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Specialized Knowledge and the L-1B Intracompany Transferee Visa

March 25, 2013

Business PeopleOne of the requirements to be eligible for the L-1B nonimmigrant intracompany transferee visa category is that the beneficiary must have specialized knowledge. The legal definition of specialized knowledge was illustrated recently by the Administrative Appeals Office (AAO) of the US Citizenship and Immigration Services (USCIS) in a recent court case dated March 15, 2013. In that case, the petitioner had filed an L-1B visa petition with the Director of the USCIS California Service Center, which denied the petition. The AAO heard the petitioner’s appeal and reversed the Director’s denial.

The AAO held that the Director based its denial upon an incorrect interpretation of the law regarding specialized knowledge. The Director concluded that the beneficiary did not have specialized knowledge because the beneficiary was not responsible for actually developing the product or technology for which the specialized knowledge is required.

The AAO held in that case that the Immigration and Nationality Act and the regulations do not require the beneficiary to have developed the particular product or technology in question. The AAO concluded that it was improper for the Director to deny the petition based solely upon the fact that the beneficiary had not developed the technology. The specialized knowledge requirements is met when it is established that the beneficiary has a special knowledge of the product and its application in international markets or possesses knowledge of an advanced level of the company’s processes and procedures. Eligibility may be established by satisfying either of these two prongs.

According to previous court cases, in order to establish eligibility for the L-1B visa category, the petitioner must prove that the beneficiary is qualified by a preponderance of the evidence. This means that the evidence must show that a fact is more likely to be true then not. The evidence is not evaluated by its quantity, but rather by its quality. Furthermore, evidence must be examined for relevance, probative value, and credibility, both taken separately and also looked at together in totality.

The petitioner presented evidence to the Director establishing that the beneficiary possesses special knowledge of the petitioner’s technology including a press release showing that the proprietary technology will be implemented into customer markets. The petitioner provided a comprehensive description of the technology in question and how the beneficiary was involved with the technology. Evidence established that the beneficiary had over five years of experience related to the technology, his team leadership in the technology’s design, his patents in this area of specialization, as well as his additional contributions in connection with the technology.

In support of its decision the AAO added that the evidence showed that knowledge of the technology is exclusive to the petitioning company, that the technology is significantly complex, that a significant amount of experience is necessary in order to function at the beneficiary’s level of expertise, and that such knowledge is not easily transferable to others in the same field. The AAO held that this evidence was sufficient to establish that the beneficiary possessed specialized knowledge as required in order to qualify for the L-1B visa. This decision can be a useful tool when drafting the L-1B petition.

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