Final L-1B Policy Memo Issued

U.S. Citizenship and Immigration Services (USCIS) recently the much-anticipated final L-1B Adjudication Policy Memorandum. In late March of 2015, USCIS released a draft Policy Memorandum, with requests for comments.  USCIS released the final version of the L-1B Policy Memo on August 17, 2015, which “supersedes and rescinds” some prior various L-1B memoranda.

The new L-1B Policy Memo follows years of increasingly strict adjudication of L-1B petitions, and was one of the White House’s initiatives on immigration.

Background

L-1 visas are issued to intracompany transferee, coming to work in the US from a related entity overseas. The L-1A category is for managers and executives, and L-1Bs are issued to employees with “specialized knowledge”. An increasingly strict interpretation of “specialized knowledge” is what caused a spike in L-1B denials in recent years, to the concern of employers and immigration lawyers.

“Specialized Knowledge” Definition

The L-1B memo provides a detailed description of the history of changes to the definition of “specialized knowledge” over the years, through legislation and earlier (now superseded) memoranda.  The L-1B Memo then explains that a petitioner must establish eligibility by a “preponderance of the evidence” standard.

The memo explains the difference between “specialized” and “advanced knowledge.”

Special knowledge is

“…distinct or uncommon in comparison to that normally found in the particular industry.” (emphasis added).

“…concerns knowledge of the petitioning organization’s products or services and its application in international markets.” (emphasis added).

Advanced knowledge is

“ …greatly developed or further along in progress, complexity and understanding than that general found within the employer.” (emphasis added).

“  knowledge of a petitioning organization’s processes and procedures that is not commonly found in the relevant industry…” (emphasis added).

The memo explained that an employee can have both special and advanced knowledge, but that one type is enough for L-1B eligibility.

Further, the L-1B Policy Memo allows for the possibility where all of a company’s employees may possess “specialized knowledge”, particularly when these employees work on technologies or techniques that are so advanced or complex that nearly all employees working in this area have specialized knowledge.

Proving Specialized Knowledge

The memo states that the …”petitioner’s statement may be persuasive evidence if it is detailed, specific and credible” Nevertheless, we strongly advise using supporting evidence, and these are examples provided by USCIS:

• 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.
  
  
• 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.
  
  

The memo states that “…the petitioner is required in all cases to compare the beneficiary’s knowledge to that of others.”

Some factors that USCIS states will demonstrate specialized knowledge are:

• 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.
  
  

Tomorrow’s blog posting will discuss the remainder of the memo, covering offside L-1B employment and extensions of status.

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