New memo provides consolidated guidance on the L-1B program, superseding and rescinding all prior L-1B memoranda. This memo applies only to L-1B visas/employees with specialized knowledge (not L-1A visas).
"Preponderance of the Evidence" Standard of Proof: a petitioner seeking approval of the L-1B visa, must establish that they meets each eligibility requirement of the L-1B classification by preponderance of evidence. This standard of proof is lower than that of "clear and convincing evidence" or "beyond a reasonable doubt" standards.
Elements of the L-1B Classification:
In order to establish eligibility for approval, the L-1B petitioner must show:
(1) that the beneficiary possesses “specialized knowledge”;
(2) that the position offered involves the “specialized knowledge” held by the beneficiary; and
(3) that the beneficiary has at least one continuous year of employment abroad in a managerial, executive, or specialized knowledge capacity with the petitioning employer and/or any qualifying organization (collectively referred to as the “petitioning organization”) within the preceding 3 years.
If the beneficiary will be located primarily at the workplace of an unaffiliated company, the petitioner also must establish that the beneficiary is eligible for L-1B classification under the requirements of the L-1 Visa Reform Act, discussed below in section VI.
The new memo provides definition of "specialized knowledge".
A petitioner can demonstrate “specialized knowledge” by establishing either one of two statutory criteria. Under the statute, a beneficiary is deemed to have specialized knowledge if he or she has:
(1) a “special” knowledge of the company product and its application in international markets; or
(2) an “advanced” level of knowledge of the processes and procedures of the company.
The corresponding regulation similarly defines specialized knowledge in terms of “special” or “advanced” knowledge:
[S]pecial 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 CFR 214.2(l)(1)(ii)(D).
Other important things to keep in mind:
>>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 L-1B classification does not involve a test of the U.S. labor market.
>>Specialized knowledge workers need not occupy managerial or similar positions or command higher compensation than their peers.
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.
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 using or developing the claimed specialized knowledge as an employee of the petitioning organization or in the industry;
• Evidence of the impact, if any, the transfer of the individual would have on the petitioning organization’s U.S. operations;
• Evidence that the alien is qualified to contribute significantly to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in 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 petitioning 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 petitioning 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 the petitioning organization;
• 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 petitioning 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, documentation of other forms of compensation, resumes, organizational charts, or similar evidence documenting the positions held and the compensation provided to the beneficiary and parallel employees in the petitioning 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. Merely stating that a beneficiary’s knowledge is somehow different from others or greatly developed does not, in and of itself, establish that he or she possesses specialized knowledge. Ultimately, it is the weight and type of evidence that establishes whether the beneficiary possesses specialized knowledge.
USCIS can issue a RFE (Request for Evidence) for various reasons to I-129 Petitioner. Denial rate is high, RFE rate is even higher for L-1B petition. The new memo is intended to help to solve many difficulties with obtaining a L-1B visa for qualifying applicants.
See August 17, 2015 memo at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/L-1B_Memorandum_8_14_15_draft_for_FINAL_4pmAPPROVED.pdf