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With continuing increase in the number of Request for Further Evidence (“RFE”) and denials for L-1B petitions, the USCIS has finally issued a new memorandum hoping to clarify what type of evidence will satisfy the requirements for an L-1B Visa. More specifically, it recently issued the INS Office of Director Policy Memorandum “L-1B Adjudications Policy” (Aug. 17, 2015) published on AILA InfoNet at Doc. No. 15081801 (posted Aug. 18, 2015). (hereinafter the “L-1B Memo”).

Foremost, the L-1B Memo reconfirms that “specialized knowledge” is a disjunctive test – it can be either special or advanced knowledge.

  • The USCIS defines special knowledge as knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and it application in the international market that is “distinct or uncommon in comparison to that generally found in the particular industry… [The] knowledge [however] need not be proprietary in nature… or unique to the petitioning organization.”
  • The L-1B Memo reiterates that advanced knowledge means knowledge or expertise in the petitioning organization’s specific process 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 … [but] need not be … narrowly held within the petition organization.”

The L-1B Memo also lists the following six (6) factors that USCIS will consider in determining whether the proposed beneficiary possesses specialized knowledge.

  1. The beneficiary possesses knowledge of foreign operating conditions that is of significant value to the petitioning organization’s U.S. operations.
  2. The beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer’s productivity, competitiveness, image, or financial position.
  3. The beneficiary’s claimed specialized knowledge normally can be gained only through prior experience with the petitioning organization.
  4. 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). One factor that may be relevant in weighing economic inconvenience is the time-sensitivity of the petitioning organization’s need in its U.S. operations for an employee with the particular type of specialized knowledge, and the harm the organization would suffer if it cannot fulfill its time-sensitive personnel need through transfer of the beneficiary.
  5. 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.
  6. The beneficiary possesses knowledge that is particularly beneficial to the petitioning organization’s competitiveness in the marketplace.

In light of these definitions and factors promulgated in the new L-1B memo, here are some suggestions to be incorporated into the L-1B petition for companies wishing to sponsor an employee for an L-1B visa:

  • Make clear differentiation between special vs. advanced.  Don’t use the 3 words, specialized, special and advanced interchangeably. Specialized = special and/or advanced.
  • Do not to use the word, “proprietary“, unless you have documentation of some intellectual property ownership — like patents, trademarks, or at least IP filings.  Of course, when the company has patents, emphasize these throughout the petition.
  • Instead of using the word “proprietary” where not applicable, when you can, use the words “sophisticated“, “complex” or “highly technical“.
  • Use a definite number when saying the beneficiary is one of few employees with the specialized knowledge.  So instead of one of “few”, use the phrase, one of 10 out of 200 employees, for example.
  • Use a “specialized knowledge” title when possible.  Even if it is a managerial title, include something that makes it clear that it is in a specialized area.  For example, instead of saying “Marketing Director”, say “Marketing Director of Endoscopic Instruments”.
  • When possible, differentiate and compare beneficiary’s duties with others in the company and/or industry, especially explaining why others cannot perform the duties.
  • Put % of duties in for the U.S. position, as well as position abroad.  Include an organization chart especially if it can show that beneficiary is and/or will be working in a specialized knowledge department (i.e., engineering or something like that).  RFEs are asking for org charts.
  • Include a more detailed description of duties for position abroad as well as for U.S. side, not just a simple bullet point.
  • Include list of any special assignments or projects that the beneficiary has completed and how much revenue those projects generated.  Concrete numbers.
  • Include explanation (and documentation where possible) of licenses, special training received (beyond new hire training and/or on-the job training) by the beneficiary.
  • Include explanation (and documentation where possible) of the training that beneficiary has provided to others at the current position and/or will provide in the U.S.
  • Include how long it would take to train someone new to be able to perform the duties of the U.S. position, how difficult or impossible it would be (if training not available in the U.S.), and what undue economic burden it would impose on the company to have to hire and train someone for the position.

Given the most recent RFEs since the new L-1B Memo was issued, it seems USCIS is looking for documentary evidence, and not just a statement from the petition company describing the specialized knowledge. Accordingly, to the extent possible, we suggest that the initial petition include as much documentary evidence as possible to avoid an RFE.

Written by H. Heidi Son, Esq.