United States: L-1B Specialized Knowledge Visa Category Guidance Goes into Effect Today: Brave New World?

While the L-1B Adjudications Policy Memorandum published by United States Citizenship and Immigration Services on August 17, 2015, effective as of August 31, 2015, has many positive components, petitioners and practitioners are much concerned.

The bottom line is that nothing in the Guidance "twists the arms" of adjudicators or strongly pushes them to change their attitudes towards L-1B petitions, and without a change in attitude, officers will always find ways to issue "requests for evidence (RFE's)" and deny cases even within the revised guidelines.

Weight of the Evidence

It is significant that the Service recognizes in this Guidance the value of the petitioner's letter. "A petitioner's statement may be persuasive evidence if it is detailed, specific, and credible. Adjudicators may, in appropriate cases, however, request further evidence to support a petitioner's statement, bearing in mind that there may be cases involving circumstances that may be difficult to document, other than through a petitioner's own statement." [Emphasis added.]

This is a very important affirmation by USCIS, after a long history of disparaging the value of petitioners' statements.

Unfortunately, this is undercut somewhat by the fact that the Memorandum enumerates a whole list of examples of "other evidence" that a petitioner might submit. Although this appears to be at worst innocuous and at best helpful, historically we have seen adjudicators incorporate lists such as this in their entirety in "requests for evidence," incorrectly implying that failure to produce some or all of this documentation necessarily should lead to a denial.

The introduction to this list of documentation reads: "Other evidence that a petitioner may submit to demonstrate that an individual's knowledge is special or advanced includes, but is not limited to. . . ." The big question – will adjudicators adhere to that warning?

The "Specialized Knowledge" Definition

The greatest challenge to the Service was to find an effective and clear way to define "specialized knowledge" and the Service in this instance certainly made a noble effort. It conceded that specialized knowledge does not have to be narrowly held within an organization, but still warns adjudicators they should take into account whether there are others within the organization who can perform the same duties.

USCIS seeks to identify the parameters of specialized knowledge in subparagraphs entitled:

  1. Specialized knowledge generally cannot be commonly held, lacking in complexity, or easily imparted to other individuals.
  2. Specialized knowledge need not be proprietary or unique to the petitioning organization.
  3. L-1B classification does not involve a test of the U.S. labor market.
  4. Specialized knowledge need not be narrowly held within the petitioning organization.
  5. Specialized knowledge workers need not occupy managerial or similar positions or command higher compensation compared to their peers.
  6. Eligibility for another nonimmigrant classification is not a bar to eligibility for L-1B classification.

These address misconceptions and errors frequently seen in prior requests for evidence.

Prior L-1B Adjudications

Another conundrum that USCIS addresses, but does not fully resolve, is the weight to be given to prior L-1B adjudications. Nothing is more troubling to employers than to place an individual in the United States as an intracompany transferee after a petition has been approved only to be challenged three years later when an extension is requested. The Memorandum acknowledges that in "matters relating to an extension of L-1B status involving the same parties . . . and the same underlying facts, USCIS officers should give deference to the prior determination by USCIS approving L-1B classification." However, as indicated in prior memoranda, the Service officer is free to reexamine L-1B eligibility if there was a material error with regard to the previous approval, or there has been a substantial change in circumstances, or there is new material information that adversely impacts the petitioner's or beneficiary's eligibility. Again, reasons and criteria which historically have been abused by USCIS officers.

Also quite troubling is the half hearted acknowledgement the Memorandum makes as to adjudications by other government agencies, such as consular officials adjudicating L-1B blanket petitions and CBP officers adjudicating petitions at ports of entry on behalf of Canadians. "USCIS will take note of a previous determination of L-1B eligibility made by the Department of State or U.S. Customs and Border Protection, but will make a determination on the instant petition, based on the record before it, consistent with the guidance provided in this Memorandum." Well, what exactly does "take note" mean?

Offsite L-1B Employment Pursuant to the L-1 Visa Reform Act

The Guidance recognizes that offsite L-1B employment is permitted in appropriate circumstances. It is emphasized that as long as the petitioner retains primary authority over the way the work is performed, there remain critical indicators that the petitioner controls the employment, and the beneficiary has the requisite knowledge of the petitioner's products and services, it is still possible to consider L-1B eligibility even if the end client assigns work to the L-1B employees and there is an additional component requiring knowledge of the client's systems. This recognizes the day-to-day reality of employers who are in the business of providing customized technology solutions to their clients.

Looking Forward

This Memorandum goes into effect as of today, August 31, 2015, and is applicable to pending petitions and petitions to be filed in the future. There is no doubt that this Policy Memorandum is a major accomplishment of USCIS, well thought out, with the intention of trying to provide balance and clarity to L-1B adjudications. However, at the end of the day, it will only be effective if adjudicators take its principles and intent to heart and are prepared to work together with businesses and entrepreneurs to pursue the growth and expansion of business through effective transfer of personnel.

USCIS is not being asked to open the doors indiscriminately to everybody and all, but to carefully assess business needs and, within the parameters of the statute, regulations and policy, adjudicate petitions so that businesses can flourish without harming the American market.

Achieving the goals of this Memorandum will be a true challenge to USCIS, petitioners and their legal representatives.

You are encouraged to contact your Proskauer Immigration Professional to discuss the implications of this new policy on your business.

L-1B Specialized Knowledge Visa Category Guidance Goes into Effect Today: Brave New World?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.