Examining ‘Specialized Knowledge’ and its Impact on Employee Transfers

The L-1B visa classification enables a United States employer to transfer an employee with “specialized knowledge” relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the U.S. Generally speaking, for an individual to qualify for L-1B classification, the employer must:

• Have a qualifying relationship with a foreign company (parent company, branch, subsidiary or affiliate, collectively referred to as qualifying organizations); and

• Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.

In addition to the employer’s requirements, the named employee must also:

• Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and

• Be seeking to enter the United States to provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.

Here’s where it gets tricky. According to uscis.gov, “Specialized knowledge means either 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 (See 8 CFR 214.2(l)(1)(ii)(D)).”

However, having USCIS adjudicators making a determination that an individual has that “specialized knowledge” is inconsistent at best. USCIS and individual immigration practitioners have, for years, been asking for stronger and more precise guidance on what specialized knowledge entails but the only responses to date have done little to help direct adjudicators and practitioners in what is truly required.

USCIS released a chart on Feb. 26, 2014, in response to a FOIA request for statistics on the number of L-1B nonimmigrant petitions received, approved and denied, as well the number of L-1B petitions for which a RFE was issued. As best as can be determined by the data released, the L-1B denial rate for FY2012 was 30 percent and increased in FY2013 to 34 percent. Request for Evidence (RFE) rates hover around the 47 percent mark. RFEs can result in added weeks or months of processing times, project delays and increased costs.

Ultimately, if CIS determines that the response submitted does not meet their requirements, the petition may be denied. This means that if you file a petition with USCIS for L-1B status, your have about a one in two chance of receiving an RFE and a one in three change of being denied. Conclusions are difficult to draw as the math on the charts does not seem to add up, absent explanation from USCIS of where the numbers come from.

These increases have and continue to raise serious questions about the training, supervision and procedures of staff at CIS service centers as well as the U.S. government’s commitment to fostering a stable climate for businesses in the global economy.

If you have an employee with “specialized knowledge” who you wish to transfer to your U.S. operations, schedule a consultation with one of our corporate immigration attorneys to discuss your options.

 

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