In recent years, the USCIS has issued an increasing number of denials and Requests for Evidence (RFE) for L-1B specialized knowledge employees. As defined by regulations, specialized knowledge is 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. The RFEs were extensive and appeared to be “boiler-plate,” sometimes with no indication in the request issued that the examiner had reviewed the evidence that was submitted with the initial filing. The trend added burden to employers with the extra time and cost associated with responding to the extensive RFEs, which could result in unforeseen delays severely affecting projects and impeding on U.S. employer’s ability to conduct business or fulfill projects, contracts, and deadlines.
Currently, there is no standardized L-1B template for RFEs. In March 2015, USCIS issued guidance on the adjudication process for L-1B petitions in an L-1B Adjudications Policy Memorandum, PM-602-0111 (hereinafter L-1B Policy Memo). The March L-1B Policy Memo itself is a draft and is not set to go into effect until Aug. 31, 2015. Despite the fact that the L-1B Policy Memo is not yet finalized, USCIS subsequently requested comments (which were due on July 31, 2015) on the draft RFE Template for L-1B petitions. The draft RFE Template reflects changes outlined in the March L-1B Policy Memo and includes a list of evidence that could be used to established that the beneficiary has gained specialized knowledge as well as other threshold criteria for L-1B petitions including evidence that the beneficiary has met the one year of qualifying employment abroad; both the U.S. and foreign entities have a qualifying relationship and are actively doing business; and guidance on how to determine whether a beneficiary assigned to an off-site worksite with an unaffiliated employer remains eligible for L-1 classification.
The RFE Template indicates that merely stating the beneficiary’s knowledge is not as strong as providing documentary evidence to establish the beneficiary possesses specialized knowledge. The employer has the burden of providing documentary evidence to show that the beneficiary attained the specialized knowledge through prior education, training, and employment and comparing the beneficiary’s knowledge to that of other employees and workers in the same field. The list of “other evidence” as outlined in the RFE Template includes:
· An explanation of the beneficiary’s knowledge or expertise. Please identify the beneficiary’s knowledge as either “special” and/or “advanced.”
· Documentation of training, work experience, or education establishing the number of years the individual has been utilizing 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 alien 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 that 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;
· Curricula 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 cannot 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 either is sophisticated or complex, or of a highly technical nature, although not necessarily proprietary or unique to the petitioning organization;
· 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; and
· Any other evidence that shows the beneficiary has specialized knowledge.
Greenberg Traurig will continue to follow this issue and will provide updates as the L-1B Policy Memo and L-1B RFE Template are finalized by USCIS.
*Not admitted to the practice of law. Prepared in coordination with Ian MacDonald.