The Department of Homeland Security (DHS) recently issued a report to the U.S. Customs and Immigration Service (USCIS) regarding the implementation of L-1 visa regulations. The report contains various recommendations to Customs and Border Protection (CBP) and USCIS on ways to prevent and deter fraud and abuse within the L-1 intracompany transferee visa program. The report’s findings and recommendations are based on domestic and international fieldwork, including observations of DHS personnel and Department of State consular officials processing L-1 petitions and visas, as well as interviews with 71 managers and staff members of DHS and the Department of State.
One of the more notable recommendations, among the report’s 10 recommendations, addresses problems associated with the assessment of specialized knowledge with respect to L-1B applications.
In order to be eligible for an L-1B visa, the sponsored employee must meet the following requirements:
have been employed by the company outside the U.S. in a specialized knowledge position for one or more years (continuously) within the three years prior to the transfer, and
have specialized knowledge that is required for the transferred position in the U.S.
Specifically, the Inspector General’s report recommended that USCIS publish new guidance that is sufficiently explicit to give USCIS adjudicators an improved basis for determining whether employees of a petition entity possess specialized knowledge. Based on its interviews, file reviews, and stakeholder opinions, the DHS concluded that one of the primary challenges of the L-1B visa is that the statutory language remains open to interpretation. According to the Inspector General’s report, many of the Immigration Service Officers (ISO) interviewed said that “specialized knowledge petitions are complicated to adjudicate because specialized knowledge has not been adequately defined.”
The lack of a meaningful definition of “specialized knowledge” has resulted in a “you know it when you see it” standard that can result in inconsistent L-1B adjudications. According to the report, ISOs indicated that, even after receiving specialized knowledge training, they are “unable to apply the law and policy to L-1B petitions consistently.” As a result of inconsistent applications of what it means to have “specialized knowledge,” unsuccessful applicants often do not understand why their petitions are denied.
In order to make it easier for ISOs to assess “specialized knowledge” criteria and to promote increase consistency, the report recommended that USCIS publish new guidance that is “sufficiently explicit to give adjudicators an improved basis for determining whether employees of a petition entity possess specialized knowledge.”