L-1B Specialized Knowledge:

How To Move Your Foreign Employees To Related Companies ?

Introduction

The L-1 Visa Intra-Company Transferee is available to employees of multi-national companies who are being transferred to a parent, subsidiary, branch, or affiliated company in the US.

The L1B visa may be used to transfer a specialized knowledge employee (L-1B) who has been employed abroad by the qualifying organization for one continuous year in the three years preceding admission to the U.S.

Let’s take a look at this important nonimmigrant visa category and see if the L1B is right for you.

QUESTIONS TO ASK YOURSELF

Q.Does a qualifying relationship exist between the U.S. company and the foreign company abroad?

Q.Will both the foreign company and the U.S company remain open, active and viable for the entire duration of the employment in the U.S.?

Q.Has the employee been employed overseas by the transferring organization for at least one year within the past three years?

Q.Do you possess knowledge that is valuable to the employer’s competitiveness in the market place?

Let’s take a look at this important nonimmigrant visa category and see if the L1B is right for you.

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A. L1B Visa- An Overview

The L1B visa category allows multinational companies to transfer specialized knowledge professional employees from abroad to related entities in the U.S.

In order to be eligible to file an L1B petition, the US employer must:

  • Have a qualifying relationship with a foreign entity- as an affiliate, parent, subsidiary or branch; and
  • Be doing business in the U.S. as an employer and at least one qualifying foreign related entity but also be doing business for the duration of the L1B.

The L1B intra company transferee must:

  • Have been employed by a qualifying foreign related entity for at least 1 year in the 3 years preceding admission to the U.S.;
  • Have “specialized knowledge” and be coming to the U.S. in a specialized knowledge capacity.

B. What Is “Specialized Knowledge?”

The regulations define specialized knowledge to be:

“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.”

Specialized knowledge does not apply to persons who have general knowledge or expertise, which enables them merely to produce a product or provide a service.

In the USCIS Memo released in August 2015 (“L-1B Adjudications Policy”), USCIS defines the terms “special knowledge” and “advanced knowledge” and explains that in order to obtain L-1B visa status, the foreign national needs to meet one of these standards:

  • 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.

It’s important to note that the foreign national needs to only meet one of these standards. The Beneficiary must either have special knowledge OR advanced knowledge.

DID YOU KNOW?
The L1B has a maximum validity of 5 years. L1B status can be granted for up 3 years initially, and if eligible, the L1B employee can obtain a 2-year extension. In order to extend status beyond the 5th year, the L1B employee can change to another nonimmigrant work visa status like L1A, H1B, or O1, if eligible.

C. Proving Specialized Knowledge

In filing the L1B petition, proving that the foreign national possesses specialized knowledge is often the most difficult hurdle. L1B employers should consider the following pointers in trying to prove specialized knowledge.


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1. How Does USCIS Decide If A Foreign National’s Knowledge Is Specialized?

At the threshold, specialized knowledge is proven through the employer’s supporting documentation. The employer, in its supporting letter, should describe each element necessary for establishing eligibility. When determining if the foreign national possesses “specialized knowledge”, USCIS is looking at factor such as:

  • Does the foreign national have knowledge about the foreign entity’s operations that has significant value?
  • Was the foreign national employed in a position or assignment abroad that led to increase in the employer’s productivity, competitiveness, image or financial position?
  • Can the “specialized knowledge” only be gained through employment with the employer?
  • Does the foreign national have knowledge of a product or process which would incur a significant economic cost or inconvenience if the employer had to try to teach or train a new employee?
  • Does the foreign national have knowledge of a process or product that is highly sophisticated, or is highly technical?
  • Does the foreign national have knowledge of a process or product that is integral to the employer’s competitiveness?
  • Does the foreign national have knowledge that is not or cannot be held or easily transferred to other individuals?

2. Detailed Description of The Services To Be Performed

The employer must submit a detailed description of the services that the specialized knowledge employee will perform, while also describing why the employer needs the foreign national’s specialized knowledge and the actual specialized knowledge that the foreign national possesses. The employer must be able to distinguish the foreign national’s knowledge and skills from that of others.

In describing the services and the foreign national’s specialized knowledge, it is imperative to be clear, concise, and specific, in language that is “simple” and gets the point across about the type of specialized knowledge.


H1B or L1B?

As opposed to the H-1B, there is no annual quota or cap for the L1, which means there is no lottery either. Check out our article H1B vs L1 Comparison: Which Visa Is Better?


3. Additional Evidence of Specialized Knowledge

In order to ensure approval, it is important, wherever possible, to demonstrate that the foreign national does in fact possess the described specialized knowledge. The type of evidence that USCIS is looking for includes, but is definitely not limited to:

  • Documents showing that the foreign national possesses the described training, work experience and/or education required for the specialized knowledge;
  • Documents showing how long the foreign national has been using or developing the specialized knowledge;
  • Evidence of any economic or other type of impact that the foreign national will have on the US organization due to the intracompany transfer;
  • Evidence that the foreign national has knowledge about the foreign entity’s operations that would contribute significantly to the US operations because it is knowledge that is not found within the US entity;
  • Contracts and other documents showing that the foreign national has knowledge that will increase the US entity’s competitiveness in the marketplace;
  • Documents showing that the foreign national’s position in the foreign entity involved assignments that had a direct impact on that entity’s productivity, competitiveness, image and/or financial position;
  • Company Records showing that the foreign national’s specialized knowledge can ONLY be gained through experience and/or training with the company;
  • Training manuals or other internal company documents for the training courses that show that the beneficiary’s specialized knowledge cannot be gained by or taught to another individual without significant expense to the employer;
  • Patents, trademarks, licenses, or contracts that are attributed to the foreign national and/or hi work (these types of evidence show that the foreign national’s work is complex, highly technical or sophisticated);
  • Payroll and/or federal or state wage statements, organizational charts or other similar evidence which show the foreign national’s compensation and position.

4. How Have L-1B Adjudications Changed Since The August 2015 USCIS Memo?

The August 2015 L1B Memo gives additional tips on how to prove “specialized knowledge” and shows that the term does not need to be narrowly construed. Things to remember:

  • Although helpful and often dispositive, specialized knowledge does NOT have to be proprietary: The employer does not have to show that the foreign national could not have gained his or her experience or knowledge at another company or show that the employer is the only company that has the process or product that is the subject of the foreign national’s specialized knowledge.
  • The employer should NOT have to prove that there are no available workers in the US. USCIS may examine if there are many individuals who have the “specialized knowledge” such that the knowledge becomes general or common, but the employer does not have to prove that there are no available workers in the US in order to obtain the L1B.
  • USCIS should not deny the L1B petition just because there are other employees within the company that have the same or similar specialized knowledge. If there are multiple employees with the specialized knowledge within the company, the US employer must be ready to show why they still need to transfer the foreign national to the US.
  • The foreign national’s position, rank or compensation should not be determining factors in an L1B petition. While foreign national’s rank or compensation may be used by the employer to evidence that the individual does have specialized knowledge, rank and compensation should not be used by USCIS to discount the existence of specialized knowledge.
  • USCIS should not consider whether or not the specialized knowledge employee qualifies for another type of visa. The officer should solely be focused on whether or not the foreign national has specialized knowledge.

D. Filing A Change of Status From L-1B To L-1A

The regulations limit the availability of the full seven years of L-1A status for someone originally admitted in L-1B status to where a promotion occurs from a specialized knowledge position to a managerial or executive position. Specifically, the regulations read:

When an alien was initially admitted to the United States in a specialized knowledge capacity and is later promoted to a managerial or executive position, he or she must have been employed in the managerial or executive position for at least six months to be eligible for the total period of stay of seven years. The change to managerial or executive capacity must have been approved by USCIS in an amended, new, or extended petition at the time that the change occurred.

This provision caused some concern among immigration advocates because there were denials in the past at some USCIS

Service centers. Some adjudicators interpreted the regulation to require approval of an L-1A petition before four and one-half years of L-1B status had occurred.

Additionally, the final sentence of the regulation made it appear that the practitioner must file two separate petitions–one to notify USCIS of the change in job duties, and another one six months later to be eligible for the total period of stay of seven years.

The American Immigration Lawyers Association (AILA) brought this problem to the attention of USCIS in its March 23, 2006, meeting and the received the following response:

The regulation requires that USCIS has “approved” the change to managerial position at the time of the change. This is in accordance with the independent regulatory requirement that the petitioner inform us of any changes in “capacity of employment.” So not only must the alien have been in the new position for six months at the time of filing the extension from five to seven years, but USCIS must have approved that change when it happened. However, the centers should not deny an extension request simply because it was FILED during the final six months of the five-year stay. It can be filed the last day if need be, so long as the change occurred at least six months ago. The reason for requiring the extension at the end of six months is to establish the bona fides of the promotion. This is an important fraud deterrent–an appropriate indicator of the legitimacy of the managerial position. Therefore if the filings were to be combined after the beneficiary was in the promoted position would not meet the requirement that the beneficiary has been in the “position” for six months since the petition record would only reflect the original position. Therefore, with regard to a promotion at or during the last six months, premium processing would be the option.


An Employee In L-1B Status Was Recently Promoted To An Executive Position. Should We Change Status To L-1A?

Changing status from L-1B to L-1A would be a good strategy because the employee will be entitled to a 7-year maximum stay on L-1A as compared to 5-year stay on L-1B. The petition for change of status to L-1A from L-1B can only be filed after being employed at least six months in a managerial or executive capacity. L-1A may also pave way towards a quicker route to Green Card.


E. Tips For Filing Change of Status From L-1B To L-1A

When filing a change of status from L-1B to L-1A, make sure that the beneficiary has been a manager or executive for at least six months prior to filing for the additional two-year period. Document evidence of the change in duties and when it occurred, and that the USCIS approved the change at the time it occurred.

  • When filing for the additional two years within the last six months of L-1B time, ensure that the person has been in the managerial position for at least six months at the time of filing and file premium processing.
  • If filing a change of status from L-1B to L-1A, consider whether the person may also qualify for an H-1B. If a labor certification has been filed for the beneficiary in the EB-3 category, or EB-2 if a Chinese or Indian national, then time the filing of the cap case to ensure the beneficiary can have indefinite extensions of stay in H-1B status after the seventh year in L-1A status, or fifth year in L-1B status.
  • A beneficiary may change from L-1B to L-1A if the US position qualifies, even if the beneficiary was never a manager or executive in the foreign office. But remember that the beneficiary will not qualify for EB-1 status if that is the case.

Conclusion

The L-1B, while it has its share of issues to watch out for, can be a very useful tool in the immigration “toolbox” of any company doing business in the US. Its advantages – no annual cap, no prevailing wage requirements, dual intent, and employment authorization for spouses – far outweigh many of the alternatives available. With skillful preparation and careful documentation you can move your employees between related companies as needed.

Visapro can provide you with the expert guidance necessary to be successful with your L-1 applications.

Our experienced Immigration attorneys are always there to assist you.

Contact VisaPro if you have any questions regarding the L-1B Visa or need help in filing. Our experienced attorneys will be happy to assist you.


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