Introduction

The L-1B visa category is used by multinational companies to transfer personnel to the United States based on their specialised knowledge of the organisation's product, service, equipment, techniques, processes or procedures. On August 17 2015 US Citizenship and Immigration Services (USCIS) issued a final policy guidance memorandum on the adjudication of L-1B visa petitions. This memorandum consolidates and supersedes prior guidance regarding the processing of L-1B petitions by USCIS examiners and updates the USCIS Adjudicator's Field Manual. The new L-1B guidance took effect as of August 31 2015.

Specialised knowledge

'Special knowledge' or 'advanced knowledge' thresholds

The new guidance notes that a foreign national may have specialised knowledge if he or she has:

  • special knowledge of the company product and its application in international markets; or
  • advanced knowledge of the processes and procedures of the company.

'Special knowledge' is defined as knowledge of the sponsoring employer's products, services, research, equipment, techniques, management or other interests and its application in international markets that is distinct or uncommon in comparison to that generally found in the industry. Determining whether the foreign national has special knowledge requires a review of his or her knowledge of how the sponsoring employer manufacturers, produces or develops its products or services in comparison with other companies in the industry.

'Advanced knowledge' is defined as knowledge or expertise regarding the sponsoring employer's specific processes and procedures that is not commonly found in the relevant industry and is greatly developed in terms of progress, complexity and understanding than that generally found among the other employees.

No requirement to be proprietary

The new guidance confirms that specialised knowledge need not be proprietary or unique to the sponsoring employer. The petitioner is not required to demonstrate that it is the only company:

  • where the beneficiary could have acquired specialised knowledge; or
  • that trades in or has created the product, service or technology.

Factors for determination

The following non-exhaustive list of factors is used to determine whether the knowledge is specialised:

  • The foreign national possesses knowledge of foreign operating conditions that is of significant value to the sponsoring employer's US operations;
  • The foreign national has been employed abroad in a capacity involving assignments that have enhanced the sponsoring employer's image, productivity and financial position;
  • The foreign national's knowledge:
    • may be gained only by working for the sponsoring employer;
    • is sophisticated, complex or of a highly technical nature (although not necessarily unique to the sponsoring employer); or
    • cannot be easily taught or transferred to another without economic inconvenience to the sponsoring employer; and
  • The foreign national's knowledge is beneficial to the competitiveness of the sponsoring employer.

The following other factors also determine whether knowledge is specialised:

  • Knowledge is not considered special or advanced if it is commonly held, lacks complexity or is easily transferred.
  • The L-1B classification does not require a test of the US labour market.
  • Specialised knowledge need not be narrowly held within the sponsoring employer. However, the guidance indicates that if a significant number of the sponsoring employer's US-based employees have the same claimed specialised knowledge as the beneficiary, the question may arise as to whether the sponsoring employer needs a foreign national with the same specialised knowledge to fill the position.
  • USCIS will consider the economic inconvenience or disruption to the sponsoring employer should the beneficiary not be not transferred.
  • USCIS will consider the degree to which the beneficiary's claimed specialised knowledge would be beneficial to the sponsoring organisation.
  • Employees with specialised knowledge need not occupy managerial positions or command a high salary in order to qualify. However, the foreign national's compensation or position may be compared with other similarly situated peers in other US organisations or within the sponsoring employer as part of the evaluation.

Evidence

The following evidence may be submitted to show that the beneficiary possesses specialised knowledge:

  • explanation by the sponsoring employer of:
    • the nature of the industry involved, the sponsoring employer's products or services and the specialised knowledge required to perform the duties; and
    • the need or benefit to the sponsoring employer for the beneficiary's specialised knowledge;
  • documentation of training, work experience or education establishing the number of years that the individual has been using or developing the specialised knowledge with the sponsoring employer abroad;
  • evidence of the impact on the sponsoring employer should the foreign national be transferred to the United States;
  • evidence that:
    • the foreign national may contribute significantly to the sponsor employer's US operations as a result of knowledge not generally found there;
    • the foreign national's special knowledge is beneficial to the sponsoring employer's competitiveness in the marketplace; and
    • the foreign national has been employed abroad in a capacity that involved assignments that have significantly enhanced the image, financial position or competitiveness of the sponsoring employer;
  • training manuals proving that the foreign national has undergone significant training that cannot be taught to another employee without significant economic cost or inconvenience to the sponsoring employer;
  • evidence of patents, licences, trademarks or contracts awarded to the sponsoring organisation based on the beneficiary's work, or similar evidence that the beneficiary has knowledge of a sophisticated or complex process or product; and
  • payroll documents and personnel charts that reflect the compensation of the foreign national in relation to other similar employees of the sponsoring employer.

Totality of circumstances

The new guidance confirms that a 'totality of the circumstances' test is used to determine whether the foreign national has special knowledge.

Other guidance

Preponderance of evidence

The new guidance confirms that the 'preponderance of the evidence' standard is applicable in L-1B applications. This standard of proof is lower than both the 'clear and convincing' and 'beyond a reasonable doubt' standards.

Placement at third-party worksites

The new guidance confirms that an L-1B beneficiary may be placed at a third-party work location, provided that:

  • the sponsoring organisation is responsible for supervising and controlling the work to be performed by the beneficiary; and
  • the placement of the beneficiary will be in connection with the provision of a product or service for which specialised knowledge is required.

The guidance confirms that the third party is not prohibited from giving day-to-day assignments to the L-1B beneficiary.

L-1B extensions

The new guidance confirms that USCIS officers should give deference to the prior USCIS determination approving L-1B classification, if the extension involves the same parties and same underlying facts. The USCIS officer should only re-examine a finding of eligibility if:

  • the first decision contained a material error;
  • the facts have changed substantially since the first approval; or
  • new material information adversely impacts L-1B eligibility.

Comment

The final L-1B guidance memorandum issued by USCIS does provide some clarity. It confirms that L-1B workers may be placed at third-party worksites and affirms the evidentiary standard that is to be applied by adjudicators when reviewing an L-1B petition. It also confirms that specialised knowledge need not be proprietary or unique to the sponsoring employer. However, the final guidance continues to give adjudicators a great deal of discretion. As a result, the guidance memorandum will likely not change the way L-1B petitions are currently being adjudicated.

For further information on this topic please contact Matthew Morse at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (matt@employmentimmigration.com). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.