News

As of April 27, 2010, the US Citizenship & Immigration Service reported the following:

H-1B Regular Cap:  16,500 petition filed so far out of 65,000 total
H-1B Master’s Exemption: 6,900 filed so far out of 20,000 total

Overview of L-1B Specialized Knowledge Visas

The L-1 visa category provides that foreign companies can transfer specialized knowledge employees to their US subsidiary or affiliate offices, branch offices and representative (research) offices.  The L-1 visa category was created to facilitate international business by permitting the transfer of managers and executives (L-1A) or foreign employees in a specialized knowledge capacity (L-1B) to the U.S.  The employee must have been continuously employed with the overseas company for at least one year out of the past 3 years, and must be coming to perform services in a managerial, executive or specialized knowledge capacity for the related U.S. office.

The L-1B worker is allowed to remain in the United States for up to 5 years in the specialized knowledge category.  Unlike the H-1B, there is no limit to the number of L-1B visas issued annually.  In addition, employers do not have to file a labor certification application, or meet a prevailing wage requirement.

The “specialized knowledge” L-1B is sometimes a difficult petition to get approved because it is often difficult to explain what specialized knowledge is and whether the employee possesses it.  Specialized knowledge means that the employee possesses special knowledge of the company’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 company’s processes and procedures.

In March 1994, the Acting Executive Associate Commissioner of the INS, James Puleo, issued a memorandum titles: “Interpretation of Specialized Knowledge”.  According to this memo, the employee should possess a type of “specialized” knowledge or “advanced” knowledge that is different from that generally found in a particular industry.  The knowledge does not have to be proprietary or unique. But knowledge of a company’s product must be noteworthy or uncommon. Knowledge of a company’s processes or procedures must be advanced.

A common argument when trying to prove that the employee possesses specialized knowledge is that the knowledge of a company’s process or product would be difficult to transfer or teach to another individual without significant economic inconvenience to the US or foreign company.  Such knowledge is also not generally known and is complex.

The employer has the burden of establishing that the employee’s specialized knowledge is distinguished by some unusual qualification, and not generally known by persons in that industry. The employer should include some form of evidence describing and setting apart the employee’s advanced level of knowledge from elementary or basic knowledge possessed by others.

Unfortunately, the Administrative Appeals Office (AAO), in Washington, DC that reviews L-1B appeals took a more restrictive position to the L-1B visa stating that the USCIS is not legally bound by previous memoranda.  In a 2008 decision, the AAO explained that the fact that the employee possesses a very specific set of skills does not in itself establish that the employee’s knowledge is special or advanced.  The AAO states that the employer must establish that the employee has knowledge and qualities of unique processes or products beyond what is common in the industry and that the standards for this knowledge will be narrowly construed.

The AAO took the position that the L-1B category should be for transferees with unusual duties, skills or knowledge beyond that of a skilled worked.  Experience and knowledge of a company’s technical processes or products do not alone constitute specialized knowledge.  The terms special or advanced must mean more than experienced or skilled. Further, USCIS should look beyond the stated job duties to determine the importance of the transferee’s knowledge of the company’s product, services, operations or decision-making process.  Hence it is unlikely that an employee with only a couple of years experience with the company’s products would qualify.

Hence, there have been many more requests for evidence (RFEs) on L-1B specialized knowledge cases lately.  The result is that specialized knowledge tends to be a mix of the 1994 memo and AAO decision.  To get their case approved, employer’s should not expect automatic approvals, and should provide more detailed evidence to support L-1B petitions, including employee’s credentials and how they obtained specialized knowledge capacity, plus a detailed explanation of how the prospective job duties for the US office will require specialized knowledge.