. labor market.
- Specialized knowledge need not be narrowly held within the petitioning organization.
- Specialized knowledge workers need not occupy managerial or similar positions or command higher compensation compared to their peers.
- Eligibility for another nonimmigrant classification is not a bar to eligibility for L-1B classification.
The following is suggested evidence the petitioner may want to submit to demonstrate that the beneficiary’s knowledge is special or advanced:
- Documentation of training, work experience, or education establishing the number of years the individual has been using or developing the claimed specialized knowledge as an employee of the petitioning organization or in the industry;
- Evidence of the impact, if any, the transfer of the individual would have on the petitioning organization’s U.S. operations;
- Evidence that the alien is qualified to contribute significantly to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the petitioning organization’s U.S. operations;
- Contracts, statements of work, or other documentation that shows that the beneficiary possesses knowledge that is particularly beneficial to the petitioning organization’s competitiveness in the marketplace;
- Evidence, such as correspondence or reports, establishing that the beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the petitioning organization’s productivity, competitiveness, image or financial position;
- Personnel or in-house training records that establish that the beneficiary’s claimed specialized knowledge normally can be gained only through prior experience or training with the petitioning organization;
- Curricula and training manuals for internal training courses, financial documents, or other evidence that may demonstrate that the beneficiary possesses 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 petitioning organization based on the beneficiary’s work, or similar evidence that 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 proprietary or unique to the petitioning organization; and
- Payroll documents, federal or state wage statements, documentation of other forms of compensation, resumes, organizational charts or similar evidence documenting the positions held and the compensation provided to the beneficiary and parallel employees in the petitioning organization.
In addition to providing clearer guidance on the “specialized knowledge” standard, the memo addresses three other key issues in L-1B petitions.
First, another key to a successful L-1B petition is a showing that the foreign national beneficiary worked abroad for a qualifying organization on a full-time basis for one continuous year within the preceding three years. The memo confirms though that the employment abroad could be in any of the three classifications as an executive, manager, or specialized knowledge employee, even if the beneficiary is seeking to enter the U.S. as a specialized knowledge employee.
Offsite L-1B Employment
Next, the memo addresses offsite L-1B employment in the context of the L-1 Visa Reform Act of 2004, which, in part, was designed to prevent the outsourcing of L-1B beneficiaries to third-party entities as “labor for hire”. Where an L-1B beneficiary’s primary worksite will be at the location of an employer who is not affiliated to the petitioner, it must be shown 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.”
The memo gives specific examples of actions that are permitted and not permitted in such offsite L-1B employment:
- The petitioning company cannot simply supply workers and issue their paychecks in a “labor for hire” arrangement.
- An unaffiliated employer is not necessarily prohibited from giving day-to-day assignments to the beneficiary, provided that, in the totality of the circumstances, the unaffiliated employer does not principally control and supervise the beneficiary’s activities.
- In an effort to prove that the unaffiliated employer does not maintain principal control and supervision over the beneficiary, the petitioner can show that it retains the principal authority to dictate the manner in which the work is to be performed, reward or discipline the beneficiary for their work performance, and provide the beneficiary’s salary and any normal employer-provided benefits, such as health insurance.
- The petitioner must show that an offsite L-1B worker will be using the specialized knowledge that served as the basis of the L-1B petition.
Readjudication of L-1B Status
Finally, and significantly, in the context of an L-1B extension petition involving the same petitioner and beneficiary, the memo instructs USCIS adjudicator’s to give deference to the prior determination by approving L-1B classification. A re-examination of the petition should only occur where (1) there was a material error with regard to the previous approval, (2) there has been a substantial change in circumstance since the previous approval, or (3) there is new material information that adversely impact the petitioner’s or beneficiary’s eligibility.
This Policy Memorandum on L-1B Adjudications is long overdue and very much welcome by employers and their representatives. While not perfect, it goes a long way toward ensuring a fair and consistent review and adjudication of L-1B petitions by USCIS adjudications officers. The key will be how the memo and its guidance and instruction are followed and implemented in practice by the front-line adjudicators.