For at least two years now, USCIS has again and again increased scrutiny of L-1B petitions (for "specialized knowledge" employees). First came very burdensome requests for evidence, next came the denials.
Through it all, multi-national corporations fortunate enough to qualify for a blanket L approval have been able to side-step USCIS and send their L-1 visa applicants directly to the U.S. Consulate where consular officers are less strict than USCIS adjudicators on the issue of specialized knowledge.
Recently, the Department of State published a memo on L-1B specialized knowledge issues which it earlier sent to consular posts. The memo establishes new criteria that consular officers will use and suggests a stricter standard will be applied going forward, with the key points being:
Proprietary Knowledge - Although not strictly required, proprietary knowledge will be a key factor. Proprietary knowledge is met if the knowledge possessed by the visa applicant will be difficult to impart to another without significant economic inconvenience.
Key Personnel - Mirroring USCIS, the memo states that employees who meet the specialized knowledge standard should be distinguishable from ordinary skilled workers. There should be a distinction between "key" and "normal" personnel based on length of experience, level of knowledge or level of responsibility.
More than Ordinary - The memo suggests that employees' work should involve knowledge of special company projects or greater than normal experience or knowledge.
In light of the heightened scrutiny L-1 cases are receiving from USCIS and now U.S. Consulates, employers should consider utilizing H-1Bs for borderline cases, when possible. Should employers choose to proceed with an L-1 case, the key points above must be considered when preparing the application.