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An RFE for an L-1B Intracompany Transfer Visa for Employees with Specialized Knowledge
L-1B Background Information
An observable increase has been noted in L-1 requests for evidence (RFEs) in recent years as USCIS continues its high scrutiny of nonimmigrant work visa petitions. The L-1B visa is utilized by multinational companies transferring employees to their United States affiliates for employment in positions requiring specialized knowledge. The definition of this so-called "specialized knowledge" is not all that clear, however, which causes USCIS to question many petitions resulting in numerous RFEs.
While it is clear to the employer in such situations that the employee has specialized knowledge, thereby establishing him or her as indispensable to its U.S. operations, cases such as this generally need to be sufficiently supported by the explanations and the relevant documentation.
A vital component of any successful L-1B petition is providing convincing evidence that the offered position in the U.S. requires specialized knowledge and that the employee in fact has the requisite specialized knowledge.
What presents most challenges in these cases is the definition of "specialized knowledge." USCIS has not been consistent in reviewing evidence under the specialized knowledge standard.
Under USCIS Policy Memorandum entitled "L-1B Adjudications Policy" from August 17, 2015, a beneficiary seeking L-1B classification should, as a threshold matter, possess:
• Special knowledge, which is knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets that is distinct or uncommon in comparison to that generally found in the particular industry; or
• Advanced knowledge, which is knowledge of or expertise in the petitioning organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity and understanding than that generally found within the employer.
Determining whether a beneficiary has “special knowledge” requires review of the beneficiary’s knowledge of how the petitioning organization manufactures, produces, or develops its products, services, research, equipment, techniques, management or other interests. Determinations concerning “advanced knowledge,” on the other hand, require review of the beneficiary’s knowledge of the specific petitioning organization’s processes and procedures. With respect to either special or advanced knowledge, the petitioner ordinarily must demonstrate that the beneficiary’s knowledge is not commonly held throughout the particular industry. However, a beneficiary’s knowledge need not be proprietary in nature or narrowly held within the petitioning organization to be considered specialized.
Because “special knowledge” concerns knowledge of the petitioning organization’s products or services and its application in international markets, the petitioner may meet its burden through evidence that the beneficiary has knowledge that is distinct or uncommon in comparison to the knowledge of other similarly employed workers in the particular industry.
Because “advanced knowledge” concerns knowledge of a petitioning organization’s processes and procedures that is not commonly found in the relevant industry, the petitioner may meet its burden through evidence that the beneficiary has knowledge of expertise in the petitioning organization’s processes and procedures that is greatly developed or further along in progress, complexity and understanding in comparison to other workers in the employer’s operations. The focus here is primarily on whether the beneficiary’s knowledge of the processes and procedures used specifically by the petitioning organization is advanced.
Some of the relevant factors that USCIS considers in the determination whether the beneficiary's knowledge is specialized include the following:
- the beneficiary's knowledge of foreign company's operations has significant value to the petitioning organization’s U.S. operations;
- the beneficiary's foreign position included assignments that have significantly enhanced the employer’s productivity, competitiveness, image, or financial position;
- the beneficiary’s knowledge can ordinarily be gained only through prior experience with the petitioning organization;
- the beneficiary's knowledge of a product or process cannot be easily transferred or taught to another individual without significant economic cost or inconvenience because of substantial training, education or work experience required;
- 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.
An L-1B Request for Evidence Success Story
Sean enlisted our help for the reason that, upon the initial filing of his L-1B petition, he then received an RFE demanding more information and support in establishing that the beneficiary met the requirements of an employee with the required specialized knowledge criterion. The RFE was particularly lengthy in that it inquired on everything within the petition's contents from the position’s requiring of specialized knowledge to the company's coherent meeting of the L-1B transfer requirements.
Establishing a Qualifying Relationship Between the Companies
The first overriding inquiry in the RFE concerned the bona fide qualifying relationship between the foreign company and its office in the U.S. The ownership structure of the company had in fact shifted recently, but we were still able to demonstrate the parent-subsidiary relationship through the presentation of stock certificates, bank statements, wire transfers, stock ledgers and capitalization charts, thus legitimizing the relationship.
Establishing the Position as One Requiring Specialized Knowledge
Delineating the position's Duties
USCIS also requested in its RFE an account of the position's duties in greater detail. We carefully itemized the amount of time each specific responsibility would require, making it emphatically clear just how the role would require an employee’s specialized knowledge such as that of our client's. We also provided further documents such as organizational charts and employee task charts in order to paint a persuasive picture that the position was one that required Sean's specific awareness of the company's inner workings.
The Applicant's qualifications and Impact
In addition, it was of vital importance that the RFE's response sufficiently emphasize the impact that the beneficiary’s specialized knowledge would have on the petitioner's U.S. operations as well as demonstrate that the worker could not simply be replaced by someone else in the U.S. of a similar caliber. With those necessities in mind, we acquired multiple documents from key individuals critically involved in the U.S. company in addition to being well positioned to attest to the employee’s specialized knowledge of the company’s product and services as well as his irreplaceable nature in the organization. Documents of the proprietary technology were also provided to USCIS, irrefutably demonstrating the specialized knowledge necessary to perform Sean's proffered role in the company's U.S. office.
As a result of our efforts, the case was approved, it being made clear to USCIS that the position required an individual of specialized knowledge and that Sean possessed the qualifications for the specialized role. Although the standard of adjudication is high to demonstrate that the beneficiary qualifies for an L-1B specialized knowledge position, it remains possible to do so through a strategically gathered documentation of the position’s duties, the company’s products and services, the position’s placement in the organizational chart and the beneficiary's qualifications.