L-1B classification was initially created by Congress to allow multinationalÂ companies to easily transfer employers from foreign operations to intra-companyÂ offices in the United States. To receive L-1B classification the applicant must workÂ abroad for the overseas arm of the US employer for one continuous year andÂ demonstrate that he has â€śspecialized knowledgeâ€ť in relation to the employerâ€™sÂ organization.
When Congress created thisÂ classification, â€śspecialized knowledgeâ€ťÂ was not well defined. The lack of guidance on theÂ meaning of â€śspecializedÂ knowledgeâ€ť has led to many denials.
L-1B denials are at an all time highÂ The National Foundation for American Policy (NFAP) just released a reportÂ analyzing L-1B denials. The report revealed that L-1B denials have reached aÂ staggering rate of 35% for the 2014 fiscal year. In 2006 the L-1B denial rate wasÂ only 6% but this rate climbed to 22% in 2008 and steadily increased each year.
Indian nationals experiencing high denial rateÂ India is experiencing particularly high denials of L-1B visas. In its report NFAPÂ reveals that between the fiscal years 2012 and 2014, Indian nationals were deniedÂ 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 denialÂ rate. Many critics of the L-1B visa allege that Indian IT companies transferÂ employers to different offices in the United States in order to turn a larger profit inÂ its company. This could mean that a qualified United States worker who could doÂ the work of the Indian employee working in the United States is replaced any anÂ Indian national in the United States on an L-1B visa.
However, many speculate that the lack of guidance on the meaning of â€śspecializedÂ knowledgeâ€ť leads to denials because it is not clear what an applicant shouldÂ highlight in his application to be considered for an L-1B visa. The new guidelines forÂ L-1B visa clarifications will hopefully offer much needed insight and lead to moreÂ approvals.
New guidance on â€śspecialized knowledgeâ€ť released by USCIS expected to take effectÂ in AugustÂ USCIS released a Policy Memorandum this week that gives more insight into theÂ meaning of specialized knowledge needed for L-1B approval. This memorandumÂ will accept feedback until May 8, 2015 and is expected to go into effect on August 31Â of this year if the USCIS does not further modify the guidelines.Â In the memo â€śspecial knowledgeâ€ť is defined as knowledge of the â€śemployerâ€™sÂ product, service, research, equipment, techniques, management, or other interestsÂ and its applications in international markets that is demonstrably distinct orÂ uncommon in comparison to that generally found in the particular industry.â€ť TheÂ USCIS also provides an alternative definition of advanced knowledge, which relatesÂ to expertise in the employerâ€™s processes and procedures more advanced thanÂ generally found within the organization.
To breakdown this lengthy definition, the USCIS gives some examples of specializedÂ knowledge. Some of those examples are:
1. The employee can contribute to the United States operation of foreignÂ operations and his knowledge is not generally found in the United StatesÂ office.Â experience with that employer.
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 thatÂ enhance the companyâ€™s productivity, competitiveness or image.
The new clarification in the L-1B nonimmigrant visa will take place in August at theÂ earliest. Hopefully the further clarification into the meaning of â€śspecializedÂ knowledgeâ€ť will guide employers through the immigration process and lead to moreÂ approvals in the following years.
Contact the Law Office of Sweta Khandelwal to discuss filing L-1B nonimmigrantÂ visas in accordance with the new guidelines.
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