L-1B Specialized Knowledge
Question: Will you please explain your standard of review for
“specialized knowledge?”
Answer: CSC applies the regulation, legacy INS and USCIS memos, and filters the information using the preponderance of the evidence standard when reviewing the information – this is a “more likely than not” standard. There are no hard-and-fast rules as to what is specialized knowledge; it is a very fact-intensive type of inquiry. CSC is looking for a preponderance of information relating the particular industry, company and beneficiary. CSC looks to see what education and training the beneficiary possesses, as well as how the beneficiary came to obtain the knowledge. There is a new L-1B RFE template being developed. The regulation does not require the provision of a specific type of information, and CSC leaves it up to the petitioner to decide what evidence to submit. CSC does not rely on the 2008 non-precedent decision for adjudications. CSC says it cannot apply any particular aspect of this case, or cite to portions of it to deny cases.
E-2 Treaty Traders
Question: Members report receiving Requests for Evidence calling into question the validity of unsecured personal loans as an investor’s source of funds. 9 FAM 41.51 n8.1-2 and the preamble contained in the E-2 final rule promulgated in 62 Fed. Reg. 42142 (Sept. 12, 1997) provide that loans, even if guaranteed by the mere signature of the investor,are a sufficient instrument to demonstrate both source of funds and possession and control of funds. Please confirm that the CSC will treat an unsecured personal loan as satisfactory evidence of an investor’s source of funds and possession and control of funds for E-2 investment purposes.
Answer: The CSC agrees that, as noted above, unsecured personal loans are an appropriate method for investment. However, CSC does not apply this requirement in a vacuum; they still look to see that the investment is at risk and whether the funds emanate from a lawful source.
Question: Members report receiving RFEs in E-2 cases asking for evidence of the source of funds not from the investor, but from the source where the investor received the capital. For example, if the investor received the investment funds as a gift from family members, the CSC requests evidence of the source of the family member’s funds. As the regulations appear to require only that the source of funds be lawful and have not been obtained through criminal activity, so long as the agreement to provide the investor with the funds is valid, there should be no further inquiry.
Answer: The CSC agrees that the source of funds may be a gift given to the investor by family members. However, as noted above for unsecured personal loans, the USCIS may still inquire as to the lawful source of the gifted funds (i.e. that the funds did not arise from a criminal act or enterprise). CSC states it is obliged by the regulations to find out this information.
Third Party Placement with IT Consulting Companies
Question: As recognized recently in Stakeholder’s notes issued by VSC, USCIS has recognized that many end clients of IT consulting companies have a policy of not issuing letters to verify duration/specialty occupation. Can CSC provide guidance regarding what other documents can be provided to support duration/specialty occupation?
Answer: The CSC will review any and all information submitted in support of duration/specialty occupation (such as ID badges, e-mails, co-worker statements, contracts, itineraries, letters from petitioner, etc.) with a view to determining whether the totality of the evidence presented supports the existence of the employer/employee relationship and specialty occupation.
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