L-1B Visa for Specialized Knowledge Workers
This is applicable for situation where – like IT companies and others – that wish to get staff from overseas offices to perform specialized tasks in USA operations of the principal company.
The US L-1B Visa is basically meant for the specialized knowledge workforce. It is essential that the aspirants for the permit possess expert knowledge of the firm’s goods and/or processes. The specialized-knowledge workers should have a thorough understanding of the organization’s goods and/or services and also the global markets for those goods and/or services, OR they possess advanced knowledge of the firm’s processes and practices.
It ought to be knowledge that may be gained only via experience with that recruiter/job-provider, such as skill with proprietary software or tactics unique to the organization, which is also crucial to the group’s competitiveness. Knowledge which is extensively held or associated with common practices or procedures and which is readily obtainable in the job market of the US is not specialized for objects of L categorization.
It is a requirement that the level of knowledge needed & the employment of the particular migrant should directly involve the petitioner’s proprietary interest. With a view to be proprietary, it is vital that the knowledge relates to something, which relates solely to the petitioner’s business.
The USCIS has duly identified these features of a worker with specialized knowledge–all of which ought to be present to guarantee success.
The L-1B recipient should:
- Possess knowledge that is important to the recruiter’s competitiveness in the marketplace.
- Be especially competent to contribute to the US recruiter’s knowledge of overseas operation situations.
- Have been major workers at some place except the US, with noteworthy assignments that have improved the recruiter’s output, image, competitiveness, or monetary condition.
- Possess special knowledge that can typically be obtained via wide previous experience with the recruiter/job-provider/firm.
L-1B Visa Permit Requirements
The manager or executive being transferred to the US operations of an overseas business entity should meet the “Specialized or expert knowledge” Criteria. Such “Specialized or expert knowledge” may refer to a skill in the company’s’ practices & processes or may relate to following areas of the petitioning businesses’: Its creation, its services, its tools, practices and administration, or new interests, and its usage in global markets. Key factors which form basis a L-1B visa petition are:
- It is required that the worker should have worked with the overseas (outside USA) offices of foreign business– during the 3 years preceding to the admission to USA under the L-1B visa – for a nonstop duration of 1 year.
- It is required that the sponsored manager or executive whose petition is being filed under L-1B intra-company transfer category is entering USA to offer specialized knowledge capability, to a branch or subsidiary of the principal overseas business, or any one of its qualifying groups.
- It is required that that the L-1 Permit holder should aim to leave the shores of the US post the conclusion of his sanctioned stay. Only exception to this scenario is that the L-1B visas permit holder makes an application under an Employment based green card like EB-1 program and gets the visa.
Processing of L-1B Visa application: Indicative concern areas
For all the awareness, that L-1 regime has generated over the years, the fact is that the fear related to the probability for conflicting adjudicatory standards at the different constituent posts and officers exists in reality and unambiguous standards would enable for more dependable adjudication. The problem is especially acute while deciding on L1-B visa applications for executives with “specialized knowledge”, which is defined as follows:
“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.”
In the backdrop of the virtual lack of statutory simplicity or interpretative direction, determinations as to specialized knowledge by requirement will over and over again depend on the consular officer’s proficiency in the context of the particular case’s situations. Having said that there are issues, which are likely to be accepted as legitimate for making “specialized knowledge” determinations.
- The “proprietary nature of the knowledge” – While it is not firmly needed that specialized knowledge involve knowledge of processes or methods proprietary to the petitioning firm, the possession of major proprietary knowledge can in itself fulfill the specialized knowledge prerequisite. Proprietary knowledge will fulfill the L condition when it “would be difficult to impart to another without significant economic inconvenience.” This knowledge may be gained via on-the-job training.
- The specialized knowledge condition was planned for “key” workers. Even as it could be true in a small firm that all skilled workers are “key,” for a bigger firm there ought to be a difference between “key” and regular workers. “Key” could also be indicated by the basis of the length of experience, level of knowledge, or level of dependability. An example is a situation where the individual has been made accountable for more difficult and/or sensitive ventures. In case a firm is claiming that all the workers working on technical subjects ought to be regarded to possess specialized knowledge, the firm, in all probability, is hiring a very low standard and hence such applications are best avoided. Conversely, there is no lawful ground to necessitate any particular restriction on the figure of workers that may be duly regarded key. But size of the company and its operations could form basis for a positive decision on multiple applications as “key” workers. In addition there could be a difference between those workers and regular trained employees.
- The idea of “more than ordinary” is also central to L1 Specialized knowledge worker applications. The terms “special” and “advanced” denotes that the worker has more expertise or knowledge, vis-à-vis the common worker. The same does not necessitate an “extraordinary” level of expertise, just more than that of the everyday worker in the firm or the domain. The same may involve knowledge of special firm missions or more than usual experience and/or knowledge of software practices.
- Job shops: Apart from the specialized knowledge conditions, the subject of job shops is crucial to the determination of ineligibility, and should be of noticeable concern.
- Employer/worker association – L is a position for individuals being shifted to work inside a firm structure and not for a fresh company, and the subject of employer/worker relations has always been vital to the L adjudication. The legislation notes “A migrant who will serve in a capacity involving specialized knowledge with respect to an employer for purposes of this title and will be stationed chiefly at the worksite of a sponsoring employer.”
- Petitioners other than the petitioning entity or its branch, subsidiary, or parent shall not be qualified for categorization under L visa in situations where the migrant will be managed and administered chiefly by any unaffiliated company or the placement of the migrant at the worksite of the unaffiliated recruiter is fundamentally an arrangement to give labor for lease for the unaffiliated business, rather than a placement in connection with the provision of a product or service for which specialized knowledge particular to the petitioning office is vital.
- The indispensable component in deciding the existence of an “employer-employee” association is the right of management. Possession of the authority to engage or the authority to discharge is highly strong proof of the existence of an employer-employee association. It is critical to note that the source of the receiver’s salary & benefits while in the US (i.e., if he will be paid by the US or the overseas branch of the petitioning firm) is not controlling in deciding the eligibility for L position.
- Apart from this, the employer-employee association includes a situation in which the recipient will not be paid directly by the petitioner, and such a recipient is not barred from proving eligibility for the L categorization.
- A recipient who will be employed in the US directly by an overseas firm and who will not be managed in any manner by the overseas firm’s bureau in the US does not make the cut as an intra-firm transferee.
- The subject of management by the sending overseas business entity is decisive. When the service is off-site, there may be two methods of deciding control:
- The worker may be directly managed by a supervisor from the sending firm;
- The worker could also work off-site minus direct management at that site, but in “connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.”
The same may mean, for instance, that the worker would be working for an off-site, unaffiliated group that has no IT division, and so the worker would be employing specialized knowledge that only the petitioning organization may manage or weigh-up. The same may also mean the worker is working on a proprietary venture involving knowledge and skills particular to the petitioning recruiter and not owned by the unaffiliated organization. Conversely, an off-site worker working in the IT division of an unaffiliated firm who is not under the direct management of the petitioner, or working on a proprietary venture involving knowledge and skills particular to the petitioner would, perhaps, not be accepted for the L position on the basis of job shop concerns.