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Brian D. Lerner
Attorney at Law
Certified Specialist in Immigration and Nationality Law
Toll-Free (866) 495-0554
Direct (562) 495-0554
The L-1 Employee
Question: What type of work must the employee have done abroad?
Answer: The employee must have been a manager, executive, or have worked in specialized knowledge capacity abroad. The transferee “does not have to be transferred to the United States in the same capacity in which he or she was employed abroad.
Question: Which classification falls under L-1A and which falls under L-1B?
Answer: Managers and executives fall under the L-1A category. Persons with specialized knowledge fall under the L-1B category.
Question: What exactly is Managerial Capacity?
Answer: (1) Manages the organization, department, subdivision, function or component;
(2) Supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization;
(3) Has authority to hire and fire or recommend personnel actions (if other employees directly supervised), or if no direct supervision, functions at a senior level within hierarchy or as to function managed; and
(4) Exercises discretion over day-to-day operations of the activity or function.
Question: What exactly is Executive Capacity?
Answer: An assignment in an organization in which the employee primarily:
(1) Directs the management of the organization or a major component or function;
(2) Establishes goals and policies;
(3) Exercises wide latitude in discretionary decision making; and
(4) Receives only general supervision or direction from higher level executives, board of directors or stockholders. In determining whether an individual is acting in a managerial or executive capacity, the Attorney General shall take into account the reasonable needs of the organization, component or function in light of the overall purpose and stage of development of the organization, component or function. The number of employees supervised is not determinative.
Question: How do you define specialized knowledge employee?
Answer: Specialized knowledge is defined to include a person who has special knowledge of the company’s product, service, research, equipment, techniques, management or other interests and its application in international markets, or has an advanced level of knowledge of processes and procedures of the company. It includes a type of specialized or advanced knowledge that is different from that generally found in a particular industry, but need not be proprietary or unique. Where the specialized knowledge is of a company product, the knowledge must be “noteworthy or uncommon.” Where it involves the company’s processes and procedures it must be “advanced.” The advanced knowledge need not be narrowly held throughout the company. Specialized knowledge includes knowledge which is advanced and generally not known of a process or product which would be difficult to impart to another without significant economic inconvenience to the U.S. or foreign firm.
Question: Can you give some specifics on what is looked for in a specialized knowledge employee?
Answer: It is not simply a skilled worker. Rather someone whose advanced level of expertise and proprietary knowledge of the employer organization’s product, service, research, equipment, techniques, management or other activity is not readily available in the U.S. labor market. The term “proprietary” however, is no longer in the regulations. The characteristics include:
(a) Possesses knowledge that is valuable to the employer’s competitiveness in the market place;
(b) Is uniquely qualified to contribute to the U.S. employer’s knowledge of foreign operating conditions;
(c) Has been utilized as a key employee abroad and has been given significant assignments which have enhanced the employer’s productivity, competitiveness, image or financial position; and
(d) Possesses knowledge that can be gained only through extensive prior experience with that employer.