Frustrated woman.jpg[Bloggers Note:  Today’s guest column comes from noted Atlanta-based business immigration lawyer, Eileen M.G. Scofield, who addresses a subject covered often before on NationOfImmigrators, the business-critical L-1 Intracompany Transferee visa category. (See, e.g., “The L-1 Intracompany Transferee Visa Facing Attack — from All Branches of the Federal Government, Part I and Part II.  Eileen and I, together with Miami immigration attorney, Jeffrey A. Bernstein, will speak later this week on “Surviving the ‘L’ Landscape” at the 35th Annual Immigration Law Update South Beach, hosted by the South Florida Chapter of the American Immigration Lawyers Association. Although her article is written for an  immigration-attorney audience, it offers a useful background and fresh insights and practice pointers helpful to all readers. Note the image to the right is not Eileen Scofield; rather it depicts a frustrated individual whose level of obvious stress and angst mirrors that of the L-1 stakeholder community.]

What the “L” is Going on with USCIS?

By Eileen M.G. Scofield

 Introduction

L-1 filings were once familiar territory.  The statute and regulations provided a useful roadmap, and practitioners were soon comfortable navigating it with ease and efficiency.

As more experienced L-1 visa practitioners know, changes in the L-1 process in recent years necessitate changes in the way we approach the L-1 process.  Whereas the familiar guide provided by statutory, regulatory and judicial law was once sufficient; recent regulatory and policy changes have laid landmines, dug potholes, and strewn debris across the road, causing even the most experienced traveler to require a careful trek.  In order to survive the journey on this once-familiar landscape, now we m we must also pay attention to issues related to national security, fraud, politics, economics, various administrative directives, internal agency guidance into the L-1 diet in order to survive.

In light of these many issues, all practitioners need to revisit how they draft L-1 petitions, and as well, what they seek from the petitioner and beneficiary in the course of advising on L-1 petitions. And while the filing location and/or the A or B classification was often not in need of extensive analysis, in today’s environment, it is. Recent procedural changes at USCIS make the Request for Additional Evidence (“RFE”) more of an exception than a rule.  And once filed and approved, what later issues should be anticipated. While this discussion will focus overall on Service Center Based Filings, the overall guidance might add value to other filings as well.

By way of reference, this discussion focuses on changes in USCIS policy as they apply to L-1B petitions.  However, the same principals also affect L-1A filings as well.  The practice pointers in particular can easily be reworked to apply to L-1A specific concepts.

Upheavals in the L-1 Landscape: Changes Abound, Denials Increase, “New” Rules Appear – What Happened to L?   

On October 9, 2012, USCIS and AILA discussed a number of issues including the adjudication of L-1B visa petitions.[1]  There were two questions and answers on the agenda regarding adjudications of L-1B nonimmigrant visa petitions. One dealt with L-1B specialized knowledge in general, and the other focused on the significant impact on “new office” situations. Here is the question that was raised:

Question 6f: Statistics released by USCIS and a recent study by the National Foundation for American Policy[2] have shown that the rates of requests for evidence and denials for petitions in the L-1B classification have increased dramatically and that the standard for what qualifies under the L-1B classification has been severely limited (AILA Doc. Nos. 12082954 & 12020964). This has been a particular burden on new and emerging companies in the U.S. The increase in requests for evidence and denials has happened even as practitioners have been overly cautious in recommending the l-1B classification to their clients. On January 24, 2012, AILA submitted a memorandum to USCIS on the current interpretation of “specialized knowledge” (AILA Doc. No. 12012560). Please update us on USCIS’ review of the memorandum and on the long-promised L-1B memorandum. (Policy)

Response: USCIS continues to review the issues related to the interpretation of “specialized knowledge,” and is considering AILA’s memorandum of January 24, 2012 as part of this review.[3]

The February 2012 NFAP Policy Brief cited by AILA provided an analysis of data that revealed high denial rates for L-1 and H-1B petitions at the USCIS. NFAP surmised that the increased rate of denials has resulted in harming the competitiveness of US employers and has discouraged companies from bringing new business and jobs into the United States.[4] According to NFAP’s executive summary:

[t]he evidence indicates adjudicators or others at U.S. Citizenship and Immigration Services changed the standard for approving L-1B and other petitions in recent years, beginning in FY2008 and FY 2009. If one considers that in FY 2011 63 percent of all L-1B petitions received a Request for Evidence and 27 percent were issued a denial, that means U.S. Citizenship and Immigration Services adjudicators denied or delayed between 63 percent to 90 percent of all L-1B petitions in 2011.”[5]

This change in adjudication came about without any change in law or regulations before or during this same period. It is unclear, therefore, why such a significant change in adjudicatory procedures has changed. Practitioners can only conclude the changes result from unannounced internal agency changes, which is the conclusion reached by NFAP. Further, the data analyzed by NFAP indicates that the stark increase in denials and delays is even greater for visa petition beneficiaries from India.[6] One of the results of this adjudicatory trend is a significant decrease in the number of L-1 visa petition filings with the USCIS Service Centers.[7]

A review of recent RFEs and denials issued by the USCIS shows that the current theme in L-1 adjudications follows the following principles:

  1. Qualifying experience

One year of experience with the foreign company within three years of transfer to the United States is no longer sufficient, despite statutory and regulatory language indicating otherwise.[8] For one company, three denials with the following similar language were issued: “In this case, the beneficiary has only been working with your organization since July 2010 and the petition was filed on August 2012.” In the fourth case, where the individual had been employed for four years, this sentence was not included.

  1. What is “special knowledge”?

Under the INA, “an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.[9] The regulations further define the term 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.[10]

            These same denials included the following paragraph:

While there is no requirement that an L-1B specialized knowledge employee possess proprietary knowledge of your company’s processes and methodologies, you state in your petition that the beneficiary here is familiar with them. There is no indication in the record however whether others in the field could obtain such knowledge in sufficient time so as not to cause a disruption or interruption of your business operations. If such company-specific knowledge is easily transferable to, or obtainable by, other dynamic decision making turnkey solutions professionals in the field without causing disruption to your business, this is a strong indicator that the knowledge in question is not special or advanced.  By contrast, had a beneficiary been responsible for the development of your proprietary tools, processes, and methodologies, not being able to obtain that person’s services might in fact result in a significant disruption to your business.

This interpretation is that only if the individual was directly responsible for the development of the proprietary tools, processes, and methodologies would that person be possibly qualified for an intracompany transfer. This removes from consideration key employees who were perhaps not involved in the design and development but have significant experience in applying the principles and techniques as part of a service organization and who are in the better position than the actual designer to deploy the product and/or service. Nowhere in the statute nor in the regulations does it at all indicate that entire classifications of employees are forestalled from being considered for L-1B transfers. It is also noteworthy that in issuing the denials, the USCIS examiner also took pains to note that — because the proposed positions fall within one of the occupations listed in the Department of Labor’s Occupational Outlook Handbook (OOH) — there was insufficient evidence to determine whether the position of Senior Quality Assurance Engineer involved “a special or advanced level of knowledge in the dynamic decision making turnkey solutions field or related occupation.”

3.         Managerial Capacity

In the L-1A field, recent RFE experience shows that USCIS is focusing heavily on organizational substructures.  No longer do examiners simply accept the company’s detailed description of duties.  Rather USCIS now uses a variety of means to investigate the job qualifications of both the beneficiary and his subordinates.  Examiners have been seen scoping job postings at related companies in the corporate family to determine similar requirements for positions.  Special attention has been placed on the educational qualifications for subordinate positions, with supervisory and managerial duties themselves being disregarded.

PRACTICE POINTER: Dealing within the current legislative framework?

  1. Advise petitioners that one year of qualifying employment with the foreign entity may be insufficient.
  2. If the individual beneficiary was not the key developer of a particular proprietary technology, methodology, or business program, then USCIS may find that the individual does not have specialized knowledge. (And further, even a demonstration that the beneficiary did play such a lead role will not guarantee approval of an L-1 visa petition.)
  3. Describe the individual’s experience with the organization in such a way as to outline why his or her experience is different not only from those in the U.S. labor market, but also from other employees within the sponsoring organization. USCIS often cites to Webster’s New College Dictionary to define “special.” Practitioners are on notice to do the same.  This same principal applies to other terms as well.
  4. Explain why the experience could only have been gained through employment within the organization. Focus on the petitioner’s products and methodologies and their applications. Give special care if the individual is using other company’s products and technologies to explain how the use, methods, procedures, etc. tie into the sponsoring petitioner’s business. This is also true if the employee will be deploying a product to an end-client Focus on the petitioner’s business, not the client’s business.
  5. Work with the petitioner to specify the nature of the claimed special knowledge. Focus on why it is necessary to have this special knowledge to perform the duties of the U.S. position, and outline how the special knowledge was gained.
  6. If the position can be classified as a standard occupation that may be listed by the DOL in its Occupational Outlook Handbook, then explain why the sponsored position is not simply identical to the standard occupational role. Differentiate the sponsored position from the standard job description, so that USCIS understands that others in the occupation would not have the same level of knowledge and expertise as the beneficiary.
  7. How is the work currently being handled without this individual? If this is a new role or need, explain why. If the L-1B nonimmigrant’s transfer to the United States will result in more job opportunities in the United States, make this explicit in the support letter.
  8. Salary matters. If the employee is key to the organization, he or she should be compensated as such. Despite the fact that there is no per se wage requirement, be wary of low wage offers being sponsored for L-1B visa status.
  9. What is the financial implication of the transfer? What happens if the individual is not granted the L-1B? What happens to the business?

10.  Given the current L-1B adjudication trends, consider filing an H-1B visa petition or any other category that maybe available.

11.  If filing an L-1A petition, pay careful attention to the organizational chart.  USCIS puts special focus on these charts and expects to see each subordinate carefully detailed.  The more detail the chart can show regarding the duties and qualifications of subordinates, the easier the RFE response will be.

12.  Be careful to include evidence that subordinates have bachelors degrees and that these are required to perform the duties.  USCIS tends to define “professional” as meaning “in possession of a bachelors degree” and tends to ignore supervisory or managerial duties of subordinates.   Be clear in the petition exactly what type of role each subordinate is filling, and if that is not a so-called “professional” position, make it clear that the person is a supervisor or manager and thus “professional” status is not required.

13.  Review the job duties of each subordinate employee and flag job postings within the company and other members of the corporate family that have similar positions.  Ensure that the qualifications for these positions qualify under the USCIS definition of “professional” or consider restricting access to these postings until after the filing.

Practice Pointers: Draft your own map

One major issue with L-1 filings is a lack of clarity as to what USCIS is looking for.  If allowed to set the parameters of their review, USCIS inevitably comes up with undefined standards and uses them as an excuse to deny valid petitions.  The problem is that the L-1 landscape they have created has no formal roadmap.  Often, the best solution is to provide them with a map to follow.  As with the above, the following is an example regarding specialized knowledge, but the same principles of immigration cartography can also apply to a variety of standards the government seems to want to view as nebulous.

It often seems as if the USCIS position on what qualifies as specialized knowledge boils down to the “I know it when I see it” standard.  If you combine this with not bothering to read what is submitted in a petition, then the adjudicator never has to “see it” at all.  

Present USCIS practice is simply to redefine the rules by making “specialized knowledge” something indefinable, or unattainable, then it can sometimes help to remind the adjudicator of what the real rules are.  The following is an example of how you may be able to do this.  It may not avoid the RFE, and it may not even help to win on the RFE, but then again it might.  And it also helps to lay a foundation for appeal or litigation if your client is so inclined.  So with that, we suggest that you may want to include some or all of the following in your petition or RFE response.

Specialized Knowledge

It appears from the request for additional evidence (RFE) that, notwithstanding the detailed explanation of the beneficiary’s qualifying experience and proposed duties that we provided with the petition, your office needs additional evidence showing that the beneficiary possesses specialized knowledge and that her proposed duties require specialized knowledge.   We trust that the following will satisfy that request, and that it will establish by a preponderance of the evidence that the beneficiary qualifies for L-1B classification.

 

The starting point for the definition of “specialized knowledge” is the Immigration and Nationality Act (INA) and the regulations governing the statutory language.  Under section 101(a)(15)(L) of the INA, in order to qualify for L-1B status, a foreign national’s position must “involve specialized knowledge.”  The regulations at 8 CFR Section 214.2(l)(ii)(D), explain:

 

“Specialized knowledge means 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.” (emphasis added).

 

This explanation was further defined in a March 9, 1994 Guidance Memorandum from James A. Puleo, Acting Executive Associate Commissioner.  This guidance was re-affirmed in a December 20, 2002 memorandum from Fujie Ohata, Associate Commissioner for Service Center Operations. In his memo, Mr. Puleo stated in part (emphasis added):

The current definition of specialized knowledge contains two separate criteria.

***

The statute states that the alien has specialized knowledge if he/she has special knowledge of the company product and its application in international markets, or has an advanced level of knowledge of the processes and procedures of the company.

***

Webster’s II New Riverside University Dictionary defines the term “special” as “surpassing the usual; distinct among others of a kind.” Also Webster’s Third New International Dictionary defines the term “special” as “distinguished by some unusual quality; uncommon; noteworthy.”

Based on the above definition, an alien would possess specialized knowledge if it was shown that the knowledge is different from that generally found in the particular industry.  The knowledge need not be proprietary or unique, but it must be different or uncommon.

Further, Webster’s II New Riverside University Dictionary defines the term “advanced” as highly developed or complex; at a higher level than others.  Also, Webster’s Third New International Dictionary defines the term “advanced” as “beyond the elementary or introductory; greatly developed beyond the initial stage.”

Again, based on the above definition, the alien’s knowledge need not be proprietary or unique, merely advanced.  Further, the statute does not require that the advanced knowledge be narrowly held throughout the company, only that the knowledge be advanced.

* * *

There is no requirement in current legislation that the alien’s knowledge be unique, proprietary, or not commonly found in the United States labor market.

Mr. Puleo’s memorandum goes on to set forth some of the characteristics of a specialized knowledge employee, but specifically states that these are not “all inclusive.”  They include:

  • Possesses knowledge that is valuable to the employer’s competitiveness in the marketplace;
  • Is qualified to contribute to the U.S. employer’s knowledge of foreign operating conditions;
  • Has been utilized abroad in a capacity involving significant assignments which have enhanced the employer’s productivity, competitiveness, image or financial position;
  • Possesses knowledge which normally can be gained only through prior experience with the employer;
  • Possesses knowledge of a product or process which cannot be easily transferred or taught to another individual.

We note as well that the controlling regulations and the subsequent interpretation and application of those regulations as referenced above follow passage of the Immigration Act of 1990 (IMMACT), which was enacted in part to overturn a handful of conflicting agency decisions that occurred prior to passage of IMMACT.   Those decisions, some of which were designated as precedent decisions at the time, are now largely irrelevant in light of the passage of IMMACT.  Of particular significance to the pending petition, IMMACT Section 206(a) added the following language to 8 U.S.C. §1184(c): 

 “(B) For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company. (emphasis added.)

The regulations at 8 CFR §214.2(l)(ii)(D), that were enacted following passage of IMMACT remain in force today, and clarify that:

Specialized knowledge means 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. (emphasis added).

Accordingly, the statute, the regulation, and the agency guidance referred to above make clear that there is no requirement that the knowledge be both special and advanced. 

Similarly, there is no requirement that the knowledge be special within the petitioner’s organization. In short, the controlling authority establishes that “specialized knowledge” is (1) special knowledge of the company’s product, service, research, equipment, techniques, management or other interests and their application in international markets; (2) that is different from that generally found in the particular industry, where (3) the employee possesses characteristics that are the same as or substantially similar to those identified in Mr. Puleo’s March 9, 1994 memorandum.

Based on the foregoing, we respectfully maintain that the record amply reflects the beneficiary’s specialized knowledge. 

Practice Pointer: Fault Lines and Fault-Finding

In the real world, many geographical features are set by fault lines.  They create mountains, valleys, and many other otherwise incontrovertible features.  In L-1 geography, however, sometimes USCIS will point to a feature and attempt to give it another name.  The way to deal with this is to point at their “faulty faults” and establish the true rules with argument and evidence.  In much the same way a stubborn child would do, you should consider looking at the USCIS’s determinations and statements and say “Oh yeah?  Says Who?”

Again, this example focuses on specialized knowledge, but the same principles apply to other areas as well.

USCIS sometimes avoids having to give any reasonable or rational explanation for a failure to find specialized knowledge is by rejecting your client’s statements as unreliable because they are unsubstantiated and self-serving.  As often as not, USCIS will cite Matter of Treasure Craft of California, 14 I. & N. Dec 190 (Reg. Comm. 1972), as authority for rejecting your client’s statements in support of the agency’s own self-serving outcome-oriented analysis.  Again, it may not ensure that you prevail on the RFE, but it still could prove worthwhile to point out what Treasure Craft really says, and then to argue that the petitioner’s statements satisfy the preponderance of the evidence standard:

In Matter of Treasure Craft of California, 14 I. & N. Dec 190 (Reg. Comm. 1972), the Commissioner essentially set forth three propositions in connection with considering otherwise unsubstantiated information provided by a petitioner or applicant.  Those propositions are:

  • It is proper to consider all of the facts in a visa petition proceeding in arriving at a conclusion regarding the issues;
  • The petitioner’s statement must be given due consideration; and,
  • The petitioner’s statement should be rejected only when it is contradicted by other evidence in the record of the matter under consideration.

Treasure Craft involved an H-3 trainee petition on behalf of four Mexican nationals, all of whom were already working without documentation for the petitioner.  The petitioner sought to qualify the beneficiaries as trainees in a program that would train them in various aspects of the pottery making industry, and the District Director denied the petition. The Regional Commissioner, in dismissing the petitioner’s appeal, wrote “Counsel’s argument that the petitioner need only go on record as stating that training [in making ceramic pottery] is not available outside the United States is rejected in this matter.  It is commonly known, and administrative notice is taken of the fact, that Mexico exports pottery to the United States in successful competition with United States manufacturers. ” id. at page 3 (emphasis added).  In taking administrative notice of Mexico’s healthy pottery industry, the Regional Commissioner cited evidence that called into question the petitioner’s statements, and accordingly rejected the petitioner’s unsupported, and largely unbelievable, contention that no adequate opportunities for training in ceramics fabrication existed for the beneficiaries in Mexico.  The opinion goes on to hold that,

[I]t is proper to consider all of the facts in a visa petition proceeding of this nature in arriving at a conclusion regarding the issues.  The petitioner’s statement must be given due consideration; however, this Service is not precluded from rejecting such statement when it is contradicted by other evidence in the record of the matter under consideration.

id. at page 4.  (emphasis added).  Accordingly, in the absence of evidence in the record that contradicts the petitioner’s statements, the petitioner’s assertions with respect to the specialized knowledge possessed by the beneficiary must be given “due consideration,” and should not be dismissed or discounted.  When the petitioner’s statements are accorded the evidentiary value they deserve, it becomes abundantly clear that the petitioner has established by a preponderance of the evidence that the beneficiary possesses specialized knowledge.

Landmines for the Unweary Traveler: Vulnerabilities and Potential Abuses of the L-1 Visa Program, But by Whom?

The regulatory and legislative history surrounding the L-1 visa make it clear that the purpose of the L-1 visa category is to enable employers/companies to transfer key personnel into the United States, but recent trends have reduced the ability of the employer to persuade USCIS that an employee is key. Employers are greatly enhancing the documentation provided and struggling to meet seemingly new requirements that have sprung up despite no changes in the law or regulations. Matter of Treasure Craft of California, discussed above, like certain nasty vegetables, must be known, and addressed in L-1 petitions. While terribly unfortunate that it is used as a tool to undercut the credibility of a petitioner and as well as to support the agency’s own self-serving outcome, if not aware, the surprise can be disastrous for many.

So query, what is the source of all this negativity? At a time when the research and headlines are all in support of the L-1 visa classification, and its many benefits to the U.S., it would seem the reverse course would be taken:

  • Startup Visa Could Create at Least 1.6 Million U.S. Jobs in Next 10 Years, According to Kauffman Foundation Report, February 27, 2013,Rose Levy and Barbara Pruitt, Media Contacts for Foundation;
  • Not Coming to America, Why the U.S. is Falling Behind in the Global Race for Talent, May 2012,By:  Partnership for a New American Economy
  • Q&A:  U.S. Immigration Policy and Entrepreneurship, February 28, 2013,by Rob Matheson

Today at DHS, and its many tentacles, immigration benefits are now a lower priority, preceded first by national security and fraud detection. As disclosed on February 15, 2012 by Alejandro N. Mayorkas, Director of U.S. Citizenship and Immigration Services before two House committees, anti-fraud and fraud detection are such a priority that he outlined 16 programs undertaken by USCIS related to fraud and security. In addition, in 2005, the DHS Office of Inspector General (“OIG”) sought to find and identify fraud and those factors which led to fraud in the realm of the L-1 visa category. Accordingly, OIG met with DHS program managers in Washington, DC, adjudicators and supervisors at the four service centers, consular staff at 20 of the largest L-visa issuing posts, and also employees at the Kentucky Consular Center’s Fraud Prevention Office. OIG did not apparently meet with the U.S. Chamber of Commerce, US Department of Commerce, Small Business Administration, any of the 50 plus state level business development agencies, any L-1 visa holders, or trade associations or L-1 petitioners for that matter.  In 2006 The OIG published its report wherein it determined that the L-1 program is vulnerable to abuse and fraud   for a variety of reasons, but most immediately, because:

1.         “The program allows for the transfer of managers and executives”,[11] but in 2006, after decades of use of the L-1 for manager and executives, “adjudicators find it difficult to be confident that a firm truly intends using an imported worker in such a capacity”[12];

2.         “The program allows for the transfer of workers with “specialized knowledge””[13], but in spite of the decades of use and guidance, “the term specialized knowledge is so broadly defined that adjudicators believe they have little choice but to approve almost all petitions;”[14]

3.         “The transfer of L-1 workers requires that the petitioning firm is doing business abroad”, but, in spite of the world wide web and the expediential growth in global access to data,, adjudicators now “have little ability to evaluate the substantiality of the foreign operation”[15]

4.         The program allows for start-up operations that do not yet have operations in the U.S.,[16] and even though that was the specific intent of the law, now adjudicators do not know how to process that part of the law;

5.         The program “permits petitioners to transfer themselves,”[17] and again, even though this ability, in certain circumstances, to transfer oneself to the U.S., is covered under the regulations to the adjudicators, this cannot be right.

Interesting as well, the OIG report highlights that these last two points in particular represent the “windows of opportunity” for the L-1 abuse that is occurring.[18] Also of note, the report refers always to “the program” and not to “the law”.

This L-1 based OIG report webs nicely with the recent USCIS memo wherein USCIS outlines the its definition of “fraud indicators”, petitioner with a gross annual income of less than $10 million, 25 or less employees, established within last 10 years. October 31, 2008 Internal Guidance Memo from Donald Neufeld, Acting Associate Director, Domestic Operations.  HQ 70-35.2, reprinted at AILA InfoNet Doc. No. 12052252, 5/22/12. Then too, there has been discussion that the Fraud Detection and National Security of DHS will soon investigate the use of L-1’s, and expand its investigations of the same to include site visits similar to the FDNS program for H-1B petitions which has yielded few instances of fraud.[19]

As a result of these recent trends, USCIS has added the noted additional L-1 requirements, and has also dramatically increased the use of the RFE as a tool to vet out all that “fraud” in the L-1 visa classification. As previously noted this activity has been confirmed in the National foundation for American Policy and addressed in other sources as well.[20]

A typical example of this phenomena was noted when a 45 year old company, with offices in 16 countries (manufactures, sells and services its products globally), decided that its U.S. sales required the establishment of a U.S. sales and service office. This practice has been recognized by business and immigration officials for decades.  The company elected to transfer a 60 year old Canadian national, one of its most seasoned executives, to the new U.S. subsidiary as President. The initial L-1A visa petition was finally approved for one year, but only after a 6 page RFE was issued. After the new office one year was completed, and three U.S. employees, the L-1A visa petition extension was denied, again after a juicy RFE.  USCIS concluded that because the President was also a degreed engineer, the evidence did not support a finding that the President of the company was really an executive and/or a manager.. When the company changed tactics and filed an L-1B visa petition, USCIS, then issued the next RFE seeking the following data:

1)         Describe a typical work week for the beneficiary, to include a discussion of the specialized nature of his position.

2)         Identify the manner in which the beneficiary has gained his specialized knowledge.

3)         Provide evidence showing either:

(a)        The beneficiary’s knowledge is uncommon, noteworthy, or distinguished by some unusual quality and not generally known by practitioners in the beneficiary’s field of endeavor; or

(b)        His advanced level knowledge of the processes and procedures of the company distinguish him from those with only elementary or basic knowledge. 

4)         Provide evidence to show that the knowledge possessed by the beneficiary is not general knowledge held commonly throughout the industry but that it is truly special or advanced.

5)         Indicate the minimum amount of time required to train an employee to fill the proffered position.

6)         Specify how many workers are similarly employed by your organization.

7)         Of these employees, indicate how many have received training comparable to the training administered to the beneficiary.

8)         “The purpose of the L-1B provision is to facilitate the admission of key personnel for those companies who require an employee with advanced knowledge to perform duties in the United States.  Most individuals working for a company may be considered ‘specialists’ to some degree, since they have a certain amount of training specific to their employment.  It cannot be concluded, however, that all employees who hold special knowledge qualify as ‘specialized knowledge’ workers.” Provide evidence of the advanced training and advanced knowledge.

As the law states, Section 101(a)(15)(L) provides for the admission of “an alien who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge.”[21]

The relevant 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.”[22]

Per USCIS, one with specialized knowledge is not a specialized knowledge worker. Specialized knowledge is not enough because ADVANCED specialized knowledge is required. In addition, employers must address whether another person could instead be employed in the same capacity. Nothing in the L-1 statute or the regulations lends itself to these requirements. The established law requires merely that the Beneficiary has specialized knowledge, and will be employed in a capacity that involves this specialized knowledge. It would seem that the reason the OIG notes confusion about the definition of specialized knowledge in its report, is not due to the statute, or regulations, but instead due to some adjudicators and the RFE template language produced by USCIS.  

The manner in which Specialized Knowledge is gained now also appears to be a factor in USCIS adjudications for L-1B beneficiaries and the petitioner is advised to address this issue. Per USCIS, specialized knowledge comes from two key sources: experience and training.  Training and experience related to products, services, equipment, techniques, processes, etc. are the norm, yet, this particular RFE demonstrates a reach outside the scope of the law.  Nowhere in the definition of “specialized knowledge” are the terms “uncommon, noteworthy, or distinguished” to be found. “Specialized” as used in this context does not connote exclusivity, but rather narrows the field of “knowledge”. The definition of “specialized knowledge” does not require that the knowledge be “advanced” or “exclusive.”  The term “specialized” refers instead to the fact that the knowledge must be related to the business of the Petitioner. So, based on this RFE, a petition needs to include evidence that knowledge is not “General” knowledge but is specialized and advanced.

“Similarly trained employees” appears nowhere in the statute nor in the regulations. Nowhere in the statute or regulations is it indicated that the beneficiary of an L-1B beneficiary must be the only person with the specialized knowledge.  Rather, the regulator wisely left it to the petitioner to determine which, if any, of its employees is best able to transfer to the U.S. entity and aide in the development of the company’s business.

Practice Pointers: MINESWEEPERS, SURVEYORS, AND OTHER TOOLS TO SURVIVE THE NEW L-1 LANDSCAPE

What to do in this new environment?

First, know the context of this new era — read the OIG report—it exposes the predisposition against a favorable adjudication of an L-1 visa petition. Read as well the fraud factor memo noted above, and be sure that these issues are addressed as best able in the petition.

Understand how Matter of Treasure Craft of California is being used, or abused.

Third, understand the preponderance of the evidence standard and prepare cases accordingly.

Fourth, and key, in an “effort” to try and standardize what was previously a quite consistent understanding of the L-1 nonimmigrant category, but now is not, USCIS has issued standard RFE formats to “facilitate” its adjudication. The adjudicators are to drop the right data in each form as per the blanks.[23] These, like papaya, are extremely helpful and practitioners should indulge in them. They are checklists, guidance and identify the boxes the adjudicators are ticking.

Fifth, look to older published RFE where sometimes one can see that certain words must apparently trigger certain concepts. For instance, pulled from some of the L-1B RFEs, the words below might be a guide to what USCIS now seeks. Naturally though, each set of words must include a fact(s) to support such.

  • not general knowledge held commonly throughout the industry but that it is truly special or advanced
  • qualified to contribute to the U.S. employer’s knowledge of foreign operating conditions as result of specialized knowledge not generally found in the industry
  • utilized abroad in a capacity involving significant assignments that have enhanced the employer’s productivity, competitiveness, image, or financial position
  • possesses knowledge that normally can be gained only through prior experience with that employer
  • ‪meetings/presentations to or for  board, owners, management
  • international marketing strategies
  • management secrets
  • pricing strategy
  • ‪trade secrets
  • ‪patents
  • ‪client lists
  • ‪business plans
  • technical training
  • products
  • services
  • research
  • equipment
  • techniques
  • management

Finally, remember at all times that your petition and your responses to RFEs are creating the record you will use for appeal.  By defining your standards carefully, you can set the tone of the review and force USCIS to meet you on ground you have defined.  Draft your petitions with the RFE and appeal in mind and you will be able to define the brave new world in which you and your clients will soon find themselves.

 

[1] USCIS-American Immigration Lawyers Association (AILA) Meeting (Oct. 9, 2012), published on AILA InfoNet at Doc. NO. 12101045 (posted Oct. 10, 2012).

[2] According to its website, “[t]he National Foundation for American Policy (NFAP) is a non-profit, non-partisan organization dedicated to public policy research on trade, immigration, education, and other issues of national importance. The organization seeks to expand the debate over the proper role of government on key issues of the day and to engage actively in the media and with the public to ensure its ideas are considered and implemented wherever possible.” http://www.nfap.com/about/missionstatement

[3] Id. at 7.

[4] Analysis: Data Reveal High Denial Rates for L-1 and H-1B Petitions at U.S. Citizenship and Immigration Services, NFAP Policy Brief (Feb 2012), published on AILA InfoNet at Doc. No. 12020964 (hereafter NFAP Policy Brief) at 1.

[5] Id.

[6] Id. at 7.

[7] Id.

[8] INA § 101(a)(15)(L); 8 CFR § 214.2(l)(1)(i); 8 CFR § 214.2(l)(3).

[9] INA § 214(c)(2)(B).

[10] 8 CFR § 214.2(l)(ii)(E).

[11] Id. at 4.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18]  U.S. Department of Homeland Security, Office of Inspector General, OIG-06-22, Draft Report, Review of Vulnerabilities and Potential Abuses of the L-1 program, p. 4. This L-1 based OIG report, also includes a section wherein it repeats and summarizes statements by individuals who fear that the L-1 will displace U.S. workers, though no empirical data is included in that discussion.

[19] Id. at 18, 35

[20]  Policy recently released its report confirming the dramatic increase in L denials (NFAP Report on High Denial Rates of L-1 and H-1B Petitions at USCIS, National Foundation For American Policy, NFAP Policy Brief, February 2012, AILA Doc. No. 12020964, http://www.nfap.com/pdf/NFAP_Policy_Brief.USCIS_and_Denial_Rates_of_L-1_and_H%201B_Petitions.February2012.pdf;), and similarly  USCIS  addressed this issue as we , L-1B Performance Data by Approvals and Denials, AILA Doc. No. 12082954, http://www.aila.org/content/default.aspx?docid=41107. http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Employment-based/i-129-l-1b-performance.pdf)

 

[21] INA §101(a)(15)(L).

[22] 8 CFR 214.2(l)(1)(ii)(D).

[23] U.S. Citizenship and Immigration Service – RFE L-1B templates, April 2010, reprinted at AILA InfoNet doc. No. 12040457, 12010572, 12010573, 12010571, and as well, AILA’s Response to USCIS as well as at doc. No. 12050247.