The memo (PM-602-0111) is part of President Barack Obama’s executive action on immigration, announced in November 2014. However, we have been eagerly awaiting updated L-1B guidance from the agency for several years, complaining that current USCIS adjudications of L-1B petitions don’t reflect statutory and regulatory standards.
Congress created the L-1 visa program to allow expedited transfer of employees within the same company. Since the L-1 program went into effect, many employers find that the L-1B program has become arduous, arbitrary, and unreliable, and L-1B filings are under increased scrutiny by USCIS.
The memo, once it becomes effective Aug. 31, will supersede and rescind prior memorandums issued by the USCIS and legacy Immigration and Naturalization Service.
New Definitions
According to the memo, the Immigration and Nationality Act (INA) provides that foreign employees have “specialized knowledge” if they have “special” knowledge of the company product and its application in international markets or an “advanced” level of knowledge or expertise of the processes and procedures of the company. The new guidance provides that “special knowledge” is “knowledge of the petitioning employer’s product, service, research, equipment, techniques, management, or other interests and its applications in international markets that is demonstrably distinct or uncommon in comparison to that generally found in the particular industry or within the petitioning employer.”
Under the memo, “advanced knowledge” is defined as “knowledge or expertise in the organization’s specific processes and procedures that isn’t 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.”
A beneficiary may have either special or advanced knowledge or both, according to the memo. Determining whether someone has “special knowledge” requires a review of his or her knowledge of “how the company manufactures, produces, or develops its products, services, research, equipment, techniques, management, or other interests,” while determining “advanced knowledge” requires review of “knowledge of the specific employing company’s processes and procedures.”
What Evidence Is Required to Prove Specialized or Advanced Knowledge?
The memo stipulates that USCIS adjudicators should adhere to the preponderance of the evidence standard when adjudicating L-1B petitions, and that the petitioning employer bears the burden of proof. However, the memo adds that adjudicators should give deference to prior determinations approving L-1B status when considering requests to extend that status that involve the same parties and underlying facts.
Those findings should be reexamined only if there was “material error” with regard to the previous determination, there has been a “substantial change in circumstances,” or there is “new material information” that adversely affects eligibility.
To meet its burden of proving special knowledge, an employer can submit “evidence that the beneficiary has knowledge that is demonstrably distinct or uncommon in comparison to the knowledge of other similarly employed workers in the particular industry or within the petitioning organization.” For advanced knowledge, the employer can submit “evidence that the beneficiary has knowledge or expertise that is greatly developed or more complex in comparison to other workers in the petitioning employer’s operations.” The employee need not have unique or proprietary knowledge in order to qualify for an L-1B visa.
The memo also provides a non-exhaustive list of factors the USCIS can consider in determining whether a worker has specialized knowledge:
• The beneficiary is qualified to contribute to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the industry or the petitioning organization’s U.S. operations.
• The beneficiary possesses knowledge that is particularly beneficial to the employer’s competitiveness in the marketplace.
• 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 that employer.
• The beneficiary possesses knowledge of a product or process that can’t be easily transferred or taught to another individual without significant economic cost or inconvenience.
• The beneficiary has knowledge of a process or a product that is either sophisticated or complex, or of a highly technical nature, although not necessarily unique to the firm.
In addition, the memo says an L-1B visa doesn’t require the employee to be a manager or executive, or to hold any particular rank or salary within the organization.
Finally, the memo says an L-1B beneficiary’s qualification for other types of visas, such as H-1B highly skilled guestworker visas for “specialty occupations” or O-1 visas for immigrants with extraordinary ability, shouldn’t disqualify him or her from an L-1B visa.
Evidence Proving Specialized Knowledge
The memo also describes what evidence employers should submit in support of their L-1B petitions, including a “detailed description of the services to be performed” and evidence that the beneficiary’s “prior education, training, and employment qualifies him/her to perform the intended services in the United States.”
The petitioning employer must compare the beneficiary’s knowledge to that of others, but also can indicate how and when the beneficiary gained that knowledge and explain the difficulty of imparting that knowledge to others without significant cost or disruption to the business, the memo says.
Other evidence employers may submit includes, but isn’t limited to:
• 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 organization or in the industry;
• evidence of the impact, if any, the transfer of the individual would have on the organization’s U.S. operations;
• evidence that the foreign worker is qualified to contribute to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the industry or the petitioning organization’s U.S. operations;
• contracts, statements of work or other documentation that shows the beneficiary possesses knowledge that is particularly beneficial to the 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 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 that employer;
• curriculums 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 can’t be transferred or taught to another individual without significant economic cost or inconvenience;
• evidence of patents, trademarks, licenses or contracts awarded to the organization based on the beneficiary’s work, or similar evidence that the beneficiary has knowledge of a process or a product that’s either 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, resumes, organizational charts or similar evidence documenting the positions held and the wages paid to the beneficiary and parallel employees in the organization.
Unresolved questions
The new guidance does not resolve all issues. New reports reveal that Indians face discriminatory treatment when applying for L-1B petitions. Additionally, the memo provides that, where a company employs U.S. workers that have the same or similar specialized knowledge as the L-1B beneficiary, a lower wage paid to the beneficiary may be considered an indication that he or she doesn’t, in fact, have qualifying specialized knowledge. This could pose problems for large companies where many employees do same or similar jobs. Finally, business that rely heavily on the L-1B program are not likely to benefit from the memo provision that requires deference to prior USCIS decisions. However, blanket L-1 petitions are adjudicated at consular offices, which are under the helm of the State Department, which raises a continuing problem.
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