L1B Visa for Workers Who Possess Specialized Knowledge

The L1B visa is created by US Congress for workers from foreign countries who are transferred to the subsidiary or affiliated company in the United States. These employees possess specialized knowledge, skills and/or experience regarding the procedures, systems, services or products of a firm, corporation, company or other business entities.

The original length of stay for the L1B workers is three years but it may be extended to five years based on corporate needs. In order to be considered for L1B visa, the employee must have been employed in a position that requires the use of specialized knowledge for one of the three years prior to visa application at a sponsoring company’s foreign headquarter, branch, subdivision or other entity associated with that company.

L1B Visa Requirements for Companies

The company located in the United States is the petitioning company and must meet specific requirements under US Immigration Law. It’s crucial that the U.S. company have a formal affiliation with the foreign entity for whom the L1B visa applicant worked in the last three years. The connection may be as a subsidiary, division, affiliate or branch. The connection between the foreign and US company must be clearly established and verified to USCIS or US Embassy, if the applicant is applying for change of status within the United States. This qualifying relationship can be shown by documentation(s) demonstrating that both entities are controlled by the same person or group or by showing that one company owns more than 50% of the other. An immigration attorney can expound upon and explain these requirements.

L1B Visa Requirements for Foreign Worker

The area of specialized knowledge for the L1b Visa applicant includes highly developed technical expertise or professional knowledge. It also relates to a the worker’s private, exclusive understanding relating to his or her company’s products, services, methods of production, organizational make up, marketing strategies or other information that’s indispensable to the successful functioning of the business entity in the United States. Additional types of unique knowledge include those that are related to the company’s products and services and their successful application in the international market or an intimate and unique understanding of the company’s procedures, systems or methods.

Guidance on L1B Visas and Specialized Knowledge

In relation to L visas, the idea of “specialized knowledge” is not clear or necessarily consistently interpreted across the country.
According to the Immigration and Naturalization Act (INA) 214(c)(2), “specialized knowledge” is defined as follows:

(B) For purposes of section 1101(a)(15)(L) of this title, an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.

For all intents and purposes, specialized knowledge refers to the unique details someone may know about the inner workings of a company.  Because “specialized knowledge” has never been clearly defined, USCIS has responded by saying that the factual determination of what is considered specialized knowledge must be done on a case-by-case basis which is not encouraging for those looking for consistency. The decision not to have a bright-line standard has been supported by Congress.  Given the lack of clarity, INS/DHS do employ the following criteria in attempting to determine the presence of specialized knowledge or lack thereof:

The proprietary nature of the knowledge. If someone possesses significant proprietary knowledge of the company in question, it can meet the specialized knowledge requirement. In INA 214(c)(2), proprietary knowledge is referred to as a “special knowledge of the company product and its application in international markets” or “advanced knowledge of processes and procedures of the company.”  The level of knowledge required to meet the L visa requirement is defined as knowledge that “would be difficult to impart to another without significant economic inconvenience.” In other words, if the company would have to spend a lot of money, time or resources to train someone to have a particular level of expertise or knowledge, then it could be considered specialized knowledge.  If everyone is specialized, then no one is. Someone must have a particularly unique level of knowledge in order for it to be considered specialized. Similarly, the possessor of the knowledge must somehow be “key” to the company. There may be more or less employees of this nature depending on the size of the company. Companies should have a way of differentiating between key employees or positions and less specialized ones.

The concept of “more than ordinary”. Simply put, specialized knowledge would be exclusive to key members of a company and would differentiate them from more ordinary members of the same company.

L visas are used for people that are being transferred to work within the structure of a company and are not used simply to move employees from one company to another. In INA 214(c)(2), it says that “an alien who will serve in a capacity involving specialized knowledge with respect to an employer for purposes of section 1101(a)(15)(L) of this title and will be stationed primarily at the worksite of an employer other that the petitioning employer or its affiliate, subsidiary, or parent shall not be eligible for classification under section 1101(a)(15)(L) of this title if (i) the alien will be controlled and supervised principally by such unaffiliated employer or if (ii) the placement of the alien at the worksite of the unaffiliated employer is essentially an arrangement to provide labor for hire for the unaffiliated employer, rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.  More simply put, the employee characterized as having specialized knowledge for the purposes of an L visa must work primarily for the employer in question at the worksite of the employer in question.

Other things to consider when filing an L visa:

Whether the beneficiary (recipient of the L visa) will be paid by the US affiliate of a company or a foreign affiliate is not determinative in deciding eligibility for L status.

A potential L visa recipient who will be employed in the US by a foreign company, but who is not controlled in any way by that foreign company, will not qualify for the L visa because the employer-employee relationship is not satisfied.  In order to establish this employer-employee relationship, a few things can take place. First, the employee can be controlled directly by a supervisor from the foreign, sending company. If the employee is not under the direct supervision of the foreign company, then he or she must be employing specialized knowledge of the company in the carrying out of their employment.

For more information and advice on immigration issues, please contact my office at (949)228-3922 or email me at attorney@lawofficesofjackcsung.com to receive a free consultation with immigration attorney.  Immigration law office located at 2975 Wilshire Blvd. Suite 352 Los Angeles, CA 90010.  Click here to submit a consultation form to receive advice directly from immigration attorney.  Click here to return to the  home page.