Many employers and professionals assume that the L-1B classification is only for employees who have extremely rare or unique knowledge that very few people in their company possess.

This idea is understandable, since L-1B employees are often engineers who know their company’s specialized technology and methodologies, scientists who have expertise in specific research or processes, or employees who have spent years working with complex systems unique to their company. However, specialized knowledge is not necessarily limited to information that only one employee possesses. An employee does not have to be completely irreplaceable, and having years of experience alone does not automatically mean they are eligible. Instead, the question is what the employee knows, how their knowledge compares to what others know, and why that knowledge is important to their proposed position in the United States.

So, what exactly counts as specialized knowledge? Under the L-1B classification, specialized knowledge refers to an individual’s knowledge of an organization’s product, service, research, equipment, techniques, management, methodologies or other unique aspects of their company that are not commonly understood by other employees in their field. It can also include advanced knowledge of the company’s processes and procedures. In short, the focus is not simply on how skilled the employee is, but on what makes their knowledge different or more advanced.

The challenge with L1-B classification is determining where the line is drawn between advanced and specialized knowledge, and the knowledge an employee would normally be expected to have in their
profession. It is one thing to say that an employee has specialized knowledge; proving how they meet the requirements for the classification is the true challenge. This is where the specific circumstances of the employee and company become important. One of the main factors to consider is how closely the employee’s knowledge is connected to the company itself. Knowledge gained through working with the organization’s particular products, services, systems and procedures can help show that the employee has developed an understanding beyond general knowledge in their profession.

The way that knowledge was developed can also help determine whether it meets the L-1B standard. An employee who has spent considerable time receiving internal training, working on specialized projects or contributing to the development of a company’s products or processes may be able to demonstrate a stronger level of knowledge. These experiences can show that the employee’s understanding was developed through their work with the organization rather than through general education or professional experience alone.

From there, it becomes important to consider how widely that knowledge is held within the company. The number of employees who possess similar knowledge can help put the employee’s expertise into context. United States Citizenship and Immigration Services (USCIS) may also consider how the employee’s knowledge compares with what would normally be expected of someone with similar
qualifications and experience. This comparison can help distinguish knowledge that is truly specialized from knowledge that would ordinarily be expected from someone with the same professional background.

The amount of time and resources it would take for another employee to develop the same knowledge can also be relevant. If reaching the same level of understanding would require substantial training or experience, this can help demonstrate why the employee’s knowledge is particularly valuable to the organization. The knowledge does not have to be impossible for someone else to learn. Instead, the difficulty of transferring that knowledge can help explain why the employee’s existing expertise is important to the company.

At the same time, the employee must meet the basic requirements for an L-1B transfer. Generally, they must have worked for the qualifying organization abroad for at least one continuous year within
the three years before applying, and the U.S. and foreign entities must have a qualifying relationship. The employee must also be coming to the U.S. to perform services that require the specialized knowledge.

Specialized knowledge is not about being the only person who knows something or having the longest resumé. The circumstances surrounding how an employee gained their knowledge can be just
as important as the knowledge itself. The experience with the organization, the training received and the familiarity with the company’s particular methods can help show how the knowledge developed over time and whether it goes beyond what would normally be expected in the field. Looking at these factors together helps demonstrate what makes the employee’s knowledge different, how it developed through their work with the organization, and why it is important to their position in the U.S. Understanding these distinctions is what separates simply having valuable experience from having the specialized knowledge required for L1-B classification.

If you are ready to speak with an immigration attorney about any matters you may have encountered, please contact Lippes Mathias immigration team members Elizabeth M. Klarin (eklarin@lippes.com) or Eileen M. Martin (emartin@lippes.com).

 Alivia Miller, intern at Lippes Mathias LLP, contributed to this article.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.