April 03, 2015
Minsky, McCormick & Hallagan
It’s been no secret that the L-1B classification of temporary worker visas has been difficult for employers to obtain on behalf of foreign national employees, but according to recently released information, L-1B denial rates reached an all-time high in 2014. In recent years, adjudications of L-1B “specialized knowledge” petitions, which permit multinational companies to transfer employees possessing “specialized knowledge” from their foreign operations to their operations in the United States, have grown increasingly difficult as reflected in high rates of denials and requests for evidence. Now, with a new government-issued Policy Memorandum on the subject of L-1B adjudications policy, employers and immigration practitioners across the country are hoping for more successful outcomes in these petitions. The memorandum, which becomes effective on August 31, 2015, aims to provide guidance on how USCIS adjudicates such petitions.
We’ve taken a look at the memorandum, and below are the highlights. First, let us define a few key immigration law jargon terms:
- Petitioner/Petitioning employer: This refers to the U.S. company sponsoring the foreign national employee for a temporary work visa. More specifically for L-1 visas, the company is transferring the employee from a company entity abroad to its affiliate, subsidiary, or parent company in the U.S.
- Beneficiary: This refers to the foreign employee being transferred to the U.S., the person that benefits from the L-1 petition.
What is the standard of proof for an L-1B?
The memorandum makes clear that the legal standard for an L-1B is the lower “preponderance of the evidence” standard. Under this standard, the petitioner will need to demonstrate to the adjudicating officer that the totality of the evidence leads to the conclusion that it is “more likely than not” or “probably” true that the beneficiary has specialized knowledge. The practical effect of this clarified standard is that the burden on the petitioner to demonstrate the beneficiary’s specialized knowledge is lower and, therefore, should be easier to meet, resulting in more approvals.
What is the definition of specialized knowledge? Special vs. Advanced:
The statutory definition of specialized knowledge is divided into two categories: “special knowledge” and “an advanced level of knowledge or expertise.” Special knowledge must be “demonstrably distinct or uncommon” in comparison to what is generally found within the industry or within the petitioning employer. Advanced knowledge applies to knowledge not commonly found in the industry and “greatly developed or further along in progress, complexity and understanding than that generally found within the petitioning employer.”
A beneficiary may have either special or advanced knowledge, or both.
Determining whether knowledge is “special” or “advanced” requires a comparison of the beneficiary’s knowledge against that of others. “Special knowledge” requires a review of the beneficiary’s knowledge of how the company manufactures, produces, or develops its products, services, research, etc. Determinations of “advanced knowledge” focus on the processes and procedures used specifically by the employer and require review of the beneficiary’s knowledge of those processes and procedures. While an individual asserting special knowledge would need to demonstrate knowledge of the products and procedures that is demonstrably distinct or uncommon in comparison with others in the industry or within the organization, an individual asserting “advanced knowledge” can show knowledge that is greatly developed or more complex in comparison to others specifically within the petitioning company.
But what are the characteristics of specialized knowledge?
The memorandum indicates the presence of one or more of the following list of factors may be sufficient for USCIS to find that a beneficiary’s knowledge is specialized:
- Knowledge not generally found in the industry or in U.S. operations and will contribute to U.S. operations’ knowledge of foreign operating conditions;
- Knowledge that is particularly beneficial to an employer’s competitiveness in the marketplace;
- History of the beneficiary’s employment abroad involving assignments that significantly enhanced the employer’s productivity, competitiveness, image, or financial position;
- Knowledge that can only be gained through prior experience with the employer;
- Knowledge that cannot be easily transferred or taught without significant cost or inconvenience because it may require substantial training, experience, or education;
- Knowledge of a process or product that is sophisticated, complex, or highly technical, although not necessarily unique to the firm.
The memorandum continues to elaborate, stating that specialized knowledge:
- Cannot be easily imparted to other individuals;
- Need not be proprietary or unique to the petitioning organization;
- Does not require a test of the U.S. labor market;
- Need not be narrowly held within the petitioning organization;
- Need not be a managerial position and need not command a high salary; and
- Eligibility for another nonimmigrant classification does not bar L-1B eligibility.
What evidence can prove specialized knowledge?
A petitioner may submit any evidence it chooses, but mere statements without documentary evidence are not sufficient. A detailed description of the services, a clear explanation of the specific nature of the industry or field involved, as well as actual documentary evidence of the beneficiary’s prior education, training, and employment that qualify him/her to perform the intended services are essential to a petition’s approval. An L-1B petition is required in all cases to compare the beneficiary’s knowledge to that of others, but may also explain how the knowledge was obtained and explain the difficulty of imparting such knowledge to others without significant cost or disruption of the business. Suggested evidence includes:
- Documentation of the training, experience or education showing the years the individual has used or developed the specialized knowledge;
- Evidence of the impact the transfer would have on the U.S. operation;
- Evidence that the beneficiary will contribute to the U.S. company’s knowledge of foreign operations;
- Contracts, statements of work, etc. to show the beneficiary has knowledge that is particularly beneficial to the U.S. company’s competitiveness in the marketplace;
- Correspondence, reports, or other evidence showing employment abroad that enhanced the productivity, competitiveness, image, or financial position of the organization;
- Training records to show that the knowledge can normally only be gained through prior experience or training;
- Curricula, training materials, and financial documents to show that knowledge cannot be transferred or taught without significant cost or inconvenience;
- Patents, trademarks, licenses, or contracts based on the beneficiary’s work to show knowledge of a process or product that is sophisticated or complex, or of a highly technical nature, though not necessarily proprietary; and/or
- Payroll records, wage statements, resumes, organizational charts, etc. to show positions held and wages paid to the beneficiary within the context of parallel employees in the organization.
These guidelines make one thing clear: filing an L-1B petition requires extensive documentation. While it is anticipated that these guidelines will result in greater uniformity in the adjudication of these petitions and hopefully a decrease in the denial rate of L-1B petitions, petitioners should be aware of the difficulties involved in this type of petition. Companies seeking to transfer employees they believe possess specialized knowledge should plan on presenting extensive documentation in accordance with the memorandum.
If you have questions about filing a petition for L-1B status or employment-based immigration in general, the attorneys at Minsky, McCormick and Hallagan, P.C., are prepared to assist you.