In my HRLegalist blog post on April 2, 2015 I shared with our readers the news of the USCIS draft Policy Memorandum (“L-1B Memo” or “Memo”) offering clarification on the definition of “specialized knowledge.” The Memo clarifies for USCIS officers how L-1B visa petitioners may demonstrate that an employee has specialized knowledge and offers a non-exclusive list of factors that adjudicators may consider when determining whether a beneficiary’s knowledge is specialized. These factors are:
- 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;
Notably, the Memo gives particular attention to the question of whether specialized knowledge can be easily imparted to other individuals. If so, the L-1B petition will be denied.
The Memo is set to go into effect on August 31, 2015. USCIS Director, Leon Rodrigez, announced that “this policy memorandum, once it goes into effect, will help companies in the United States better use the skills of talented employees in the global marketplace.” USCIS also has stated that release of the memorandum is part of the Obama Administration’s effort to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.
While the Memo offers welcome clarification for a visa category that has historically been mired in confusion and inconsistent application, it remains to be seen if L-1B petitions will, in fact, enjoy an upswing in approval rates. It is expected that the current high rate of denials and Requests for Evidence in the L-1B category will continue even under the new policy guidelines, at least until USCIS has had time to properly train their officers regarding the Memo. Until this happens, petitioners should, where possible, file L-1B petitions under the Blanket L program, under which visa applications are managed at U.S. consulates abroad by the historically better trained State Department staff. Thus, while the new L-1B Policy Memorandum offers welcome and much needed clarity to this important visa category, it will take considerable time before the much needed changes are evident in practice.