L-1B Visa Requirements and Recent related AAO decision

The L-1B intra company business visa allows specialized knowledge employees to transfer from a foreign company to a U.S. parent, affiliated, or subsidiary branch to perform temporary jobs. For a foreign applicant to attain L-1B visa status, three requirements must be met. First and foremost, the petitioning U.S. company must be affiliated with the company abroad, as a branch, subsidiary, or affiliate. This relationship shall be demonstrated either by one entity having control over the other, or by both entities being controlled by the same person or entity. Additionally, the L-1B visa applicant must be employed at the company abroad for at least one of the previous three years before the L-1B visa application is filed with the United States Citizenship and Immigration Services (USCIS). Finally, the employee must be coming to work at the U.S. company to utilize specialized knowledge. An employee with “specialized knowledge” has either 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; or demonstrates an advanced level of professional or technical expertise, and proprietary knowledge of the organization’s services, products, technology, strategies, or any other corporate function that is essential to the U.S. company’s successful operation.

The Administrative Appeals Office (AAO) recently reviewed a decision certified by the Director of the California Service Center (CSC). The particular case involved the submission of an I-129 petition on behalf of a foreign professional for L-1B nonimmigrant visa classification. The director originally denied the petition after concluding that the petitioner failed to establish that it had been doing business or that the beneficiary would be employed in a capacity requiring specialized knowledge. Subsequently, the petitioner submitted a motion to reopen, and the director entered a new decision denying the petition on the same two grounds. The certified decision was thereafter sent to the AAO for review.

The purpose of review by the AAO is to determine from the documentation produced by the petitioner whether the petitioner had been doing business and whether the beneficiary would be employed in a capacity requiring specialized knowledge. After a thorough review and analysis of the evidence produced by the petitioner, the AAO found that the petitioner had been doing business. Accordingly, the decision of the director as to the first issue dealing with the petitioner’s business had been withdrawn. The AAO then reviewed the evidence in light of the second issue, whether the beneficiary would be working in a specialized knowledge capacity. According to the AAO, the record did not distinguish the beneficiary’s knowledge as more advanced than the knowledge possessed by other people employed by the petitioning organization or by workers employed elsewhere. Based on the evidence presented, the AAO concluded that the beneficiary will not be employed in the United States, and was not employed abroad, in a capacity involving specialized knowledge.

The legislative history of the term “specialized knowledge” provides ample support for a narrow interpretation of the term. In the aforementioned case, the petitioner had not demonstrated that the beneficiary should be considered a member of the “narrowly drawn” class of individuals possessing specialized knowledge. In this proceeding, the burden of proving eligibility for the benefit sought remained entirely with the petitioner and the petitioner failed to meet that burden. Accordingly, the decision of the director was affirmed in part and withdrawn in part. As a result, the petition was denied.

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