New USCIS Guidance on L1B Adjudication

Introduction

On August 17, 2015, USCIS released a new Policy Memorandum titled “L1B Adjudications Policy (PM-602-0111) [PDF version],”¹ which builds upon previous agency guidance for adjudicating L1B Intracompany Transferee Visa petitions, especially with regard to the requirement that the beneficiary possess “specialized knowledge” in order to be eligible. The memorandum notes that while “specialized knowledge” is a statutory term, it is not particularly well defined by statute for purpose of adjudicating L1B Visa petitions. The following, found in INA § 214(c)(2), is the most clear statutory definition of “specialized knowledge” with which any USCIS guidance or regulations must conform:

“[A]n 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 of processes and procedures of the company.”

While the memo does not change previous regulatory definitions of “specialized knowledge,” it seeks to consolidate the already-existing definitions, add to them, and provide new guidance on how L1B petitions should be adjudicated. I will explain the key points of the new memorandum in this post and further explain what they may mean for future L1B Visa petitions.

Specialized Knowledge

Section IV of the memo instructs adjudicators to evaluate a beneficiary's eligibility for L1B status by the “preponderance of the evidence” standard as opposed the more restrictive “clear and convincing evidence” or “beyond a reasonable doubt” standards. Thus, in order to have an L1B petition approved, the petitioner must simply demonstrate that the beneficiary is more likely to be eligible than ineligible, rather than to remove any possible doubt that the beneficiary is ineligible.

In section V of the memo, it restates that in order to be eligible for L1B status, the petitioner must show that:

1. the beneficiary possesses “specialized knowledge”;
2. the position being offered involves that “specialized knowledge”;
3. the beneficiary has at least one continuous year of employment abroad, within the past three years, in a managerial, executive, or special knowledge capacity with the petitioning employer and/or any qualifying organization.

In section V.A. of the memo, USCIS attempts to provide a more clear definition than before of “specialized knowledge” and “advanced knowledge.” Defining these terms is important because, if you will recall the statute, demonstrating that the beneficiary possesses one of these levels of knowledge is required in order to demonstrate eligibility for L1B status. The following are USCIS' new definitions for “special” and “advanced” knowledge in the L1B context:

special knowledge, which is knowledge of the petitioning organization's product, service, research, equipment, techniques, management, or other interests in its application in international markets that is distinct or uncommon in comparison to that generally found in the particular industry;
advanced knowledge, which is knowledge of or expertise in the petitioning organization's specific processes and procedures that 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 employer.

The new definitions are consistent with previously existing guidance that while the requisite knowledge, be it “special” or “advanced,” must be of a high level, it does not necessarily have to be unique. Demonstration of “special knowledge” does not necessarily require that the knowledge be uncommon within the petitioner's organization, just that it is distinct or uncommon in comparison to the norm in the industry at large. Thus, demonstrating specialized knowledge will rely heavily on comparing the beneficiary's knowledge with the knowledge of the general employee in the industry. The definition of “advanced knowledge,” however, does require that the beneficiary's knowledge be above the norm found within the petitioner's organization. Thus, in order to demonstrate “advanced knowledge,” the petitioner will have to show that the beneficiary's relevant expertise in the qualifying areas is superior to other workers in his or her organization in addition to showing that the knowledge is uncommon in the industry as a whole.

Both the “special” and “advanced” knowledge requirements put the onus on the petitioner to demonstrate that the beneficiary has particular expertise for the job that the petition is for. It is possible that certain beneficiaries may be able to demonstrate both “specialized” and “advanced” knowledge. In order to determine which type of knowledge is more likely to satisfy the requirements for L1B status in a given case, an L1B petitioner should consult with an experienced immigration attorney who may assess the circumstances of the beneficiary and determine which qualifications are more likely to meet the threshold for L1B eligibility.

In section V.B., USCIS provides a non-exhaustive list of factors that adjudicators are advised to consider in determining whether a beneficiary's knowledge is specialized:

The beneficiary possesses knowledge of foreign operating conditions that is of significant value to the petitioning organization's U.S. operations.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 experience with the petitioning organization.
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.
The beneficiary has knowledge of a process or product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the petitioning organization.
The beneficiary possesses knowledge that is particularly beneficial to the petitioning organization's competitiveness in the marketplace.

The memo cautions that this list is non-exhaustive and that no individual factor is a requirement in order to demonstrate L1B eligibility by the preponderance of the evidence. However, these factors serve as a general guide for factors that adjudicators will look at across many L1B petitions in order to establish whether a particular beneficiary is eligible. The following are other notes gleaned from section V.B. of the memo:

The petitioner may support the application by demonstrating that significant economic cost or inconvenience would be incurred in imparting specialized knowledge to a different employee; however, depending on the facts of the case, the petitioner may demonstrate that the beneficiary has specialized knowledge without appealing to cost or inconvenience.
Consistent with previous USCIS guidance, specialized knowledge need not be “proprietary or unique” to the petitioning organization.
Determining whether the beneficiary's knowledge is not generally or commonly held within the petitioner's industry does not require a test of the U.S. labor market.
In determining specialized knowledge for L1B eligibility, the existence of “knowledge” takes precedence rather than the beneficiary's position or proposed pay.
While specialized knowledge may be commonly held in the petitioning organization, the knowledge being commonly held may, depending on the facts, call into question whether the knowledge is, in fact, “specialized.”
That the beneficiary may be eligible for another nonimmigrant status [e.g., H1B or O-1], does not affect his or her eligibility for L1B status.

Evidence to Support L1B Eligibility

In section C of the memo, USCIS discusses evidence that may support the claim that a beneficiary possesses specialized knowledge. Pursuant to USCIS regulations found in 8 C.F.R. § 214.2(l)(3)(ii), the petitioner must submit “a detailed description of the services to be performed.” Furthermore, pursuant to subsection (iv), the petitioner must submit evidence that the beneficiary's “prior education, training, and employment qualifies him/her to perform the intended services in the United States.” In addition to those requirements, USCIS provides in the same section of the memo a non-exhaustive list of evidence that the petitioner may submit to support a beneficiary's eligibility for L1B status:

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 petitioning organization or in the industry;
Evidence of the impact, if any, the transfer of the individual would have on the petitioning organization's U.S. operations;
Evidence that the alien is qualified to contribute significantly to the US. Operation's knowledge of foreign operating conditions as a result of knowledge not generally found in 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 petitioning 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 petitioning organization's productivity, competitiveness, image, or financial position;
Personnel or in-house training records that establish the beneficiary's claimed specialized knowledge normally can be gained only through prior experience or training with the petitioning organization;
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 petitioning 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; and
Payroll documents, federal or state wage statements, documentation of other forms of compensation, resumes, organizational charts, or similar evidence documenting the positions held and the compensation provided to the beneficiary and parallel employees in the petitioning organization.

Determining the evidence that will best support eligibility for L1B status will always depend on the specific facts of the case. In certain cases, some of the suggested evidence may be inapplicable or may not, due to the specific situation, support the beneficiary's eligibility for L1B status. However, it will always be easier to meet the “preponderance of the evidence” standard by submitting as much evidence that supports the beneficiary's eligibility as possible. An experienced immigration attorney may help a petitioner determine what types evidence in a given case most support a beneficiary's eligibility for L1B status.

Off-Site Employment

Section VI of the memo provides guidance on how USCIS is to interpret the statutory requirement [found in INA § 214(c)(2)(F)] that in cases where an L1B beneficiary would be working primarily at the worksite of an unaffiliated employer, the beneficiary will both “[not be] controlled and supervised principally [by the unaffiliated employer]” and “[will be placed] in connection with the provision of a product or service which has specialized knowledge specific to the petitioning employer is necessary.” This provision is to prevent petitioning organizations from obtaining L1B Visas for workers who will then effectively work for a different employer.

The memo explains that USCIS has interpreted the “control and supervision,” provision, that is that the unaffiliated employer cannot control and supervise the L1B employee, to require that the beneficiary must be controlled and supervised principally by the petitioning organization. In order to demonstrate this, the petitioning organization may show, among other things, that the petitioning organization will have the authority to dictate the manner in which work is performed, reward or discipline the beneficiary for performance, and provide the beneficiary's salary and benefits. In addition, the beneficiary must be otherwise eligible on account of having “specialized” or “advanced” knowledge, and must be using the requisite knowledge in his or her employment while on L1B status.

Readjudication

In section VII of the memo, USCIS extends existing regulations that, when there is an application for extension of L1B status involving the same parties and at the same place of employment with the same underlying facts, USCIS adjudicators should give deference to the prior determination of eligibility. The memo instructs USCIS officers to re-examine eligibility only when:

1. there was a material error with regard to the original approval of the petition;
2. there has been a significant change in circumstances since the original petition was approved;
3. there is new information that may adversely affect eligibility.

my thoughts on the memo

Since this memorandum generally focuses on consolidating past agency guidance and judicial precedent, it is unclear what significant effects, if any, it will ultimately have on L1B adjudication. The memo did note that USCIS will continue to apply the preponderance of evidence standard, which places a lower burden on the petitioner than would a higher required standard of proof. However, the lower standard does not mean that petitioners can assume that their petitions will be successful, for when a claim is not well-supported, the petition may easily fail the preponderance of evidence test.

In looking for where the Memo may come into play, focusing on the new definitions provided for “specialized knowledge” and “advanced knowledge” promises to be instructive for assessment. The memo does not discuss in detail “advanced knowledge,” but does include a robust description of factors that should be considered in determining whether a beneficiary has “specialized knowledge.” Therefore, one section to focus on will be the extra provisions in section V.B. describing scenarios for determining whether specialized knowledge exists, particularly the provision about the potential negative effect on demonstrating specialized knowledge in situations where the knowledge is very widespread at the petitioning organization's U.S. operations. While in many scenarios, this will likely not lead to the denial of a petition, especially since specialized knowledge need not be relative to employees in the petitioning organization, the memo adds in a footnote that this may way negatively on an L1B petition, if, for example, the beneficiary's knowledge is widespread at the petitioning organization in the United States and the proposed pay for the beneficiary is “substantially less” than the other employees.

Regardless of whether the memo ultimately has significant effects on how L1B petitions are adjudicated, it does comprehensively bring previous immigration agency guidance together in one source and updates its guidance such that it is consistent with the most current laws and precedent. The memo should serve as a helpful guide for petitioners in determining the types of evidence they should provide USCIS so that their L1B petitions are approved. However, given the complexity of L1B adjudication and the fact-specific nature of each case, petitioning organizations are very well advised to retain an experienced immigration attorney to help make it more likely than not that they can obtain L1B Visas for their intracompany transferees.

[1] USCIS Policy Memorandum, “L1B Adjudications Policy (PM-602-0111)” [follow link to download a PDF of the memorandum]