The U.S. Citizenship and Immigration Services (USCIS) issues L-1 visas to foreign employees of multinational companies that want to transfer highly-skilled employees to the United States. A qualifying employer may submit an L-1A petition for executives and managers, or an L-1B petition for workers with specialized knowledge. H-1B and L-1 visas are both commonly used employment-based nonimmigrant visas. Our immigration attorneys routinely handle H-1B and L-1 visa petitions.

In recent years, the L-1 category has become increasingly difficult to have approved. In fact, this was confirmed when the National Foundation for American Policy (NFAP) published a report based on data from the USCIS that 35% of L-1B visa petitions were denied in 2014. This is a record high, but the rate of denial had been increasing for years—30% in 2012 and 34% in 2013. To put this in perspective, remember that that only 6% of L-1B petitions were denied in 2006.

The report also shows that employees already working in the United States with L-1 visas, who were seeking an extension, were more likely to be denied. While USCIS denied 41% of applicants seeking extensions, USCIS denied 32% of initial applicants.

Who Is Affected Most?

Employers are concerned that the increase in denials will affect job creation, innovation, and production in the United States. In fact, the number of L-1 petitions has dropped 23% between 2012 and 2014, which may mean that work that otherwise would be done in the United States may be done in other countries where the skilled employees are staying put. In tandem, it could mean that companies will be less likely to invest in the United States.

The report shows that transfer employees who are from India were more likely to be turned down for L-1 visas than members of other groups. Between 2012 and 2014, Indian nationals were turned down for L-1B visas at a rate of 56% compared to an average rate of 13% for all other groups during the same time period. But there is hope! Read on...

USCIS Offers Guidance To Clarify "Specialized Knowledge"

On March 24, 2015, USCIS issued a (draft) policy memorandum to offer guidance to USCIS personnel in adjudicating L-1B classifications. The 2015 policy memorandum supersedes all prior memos and will go in effect August 31, 2015. In adjudicating extensions for L-1B status, USCIS should generally defer to the prior determination granting it.

The memorandum states that employees who work in any industry or any type of position may be classified as L-1B nonimmigrants as long as the petitioning employer can show the position requires and the beneficiary has specialized knowledge.

A petitioner must show that the beneficiary meets the eligibility requirements for L-1B classification by a preponderance of the evidence. To meet this standard of proof, the petitioner must submit "relevant, probative, and credible evidence" to be "considered individually"and in the “totality of circumstances."

A key frustration for employers and attorneys preparing L-1B petitions has been the lack of a clear definition of "specialized knowledge." The crux of this new memo is to clarify that definition.

According to the memo, specialized knowledge can be shown in two ways. A beneficiary must have either:

• "Special" knowledge of the company product and its application in international markets. A beneficiary could show specialized knowledge of the employer’s products, services, research, equipment, techniques, management, or other interests. The knowledge must be "distinct or uncommon" within the industry or petitioning company.
• An “advanced” level of knowledge or expertise of the specific processes and procedures of the company. The knowledge must be “uncommon” in the industry “greatly developed or further along in progress, complexity and understanding”compared to what is found in the employer’s company.

The memorandum gives a non-exhaustive list of factors that adjudicators may consider to find “special” knowledge. Some of the factors include whether the knowledge is uncommon compared to that of others; is of foreign operations; is especially beneficial in market competition; is difficult to teach to someone else without “significant economic cost or inconvenience”; or is of a sophisticated, complex, or highly technical product or process. The knowledge need not be unique to the company.

Although this policy memorandum is a step in the right direction, time will tell whether it will result in lowering the denial rate, streamlining the process, and creating consistency across adjudications. In the meantime, we look forward to helping employers and their prospective employees navigate the complex maze of immigration options available to help them achieve their goals.

If you need help with L-1 or H-1B visas, or have questions about employment-based or family-based immigration in general, please contact our Richmond, Virginia immigration law office today at 804-396-3412 or info@sumnerimmigration.com.