Recently, United States Citizenship and Immigration Services (USCIS) reported that the denial rate for L-1B visas, for intracompany transfers with specialized knowledge, hit a record high of 35 percent in 2014. In direct response, on August 31, USCIS will implement a policy memorandum to guide its officers in adjudicating L-1B petitions.
L-1B classification enables multinational companies to transfer an employee with “specialized knowledge” from a related foreign company to the U.S. entity.
In the memorandum, USCIS summarizes “specialized knowledge” guidance from years of agency interpretations and precedent decisions. A finding of “specialized knowledge” requires the employee to possess “special” and/or “advanced” knowledge that is required by the U.S. company. “Special” knowledge is distinct or uncommon in comparison to others in the industry and is of the petitioning organization’s products, services, processes, or other interests. “Advanced” knowledge is greatly developed or further along in progress and understanding than that generally found within the employer and is of the petitioning organization’s products, services, processes, or other interests.
Factors USCIS stated it will consider include:
- Knowledge not generally found in the industry or the U.S. company;
- Knowledge that is of significant value to the U.S. company and its competitiveness;
- Participation in assignments that significantly enhanced the foreign company’s productivity, competitiveness, finances;
- Knowledge that can be gained only through prior experience with the employer;
- Knowledge that cannot be easily taught to another individual without significant inconvenience; and
- Knowledge that is highly sophisticated and complex.
In an L-1B petition, USCIS will require an explanation and supporting documentation, if any, of the training, work experience, and education required to develop the knowledge, and a comparison to others in the industry and/or others in the company. Additionally, USCIS will require the U.S. company to explain the specific need for the L-1B employee’s “specialized knowledge.”
Offsite Employee Considerations
Lastly, for L-1B employees placed offsite, USCIS reinforced that the U.S. company must principally control and supervise the employee, dictate how the work is performed, reward/discipline for work performance, and provide salary/benefits.
The attorneys on your L-1B case should use the USCIS memorandum to support and strengthen clients’ L-1B petitions. Envoy-affiliated attorneys will be monitoring USCIS’ interpretations of the memorandum for further L-1B success on their clients’ petitions.
If you want a Envoy-affiliated attorney to implement this guidance on your L-1B visa application, contact one of our immigration professionals.
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