October 21, 2013
Department of Homeland Security office of Inspector General recently issued a memorandum August 9, 2013 in which it proposed several recommendations aimed at improving the L-1 visa program. Among these are to provide guidance to several federal departments on how to define the slippery term “specialized knowledge.”
The memorandum explains the problems caused by the lack of a good definition. In order to get an L-1B intercompany transferee visa, it must be established that the foreign national has “specialized knowledge.” The problem with this is that there really is no bright line definition. The definition of this term has been subject to numerous revisions by statutes, regulations, and official memorandums. On top of this, it has also been shaped and formed over time on a case-by-case basis since every new occupational fact pattern seems to bring a different and unpredictable result based upon the adjudicators own subjective interpretations.
The term “specialized knowledge” has been defined, redefined, and re-redefined several times through statutes, regulations, and official memorandums. Congress created the L-1 visa classification in 1970 for those foreign nationals who have “specialized knowledge,” but it did not provide a statutory definition of the term.
In 1983, the US Immigration and Naturalization Service (Legacy INS) published regulation to define specialized knowledge as “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 interest of the employer are not readily available in United States labor market.” This definition established a very high standard compared to what we have today.
The definition evolved again in 1988 from an INS policy memorandum that broadened interpretation to mean “special knowledge possessed by an employee that is different from or surpasses the ordinary or usual knowledge employee in the particular field.”
The definition changed again when Congress passed the Immigration Act of 1990 (IMMACT) as an “alien is considered to be serving in the capacity involving specialized knowledge with respect to the company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.”
The IMMACT definition was still elusive and difficult to grasp. Ever since, there have been several regulations memorandums issued by INS and USCIS to clarify the definition of specialized knowledge. In addition to that, the courts have wrestled with this term providing their own interpretations of how the term should be defined.
The memorandum recommended that the USCIS showed publish new guidance to clarify its interpretation of specialized knowledge, which should be sufficiently explicit to give adjudicators an improved basis for determining whether employees of the petitioning entity possess Specialized knowledge. It recommended that the USCIS screen L-1 beneficiaries against a list of persons previously denied visas by DOS consular officers. It recommended thorough L-1 training for all CB officers that process L-1 travelers in Canada. It recommended the USCIS make a site visit requirement before it extends 1-year new office petitions.
Realistically, the way to know whether a person has specialized knowledge is to look through previous cases and see if cases with similar facts were approved or denied. It’s difficult to really know which way an L-1B case will go unless there is a case with virtually the same fact pattern that has already been decided.
Up to now, specialized knowledge has been defined by the government and “we know it when we see it.” Hopefully this new DHS guidance will provide us with a better way to define specialized knowledge.