Momal S. Iqbal – Senior Associate Attorney
The L-1 visa is a nonimmigrant visa classification that allows companies to transfer employees to the U.S. from a related company abroad. There are two categories in the L-1 visa: the L-1A visa to transfer Executive and Managerial employees, and the L-1B visa to transfer employees with specialized knowledge.
To qualify for an L-1B visa an employee must possess “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 issues in current L-1B adjudications surround how this definition is applied in practice. USCIS inconsistently adjudicates L-1B petitions, and applies a stricter approach than what the definitions and regulations call for. In 2014, the rates for Requests for Evidence were well over 40% and denial rates were over 35%.
To make the definition of specialized knowledge more uniform, USCIS released a policy memorandum that went into effect on August 31, 2015. However, adjudications after the memo’s release have been increasingly restrictive, raising the standard for what qualifies as specialized knowledge. USCIS has also dismissed personal statements from the petitioning organization on the transferee’s specialized knowledge as “unreliable and self-serving,” and instead are requiring more hard evidence from the petitioner.
The burden of proving that an employee has specialized knowledge, and that the employee will use that knowledge in the U.S., rests solely on the petitioning company. Also, although not part of the regulations, USCIS wants to understand why the company cannot merely hire a U.S. worker for the position. It is recommended that the employee to be transferred on a L-1B have more than the required one year with the foreign company, preferably closer to 3 years. It is also important for the Petitioner to quantify the economic impact to train someone else to do the job, or the economic loss the company would sustain if they cannot bring the transferee to the U.S. Some examples of how to show this include: providing evidence to show the transferee worked in a capacity involving assignments that have enhanced the employer’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 the petitioning organization; evidence of patents, trademarks, licenses, or contracts awarded to the petitioning organization based on the beneficiary’s work.
USCIS has raised the bar for L-1B petitions. Due to the high level of scrutiny placed on the L-1B category, each L-1B petition will be unique and require its own strategy.