On August 17, 2015, U.S. Citizenship and Immigration Services (USCIS) issued a final Policy Memorandum on L-1B visa adjudications (L-1B Memo). The L-1 (intracompany transferee) nonimmigrant visa classification permits multinational companies to transfer certain categories of employees from their foreign operations to their operations in the United States. Specifically, the L-1A classification is available for intracompany transfers of corporate managers and executives, while the L-1B visa classification enables intracompany transfers of employees who possess “specialized knowledge.”
Federal regulations define “specialized knowledge” as “special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets or an advanced level of knowledge or expertise in the organization’s processes and procedures.” Currently, most L-1B challenges revolve around this definition and how USCIS applies it. The L-1B Memo rescinds prior guidance and establishes new parameters to be followed by USCIS officers when reviewing L-1B petitions to determine if “specialized knowledge” exists.
A petitioner can demonstrate “specialized knowledge” by establishing either one of two statutory criteria. Under the statute, an individual is deemed to have specialized knowledge if he or she has: (1) a “special” knowledge of the company product and its application in international markets; or (2) an “advanced” level of knowledge of the processes and procedures of the company. Therefore, an individual seeking L-1B classification should, as a threshold matter, possess:
- Special knowledge, which is knowledge of the petitioning organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets that is distinct or uncommon in comparison to that generally found in the particular industry; or
- Advanced knowledge, which is knowledge of or expertise in the petitioning 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 employer.
The 23-page L-1B Memo provides detailed guidance on how to determine if an individual possesses special or advanced knowledge. The complete memorandum can be found here.
It is uncertain how USCIS will apply this L-1B Memo in practice. L-1B petitions are very complex. They require extensive supporting documentation and a thorough legal analysis to help convince the USCIS adjudicator that the facts of the case meet L-1B regulatory standards. Therefore, it is not recommended that employers apply for L-1B classification without the benefit of experienced immigration counsel.