On August 17, 2015, USCIS issued Policy Memorandum 602-0111. The memorandum was issued as a consolidated authoritative guide for the L-1B program. The L-1B program was created by Congress to aid international companies in transferring foreign employees with “specialized knowledge” to their U.S. locations. The memorandum is binding on all USCIS employees and applies to all L-1B petitions pending or filed on or after August 31, 2015.
A petitioner seeking L-1B classification for an employee must establish that the employee satisfies all elements of the classification by a “preponderance of the evidence”. In other words, the petitioner must show that what it claims is more likely the case than not. This is a lower standard of proof than that of “clear and convincing evidence or the” beyond a reasonable doubt” standard. Thus, the petitioner does not need to prove each element of the classification beyond doubt for the adjudication. Rather, even if an officer has some doubt about a claim the petitioner will have satisfied the standard of proof if it submits relevant, probative, and credible evidence, considered “individually and within the context of the totality of the evidence”, “that leads to the conclusion that the claim is more likely than not” or “probably” true.
Elements of the L-1B Classification:
In order to establish eligibility for the visa, the L-1B petitioner must show the following:
(1) that the beneficiary possesses “specialized knowledge”;
(2) that the position offered involves the “specialized knowledge” held by the beneficiary; and
(3) that the beneficiary has at least one continuous year of employment abroad in a managerial, executive, or specialized knowledge capacity with the petitioning employer and/or any qualifying organization (collectively referred to as the “petitioning organization”) within the preceding 3 years. If the beneficiary will be located primarily at the workplace of an unaffiliated company, the petitioner also must establish that the beneficiary is eligible for L-1B classification under the requirements discussed below.
Definition of “specialized knowledge”
A petitioner can demonstrate “specialized knowledge” by establishing either one of two statutory criteria. Under the statute, a beneficiary is deemed to have specialized knowledge if he or she has:
(1) “a “special” knowledge of the company product and its application in international markets”; or
(2) “an “advanced” level of knowledge of the processes and procedures of the company”. INA 214(c)(2)(B). “The corresponding regulation similarly defines specialized knowledge in terms of “special” or “advanced” knowledge: 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.”
Thus, an L-1B classification should, in order to meet the eligibility requirements, possess either:
• special knowledge, which is knowledge of the petitioning organization’s product, service, 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 particular industry; or
• 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 with in the employer.
The following is list of factors that USCIS may consider when determining whether a beneficiary’s knowledge is specialized (note that these are not the only factors and others may be considered as well):
• 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 prior 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 (because, for example, such knowledge may require substantial training, work experience, or education).
• 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 unique to the petitioning organization.
• The beneficiary possesses knowledge that is particularly beneficial to the petitioning organization’s competitiveness in the marketplace.
Additionally, if an L-1B employee will be working primarily at an unaffiliated employer, they must show the following:
- that the beneficiary employee will still be controlled and supervised by the affiliated employer; and
- that they will be in a position “in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.”
If this cannot be shown, the employee is not eligible for the L-1B.
If you are an employer petitioner interested in transferring a foreign employee who possesses specialized knowledge, please contact our office for a consultation. We can discuss with you in detail whether the prospective L-1B employee has the required degree of knowledge, and how the factors discussed above relate to your particular case.
