USCIS recently released a proposed policy memorandum on adjudication of the L-1B specialized knowledge nonimmigrant visa category. This is a much-anticipated memo, as practitioners and employers have been awaiting this guidance since USCIS promised to review consistency of L-1B adjudication in 2012.
The policy memo aims to supersede and rescind previous L-1B guidance issued over the years. Most noteworthy is the attempt to provide standardized definitions for specialized knowledge and advanced knowledge, as well as guidance around third party worksites. Once finalized, the memo is intended to provide guidance on determinations made by USCIS adjudicators and is planned to become effective Aug. 31, 2015. Below we will review the key points addressed in the 15-page memo:
Standard of Review for L-1B Adjudications
The guidance reiterates that the standard of review for L-1B petitions should include taking into account the “totality of the circumstances” and making determinations based on a “preponderance of the evidence.” This means that any relevant and credible evidence leading to a conclusion that a claim is “more likely than not” or “probably true” is sufficient. The adjudicating officer may have some doubt about a claim and still find that a petition sufficiently demonstrates specialized knowledge. The petitioner bears the burden of showing that a claim is more likely true than not. Many have argued that adjudicators have applied a different standard of review to L-1B petitions in the past.
The policy guidance around the definition of specialized knowledge reiterates some previous guidance and provides a consolidated definition. It states, “A beneficiary seeking L-1B classification should possess:
• special knowledge, which is knowledge of the petitioning employer’s product, service, research, equipment, techniques, management or other interests and its applications in international markets that is demonstrably distinct or uncommon in comparison to that generally found in the particular industry or within the petitioning employer; or
• advanced knowledge, which is knowledge or expertise in the 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 within the petitioning employer.”
The guidance refers once again to common dictionary definitions of “special” or “advanced.” This will likely be recognized as much of the same language issued on RFE’s by USCIS on L-1B filings. The guidance further details that determining whether knowledge is special or advanced requires comparing the beneficiary’s knowledge to others. While that effort does not need to include a test of the U.S. market, the petitioner should show that there are not “so many such workers that the knowledge is generally or commonly held in the relevant industry and thus not specialized.”
As previous L-1B guidance has suggested, “advanced knowledge” for L-1B purposes refers to knowledge of a company’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 within the petitioning employer.” Determination of whether a worker has advanced knowledge requires comparison to that employee’s knowledge to knowledge of others within the organization. The guidance states that advanced knowledge need not be proprietary in nature or narrowly held within the employer’s organization. Furthermore, an L-1B worker does not need to have both advanced and specialized knowledge in order to qualify for the classification.
The same factors and descriptions of evidence outlined in the guidance apply to proving advanced knowledge as they do to proving specialized knowledge. The key distinction is whether the knowledge refers to a product, service, research, equipment, techniques, management, or other interests and its application to international markets or uncommon knowledge of a company’s processes or procedures.
The proposed guidance most promisingly attempts to directly counter several trends in L-1B classification decisions. The guidance makes clear that:
1. Proprietary knowledge is not required for L-1B status;
2. Qualifying for L-1B classification does not require the employee to posses knowledge that is unique to the sponsoring employer;
3. L-1B status does not require the sponsored employee to have expertise narrowly held within the petitioning employer’s business; and
4. A high salary is not required for L-1B status, either in comparison to the industry or others within the petitioning employer.
Third Party Worksites
The L-1 Visa Reform Act of 2004 was intended to regulate “job shops,” which are situations in which an L-1B employer would be placed at the worksite of an unaffiliated employer (i.e. not the petitioner). The new L-1B policy guidance provides additional guidance for valid third-party placement situations, giving definition to the “control and supervision” aspect of the L-1 Visa Reform Act. The petitioning employer must show that the third party lacks principal control and supervision of the L-1B worker by demonstrating that the petitioner retains the authority to:
1. Dictate the manner in which the L-1B worker performs the work;
2. Reward/discipline the L-1B worker for work performance; and
3. Provide the worker’s salary and any normally provided employer benefits.
To demonstrate that the arrangement is not a “work for hire’ situation, the petitioning employer must demonstrate that the purpose of the offsite placement is for the benefit of the petitioning employer and that the L-1B worker’s specialized knowledge is specific to the petitioning organization, and not to the third-party employer.
Public comments on the proposed guidance will be accepted through May 8, 2015. Agency training will occur over the summer, and the finalized guidance will become effective Aug. 31, 2015. The key issues at that point will be how well USCIS trains its officers to ensure proper implementation of this guidance, how consistently L-1B petitions will be adjudicated moving forward, and whether CBP and consular officers will choose to follow the guidance.
Our attorneys are vastly experienced in preparing both L-1A and L-1B applications. If you are interested in applying for this visa category, please contact us to schedule a consultation today!