L-1B Specialized Knowledge – An Ever Changing Landscape

Hannah F. Little, Esq., Partner
N.C. Board Certified Immigration Law Specialist
[email protected]

The L-1B visa is a temporary work visa for intracompany transferees. To qualify, an individual must have served for at least 1 year in either an executive, managerial or "specialized knowledge" capacity with the overseas company and must be transferring to the U.S. company to serve in a "specialized knowledge" role. The qualifying 1 year of employment abroad must have occurred within the preceding 3 years prior to the transfer. Further, any time spent in the U.S. prior to the transfer does not count toward (but does not interrupt) the required 1 year of employment. The L-1B petition may be approved for a maximum initial period of 3 years and may be extended for an additional 2 years.

The rates of requests for evidence and denials for petitions in the L-1B classification have increased dramatically. Since Fiscal Year(FY) 2006, the denial rate for L-1B petitions has increased more than five-fold from 6% to 45% in FY 2014 despite no new regulation changing the adjudication standard.1 Surprisingly, the denial rate is highest for employees already working in the U.S. in L-1B status who are extending their status.2 In other words, USCIS is often re-adjudicating its own determinations. In addition to denials, L-1B petitions are being met with onerous Requests for Evidence (RFEs) at a staggering rate. These RFEs are often time-consuming and result in significant delays. In FY 2014 USCIS issued RFEs in 45 percent of cases, over a twenty fold increase from FY 2004 when the issuance rate was 2%.3

The standard for what qualifies under the L-1B classification has been severely limited without any change in law or regulations. While it is unclear why such a significant change in adjudicatory procedures has occurred, it has resulted in frustration and headaches for employers. Many employers claim that recent USCIS trends have affected their ability to increase jobs, innovations, and production in the U.S.

The current theme in L-1B adjudications has been primarily focused on the definition of "specialized knowledge." The regulations define specialized knowledge as "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."4 In its recent adjudications, U.S. Citizenship and Immigration Services ("USCIS") has interpreted this definition very narrowly. If the transferee is not the key developer of a particular proprietary technology, methodology, or business program, then USCIS may find that the transferee does not possess specialized knowledge. Employers are often asked by USCIS to explain how the transferee's experience with the organization is different not only from those in the U.S. labor market, but also from other employees within the sponsoring organization. Included in this troubling trend is an especially dramatic increase in the denial rate for IT professionals particularly those possessing Indian nationality.

Blanket Petitions

To date, the majority of consular officers with the Department of State (DOS) have not adapted the same disturbing trends as USCIS. These differing standards of proof create inconsistencies in L-1 adjudications: an individual denied an individual L-1B petition by USCIS may be approved under a blanket L-1B petition filed under the consular process (or occasionally vice versa).

In contrast to most consular posts, the U.S. Consulate in Chennai, India has been problematic and has adapted troubling policies towards the processing of L-1B blanket petitions, denying petitions for IT positions regularly. As this post is the only consulate which processes blanket petitions in India, L-1B blanket petitions can be extremely difficult to obtain for Indian IT professionals.

Executive Action and USCIS Policy Guidance

The L-1B visa program is critical as it allows multinational companies to transfer foreign employees who have "specialized knowledge" of the company's products or processes to the U.S. from abroad. It serves as a vital tool for managing a global workforce. In recognition of its importance and the inconsistency which has recently plagued this program, the President issued an executive order directing USCIS to provide greater coherence and integrity to L-1B program and to improve consistency in adjudications.

On August 18, 2015, USCIS released its final policy memorandum providing additional guidance on this program; effective August 31, 2015, USCIS adjudicators must follow its terms. The new policy guidance reminds adjudicators that the appropriate standard of review for L-1B petitions is "preponderance of the evidence"; in other words, the petitioning employer must show that what it asserts is more likely than not to be true and is not obligated to remove all doubt from the adjudication.5 Furthermore, this new memorandum clarifies previously undefined terms - "special" and "advanced" - found in legislation and regulation. "Special" knowledge compares the employee's knowledge to that of other similarly situated workers in the specific industry while "advanced" knowledge focuses on the petitioning employer's processes and procedures that is further along in progress, complexity, and understanding than that generally found within the employer.6 The memorandum confirms that although it is helpful to demonstrate specialized knowledge, companies are not required to prove that it would cause significant economic cost or inconvenience to impart the same knowledge to another individual.7 Furthermore, the new memo updates the non-exhaustive list of documentation which may be submitted to demonstrate that an employee's knowledge is specialized or advanced.

Practitioners are pleased to note the policy memorandum directs USCIS officers to afford deference to prior determinations by USCIS when adjudicating extensions rather than continuing the alarming trend of re-adjudicating previously approved petitions. While USCIS does not extend the same deference to other agencies, the final guidance confirms that officers should "take note of a previous determination of L-1B eligibility made by the Department of State or U.S. Customs and Border Protection."8 This should address some of the frustration which has plagued practitioners and employers issued onerous Requests for Evidence or denials for extensions of status involving the same parties and the same underlying facts.

The final policy memorandum also clarifies a petitioning employer's support letter "may be persuasive evidence if it is detailed, specific, and credible." However, adjudicators may "request further evidence to support a petitioner's statement, bearing in mind that there may be cases involving circumstances that may be difficult to document other than through a petitioner's own statement."

Many immigration practitioners remain concerned that the policy guidance does not go far enough and is so loosely drafted that adjudicators may continue the status quo of inconsistent and unreasonable adjudication of these petitions. Given its recent publication date, the practical effect of the new guidance remains to be seen. Nonetheless, businesses and practitioners remain hopeful it will facilitate the transfer of key overseas employees to businesses' U.S. offices.


1 National Foundation for American Policy, NFAP Policy Brief, L-1 Denial Rates Increase Again for High Skill Foreign Nationals (March 2015).

2 Id.

3 Id.

4 8 CFR §214.2(l)(ii)(E).

5 Policy Memorandum, U.S. Citizenship and Immigration Services, L-1B Adjudications Policy, PM-602-0111 (August 17, 2015).

6 Id.

7 Id.

8 Id.