AAO Finds USCIS Impermissibly Redefines Showing of Specialized Knowledge

08 April 2013 Labor & Employment Law Perspectives Blog

The Administrative Appeals Office of U.S. Citizenship & Immigration Services, otherwise known as the AAO, recently reversed a finding by U.S. Citizenship & Immigration Services (USCIS) that had denied approval of an L-1B intra-company specialized knowledge employment visa for a five-year, India-based employee of the company. L-1B intra-company employment visas are approved by USCIS where the petitioning multinational U.S. company evidences that one of the company’s foreign-based employees possesses specialized knowledge. Section 214 (c)(2)(B) of the U.S. Immigration & Nationality Act defines “specialized knowledge” to be “special knowledge of the company product and its application in international markets,” or “an advanced level of knowledge of processes and procedures of the company.” The petitioning U.S. employer may establish eligibility by submitting evidence that the intended visa beneficiary and the employment position satisfy either prong of the definition. In an untitled, yet enumerated decision [case number: WAC 10-140-51163] rendered March 15, 2013, the AAO reversed USCIS’ California Service Center in denying such an L-1B visa for the petitioning company’s intended senior principal engineer. A copy of the March 15, 2013 AAO decision is available here.

In erroneously denying the L-1B visa petition, USCIS’ California Service Center concluded that the U.S. employer needed to prove that in order to qualify as having “specialized knowledge,” the intended transferee actually developed the company product or technology in which the employee is claimed to have specialized knowledge. The AAO found that the California Service Center’s developmental requisite was improper given that it was above and beyond the criteria required by the L-1B statutory definition. Instead, the AAO noted that the U.S. company had provided extensive evidence of the specialized knowledge employment position and the beneficiary’s possession of such specialized knowledge. Such evidence included press releases documenting the proprietary nature of the company’s technology, the intended visa beneficiary’s leadership role among a team of designing engineers of the proprietary product, and the employee’s four patents in the field of circuit design.

The AAO’s decision is a welcomed precedent for frustrated U.S. multinational employers who have decried recent USCIS trends evidencing a sharp increase in L-1B visa denials. As noted by the AAO’s reversal, while the evidentiary burden is on the employer to establish L-1B eligibility, the standard of proof is by a mere preponderance of the evidence, or as succinctly stated by the AAO decision, “whether the fact to be proven is probably true.” U.S. employers who seek such specialized knowledge intra-company transferee visas must recognize that current USCIS adjudication of such L-1B visas are biased against the employer. As noted by the instant AAO decision, evidence presented to the California Service Center included independent and objective evidence, not colored or embellished by the U.S. employer, that demonstrably fulfilled the L-1B criteria by a preponderance of the evidence. In the face of such evidence, USCIS exacted higher qualifying criteria than intended by Congress until corrected by the AAO. Given the ever-increasing denial rates for L-1B employment visa petitioners, the AAO has afforded employers with commonsensical parameters in which to evidence the fulfillment of specialized knowledge job duties.

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