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USCIS Announces New Policy Memo for L-1B Visas

By Keshab Raj Seadie | April 5, 2015

Immigration Lawyer NYC
L-1B Visa Adjudications Policy:

memorandum form On March 24, 2015 U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum providing clarifications regarding the L-1B classification, a nonimmigrant visa classification that allows the transfer to the U.S. of employees of multinational companies who possess “specialized knowledge” gained in their foreign operations that would be of value to the U.S. business.

L-1 refers to intracompany transfers from foreign operations to U.S. operations initially created in 1970. The L-1A classification is for corporate managers and executives, and L-1B is for employees who possess “specialized knowledge.” Congress created the L-1B classification so that these transfers could take place and companies’ operations could be strengthened. This reflects an understanding that many of these companies operate in the global marketplace and require workers with such knowledge.

The memorandum provided guidance on the L-1B program as it currently exists. L-1 classifications have evolved over time. The current definition finds specialized knowledge exists in diverse circumstances. This approach is consistent with Congress’ intent to enhance the ability of multinational employers to use the specialized skills of their employees to promote the U.S. as a global business destination.

Policy on the L-1B classification dates back to a series of policy memoranda more than 20 years old. The new memorandum provides consolidated and authoritative guidance on determining whether specialized knowledge has been established in L-1B petitions and ensures compliance with the L-1 Visa Reform Act.

A petitioner seeking L-1B classification for an employee must demonstrate a preponderance of evidence showing its claims are true. This is not as strenuous as the “clear and convincing evidence” or the “beyond a reasonable doubt” standards. The petitioner does not need to remove all doubt to satisfy the standard of proof, which can be met with relevant, probative and credible evidence that is “more likely than not” or “probably” true.

In order to establish eligibility for approval of the L-1B, the petition must show that the beneficiary possesses “specialized knowledge”; the position involves that “specialized knowledge”; and the beneficiary has at least one continuous year of employment abroad in a managerial, executive or specialized knowledge capacity with the petitioner’s organization within the previous three years. If the beneficiary will be primarily located within an unaffiliated workplace, the petitioning organization must also establish that the beneficiary is eligible for L-1B classification under the requirements of the L-1 Reform Act.

Either one of two statutory criteria can be used to demonstrate “specialized knowledge.” One is “special knowledge of the company product and its application in international markets, and two an “advanced” level of knowledge or expertise of the processes and procedures of the company. This can include the petitioning organization’s product, service, research, equipment, techniques, management or other interests and its application internationally, or an advanced level of knowledge or expertise in the organization’s processes and procedures.

Reasonable definitions of the words “special” and “advanced” may be applied. These would include distinct knowledge when compared to others and/or a higher level of knowledge and understanding. A beneficiary may possess one or the other or both.

Determinations will be based on both an evaluation of the petitioner’s operations and the beneficiary’s qualifications. The petitioner bears the burden of demonstrating the requirements.

USCIS may consider some of the following:

  • How the beneficiary is qualified to contribute to the U.S. operation in terms of insight into foreign operating conditions that is not typically found in the industry or within the petitioning organization’s U.S. operations.
  • The beneficiary possesses knowledge that would give the petitioner a competitive edge in the marketplace.
  • The beneficiary has been worked on assignments that have enhanced the employer’s productivity, competitiveness, image or finances.
  • The beneficiary’s claimed specialized knowledge can normally be gained only through prior experience with the petitioner.
  • The beneficiary’s knowledge cannot be easily transferred or taught to another individual with significant cost or monetarily and in time.
  • The beneficiary’s knowledge is highly technical, sophisticated or complex even if not unique to petitioner’s company.

These factors will be assessed. This is not a comprehensive list and other relevant factors may also be considered.

Specialized knowledge isn’t necessarily proprietary, but it is information not easily transferred to another. It does not need to be specific to the petitioner’s organization.

L-1B classification does not require test of the U.S. labor market, therefore the petitioner does not need to demonstrate a lack of U.S. workers to fill the position(s).

Unlike the L-1A classification, workers with L-1B classifications do not need to occupy managerial positions or receive high salaries compared to their peers. Rather it is the specific, unique knowledge they bring that is most relevant.

Eligibility for L-1B classification does not bar an individual from other nonimmigrant classifications.

USCIS indicates that clear evidence of special knowledge will allow for effective adjudication. These would include

  • Thorough documentation of training, work experience and education.
  • Evidence of the impact the individual is anticipated to have.
  • Evidence of qualifications to contribute to the U.S. operation.
  • Contracts, statements of work and other documentation of the beneficiary’s knowledge.
  • Correspondence, reports establishing beneficiary’s employment abroad.
  • Personnel or in-house training records.
  • Curricula.
  • Evidence of patents, trademarks, licenses or contracts related to the beneficiary’s work.
  • Payroll documents.

Congress has determined that the ability to transfer company personnel with specialized knowledge is important in fostering the growth and competitiveness of U.S. businesses. The L-1B classification is in line with this.

USCIS will make this memorandum effective on August 31, 2015.

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