Not wanting to let Hollywood have all of the fun this summer, U.S. Citizenship and Immigration Services (USCIS) recently released its blockbuster in the version of a highly anticipated (at least for us) L-1B Adjudication Policy Memorandum. In late March of 2015, USCIS released a draft Policy Memorandum, which we discussed here, and accepted feedback for the L-1B Policy Memo until May 8, 2015. USCIS released the final version of the L-1B Policy Memo on August 17, 2015, which “supersedes and rescinds” various L-1B memoranda promulgated by USCIS since 1994. Below, we again provide some background on the L-1B visa, and examine how the new L-1B Policy Memo influences the current state of this “specialized” visa category.

Background

The L-1 visa, also known as the intracompany transferee visa, is a nonimmigrant visa classification that allows companies to transfer employees from a related foreign entity to a U.S. company. This visa category has two formats: the L-1A visa for transfer of Executive and Managerial personnel and the L-1B visa for transfer of specialized knowledge personnel.

To qualify for an L-1B visa an employee must possess, among other things, “specialized knowledge.” USCIS regulations define specialized knowledge as “special 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.”  Many of the issues in current L-1B adjudications surround how this definition is applied in practice, and what a USCIS officer will actually consider to be “specialized.” The L-1B Memo provides some clarification on this point, which we discuss below.

The burden of proving that an individual has specialized knowledge, and further proving that the individual will use that knowledge in the U.S. role, rests solely on the petitioning company. This is a challenging process as USCIS officers often have little or no knowledge of the company’s operations and what knowledge may be specialized in their particular industry. As indicated in the L-1B Policy Memo, the legal standard for the L-1B visa remains the same as before—the petitioning company must establish by a preponderance of the evidence that the company meets each eligibility requirement of the L-1B visa category.

Notable Points in the L-1B Policy Memo

The grand purpose of the L-1B Policy Memo is to provide clearer guidance to USCIS officers when reviewing L-1B petitions. “This memorandum provides guidance to officers in adjudicating petitions filed by employers seeking to transfer ‘specialized knowledge’ personnel to the United States.” The L-1B Policy Memo also seeks to remind these officers that Congress created the L-1B visa category to enable employers to more quickly and effectively transfer key personnel within their organizations to foster the growth and competitiveness of U.S. businesses, and that effort should be made by USCIS to further rather than restrict this purpose.

Specifically, the L-1B Policy Memo provides some clarification of the definition of “specialized” or “advanced knowledge.”  The L-1B Policy Memo establishes that for knowledge to be “specialized,” the knowledge must be “distinct or uncommon” in comparison to that normally found in the employer/industry. Knowledge that is commonly held, lacking in complexity, or easily imparted to other individuals will not be considered “specialized.”   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—thereby repudiating the common (mis)perception that an L-1B warrants a denial if other employees with similar knowledge exist within the company. Finally, proprietary or unique knowledge possessed by the individual of the petitioner company’s products, services, research, equipment, techniques, management, or its application in international markets, is not required to satisfy the L-1B standard, though, in practice, we often see USCIS demand this sort of evidence.

To be “advanced,” the knowledge must be “greatly developed or further along in progress, complexity and understanding” than generally found within the employer. Finally, for both “specialized” or “advanced,” there must be a comparison of the beneficiary’s knowledge against that of other workers.

Factors USCIS will consider in determining whether a beneficiary’s knowledge is specialized include:

• Whether the beneficiary possesses knowledge not generally found in the industry or the petitioning organization’s U.S. operations.
• Whether the beneficiary possesses knowledge that is particularly beneficial to the employer’s competitiveness in the marketplace.
• Whether the beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer’s productivity, competitiveness, image, or financial position.
• Whether the claimed specialized knowledge normally can be gained only through prior experience with that employer.
• Whether 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).
• Whether 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 firm.

The L-1B Policy Memo reiterates that satisfying just one of the factors listed above may be enough to establish by preponderance that an employee has specialized knowledge. While satisfying just one factor is enough to warrant a favorable decision from USCIS, we rarely see such a liberal reading of the L-1B criteria from USCIS in practice. Employers should try to satisfy as many factors as possible to have the best chance of approval by USCIS.

Finally, the L-1B Memo also addresses offsite L-1 employment, where an employee works at non-employer worksite. It re-affirms the two prong test stated in the L-1 Visa Reform Act: (1) the beneficiary is not “controlled and supervised principally by the unaffiliated employer,” and (2) the beneficiary is “placed in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.”  Employers should be sure to address these two prongs for any offsite L-1s petitions. Employers should also be aware of and avoid any co-employment challenges, such as where the non-affiliated employer provides guidance and direction to the L-1, provide an email address to the L-1, invites the L-1 to company parties, etc., particularly during a year when 30,000 unannounced H-1B and L-1 employer site visits by USCIS officers are expected.

What This Looks Like in Practice

Overall, the L-1B Policy Memo reads as a welcomed reboot of an overly-worked visa category that has been saddled with USCIS-issued memoranda that confuse more than clarify. The L-1B visa category was created to promote flexibility for U.S. companies in an increasingly globalized and dynamic marketplace. Like the L-1B visa category, the L-1B Policy Memo seeks to provide flexibility to petitioning companies as to how they can show, by a preponderance of the evidence, that an employee possesses specialized knowledge.

How this Memo will impact USCIS officers’ adjudication of L-1B petitions remain to be seen. Currently, petitioning employers are receiving Requests for Evidence on a majority of L-1B filings, even L-1B extensions, requesting an overwhelming number of items and supporting documents to show that the sponsored employee possesses specialized knowledge. For the foreseeable future, petitioning companies should expect to see similar requests from USCIS challenging L-1B visa petitions until USCIS has had the time to train their officers on key points detailed in the L-1B Policy Memo. Until USCIS officers sync their adjudication efforts with the L-1B Policy Memo, companies should file L-1B petitions under the Corporate Blanket L (which is done at a U.S. Consulate or Embassy abroad) where possible, or avoid L-1Bs altogether and pursue alternative nonimmigrant visas such as H-1B, TNs, O-1s, etc., or choose to transfer the employee to another country.