Overview of L-1B Policy Memorandum

On March 24, 2015, the United States Citizenship and Immigration Services (USCIS) issued its Policy Memorandum on L-1B visa adjudications. The Memorandum will update the Adjudicator’s Field Memorandum guiding USCIS personnel on determining the merits of L-1B visa petitions. The USCIS issued the L-1B Memorandum with an invitation for public review and feedback. The feedback period closed Friday, May 8, 2015. According to USCIS, the Memorandum becomes effective on August 31, 2015, which allows sufficient time to train USCIS employees.          

Generally, the L-1 nonimmigrant visa allows multinational companies to transfer employees from foreign operations to the United States. Within the L-1 classification, there are two sub-categories of   visas; namely, L-1A – available to managers and executives, and L-1B – available to employees who possess “specialized knowledge.” The March 24, 2015, Memorandum specifically addresses USCIS policy regarding the L-1B classification for workers with specialized knowledge.

As stated in the Memorandum, a potential L-1B beneficiary demonstrates specialized knowledge by possessing either special or advanced knowledge, or both. The terms “special” and “advanced” knowledge are defined as:     

Special knowledge – Knowledge of the employer’s product, service, research, equipment, techniques, management or other interest 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.

Advanced knowledge – Knowledge or expertise in the organization’s specific processes and procedures that is not commonly found in the industry and is greatly developed or further along in progress, complexity, and understanding than that generally found within the petitioning employer.

The Memorandum further delineates a non-exhaustive list of factors USCIS adjudicators may consider when determining whether prospective L-1B beneficiaries possess specialized knowledge:

• The beneficiary is qualified to contribute to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the industry or the petitioning organization’s U.S. operations.
• The beneficiary possesses knowledge that is particularly beneficial to the employer’s competitiveness in the marketplace.
• 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 that employer.
• 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 firm.

Prior to the March 24, 2015 Memorandum, USCIS explicated policy with respect to L-1B adjudications in a series of four memoranda spanning from 1994 to 2005. Under the prior memoranda, denial rates for L-1B petitions increased in recent years. For example, a March 2015 National Foundation for American Policy brief entitled L-1 Denial Rates Increase Again For High Skill Foreign Nationals, reports denial rates rose from 6% in 2006 to an historic high of 35% in 2014.

While the 2015 Memorandum claims consistency with the previous memoranda, it also purports to supersede and rescind prior policy memoranda and represents “consolidated and authoritative” guidance with respect to specialized knowledge determinations. The Memorandum also positively acknowledges the ability to transfer personnel between multinational companies fosters growth and competitiveness of U.S. businesses in an increasingly global market. As noted earlier, the Memorandum indicates new training will take place under its auspices. Accordingly, there is some cautious optimism that final implementation of the Memorandum may help reverse the rising trend of denials through a more cohesive and uniform explication of policy to both USCIS adjudicators and L-1B petitioners alike.

Some other interrelated factors and considerations addressed by the Memorandum include: how easily the claimed specialized knowledge is imparted to others; a recognition specialized knowledge need not be proprietary or unique to the petitioning organization; a recognition specialized knowledge need not be narrowly held within the petitioning organization; and, a recognition specialized knowledge workers need not occupy managerial positions or have high salaries. Moreover, a demonstration of specialized knowledge does not involve a test of the U.S. labor market. Rather, the relevant threshold inquiry is whether a sufficient number of workers in the particular industry hold the claimed specialized knowledge such that it is generally or commonly held, and thus not specialized.

Off site employment is another subject discussed in the Memorandum. In general, a L-1B beneficiary may be stationed at a third party worksite if the unaffiliated employer does not principally control and supervise the beneficiary’s activities and the purpose of offsite placement is for the beneficiary to apply  specialized knowledge specific to the petitioning organization’s own services or products.

Additionally, the Memorandum reinforces “preponderance of the evidence” within the totality of circumstances as the standard of proof adjudicators must apply in determining whether a beneficiary possesses specialized knowledge. Preponderance of the evidence has been described as “50 percent and a feather” and is less strenuous than the “clear and convincing” and “beyond a reasonable doubt” standards. In other words, even if a USCIS adjudication officer has some doubt about a claim, the requisite burden is met if the weight of the evidence leads to the conclusion the claim of specialized knowledge is “more likely than not” or “probably” true.

We will continue to monitor the status of the USCIS L-1B Policy Memorandum through its effective date, currently set for August 31, 2015. Please feel free to contact the Sharma Law Offices for assistance with L-1 visas or other immigration matters.  We have extensive experience in successfully assisting employers with both L-1A and L-1B petitions.