Attempting to Define Specialized Knowledge for L1B Approvals11 Jun 2013
Under the L-1 category, certain types of employees of multinational corporations may be transferred to related companies in the United States. The L-1 classification is divided into two subcategories: the L1A classification, which is reserved for managers and executives; and the L1B, which is designated for workers who possess “specialized knowledge.” The L-1 classification can be an invaluable tool for companies wishing to transfer key employees to the United States. However, the L-1 category, especially when it comes to L1B specialized knowledge workers, is a confusing area of immigration law that sometimes scare away multinational companies that may otherwise stand to benefit from its use.
Background: Overview of L1B
The L1B category is reserved for employees of multinational companies. A U.S. company is only eligible to file an L1B petition if it has a sufficient affiliation with the foreign employer. The L1B candidate must have worked for the related foreign employer in a specialized knowledge, managerial, or executive position for at least one continuous year out of the past three years. Further, the foreign worker must be coming to the United States to work in a specialized knowledge capacity.
L1B decisions are made either by USCIS adjudications officers, who review individual petitions, or by consular officers, who are responsible for adjudicating cases filed under a company’s L-1 blanket petition. More information about the L-1 category can be found in the MurthyDotCom articles
No Clear Definition of Specialized Knowledge
Explaining and attempting to quantify what is meant by “specialized knowledge” in the context of an L1B petition has been a long-standing struggle within immigration practice. [Specialized knowledge should not be confused with the similar sounding “specialty occupation” requirement of an H1B petition.] Foreign nationals and their employers often assume that possessing an advanced degree in a particular field or years of experience in a discreet industry should suffice to demonstrate the possession of specialized knowledge. However, specialized knowledge has been interpreted to mean something quite different, generally requiring the demonstration of skills and knowledge specific to the company itself, which can be more difficult to pin down. As one federal judge explained, “specialized knowledge is a relative and empty idea which cannot have a plain meaning.”
Official Guidance on Specialized Knowledge
The regulations and memoranda specify that specialized knowledge includes those employees who have special knowledge of the company’s product, service, research, equipment, techniques, or management. Specialized knowledge also includes those employees who have an advanced level of knowledge of processes and procedures of the company. Efforts have been made to further define this in Legacy INS memoranda, the Foreign Affairs Manual, and case law. These sources reference employees who are key, uniquely qualified, and possess knowledge that is sufficiently complex and not generally found in the particular industry.
Government Takes Narrow View of L1B Eligibility
Determining the level and significance of the company-specific knowledge held by an employee is inherently a subjective task, which gives adjudicators wide discretion in L1B cases. Even if an employer views a particular worker as indispensable, possessing highly specialized skills and knowledge, this must be communicated effectively to the USCIS (or the consulate,) so that the adjudicating officer is less likely to view the employee as just another typical worker with an easily replaceable skillset. The USCIS (or U.S. consulate) is unlikely to be persuaded simply by proof that the worker has extensive experience; the petitioning employer must distinguish the beneficiary’s knowledge and skills from those other workers in the industry would gain through comparable years of experience.
Petition Must Include Strong Evidence of Specialized Knowledge
The USCIS has long-since abandoned the position that specialized knowledge is limited to employees who possess proprietary knowledge of the petitioner. However, the government closely scrutinizes L1B petitions, and generally issues approvals only when petitions clearly evidence the respective beneficiary’s particular specialized knowledge.
There are cases, on occasion, that appear to be straightforward; for example, the inventor of a patented and proprietary device, who is being transferred to the United States to perform engineering services on that invention, who seems to be a strong candidate for making a specialized knowledge case. In practice, however, most employees do not present such ironclad cases. Rather, L1B petitions often involve employees whose expertise lie in more widely available areas. It may be possible to obtain approvals of L1B petitions filed on behalf of employees whose specialized knowledge involves something relatively conventional, such as third-party applications. But, such petitions must be filed with ample evidence and clear, thorough explanations regarding how the knowledge of these beneficiaries’ is distinguishable from others in the industry – and, oftentimes, even others within the same company. After all, as the Administrative Appeals Office likes to point out, “if everyone is special, then no one is special.”
The L1B remains a viable option for appropriately selected employees of multinational companies. Employers must be ready to prove the level of specialized, company-specific knowledge held by these employees. Selecting a key employee as a potential L1B candidate is only the starting point. It is not enough for an employer to know that the employee has a high level of specialized knowledge; the USCIS must understand what distinguishes this employee through clearly articulated legal and factual arguments and appropriate evidence. This can be challenging, and often requires the assistance of an attorney experienced in this area of U.S. immigration law.
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