United States: USCIS Issues Policy Memorandum To Provide Guidance On L-1B "Specialized Knowledge" Standard

Last Updated: October 21 2015
Article by Zeenat Phophalia


On August 17, 2015, U.S. Citizenship and Immigration Services (USCIS) released a Policy Memorandum to clarify the L-1B visa "specialized knowledge" standard ("Memorandum"). The Memorandum came into effect on August 31, 2015. It provides authoritative and consolidated guidance on the L-1B program and supersedes and rescinds certain prior L-1B guidance issued by USCIS. The Memorandum specifically offers guidance in adjudicating petitions for the intracompany transfer of employees to U.S. who possess "specialized knowledge." The guidelines provide clarification on how L-1B petitioners may demonstrate that an employee possesses "specialized knowledge."

Purpose of L-1 Visa

The L-1 visa, commonly known as the 'intracompany transfer' visa, is a nonimmigrant visa category that permits companies to transfer an individual from a related foreign entity (with one year of experience) to a U.S. company, provided certain requirements are fulfilled. There are 2 types of L-1 intra company transferees- \

  • L-1A visa for transfer of Executive and Managerial personnel; and \
  • L-1B visa for transfer of personnel possessing "specialized knowledge."

"Specialized knowledge" under Statutory Laws and Regulations

Under the Immigration and Nationality Act (INA 214(c)(2)(B) ), a beneficiary is deemed to have specialized knowledge if he or she has: (1) a "special" knowledge of the company product and its application in international markets; or (2) an "advanced" level of knowledge of the processes and procedures of the company. The corresponding Code of Federal Regulations (8 CFR 214.2(l)(1)(ii)(D)) similarly defines specialized knowledge in terms of "special" or "advanced" knowledge: [S]pecial 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.

Currently, most challenges in L-1B adjudications revolve around the "specialized knowledge" definition and how USCIS interprets and applies it, resulting in inconsistencies in adjudications and high rate of denials. As per a report in March 2015 by the National Foundation for American Policy (NFAP), L-1B petition denial rates steadily rose from 6% in fiscal year 2006 to 35% in fiscal year 2014. The Memorandum attempts to clear the air surrounding the interpretation of "specialized knowledge" by giving guidance on what it takes to demonstrate specialized knowledge.

Key Points of the Memorandum

"Specialized Knowledge" Definition

The Memorandum provides that an individual seeking L-1B classification should have:

  • Special knowledge which is knowledge of the petitioning employer's product, service, research, equipment, techniques, management, or other interests and its applications in international markets that is distinct or uncommon in comparison to that generally found in the particular industry or within the petitioning employer; or
  • Advanced knowledge, which is knowledge or expertise in the 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.

Application of the "Specialized Knowledge" Standard

The Memorandum elaborately describes how adjudicators should determine whether an individual possesses "special" or "advanced" knowledge in a given case. The Memorandum explains that in determining whether knowledge is "special" or "advanced" inherently requires a comparison of the beneficiary's knowledge against that of others. The petitioner is required to demonstrate that that the beneficiary's knowledge is not commonly held throughout the particular industry. For knowledge to be considered specialized, it need not be proprietary in nature or narrowly held within the petitioning organization. Furthermore, an L-1B employee does not require to have BOTH advanced and specialized knowledge to qualify for the classification.

In determining whether knowledge is advanced or special, essentially the same factors and criteria outlined in the Memorandum apply. The key distinction is whether the knowledge refers to the particular company's product, service, research, equipment, techniques, management or other interests and its application to international markets or uncommon knowledge of the company's processes and procedures.

The Memorandum outlines a list of non- exhaustive factors that USCIS may consider while determining whether knowledge is specialized, which include:

  • Whether the beneficiary possesses knowledge of foreign operating conditions that is of significant value to not the petitioning organization's U.S. operations.
  • Whether the beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer's productivity, competitiveness, image, or financial position.
  • Whether the beneficiary's claimed specialized knowledge normally can be gained only through prior experience with the petitioning organization.
  • Whether the beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another individual without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience, or education).
  • Whether 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 firm.
  • Whether the beneficiary possesses knowledge that is particularly beneficial to the employer's competitiveness in the marketplace.

USCIS also clarifies the following points related to "specialized knowledge" when adjudicating L-1B petitions:

  • Specialized knowledge cannot be easily imparted to other individuals;
  • Specialized knowledge need not be proprietary or unique to the petitioning organization;
  • L-1B classification does not involve a test of the U.S. labor market;
  • specialized knowledge need not be narrowly held within the petitioning company;
  • employees need not occupy managerial or similar positions or command higher compensation compared to their peers; and
  • eligibility for another non-immigrant classification is not a bar to eligibility for L-1B classification.

"Preponderance of the Evidence" Standard

The Memorandum confirms that the petitioning company must establish by a preponderance of the evidence that the company meets each eligibility requirement of the L-1B visa category. It directs officers not to apply higher standards of review such as "beyond a reasonable doubt" or by "clear and convincing evidence." Instead, an L-1B petitioner will have satisfied the standard of proof if the evidence submitted leads to the conclusion that the claim is "more likely than not" or "probably" true.

Offsite Employment

The Memorandum reiterates the two prong test prong stated in the L-1 Visa Reform Act, that the beneficiary is not "controlled and supervised principally by the unaffiliated employer," and the beneficiary is "placed in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary." The law was designed to prevent, among other things, the outsourcing of L-1B workers to third-party entities as "labor for hire." Accordingly, if a determination is made that a beneficiary has specialized knowledge and that he or she will be stationed primarily at the worksite of an unaffiliated employer, USCIS would also have to determine whether the position involves "labor for hire."


The Memorandum attempts to provide clarity regarding L-1B "specialized knowledge" standard. This guidance will likely result in more consistencies in L-1B adjudications by USCIS officers. The Memorandum also seeks to provide latitude to petitioning companies in how they can demonstrate that an employee possesses specialized knowledge by a preponderance of evidence. However, going forward, whether the guidelines will result in a decrease in L-1B denial rates or Requests for Evidence, remains to be seen.


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.

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