At the end of March, U.S. Citizenship and Immigration Service (USCIS) released a highly anticipated policy memorandum that clarifies the standards for adjudicating petitions filed under the L-1B, or “specialized knowledge”, category. Barring any changes after the comment period, the memo will take effect on August 31, 2015.
The L-1B visa allows companies to transfer employees from affiliated companies abroad to the U.S. for up to five years. To qualify, the individual must have at least one year of experience with the overseas affiliate and must demonstrate that he/she possesses “specialized knowledge” related to the company’s business and will work in a “specialized knowledge” capacity in the U.S.
Unfortunately, inconsistent and restrictive interpretations of the term “specialized knowledge” have plagued the L-1B and it was recently reported that 35% of all L-1B petitions filed in 2014, up from just 6% in 2006, and issued Requests for Evidence (RFEs) on 45% of all L-1B petition filings, up from just 2% in 2004. The rates of denial and RFE are higher for individuals from India and China than from transferees from other parts of the world. The increase in denials and RFEs has created frustration and uncertainty among petitioning companies seeking to transfer high-skilled workers to the U.S.
The new memo is intended to guide adjudicating officers by attempting to clarify how L-1B petitioners can demonstrate that their employees possess the requisite “specialized knowledge.” In particular, the memorandum reminds adjudicators that:
- L-1B petitions are adjudicated on a “preponderance of the evidence standard”; which is a more reasonable and realistic standard than “clear and convincing” or proof “beyond a reasonable doubt.”
- Specialized knowledge is defined by its common dictionary definition as “special” or “advanced knowledge” of an employer’s product, service, research, equipment, techniques, management, or other interests and its applications in international markets which is demonstrably distinct or uncommon in comparison to that generally found in the particular industry.
Perhaps most significantly, the memo offers specific examples where an adjudicator can find “specialized knowledge” and lists concrete forms of evidence that demonstrate whether knowledge is “specialized.”
While the memo does not fundamentally change the adjudicatory standards, it consolidates and supersedes former guidance which lacked clarity. Aside from its literal wording, the memo sends a message to adjudicators to be more realistic in their adjudications and to evaluate L-1B’s cases in a more business-friendly manner. To read USCIS’s updated memo on the interpretation of “specialized knowledge”, click here.