- Working in a Specialized Knowledge Capacity
- Demonstrating Specialized Knowledge: New USCIS Guidance and Case Law
- Offsite Employment
- Duration of Stay and Adjustment of Status
This article will provide an overview of the requirements for eligibility for an L1B Intracompany Transferee Specialized Knowledge Visa. The article will discuss eligibility requirements specific to the L1B (L1B) visa, situations that may arise when an L1B beneficiary is working offsite from the petitioning employer, and rules for maintenance of and/or change or adjustment from L1B status. To learn about general rules for L1 status, including what qualifies as a petitioning organization and general requirements for beneficiaries, please follow this link. To learn about L1A visas for intracompany transferee managers and executives, please follow this link.
An alien working in a “specialized knowledge capacity” is defined in section 214(c)(2) of the Immigration and Nationality Act (INA) as follows
“an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge and processes and procedures of the company.”
USCIS regulations provide further guidance as to the meaning of “specialized knowledge.” Regulations define the term as special knowledge that is possessed by an intended beneficiary or beneficiary 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 C.F.R. § 214.2(l)(1)(ii)(D)].
It was held in Matter of Penner, 18 I&N Dec. 49 (Comm. 1982) [PDF version], that someone who possesses an advanced level of expertise in one of the areas defined in the regulation possesses knowledge that is not readily available in the U.S. labor market.1
A “specialized knowledge professional” is defined in 8 C.F.R. § 214.2(l)(1)(ii)(E) as a person who possesses types of knowledge described in part D of the same section and who serves in a professional capacity described in statute in INA § 101(a)(32). INA § 101(a)(32) defines “profession” as including, but not limited to, “architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries.” The term “specialized knowledge professional” is used in regulations in conjunction with blanket petitions, wherein only an L1B specialized knowledge professional is approvable [8 C.F.R. § 214.2(l)(4)(i)(D)]. The “not limited to” provision of the regulation has generally been interpreted to include positions that require a professional degree, although that is not necessarily a requirement.2
In order to qualify for an L1B visa, the intended beneficiary must have worked for an overseas organization with a qualifying relationship to the petitioner in a similar, although not necessarily exactly the same, specialized knowledge3 capacity for at least 1 year in the 3-years preceding the filing of the petition.4
There are limited circumstances in which an intended beneficiary who worked in a qualifying capacity as a self-described independent contractor for the 1 year requirement, or who worked for a different company abroad that was contracted by a foreign organization with a qualifying relationship to the petitioner for the 1 year requirement, may qualify for L-1A status.
Pursuant to regulations found in 8 C.F.R. § 274a.1(j), the following will be considered by United States Citizenship and Immigration Services (USCIS) in determining whether, a person or organization is considered an independent contractor for purpose of immigration benefits:
- Whether the individual or organization supplies the tools or materials as opposed to the client;
- Whether the individual or organization made his, her, or its services available to the general public;
- Whether the individual or organization worked for other clients at the same time;
- Whether the individual or organization had an opportunity for profit or loss as a result of services rendered;
- Whether the individual or organization directed the order or sequence in which work was done and determined the hours during which the work was done.
Also see Matter of Smith, 12, I&N Dec. 772 (1968) [PDF version], in which it was held that a company petitioning for a nonimimigrant visa for a secretary who it would refer to other companies was the secretary's actual employer because, among other factors, the petitioner would guarantee the secretary a salary, full time employment, benefits, and vacation time.
On August 17, 2015, USICS released a Policy Memorandum titled “L1B Adjudications Policy (PM-602-0111)” [PDF version] which superseded and rescinded previous memoranda regarding specialized knowledge adjudication.5
The Memorandum added to the definition of “special knowledge” by specifying that such knowledge must be “distinct or uncommon in comparison to that generally found in the particular industry.” The Memorandum also further developed the definition of “advanced knowledge” by specifying that such knowledge must be “greatly developed or further along in progress, complexity, and understanding than that generally found within the employer” [section V, part A].
Taking all of the definitions together, we glean that specialized knowledge does not have to be unique, but must be both of a high level and generally uncommon in the industry. For meeting the “special knowledge” requirement, the knowledge does not necessarily have to be uncommon in the petitioning organization, but it must be above the norm for the industry at large. However, in order to demonstrate the existence of “advanced knowledge” to USCIS, the petitioner must demonstrate that the specialized knowledge is uncommon in the petitioning organization as well.
While the burden is on the petitioner to demonstrate that the intended beneficiary is qualified to serve in a specialized knowledge capacity and will be serving in such a capacity, the Memorandum requires only that this be demonstrated by the “preponderance of the evidence,” meaning simply that the intended beneficiary must be found to be more likely eligible than ineligible.
USCIS adjudicators are instructed to consider, among other factors, whether:
- the beneficiary's knowledge normally can be gained only through experience with the petitioning organization;
- the beneficiary possesses knowledge of a product or process that is not easily transferrable;
- the beneficiary has knowledge of a product or process that is sophisticated, complex, or of a highly technical nature;
- the beneficiary possesses knowledge that is particularly helpful to the petitioning organization's competitiveness [section V, part B].
In order to support eligibility, the petitioner may provide extensive information regarding the intended beneficiary's work in a similar capacity abroad. The Memorandum recommends that the petitioner consider submitting, among other evidence:
- documentation of the intended beneficiary's training, work experience, and/or education;
- evidence of the positive impact the beneficiary would have on the petitioner;
- evidence that the beneficiary is qualified to serve in the specialized knowledge capacity;
- evidence that the beneficiary's knowledge can only be gained through experience or training with the petitioning organization [section V, part B].
The Memorandum cautions that no single piece of evidence determines eligibility. Therefore, petitioners and beneficiaries should work with an experienced immigration attorney to put together the most compelling evidence given the specific facts of the unique situation in order to demonstrate both that the beneficiary would be working in a specialized knowledge capacity and is qualified to work in a specialized knowledge capacity.
There are scenarios in which an L1B beneficiary would be stationed at a worksite other than that of the petitioning employer. INA § 212(c)(2)(F) lists scenarios where this arrangement would be inconsistent with the granting or maintenance of L1B status:
- (i) the alien will be controlled and supervised principally by such unaffiliated employer; or
- (ii) the placement of the alien at the worksite of the unaffiliated employer is essentially an arrangement to provide labor for hire for the unaffiliated employer, rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.
It is important to remember with regard to offsite employment that the L1B visa only authorizes work in a specialized knowledge capacity for the petitioning organization. The Memorandum explains that USCIS interprets the “control and supervision” provision to mean that when an L1B beneficiary is working offsite, he or she must be controlled and supervised by the petitioning organization, and not by the unaffiliated organization. The Memorandum suggests that the petitioning organization may demonstrate “control and supervision” by submitting evidence that it will have the authority to dictate the manner in which the L1B beneficiary will perform his or her work and the authority to reward or discipline the L1B beneficiary, and that the petitioning organization will be responsible for the L1B beneficiary's salary and benefits [part C, subsection iv].
Furthermore, pursuant to INA § 212(c)(2)(F)(ii), the L1B beneficiary's placement at an offsite location must be in connection with the provision of a product or service for which the specialized knowledge specific to the petitioning employer is required.
Unless an L1B beneficiary is being admitted to work at a “new office,” he or she may be admitted initially for 3 years on L1B status or for the period of validity approved by the consular officer, whichever is shorter [9 FAM 41.54 N20.2]. An L1B beneficiary may be reapproved in 2-year increments, but he or she may not spend more than 5 years in the aggregate on L1B status [INA § 214(c)(2)(D)(i)]. The Memorandum advises that, in extending an L1B petition, USCIS adjudicators should give due deference to the prior determination of eligibility unless there has been a significant change in circumstances since the approval of the petition, or unless there is new information that calls the continuing eligibility of the beneficiary for L1B status into question. Time spent outside of the United States while on L1B status may be recaptured and added to the 5 years that may be spent on L1B status.6
L1B beneficiaries who are approved to open a new office may be approved for an initial period of 1 year. Pursuant to 8 C.F.R. § 2142(l)(3)(vi), the petitioner must demonstrate that it has secured sufficient premises to house the new office and that it will have the financial wherewithal to remunerate the L1B beneficiary.
In the event that the L1B beneficiary's duties significantly change while on L1B status, or if he or she is transferred from one company to another in the same organization where he or she will have a new employer, the petitioner will be required to file an amended petition.7 However, an amended petition will not be required if the L1B beneficiary was approved as part of a blanket petition and he or she is being transferred to an organization listed on the original blanket petition where the beneficiary's duties will be virtually the same.8
L1B beneficiaries and derivatives may apply for change of status and adjustment of status if eligible.
All L1 visa petitioners should retain an experienced immigration attorney for assistance in the L1 visa petitioning process. For purpose of demonstrating L1B visa eligibility, an experienced immigration attorney may be of great assistance to a petitioner in compiling evidence to demonstrate that the beneficiary is both qualified to serve in a specialized knowledge capacity and will be serving in such a capacity upon approval of the L1B petition. Certain factors that may complicate an L1B petitioning process are if the petitioner is a new office, if the beneficiary will be spending a significant amount of time working at the site of an unaffiliated employer, or if there are significant factors that may call into question the “specialized” nature of the capacity in which the beneficiary would work.
If there is any substantial change to a beneficiary's employment while he or she is on L1B status, it is best to expeditiously consult with an experienced immigration attorney to determine whether an amended petition is necessary.
L1B beneficiaries should consult with an experienced immigration attorney for assistance in compiling evidence to demonstrate his or her qualifications for L1B status or for obtaining derivative L2 visas for a spouse or unmarried child(ren). An L1B beneficiary (or derivative) should consult with an experienced immigration attorney if he or she is interested in changing from L1B status or adjusting to lawful permanent resident status.
- I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014)1003 [Kurzban notes that the decision also discussed “proprietary knowledge,” which was included in the regulations in 1982 but is no longer so].
- Kurzban 1005, citing 9 FAM 41.54 N7.1-4
- Such a person may have worked in a “managerial” or “executive” capacity as well and still qualify for L1B as a specialized knowledge transferee.
- Kurzban 1001, citing AFM at 32.3(b); Matter of Vaillancourt, 13 I&N Dec 645 (RC 1970)
- To learn about the policy memorandum in greater detail, please read Alexander J. Segal's comprehensive blog post about the memo.
- Kurzban 1006, citing Matter of IT Ascent, EAC 04-047-53189 (AAO Sept. 2, 2005), published on AILA InfoNet at Doc. No. 05102760; Memo, Aytes, Acting Assoc. Dir. Operations, HQPRD 70/6.2.8, 70/6.2.12, AD 05-21 (Oct. 21, 2005), published on AILA InfoNet at Doc. No. 05110363; AFM 32.6(g)
- Kurzban 1007, citing 8 C.F.R. § 214.2(l)(7)(i)(C)
- Kurzban 1009, citing 9 FAM 41.54 N13.6
Resources and materials:
Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1001, 1003, 1005-1009, Print. Treatises & Primers.