To L1b or Not to L1B - Difficulties with the L-1B Specialized Knowledge Visa
Recently, many employers have been receiving Requests for Evidence (RFEs) on their petitions for L-1B Specialized Knowledge nonimmigrant worker visa. The L-1B visa is filed by a company who wants to transfer someone with specialized knowledge of the company or product of the company to their U.S. branch to help with its operations. Because of so many RFEs sent to employers on their L-1B petitions, the United States Citizen and Immigration Services held a stakeholder meeting to address the issues related to L-1B filings. In particular, many attorneys for employers raised the issue concerning the factors in determining Specialized Knowledge. At our law firm, we received an RFE for our own L-1B case that raised many of the same issues other attorneys have faced in their filings. This article will address those issues and how we overcame them in our case.
The main issue being the L-1B visa is the specialized knowledge requirement. Specialized knowledge means 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 (8 C.F.R. 214.2(l)(1)(ii)(D and (E)). From this definition of specialized knowledge, the application of it has varied greatly in many cases. First, what constitutes special knowledge seems to be confused with the standard of the O-1 visa requirements. The O-1 visa requires the individual to hold extraordinary ability in the sciences, arts, education, business, or athletics where "extraordinary ability" means sustaining national or international acclaim. This standard confuses the meaning of someone simply having an advanced level of knowledge or expertise within their organization's processes and procedures.
In answering how our client's employee held the specialized knowledge for the position he was being transferred to, we had to go back through the description of the position held in the foreign company and the position going to be held in the U.S. After going through those descriptions, we responded to each duty in both positions to show how the specialized knowledge of the employee was required for both positions. We further confirmed that knowledge through use of many letters of reference from higher up executives and other individuals who recognized the employee's importance within the organization.
There has been some indication that specialized knowledge is different from proprietary knowledge and should not be confused. Some attorneys reminded USCIS that the L-1B nonimmigrant classification did not require the individual to be extraordinary, and that specialized knowledge need not be proprietary. It has pointed out that specialized knowledge is a special knowledge of the product or processes of a company. It was also stated that specialized knowledge need not to be narrowly held by a select few individuals within a company. These concerns were raised in our own case wherein it was requested to show how the employee held proprietary knowledge of the company's product. Although there is nothing in the definition of the L-1B visa that says proprietary knowledge is required to show specialized knowledge, nevertheless, by providing other documentation to show how the employee was directly involved in the development of the company's product, it was indisputable that he held specialized knowledge within the company.
Another issue raised was that skilled individuals required to keep the company competitive in the field were becoming difficult to bring over with RFEs in these cases. In cases where the knowledge relates to the industry rather than a particular company or it is not unique to the company, but rather enhances a company's competitiveness, the importance of the individual's skilled work cannot be understated. It was noted that in certain industries such as the software industry, the information is not unique to the company in that there are other individuals who have knowledge of the software as well. All of these considerations make it clear that a specialized knowledge individual is the one whose knowledge makes the company more competitive in its field. This RFE was also asked for in our case and easily responded to through statements from the senior executives of the company attesting to how the employee's use in the U.S. will make the company more competitive.
In our case, we personally dealt with was the "preponderance of evidence" standard that is the evidentiary standard used in determining whether an individual holds specialized knowledge of the employer's product, service, research, equipment, techniques, or an advanced level of knowledge of the company's processes and procedures. Despite submitting documents showing how our client worked directly on the development of the products for his company and how his position requires him to maintain knowledge that only he possesses, an RFE was still sent out asking for an elaboration on the job duties of the position in determining how it requires specialized knowledge. Also, when looking at the background of the beneficiary, the officer looking at this case requested documentation showing that he possesses knowledge that is "uncommon", "noteworthy", "distinguished by some unusual qualification", and is generally not known in that industry. Looking at this request, the officer was looking for something more in line with the standard of someone who has an "extraordinary ability" rather than someone who possesses the special knowledge within the company's organization to handle that position. Despite this request, through the use of affidavits from the senior executives of the company, along with letters from important clients where the employee was directly involved in the process of the company, demonstrating the specialized knowledge proved sufficient.
In addition to asking for a better understanding of what it was the employee's specialized knowledge specifically applies to for the company, the officer adjudicating the case requested other documents such as "patents", "training received", "published material", and "employees under direct supervision". Basically, the officer wanted to be clear that this individual was above and beyond all employees in the company to work in this position. Nowhere in the statute does it say that the company may only have one individual who has such specialized knowledge to be transferred into the United States. It was unreasonable for the officer to make a request asking to show that this individual is pretty much the only individual capable of handling the position for the company here in the U.S. Nevertheless, each of these requests was answered in some capacity to still demonstrate that this individual had what the officer was looking for in a specialized knowledge worker.
Finally, the RFE asked for documentation showing how this individual will make an impact on the company in the U.S. and if there is any alternative action that can be taken to fill his responsibilities. By asking for such documentation, the officer is basically making it appear that only if there is significant need for this person to be transferred to the U.S. will they be able to transfer to the U.S. Again, this is something not required in the statute, so even though it was restated that only those things that meet the definition of a person with specialized knowledge is required, we still provided statements from company executives to show how there was no one else to fill this position.
In the end, our client's employee got his L-1B visa approved. By thoroughly answering each request made by the officer, the officer was left with no choice but to approve this case. Although we answered each request as best as possible, no response would be complete without referencing the proper statutes, case law, and the Adjudicator's Field Manual that governs the standard of one who holds specialized knowledge. By making reference to each of these guidelines, the officer is reminded of the limitations on the discretion in determining if the specialized knowledge standard has been met. L-1B visas may be difficult to get approved because of lengthy RFEs, but that does not mean that they cannot get approved. If your company has an individual with specialized knowledge of your company and you wish to transfer them to the U.S., feel free to contact our office for a free consultation on what can be done to get your case approved.