USCIS Policy Memorandum
March 24, 2015
SUBJECT: L-1B Adjudications Policy
This policy memorandum 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.
The guidance provides clarification regarding –
- How L-1B petitioners may demonstrate that an employee possesses specialized knowledge.
- In the case of off-site employment, it also provides greater clarity regarding compliance with the requirements of the L-1 Visa (Intracompany Transferee) Reform Act of 2004 (“L-1 Visa Reform Act”)
Eligibility for L1B classification –
In order to establish eligibility for approval, the L-1B petitioner must show:
(1) The beneficiary possesses “specialized knowledge”;
(2) The position offered involves the “specialized knowledge” held by the beneficiary;
(3) The beneficiary has at least one continuous year of employment abroad in a managerial, executive, or specialized knowledge capacity with the petitioning organization or a qualifying foreign organization within the preceding three years.
If the beneficiary will be located primarily at the workplace of an unaffiliated company, the petitioning organization also must establish that the beneficiary is eligible for L-1B classification under the requirements of the L-1 Visa Reform Act.
Demonstrating Qualifying Employment
To be eligible for L-1B classification, the beneficiary must have been employed abroad by the petitioning organization (or an affiliate, subsidiary, parent, or branch of the petitioning organization) on a full-time basis for one continuous year within the three years preceding the filing of the petition. The required employment abroad must have been in a managerial or executive capacity, or a capacity involving specialized knowledge. However, the work to be performed in the United States need not be the same type of work that the beneficiary performed abroad.
Definition of “specialized knowledge” –
A petitioning organization can demonstrate “specialized knowledge” by establishing either one of two statutory criteria. Under the INA 214(c)(2)(B), a beneficiary is deemed to have specialized knowledge if he or she has: (1) “special” knowledge of the company product and its application in international markets; or (2) an “advanced” level of knowledge or expertise of the processes and procedures of the company.
A beneficiary seeking L-1B classification should possess:
Special knowledge, which is knowledge of the petitioning employer’s product, service, research, equipment, techniques, management, or other interests and its applications in international markets that is demonstrably distinct or uncommon in comparison to that generally found in the particular industry or within the petitioning employer; or
advanced knowledge, which is knowledge or expertise in the 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 petitioning employer.
Application of the “specialized knowledge” definition –
How to determine whether a beneficiary possesses special or advanced knowledge? –
Determining whether knowledge is “special” or “advanced” inherently requires a comparison of the beneficiary’s knowledge against that of others. The petitioner bears the burden of establishing such a favourable comparison.
Because “special knowledge” concerns knowledge of the petitioning organization’s products or services and its application in international markets, the petitioner may meet its burden through evidence that the beneficiary has knowledge that is demonstrably distinct or uncommon in comparison to the knowledge of other similarly employed workers in the particular industry or within the petitioning organization. Alternatively, because “advanced knowledge” concerns knowledge of a company’s processes and procedures, the petitioner may meet its burden through evidence that the beneficiary has knowledge or expertise that is greatly developed or more complex in comparison to other workers in the petitioning employer’s operations.
- Specialized knowledge cannot be easily imparted to other individuals.
Knowledge will not generally be considered specialized if it can be easily imparted from one person to another. On the other hand, knowledge generally may be considered specialized if a petitioner can demonstrate through credible and relevant evidence that the knowledge possessed by the beneficiary would be difficult to impart to another individual without significant economic cost or inconvenience to the petitioning organization. Although significant economic cost or inconvenience may be a relevant factor, a petitioner is not required to establish significant economic cost or inconvenience.
- Specialized knowledge need not be proprietary or unique to the petitioning organization.
A petitioner is not required to demonstrate that it is the only company where the beneficiary could have acquired the knowledge, or that it is the only company that trades in the technologies, techniques, products, services, or processes that are the subject of the beneficiary’s knowledge. Although a petitioner may provide evidence that knowledge is proprietary or unique in support of its claim that the knowledge is also special or advanced, and thus specialized, the L-1B classification does not require such a finding.
- L-1B classification does not require test of the U.S. labor market
As noted above, the petitioning organization must ordinarily demonstrate that the beneficiary’s knowledge is not generally or commonly held in the relevant industry. Such a determination, however, does not involve a test of the U.S. labor market. A petitioner is not required to demonstrate the lack of readily available workers to perform the relevant duties in the United States
- Specialized knowledge need not be narrowly held within the petitioning organization.
Multiple employees within a company may have obtained the experience, training, or education necessary to possess the same type of specialized knowledge. Some companies may use technologies or techniques that are so advanced or complex that nearly all employees working on the relevant products or services possess specialized knowledge. The mere existence of other employees with similar knowledge should not, in and of itself, be a ground for denial.
However, in cases where there are already many employees in the U.S. organization with the same specialized knowledge as that of the beneficiary, officers generally should carefully consider the organization’s need to transfer the beneficiary to the United States.
- Specialized knowledge workers need not occupy managerial or similar positions or command high salaries compared to their peers.
Unlike the L-1A nonimmigrant classification, the L-1B classification does not require that the beneficiary be a manager or executive. Nor does the classification require that the beneficiary be an officer or supervisor, or hold any other similar position within the petitioning organization. Although rank and salary are factors that may be considered when analyzing whether a beneficiary possesses specialized knowledge, there is no requirement that the beneficiary be of a certain rank within the organization or that the beneficiary’s salary be “elevated” compared to his or her peers within the organization or the particular industry.
- Eligibility for another nonimmigrant classification is not a bar to eligibility for L-1B classification.
Eligibility for one classification does not preclude eligibility for another. A beneficiary may possess characteristics that make him or her potentially qualified for two or more distinct nonimmigrant classifications. Possession of such dual qualifications does not render the beneficiary ineligible for either classification
The following is a non-exhaustive list of factors that USCIS may consider when determining whether a beneficiary’s knowledge is specialized:
• 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.
The presence of one or more of these (or similar) factors, when assessed in the totality of the circumstances, may be sufficient to establish by a preponderance of the evidence that a beneficiary has specialized knowledge. As noted above, this list of factors is meant to be illustrative, not exhaustive, and it does not impose particular requirements that a petitioner must demonstrate.
What are the supporting documents one may submit to prove the claim of specialized knowledge? –
USCIS will be able to perform its adjudicatory function most effectively when the petitioner explains with clarity the specific nature of the industry or field involved, the nature of the petitioning organization’s products or services, the specialized knowledge required to perform the beneficiary’s duties, and the need for the beneficiary’s specialized knowledge.
The petitioner must submit:
- A detailed description of the services to be performed
- An evidence that the beneficiary’s “prior education, training, and employment qualifies him/her to perform the intended services in the United States.
While the petitioner is required in all cases to compare the beneficiary’s knowledge to that of others, the petitioner may also be able to demonstrate the nature of the claimed specialized knowledge by, among other things, indicating how and when the beneficiary gained such knowledge or explaining the difficulty of imparting such knowledge to others without significant cost or disruption to its business. Other evidence that a petitioner may submit to demonstrate that an individual’s knowledge is special or advanced, includes, but is not limited to:
• Documentation of training, work experience, or education establishing the number of years the individual has been utilizing or developing the claimed specialized knowledge as an employee of the organization or in the industry;
• Evidence of the impact, if any, the transfer of the individual would have on the organization’s U.S. operations;
• Evidence that the alien 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;
• Contracts, statements of work, or other documentation that shows that the beneficiary possesses knowledge that is particularly beneficial to the organization’s competitiveness in the marketplace;
• Evidence, such as correspondence or reports, establishing that the beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the organization’s productivity, competitiveness, image, or financial position;
• Personnel or in-house training records that establish that the beneficiary’s claimed specialized knowledge normally can be gained only through prior experience or training with that employer;
• Curricula and training manuals for internal training courses, financial documents, or other evidence that may demonstrate that the beneficiary possesses knowledge of a product or process that cannot be transferred or taught to another individual without significant economic cost or inconvenience;
• Evidence of patents, trademarks, licenses, or contracts awarded to the organization based on the beneficiary’s work, or similar evidence that 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 proprietary or unique to the petitioning organization; and
• Payroll documents, federal or state wage statements, resumes, organizational charts, or similar evidence documenting the positions held and the wages paid to the beneficiary and parallel employees in the organization.
A petitioner may submit any other evidence it chooses. In all cases, USCIS will review the entire record to determine whether the petitioner has established by a preponderance of the evidence that the beneficiary has specialized knowledge under the totality of the circumstances,
Offsite L-1B Employment (L-1 Visa Reform Act) –
When an L-1B beneficiary will be primarily stationed at the work site of an unaffiliated employer, the L-1 Visa Reform Act requires the petitioning organization to show that the beneficiary:
(1)Will not be “controlled and supervised principally” by the unaffiliated employer; and
(2)Will be placed “in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.”
If a determination has been made that a beneficiary has specialized knowledge and that he or she will be stationed primarily at the work site of an unaffiliated employer, USCIS must also determine whether the position involves “labor for hire.”
- Control and supervision” prong of the L-1 Visa Reform Act –
Despite placement with another employer, the beneficiary will continue to be controlled and supervised principally by the petitioning organization (or its affiliate, subsidiary, parent, or branch). The petitioning organization therefore may not merely supply workers and issue their pay checks in a “labor for hire” arrangement. Instead, the unaffiliated company must have a business relationship with the petitioning organization that involves the provision of products or services by the petitioning organization and not simply the supply of workers alone. This ground of ineligibility applies to all petitions filed on or after June 6, 2005, including petitions for initial, amended, or extended L-1B classification.
It is important to note that the L-1 Visa Reform Act did not prohibit all offsite employment. An L-1B beneficiary may be legitimately stationed at a third-party worksite, even if it is located far from the petitioning employer’s office(s). Further, an unaffiliated employer is not necessarily prohibited from giving day-to-day assignments to the beneficiary, provided that, in the totality of the circumstances, the unaffiliated employer does not principally control and supervise the beneficiary’s activities. The petitioner may establish that the unaffiliated entity lacks principal control and supervision by showing, among other things, that the petitioner at all times retains the principal authority to: dictate the manner in which the work is to be performed, reward or discipline the worker for his or her work performance, and provide the worker’s salary and any normal employer-provided benefits as health insurance. In all cases, however, determinations with respect to control and supervision will be based on all of the facts presented.
The petitioner must show that the purpose of the offsite placement is for the beneficiary to use specialized knowledge that is specific to the petitioning organization. Where a petitioning organization provides a customized product or service to a third party, the beneficiary’s knowledge of the third party’s systems may be considered in addition to, but not as a substitute for, the beneficiary’s knowledge of the petitioning organization’s product or service to determine whether the beneficiary’s knowledge is “special” or “advanced,” based on the totality of the circumstances.
Re-adjudication of L-1B Status –
In matters relating to an extension of L-1B status involving the same parties (i.e., the same petitioning organization and beneficiary employee) and the same underlying facts, USCIS officers should give deference to the prior determination by USCIS approving L-1B classification. In such cases, USCIS officers should reexamine a finding of L-1B eligibility only where it is determined that:
(1) There was a material error with regard to the previous approval for L-1B classification;
(2) There has been a substantial change in circumstances since that approval; or
(3) There is new material information that adversely impacts the petitioner’s or beneficiary’s eligibility.
Implementation of memorandum –
USCIS intends to make this memorandum effective on August 31, 2015
USCIS will update chapter 32.6(e) of the AFM when it issues the final version of this memorandum. At that time, the previous version of AFM chapter 32.6(e) will no longer be applicable to the L-1B adjudicative process.
The guidance in this memorandum regarding the L-1 Visa Reform Act is consistent with that set forth in AFM chapters 32.3(c) and 32.5(b) and should be read in conjunction with those AFM chapters.