New L-1B Memo Addresses Some Issues, But Concerns Remain
A new L-1B policy memorandum (PDF) issued by U.S. Citizenship and Immigration Services (USCIS) provides guidance on the adjudication of the L-1B classification, which permits multinational companies to transfer employees who possess “specialized knowledge” from their foreign operations to their operations in the United States. It provides consolidated and authoritative guidance on the L-1B program, superseding and rescinding certain prior L-1B memoranda. Some practitioners expressed concerns that the memo still gives adjudicators broad discretion to issue requests for evidence (RFEs) and denials.
The memo notes the following “non-exhaustive” list of factors USCIS may consider when determining whether a beneficiary’s knowledge is specialized:
- The beneficiary possesses knowledge of foreign operating conditions that is of significant value to the petitioning organization’s U.S. operations.
- 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 the petitioning organization.
- 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 petitioning organization.
- The beneficiary possesses knowledge that is particularly beneficial to the petitioning organization’s competitiveness in the marketplace.
The memo notes that specialized knowledge generally cannot be commonly held, lacking in complexity, or easily imparted to other individuals. Specialized knowledge need not be proprietary or unique to the petitioning organization. The memo also notes that the L-1B classification does not involve a test of the U.S. labor market, and that specialized knowledge workers need not occupy managerial or similar positions or command higher compensation than their peers.
