The DOS recently sent a cable to all of its posts providing additional guidance on the adjudication of L-1B Blanket visa applications. The DOS stated that it was releasing this guidance because it believed that clearer standards would allow for more consistent adjudications and to address the concern about the potential for inconsistent adjudicatory standards at different posts.
The cable confirmed that the statutory language defining L-1B "specialized knowledge" is not simple or clear. The DOS adopted the USCIS' standards for making specialized knowledge determinations. These include whether the knowledge is proprietary, whether the knowledge requirement was intended for "key" personnel, and whether the knowledge is "more than ordinary." Additionally, the cable addressed the issue of "job shops" in addition to the specialized knowledge criteria. The potential restriction for "job shops" in the L-1B category was added by the L-1 Visa Reform Act of 2004. The cable stated that in these types of situations, the determination of whether an employer-employee relationship exists is critical. The DOS stated that the essential element in determining the existence of an "employer-employee" relationship is the right of control. The cable reviews the two ways of determining this control for the posts.
The release of this cable may be seen by posts as a directive to more aggressively review L-1B Blanket visa applications. Employers that process L-1B blanket visa applications (especially employers that are consulting companies or could be classified as "job shops") may encounter additional issues and hurdles in processing L-1B visa applications for their employees.