Recent Trends in L-1B Specialized Knowledge Adjudication for IT Consulting Companies

The unique and evolving nature of the information technology (IT) consulting firms has presented a challenge to adjudicators at USCIS. Recently, there have been a large number of Requests for Evidence (RFEs) issued on L-1B petitions filed by IT consulting companies. Those RFEs generally ask for the following additional information:

1. whether the job duties require an individual of specialized knowledge and are distinct from labor for hire;
2. whether the foreign national has the requisite specialized knowledge; and
3. more information on the relationship between petitioner and its client.

The large number of RFEs issued suggest that the job duties in these cases are general IT tasks that any computer programmer or IT worker could perform. Specifically, USCIS usually finds that changing a client's already existing system and/or software rather than developing the petitioner's own software does not require specialized knowledge. USCIS also notes that the beneficiary will be working on a product that is used to conform to the client's specifications and needs, rather than a product unique to the specifications and needs of the petitioner. Based on these observations, the agency denies the L-1B petition, reasoning that specialized knowledge is not required to complete the job duties.

Yet what USCIS summarily dismisses as general IT tasks are the necessary first steps in identifying and developing the appropriate IT solution that is ultimately the petitioner's service and of which specialized knowledge is required. Modifying or upgrading a client's existing system or software involves significant analysis and study of that system, an understanding of the client's goals and objectives in wanting these changes, an assessment of the host environment in which those changes will be implemented, and a review of compatibility issues with other existing software and/or hardware in that host environment are the groundwork to then identify the appropriate IT solution developed by the petitioner. Rather than imposing its own specifications on the client, most IT consulting companies customize their applications and software as well as their processes to meet each client's specific needs. Knowing how to optimally customize the IT consulting company's software, applications, and processes to a particular client requires specialized knowledge of a company's products, services, and techniques as well as an advanced knowledge of the consulting company's proprietary processes and procedures.

Moreover, the Service discounts the advanced level of knowledge of the internal processes and tools that are essential for efficient and optimal delivery of IT services, reasoning that since such processes are taught in short training programs, knowledge of such processes cannot rise to the level of specialized knowledge. However, It is not the training itself that gives the employee specialized knowledge, but the experience of applying the information learned during training that equips the person with specialized knowledge. The individuals normally selected for deployment have not only been trained on certain processes, products, or procedures, but they have accumulated experience in applying this knowledge on certain projects in development labs, which makes their knowledge specialized.

Additionally, in the case of IT consulting companies, the knowledge needed to perform the job duties in the U.S. at client sites usually can only be obtained through prior experience with the company abroad. The business realities are such that individuals deployed to the U.S. to service clients need to be capable of performing their tasks immediately; they cannot be trained upon arrival to the U.S. on the tools, products, processes, and procedures nor is there time for them to acquire the necessary level of expertise to perform these job duties once they are in the U.S. It is also important to note that it is highly disruptive to IT consulting businesses if foreign national workers can not be deployed but U.S. workers had to hired and trained to assume the duties of those workers.

The RFEs and denials appear to want objective evidence that confirms the foreign national's specialized knowledge. Statements from the petitioner that the beneficiary has specialized knowledge are dismissed as mere assertions. USCIS asks for proof that the knowledge is narrowly held within the company and information on the amount of time it normally takes an employee to obtain such knowledge.

However, based on IMMACT and subsequent USCIS interpretations, there is no legal requirement that the specialized knowledge be narrowly held among a small number of the petitioner's employees; rather, the knowledge must not be general and commonly held throughout the industry. The focus should not be whether the knowledge is held widely in the company, but within the industry at large. This line of inquiry runs counter to the realities of today's knowledge economy where large international companies that specialize in very technical fields with many thousands of employees will clearly have a larger number of specialized knowledge workers quantitatively, although the percentage of such workers in any given global business may be relatively small versus the whole.

Recently in the adjudication of L-1B petitions, USCIS has also been requiring that the specialized knowledge be of the products, services, processes, and procedures of the actual petitioning organization-and not of the subsidiaries, affiliates, or parent companies. However, when dealing with large international companies, it is not uncommon for subsidiaries, affiliates, and branches to have different names and to not have their own proprietary products, services, techniques, procedures, or methodologies. Instead, these entities often leverage their brand-name parent company's products and services. The approach taken by the USCIS is outdated.

Specifically, USCIS seeks master service agreements, statements of work, purchase orders or other proof of payment for services, detailed milestones of the project, and letters from petitioner's HR confirming the terms of employment of the foreign national beneficiary and who will supervise him or her.

Unfortunately, the business reality is such that these documents have been designed with considerations other than immigration in mind and often do not adequately cover the information the agency seeks to confirm. The contents of these documents will often be generic and not provide information on the foreign national beneficiary's specialized knowledge or whether the position at hand will require specialized knowledge.

Again, the USCIS approach is outdated. The focus of the inquiry should be on whether the foreign national has specialized knowledge; documents such as a master services agreement or purchase orders will not enable the USCIS to make a determination.

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