Evolution of the L-1B “Specialized Knowledge” Definition
The L visa category was created to facilitate the temporary transfer of foreign nationals to work in managerial or executive capacities or with specialized knowledge for the same employer or its parent, branch, subsidiary, or affiliate in the U.S. BIA decisions began addressing the meaning of "specialized knowledge" in the 1980s. The BIA focused on the term "key personnel." It also distinguished highly skilled employees from those with "specialized knowledge" and further held that specialized knowledge involved "proprietary knowledge" and "an advanced level of expertise not readily available in the U.S. job market."
In 1983, the INS finalized its regulatory definition of "specialized knowledge":
. . . knowledge possessed by an individual, which relates directly to the product or service of an organization or to the equipment, techniques, management, or other proprietary interests of the petitioner not readily available in the job market. The knowledge must be relevant to the organization itself and directly concerned with the expansion of commerce or it must allow the business to become competitive in the market place.
But then in 1987, due to concerns over adequacy of the definition, INS further amended the definition to read as follows:
. . . knowledge possessed by an individual whose advanced level of expertise and proprietary knowledge of the organization's product, service, research, equipment, techniques, management, or other interests of the employer are not readily available in the United States labor market. This definition does not apply to persons who have general knowledge or expertise which enables them merely to produce a product or provide a service.
Then, in 1988, Associate Commissioner of the INS, Richard E. Norton, issued a memorandum (Norton memorandum) which noted that the term "proprietary knowledge" was being interpreted too literally and many employees whom Congress intended to cover under the L classification were being excluded. The memorandum thus recommended that "proprietary knowledge" includes "specialized knowledge possessed by an employee of the organization's product, service, research, equipment techniques, management, or other interests that is different from or surpasses the ordinary or usual knowledge of an employee in the particular field." The memo further described the following as some characteristics of an employee who has specialized knowledge:
- Possessing knowledge that is valuable to the employer's competitiveness in the market place;
- Being qualified to contribute to the United States employer's knowledge of foreign operating conditions as a result of special knowledge not generally found in the industry;
- Having been utilized abroad in a capacity involving significant assignments which have enhanced the employer's productivity, competitiveness, image, or financial position; and
- Possessing knowledge, which, normally, can be gained only through prior experience with that employer.
The regulatory definition of "specialized knowledge was further amended by Congress in the Immigration Act of 1990 (IMMACT). The bill redefined specialized knowledge as special knowledge of the company product and its application in international markets, or an advanced level of knowledge of processes and procedures of the company. It eliminated the requirement that the foreign national's specialized knowledge be "proprietary," exclusive to the petitioning company, or not readily available to the U.S. labor market. INS amended its regulations accordingly.
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