The L-1B classification is reserved for certain persons having specialized knowledge and, in the case of persons seeking L-1B classification under an approved blanket petition specialized knowledge professionals.[1]
A. Specialized Knowledge Capacity
To establish eligibility for approval, the L-1B petitioner must show that:
The beneficiary possesses specialized knowledge;
The position offered involves the specialized knowledge held by the beneficiary; and
The beneficiary has at least 1 continuous year of employment abroad in a managerial, executive, or specialized knowledge capacity with the petitioning employer or any qualifying organization (collectively referred to as the petitioning organization) within the preceding 3 years. If the beneficiary will be located primarily at the workplace of an unaffiliated company, the petitioner also must establish that the beneficiary is eligible for L-1B classification under the requirements of the Visa Reform Act.[2]
B. Application of Specialized Knowledge
1. Special or Advanced Knowledge
A beneficiary may establish specialized knowledge by possessing either special or advanced knowledge, or both. 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 (or in brief, its products or services).
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 industry. As discussed in detail below, however, a beneficiary’s knowledge need not be proprietary in nature, unique, or narrowly held within the petitioning organization to be considered specialized.
Determining whether knowledge is special or advanced inherently requires a comparison of the beneficiary’s knowledge against that of others. The petitioner bears the burden of establishing such a favorable comparison. 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.
Alternatively, 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 or 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.
2. Factors to Consider
It is not sufficient to demonstrate that the beneficiary has general knowledge of processes and procedures common to the industry; the focus here is primarily on whether the beneficiary’s knowledge of the processes and procedures used specifically by the petitioning organization is advanced. Evidence must support that such knowledge is apart from the elementary or basic knowledge possessed by others in the petitioning organization and the relevant industry.
The following is a non-exhaustive list of factors that officers may consider when determining whether a beneficiary’s knowledge is specialized:
The beneficiary possesses knowledge of foreign operating conditions that is of significant value to the petitioning organization’s U.S. operations;
The beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer’s productivity, competitiveness, image, or financial position;
The beneficiary’s claimed specialized knowledge is normally gained only through prior experience with the petitioning organization;
The beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another person without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience, or education);[3]
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; or
The beneficiary possesses knowledge that is particularly beneficial to the petitioning organization’s competitiveness in the marketplace.
The presence of one or more of these (or similar) factors, when assessed in the totality of the circ*mstances, may be sufficient to establish, by a preponderance of the evidence, that a beneficiary has specialized knowledge. As noted above, this list of factors is meant to be illustrative, not exhaustive, and it does not impose requirements that a petitioner must meet.
Specialized Knowledge Generally Cannot Be Commonly Held, Lacking in Complexity, or Easily Imparted to Others
One of the several factors that may be considered in determining whether knowledge is specialized is the amount and type of training, work experience, or education required to develop that knowledge.[4] Knowledge generally may not be considered special or advanced if it is commonly held, lacks some complexity, or can be easily imparted from one person to another.
On the other hand, knowledge generally may be considered specialized if a petitioner can demonstrate through credible and relevant evidence that the knowledge possessed by the beneficiary would be difficult to impart to another person without significant economic cost or inconvenience to the petitioning organization.[5]
Depending on the totality of the circ*mstances, significant economic cost or inconvenience may be a relevant factor. However, USCIS does not require a petitioner to establish significant economic cost or inconvenience if it can otherwise establish specialized knowledge.
Specialized Knowledge Need Not Be Proprietary or Unique
Although specialized knowledge ordinarily cannot be knowledge generally possessed or easily transferrable, it need not be proprietary or unique to the petitioning organization. A petitioner is not required to demonstrate that it is the only company where the beneficiary could have acquired the knowledge, or that it is the only company that trades in the technologies, techniques, products, services, or processes that are the subject of the beneficiary’s knowledge.
Although a petitioner may provide evidence that knowledge is proprietary or unique in support of its claim that the knowledge is also special or advanced, and therefore specialized, the L-1B classification does not require such a finding.
L-1B Classification Does Not Involve Test of U.S. Labor Market
The petitioner must ordinarily demonstrate that the beneficiary’s knowledge is not generally or commonly held in the relevant industry. Such a determination, however, does not involve a test of the U.S. labor market. A petitioner is not required to demonstrate the lack of readily available workers to perform the relevant duties in the United States.[6]
The relevant inquiry is not whether U.S. workers with the beneficiary’s knowledge are available to the employer; rather, it is whether there are so many such workers that the knowledge is generally or commonly held in the relevant industry, and therefore not specialized. If there are numerous workers in the United States who possess knowledge that is generally like the beneficiary’s, it is the petitioner’s burden to establish that the beneficiary’s knowledge nevertheless is truly specialized.
Specialized Knowledge Need Not Be Narrowly Held Within Petitioning Organization
Although comparisons with other employees of the petitioning organization may be useful in determining whether the beneficiary’s knowledge is special or advanced, such knowledge need not be narrowly held within the petitioning organization. Multiple employees within a company may have obtained the experience, training, or education necessary to possess the same type of specialized knowledge. Some companies may use technologies or techniques that are so advanced or complex that nearly all employees working on the relevant products or services possess specialized knowledge.
The mere existence of other employees with similar knowledge should not, in and of itself, be a ground for denial. Depending on the facts of the case, where there are already a significant number of employees in the U.S. organization with the same claimed specialized knowledge as that of the beneficiary, a question may arise as to whether the relevant position needs to be filled by a person having specialized knowledge. Accordingly, officers should consider, as in other L-1B cases, whether the evidence of record demonstrates the organization’s need to transfer the beneficiary to the United States. Further factors to consider may include:
Whether the petitioner has shown the need for another person with similar knowledge in the organization’s U.S. operations and the difficulty in transferring or teaching the relevant knowledge to a person other than the beneficiary;
How the duties to be performed by the beneficiary that require their claimed specialized knowledge may or may not differ from those already employed in the organization’s U.S. operations;
The extent to which the petitioning organization would suffer economic inconvenience or disruption to its U.S. or foreign-based operations if it were unable to transfer the beneficiary;[7]
Whether and to what degree the beneficiary’s claimed specialized knowledge would be beneficial to the successful conduct of the petitioner’s operations; and
Whether the total compensation[8] provided to the beneficiary is comparable in dollar value to similarly situated peers in such U.S. operations.[9]
Specialized Knowledge Workers Need Not Occupy Managerial or Similar Positions or Command Higher Compensation
Unlike the L-1A nonimmigrant classification, the L-1B nonimmigrant classification does not require that the beneficiary be a manager or executive. Nor does the L-1B classification require that the beneficiary be an officer or supervisor or hold any other similar position within the petitioning organization. Although rank and compensation are factors that may be considered when analyzing whether a beneficiary possesses specialized knowledge, there is no requirement that the beneficiary be of a certain rank within the organization or that the beneficiary’s compensation be elevated compared to their peers within the organization or the particular industry.
There may be valid business reasons that one employee may be earning more or less than their peers. A company in its early development, for example, may not yet have generated sufficient income to pay the beneficiary a greater salary. In creating the L-1B classification, Congress focused on the beneficiary’s knowledge, not their position on a company’s organizational chart or pay scale.
Beneficiaries Must Have Required Specialized Knowledge at Time of Filing
As with all eligibility criteria, the petitioner must show that the beneficiary meets the requisite criteria and is eligible for the benefit at the time of filing.
The beneficiary may have acquired specialized knowledge while working for the foreign organization either in a specialized knowledge, executive, or managerial capacity. The petitioner bears the burden to show that the beneficiary has the required specialized knowledge at the time of filing.
Eligibility for Another Nonimmigrant Classification is Not a Bar to Eligibility for L-1B Classification
The requirements for L-1B classification are distinct from other visa classifications. Eligibility for one classification does not preclude eligibility for another. A beneficiary may possess characteristics that make him or her potentially qualified for two or more distinct nonimmigrant classifications, but may only hold one classification at a time while in the United States.
For example, the beneficiary may have characteristics that make him or her eligible as a nonimmigrant specialized knowledge worker (L-1B) and a nonimmigrant specialty occupation worker (H-1B). Similarly, a beneficiary may qualify for L-1B nonimmigrant status while at the same time possessing the extraordinary ability or achievement necessary for O-1 nonimmigrant status. Possession of such dual qualifications does not render the beneficiary ineligible for either classification. Officers should only consider the requirements for the classification sought in the petition, without considering eligibility requirements for other classifications.
Beneficiaries Working at a Worksite Outside the Petitioning Organization – The Visa Reform Act
L-1B status is not permitted if the beneficiary will be stationed primarily at the worksite of an employer other than the petitioner or an affiliate, subsidiary, or parent and will be principally under the control and supervision of the unaffiliated employer.[10] The officer must conduct the Visa Reform Act analysis if the beneficiary will be stationed offsite as described above.
If a beneficiary’s work-related activities will be physically performed at the petitioner’s or its affiliates’ locations, to the extent that such time can be considered to be down time rather than time actually performing the services described in the petition, a beneficiary might be subject to the bar (since, in this example, the majority of the beneficiary’s actual work time is spent at an unaffiliated company or companies’ work site).
The number of non-affiliated worksite locations where the beneficiary might be stationed, by itself, is not relevant; what is relevant is the location where the beneficiary will be employed as specified in the underlying petition. To remain eligible for L-1B classification, any beneficiary with specialized knowledge who will be stationed primarily at the worksite of another employer must:
Be controlled and supervised by the petitioning employer; and
Be provided in connection with an exchange of products or services between the petitioning employer and the unaffiliated employer for which specialized knowledge specific to the petitioning employer is necessary, as opposed to an arrangement that is essentially to provide labor for hire to the unaffiliated employer.[11]
Even if the beneficiary is to be stationed primarily outside the petitioning organization, that fact alone does not establish ineligibility for L classification. For the ground of ineligibility to apply, control and supervision of the beneficiary at the non-affiliated worksite must be principally by the unaffiliated employer. Officers should use the common dictionary meaning of the term principally. The adjective principal means "most important, consequential, or influential."[12]
Therefore, even if the non-affiliated entity exercises some control or supervision over the work performed, if such control and supervision lie first and foremost within the petitioning organization, and the petitioning organization retains ultimate authority over the worker, the ground of ineligibility does not apply.
The unaffiliated employer may provide input, feedback, or guidance as to their needs and goals, and may even direct specific tasks and activities. So long as the ultimate authority over the L-1 worker’s daily duties remains within the petitioning organization, however, the fact that there may be some intervening third-party supervision or input between the worker and the petitioning organization does not render the worker ineligible for L-1B classification.
A beneficiary is ineligible for L classification if the placement at the unaffiliated worksite is essentially an arrangement to provide labor for hire for the unaffiliated employer rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.
Whether an arrangement is essentially to provide labor for hire is inherently a factual inquiry. Officers therefore must look at all aspects of the activity or activities in which the beneficiary will be engaged away from the petitioner’s worksite. In general, if the off-site activity or activities require specialized knowledge of the petitioner’s product or services, if such knowledge bears a reasonable relationship to the performance of the off-site activities, the activities are not prohibited.
For example, a beneficiary would be ineligible for L classification if a petitioner is essentially in the business of placing beneficiaries with various unaffiliated companies, irrespective of the beneficiary’s specialized knowledge of the petitioner’s particular product or service, where the off-site activities to be performed do not require specialized knowledge specific to the worker placement industry.
On the other hand, if the petitioner is primarily engaged in providing a specialized service, and typically sends its specialized knowledge personnel on projects located on the work site of its unaffiliated clients to perform such services, then, assuming the beneficiary remains under the principal control and supervision of the petitioning employer, and otherwise meets the basic requirements for L classification, the beneficiary would not be subject to the bar. In such cases, the petitioning employer must show they retain ultimate authority over the L-1B beneficiary, and the L-1B beneficiary must provide a product or service to the offsite employer for which specialized knowledge specific to the petitioner is necessary.
Footnotes
[^ 1] For the definition of L-1 specialized knowledge professional, see INA 214(c)(2)(B), 8 CFR 214.2(l)(1)(ii)(D), and 8 CFR 214.2(l)(1)(ii)(E). For the definition of specialized knowledge, see Chapter 6, Key Concepts, Section E, Specialized Knowledge [2 USCIS-PM L.6(E)].
[^ 2] See Division J, Title IV of the Consolidated Appropriations Act of 2005, Pub. L. 108-447 (PDF), 118 Stat. 2813, 3351 (December 8, 2004).
[^ 3] One factor that may be relevant in weighing economic inconvenience is the time-sensitivity of the petitioning organization’s need in its U.S. operations for an employee with the particular type of specialized knowledge, and the harm the organization would suffer if it could not fulfill its time-sensitive personnel need through transfer of the beneficiary. See Fogo de Chao (Holdings) Inc. v. DHS, 769 F.3d 1127, 1142 (D.C. Cir. 2014) (observing that a “natural prox[y] for economic inconvenience” is “the amount of in-house training a company’s employees would have to receive to acquire the knowledge in question”).
[^ 4] See 8 CFR 214.2(l)(3)(v) (requiring petitioner to submit evidence of the beneficiary’s prior education, training, and employment).
[^ 5] See Fogo de Chao (Holdings) Inc. v. DHS, 769 F.3d 1127, 1142 (D.C. Cir. 2014).
[^ 6] In Fogo de Chao (Holdings) Inc. v. DHS, 769 F.3d 1127, 1145 (D.C. Cir 2014), the D.C. Circuit noted that the Immigration Act of 1990 precludes USCIS from requiring evidence establishing that the specialized knowledge in question is not readily available in the U.S. labor market. An inquiry into whether knowledge is generally or commonly held in a given industry—and therefore not special, as that term is naturally understood—is separate from an inquiry into whether there are U.S. workers available to perform a given job.
[^ 7] See Fogo de Chao (Holdings) v. DHS, 769 F.3d 1127, 1142-43 (D.C. Cir 2014).
[^ 8] For this limited purpose, what constitutes total compensation is fact-dependent, but may include, besides wages or salary, other guaranteed forms of payment made to an employee for services rendered for the petitioner. The petitioner may pay such compensation in the form of money, a commodity, a service, or a privilege, including food, transportation, and housing allowances, as well as guaranteed bonuses. Any such payment, however, must principally be for the convenience or benefit of the employee and agreed upon by the petitioner and beneficiary before filing the petition. The petitioner bears the burden of establishing the actual value of any claimed compensation.
[^ 9] Evidence that a significant number of employees within the petitioning organization’s U.S. operations share the beneficiary’s knowledge, yet the petitioner will pay the beneficiary substantially less than those similarly situated employees, may indicate that the beneficiary lacks the requisite specialized knowledge. As described, however, there may be valid business reasons for the wage discrepancy. Officers should generally evaluate justification for the variance in consideration of the skills, experience, and other factors pertinent to the entire spectrum of employees in the U.S. operations who possess the requisite specialized knowledge.
[^ 10] The L-1 Visa and H-1B Visa Reform Act added anti-job shopping provisions. See Section 412(a) of Division J, Title IV of the Consolidated Appropriations Act of 2005, Pub. L. 108-447 (PDF), 118 Stat. 2813, 2905 (December 8, 2004). See INA 214(c)(2)(F).
[^ 11] See Division J, Title IV of the Consolidated Appropriations Act of 2005, Pub. L. 108-447 (PDF), 118 Stat. 2813, 3351 (December 8, 2004).
[^ 12] See Merriam-Webster Dictionary’s definition of “principal.” See Oxford English Dictionary’s definition of “principal.”
