The Department of State (DOS) issued a memorandum to U.S. consular posts in an effort to define L-1B specialized knowledge. The memorandum lays out criteria that L-1B visa applicants can expect to encounter.? Of course, policy memoranda have a tendency to take some time for full implementation, but the guidance may permeate through U.S. consular posts fairly quickly.?? ?
The memorandum essentially applies a stricter standard than what has been seen at U.S. consular posts in recent history.? While this higher threshold has been applied over the past few years at U.S. Citizenship and Immigration Services (USCIS), it will be new for U.S. consular posts.
It is noteworthy that the law being relied upon for the heightened specialized knowledge scrutiny dates back to before the enactment of the Immigration Act of 1990.? Indeed, it goes contrary to more recent policy memoranda issued by USCIS applying a more relaxed burden of proof on sponsoring employers.
?Proprietary Knowledge?
The DOS notes that knowledge of proprietary products, services, or processes is not required, but recommends that adjudicators take it into consideration when making a determination.? It seems, therefore, that employees with knowledge of proprietary company information stand a better chance of success. The DOS cites the former INS standard that if ?it would be difficult to impart to another without significant economic inconvenience,? this may be dispositive to the outcome of determining specialized knowledge.?
?Key Personnel?
For larger companies with more than one employee holding a specified position, the issue of ?key? versus ?normal? personnel should be considered, according to the memorandum. ?In other words, consideration should be given to whether this employee is more experienced or otherwise has a deeper level of knowledge of a specific company function. This is not to say that only one employee of a particular job family can qualify.? Instead, he or she should be distinguishable from other ?ordinary? skilled workers within the company.?
?More than Ordinary?
The memorandum also instructs that the ?more than ordinary? standard should also be applied.? The dichotomy here is that the DOS also explains that the employee need not be extraordinary.? In trying to explain where this factor comes down, the memorandum notes that the employee?s work should involve knowledge of special company projects or greater than normal experience or knowledge.? There appears to be some overlap between the ?key personnel? and ?more than ordinary? standards.
Employer-Employee Relationships
Similar to USCIS?s position on this issue, in instances where an employee will be placed at the worksite of an unaffiliated company, DOS requires proof that the employee will be controlled and supervised by the sponsoring employer.? While the unaffiliated company may have input into what the employee does on a day-to-day basis, the main issue is the ultimate right of control ? this must reside in the sponsoring employer to maintain the requisite employer-employee relationship.
?
Graham Adair?will work?with?clients to anticipate the application of this stricter standard by supplying additional information about the nature of the transferring employee?s skills and experience. ?If a distinction about the employee?s specialized knowledge cannot be made, his or her visa application could be denied.