BY ROBERT ROGERS—The Department of Homeland Security (“DHS”) and United States Citizenship and Immigration Services (“USCIS”), underneath the DHS umbrella, recently released a memo with relevant information for technology companies hoping to hire foreign employees with specialized knowledge. Read on to learn more about how this could affect you and what it means going forward for L-1B visas as a whole.
The goal of such changes, as expressed by President Obama, is to help increase investment in the U.S., reduce discrimination against foreign workers, and to put a damper on the job-shopping behaviors some multinational corporations have resorted to in the past. It is believed that these changes making it easier for corporations to bring over employees with specialized knowledge could open the door for hundreds of thousands of employers and their workers.
The Obama administration has had its eye on making it easier for companies to draw talent in this manner since April, when the president gave a speech at the 2015 Select USA Investment Summit. In addition to making it easier for companies to bring over the employees they need for continued success, the changes announced in the memo also aim to eliminate confusion that currently surrounds the L-1B program. In total, the changes within the L-1B visa program, along with other executive actions about immigration, could boost U.S. GDP and cut down on the federal deficit.
What is Specialized Knowledge?
An employer petitioning for a worker to come over on an L-1B visa must be able to demonstrate that the individual applying for the visa meets the following criteria:
- Maintains some form of specialized knowledge,
- Is coming to the company to fill a position which requires this specialized knowledge,
- And, has already had at least one continuous year of employment abroad with either the employer applying for the visa or another qualifying organization. This year of employment must have occurred within the three years preceding the application.
The employee must either have advanced knowledge of the company’s procedures and processes or special knowledge of the company’s product/services in international markets. This is intended for key personnel within an organization. This distinction between key personnel and other employees might be demonstrated in different ways, such as the length of time the person has worked with the company, the level of responsibility given to this employee, or assignment to more complex or difficult projects within the company.
Specialized Knowledge vs. Advanced Knowledge
Current regulations surrounding the L-1B visa do not differentiate clearly between the terms “advanced” and specialized,” so the most recent policy memo from DHS/USCIS makes an effort to distinguish these terms in order to help employees evaluating the petition process. Under the guidance offered by that memo, employers can take away that:
- Advanced knowledge refers to situations in which the employee has a deep understanding of the petition company’s procedures and processes. This knowledge cannot be easily found within the industry and the amount possessed by the employee in question is likely more developed than that generally located within the employee ranks for that company.
- Special knowledge relates to situations in which the employee is aware of the petition company’s product, research, techniques, services, management, or equipment in international markets that are unique to that particular industry.
An employee could have specialized knowledge, advanced knowledge, or both.
How USCIS Evaluates Specialized Knowledge
A company should be well aware of the standards applied with regard to specialized knowledge and have internal processes to address situations that meet these standards. There are many factors that USCIS might consider in determining whether an employee possesses specialized knowledge. This list is not comprehensive, but it may be helpful for an employer to review:
- Whether the beneficiary has already been employed abroad in circumstances that have contributed significantly to the employer’s image, financial success, productivity, or competitiveness in the marketplace.
- Whether the beneficiary’s experience in question could only have been obtained with prior experience from the petitioning organization and whether this experience and knowledge is critical for the company’s U.S. operations.
- Whether the knowledge in question is beneficial to the company’s competitiveness and is of a nature that could not be easily taught to someone else without substantial time and investment.
In order to support one or more of the claims listed above, a petitioning organization may need to present evidence. This evidence could buttress additional evidence that the employee’s impact could significantly enhance U.S. operations, documentation of work experience or training the employee already has that would be difficult to replace with another individual, the employee’s past involvement in complex projects abroad that has been essential to competitiveness or productivity, patents obtained as a result of contributions by the employee, materials for training courses that demonstrate the difficulty associated with training someone else in this position, and personnel records.
What About Readjudication?
Concerns about applying for an immigration extension might have led some employers to be concerned about losing the long-term value of a transferred employee if an extension was unlikely down the line. USCIS officers are further instructed to consider previous L-1B visa determinations when it comes to extensions of L-1B status. Previous decisions should only be re-evaluated if it is found that a serious error occurred in the first round where approval was awarded, where there is new information that negatively impacts the beneficiary’s or petitioner’s eligibility, or where there has been a major change in circumstances since the last approval.
As the memo on this matter concludes that Congress has determined the value associated with transferring employees who have specialized knowledge, companies who have deemed the L-1B process too cumbersome or confusing in the past may want to reconsider. Given the greater scope allowing for employees with specialized knowledge who can not only help a company improve but also boost the U.S. economy, it might be a wise idea to evaluate whether any foreign employees fit the bill for these petitions.