On March 24, 2015, USCIS released a draft version of a memorandum on the adjudication of L-1B petitions.

By Tabitha O'Connell

On March 24, 2015, USCIS released a draft version of a memorandum on the adjudication of L-1B petitions. The L-1 category is for “intracompany transferees” and the L-1B classification specifically applies to employees who possess “specialized knowledge”. The new memo clarifies what evidence is necessary to show that an employee possesses specialized knowledge, as well as several other aspects relating to L-1B petitions. In many ways it provides useful insight and guidance for the L-1B adjudication process; however, there are some areas that are problematic.

The Regulation and Prior Memos

The current regulation defines specialized knowledge as “[S]pecial knowledge 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” (8 CFR 214.2(1)(l)(ii)(D). This definition was meant to be somewhat broad so as to further the goal of the L-1 program, which is to facilitate the transfer of employees from organizations' foreign branches to their U.S. locations.

Since the above regulation was issued, various memos have been released that clarify and expound on the definition of specialized knowledge. This latest memo is meant to provide “consolidated and authoritative guidance” on making a determination regarding the specialized knowledge requirement, and it thus supersedes and rescinds the four prior memos on the subject.

Evidential Standard

First, the memo makes clear that L-1B petitions must meet a standard of “preponderance of the evidence”. This standard requires that the petitioner prove that their claims are “more likely the case than not.” An L-1 case may thus be approved even if the adjudicator is left with some doubt about any of the claims that the petitioner has made. This clarification is especially useful in light of the high amounts of requests for evidence (RFEs) and denials that have been issued for L-1B cases recently, as officers seem to have been applying a higher standard than USCIS is now outlining.

Defining “Specialized Knowledge”

Referencing the regulation regarding specialized knowledge quoted above, the memo acknowledges that the terms “special” and “advanced” are not defined therein. Based on the dictionary definitions of these words, the memo concludes that “special knowledge” must be “demonstrably distinct or uncommon in comparison to that generally found in the particular industry or within the petitioning employer” and that “advanced knowledge” is that which “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.”

Further clarification of these terms is helpful; however, these definitions add a new requirement never previously stated by USCIS—that the knowledge be “special” or “advanced” even within the petitioning organization, rather than simply being distinct within the industry (as was the previous standard). Elsewhere in the memo, USCIS specifically states that specialized knowledge need not be “narrowly held within the employer's organization”, which is a direct contradiction.

“Special” and “Advanced”

The memo notes that a beneficiary may possess either “special” or “advanced” knowledge in order to qualify for L-1B classification. However, different factors are taken into consideration to determine whether a beneficiary possesses each type of knowledge. For special knowledge, the beneficiary's knowledge of “how the company manufactures, produces, or develops its products, services, research, equipment, techniques, management, or other interests” is examined. For advanced knowledge, the beneficiary's “knowledge of the specific employing company's processes and procedures” is what should be considered.

To determine if the beneficiary possesses either of these types of knowledge, the beneficiary's knowledge must be compared to that of others. Making this comparison—and showing that the beneficiary does have distinctive knowledge compared to similar employees in the industry, or knowledge that is more complex or developed compared to other employees of the petitioning organization—falls to the petitioner.

List of Factors to Consider

The memo also provides a non-exhaustive list of factors that USCIS may use to make their determination on whether the beneficiary possesses specialized knowledge. It is noted that “The presence of one or more of these (or similar) factors […] may be sufficient to establish by a preponderance of the evidence that a beneficiary has specialized knowledge”. While this list may be helpful, and USCIS does state that it “does not impose particular requirements that a petitioner must demonstrate”, several of the items go further than the statute or regulations, and thus may inadvertently create a new standard that officers will require all petitions to adhere to.

Questioning the Decision to Transfer

Some further clarification that is provided on making a determination of specialized knowledge includes the possibility of the petitioner showing that the knowledge cannot be easily imparted to another individual, a note that the knowledge “need not be proprietary or unique to the petitioning organization”, confirmation that the availability (or lack thereof) of U.S. workers to fill the open position is not relevant, and clarification on the concept of knowledge being “narrowly held”.

On this point, the memo notes that “Some companies may use technologies or techniques that are so advanced or complex that nearly all employees working on the relevant products or services possess specialized knowledge”, and confirms that this would not mean that a beneficiary's knowledge is not specialized. However, it further goes on to direct officers to examine the necessity of a foreign employee being transferred to the U.S. when there are already workers holding the same knowledge at the U.S. organization. This is an odd instruction, as nowhere in the statute or regulations is there a requirement for the petitioner to explain their reasoning behind seeking to transfer an employee. Asking officers to evaluate this aspect of a petition is thus inappropriate, and therefore this area should not come into consideration at all.

Further Clarifications and Guidelines

The memo also notes that, unlike L-1A workers, L-1B beneficiaries do not need to hold a managerial or supervisory role to be eligible for the classification. While “rank and salary are factors that may be considered” when making a determination regarding the beneficiary's specialized knowledge, there is no set requirement for either. The memo additionally confirms that a beneficiary also being eligible for another nonimmigrant classification, such as H-1B, is not a bar to their being eligible for L-1B status.

Petitions should clearly set out “the specific nature of the industry or field involved, the nature of the petitioning organization's products or services, the specialized knowledge required to perform the beneficiary's duties, and the need for the beneficiary's specialized knowledge.” An example list of evidence that may be submitted to establish that the beneficiary possesses specialized knowledge is included. The memo notes that simply making statements about the beneficiary's knowledge is not enough, but that “it is the weight and type of evidence” that is important.

Employment Abroad

One of the criteria for an L-1 is that the beneficiary “have been employed abroad by the petitioning organization […] on a full-time basis for one continuous year within the three years preceding the filing of the petition” (“preceding the filing of the petition” should more correctly read “preceding the time of his or her application for admission into the United States”, as the former comes from the regulations but the latter is the language from the statute). This employment must be in either “a managerial or executive capacity, or a capacity involving specialized knowledge.” However, the memo clarifies that the beneficiary's proposed work in the United States does not have to be the in the same category as the work done abroad. This means that someone who worked for the foreign branch of the petitioner in a managerial capacity “may, depending on the circumstances, meet the qualifying employment requirement for L-1B classification.”

Offsite Placement

The L-1 Visa Reform Act (2004) put in place new requirements for employers seeking to place L-1 beneficiaries at third-party worksites. USCIS has interpreted these requirements to mean that beneficiaries who are placed offsite to provide services to another company must “continue to be controlled and supervised principally by the petitioning organization” and that the petitioner must be providing the third-party company with “products or services” in addition to personnel.

The memo clarifies that a third-party company may give the beneficiary work assignments in the context of the petitioner retaining ultimate authority. The petitioner can show that this is the case by illustrating that they hold responsibilities such as monitoring the beneficiary's work performance and paying the beneficiary's salary.

Another aspect of offsite placement, as stated in the statute, is that it must be “in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary” (INA 214(c)(2)(F)(ii). The memo states that this requires that “the purpose” of the offsite placement be for the beneficiary to use that knowledge. However, being “in connection with” is entirely different than being “the purpose of”. This statement goes beyond the requirement laid out in the statute and creates a standard that may lead to inaccurate denials.

Conclusion

Finally, the memo confirms that when it comes to L-1B extensions, deference should be given to a prior approval. The memo concludes by reiterating the importance of the L-1 program to “fostering the growth and competitiveness of U.S. businesses”. This memo is a good step toward making that goal more achievable; however, several changes are necessary in order for it to reflect the statute and regulations as accurately as possible and not place an undue burden on petitioners.