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.
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history of changes to the definition of “specialized knowledge” over the years, through legislation and earlier (now superseded) memoranda.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:
Some factors that USCIS states will demonstrate specialized knowledge are:
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.