L-1B classification was initially created by Congress to allow multinational companies to easily transfer employers from foreign operations to intra-company offices in the United States. To receive L-1B classification the applicant must work abroad for the overseas arm of the US employer for one continuous year and demonstrate that he has “specialized knowledge” in relation to the employer’s organization.
When Congress created this classification, “specialized knowledge” was not well defined. The lack of guidance on the meaning of “specialized knowledge” has led to many denials.
L-1B denials are at an all time high
The National Foundation for American Policy (NFAP) just released a report analyzing L-1B denials. The report revealed that L-1B denials have reached a staggering rate of 35% for the 2014 fiscal year. In 2006 the L-1B denial rate was only 6% but this rate climbed to 22% in 2008 and steadily increased each year.
Indian Nationals Experiencing High Denial Rate
India is experiencing particularly high denials of L-1B visas. In its report NFAP reveals that between the fiscal years 2012 and 2014, Indian nationals were denied L-1B visa classification at a rate of 56%. During the same time period denials of L-1B visas all other countries besides India was 13%.
There are many speculated reasons why India is experiencing such a high denial rate. Many critics of the L-1B visa allege that Indian IT companies transfer employers to different offices in the United States in order to turn a larger profit in its company. This could mean that a qualified United States worker who could do the work of the Indian employee working in the United States is replaced any an Indian national in the United States on an L-1B visa.
However, many speculate that the lack of guidance on the meaning of “specialized knowledge” leads to denials because it is not clear what an applicant should highlight in his application to be considered for an L-1B visa. The new guidelines for L-1B visa clarifications will hopefully offer much needed insight and lead to more approvals.
New guidance on “specialized knowledge” released by USCIS expected to take effect in August
USCIS released a Policy Memorandum this week that gives more insight into the meaning of specialized knowledge needed for L-1B approval. This memorandum will accept feedback until May 8, 2015 and is expected to go into effect on August 31 of this year if the USCIS does not further modify the guidelines.
In the memo “special knowledge” is defined as knowledge of the “employer’s product, service, research, equipment, techniques, management, or other interests and its applications in international markets that is demonstrably distinct or uncommon in comparison to that generally found in the particular industry.” The USCIS also provides an alternative definition of advanced knowledge, which relates to expertise in the employer’s processes and procedures more advanced than generally found within the organization.
To breakdown this lengthy definition, the USCIS gives some examples of specialized knowledge. Some of those examples are:
1. The employee can contribute to the United States operation of foreign operations and his knowledge is not generally found in the United States office.
2. Specialized knowledge can generally only be acquired through past
3. Knowledge of a process or product that is complex or high technical.
4. Employee has been employed abroad and conducted assignments that enhance the company’s productivity, competitiveness or image.
The new clarification in the L-1B nonimmigrant visa will take place in August at the earliest. Hopefully the further clarification into the meaning of “specialized knowledge” will guide employers through the immigration process and lead to more approvals in the following years.
In boost to Indian companies, US to ease L-1B visas, March 25, 2015, Chidanand Rajghatta
Policy Memorandum, L-1B Adjudications Policy, March 24, 2015, USCIS
L-1 Denial Rates Increase Again for High Skill Foreign Nationals, March 2015, National Foundation for American Policy
L-1 Visa Alarm for Indian IT, March 26, 2015, Indian American Times