The USCIS has issued new guidance, effective August 31, 2015, on the eligibility of an employee for L-1B specialized knowledge visa status. It reconfirms that specialized knowledge need not be narrowly held within an organization, as some companies may employ large numbers of specialized knowledge workers with the sheer number of specialists not negating the nature of the specialized knowledge. However, the USCIS guidance continues to permit adjudicators to question whether a genuine need for an L-1B employee exists if the adjudicator determines that others at the company in the United States possess that same knowledge. And though a company’s own statements can suffice to show a beneficiary’s eligibility, USCIS officers retain the authority to request additional evidence, even when an employer’s statement is detailed, credible, and not contradicted. In addition, adjudicators are given the authority to review L-1B wages and benefits, so that a discrepancy between L-1B total compensation and compensation paid to similar employees could support a finding that the asserted knowledge is not specialized
The new guidance confirms that an L-1B employee may be placed at end-client sites and that an end-client may assign work to an L-1B employee, so long as the L-1B petitioner retains primary authority over the manner in which the work is performed and other key employment factors. Importantly, for a company that is in the business of providing its clients with customized solutions, an L-1B employee’s knowledge of an end-client’s own systems can be considered along with (but not as a substitute for) the requisite specialized knowledge of the petitioning company’s products or services.
Extensions of L-1B status continue to be a problem, particularly for individuals who obtained their initial L-1B visa abroad under a blanket L visa approval for the company or under NAFTA. Unfortunately, the USCIS declines to instruct adjudicators to give deference to cases approved by other U.S. government agencies such as the State Department. Instead, they must simply “take note” of such approvals.