What are the Adjudication Standards of the L-1B “Specialized Knowledge” Petitions?
Several memoranda have been issued by the INS (and USCIS) concerning the appropriate adjudication standard for L-1B petitions after IMMACT. The seminal agency guidance on adjudicating L-1B petitions under current law is James A Puleo's March 9, 1994 policy memorandum, entitled "Interpretation of Specialized Knowledge" (Puleo memorandum). The Puleo memorandum begins by noting two separate criteria for specialized knowledge:
- special knowledge of the company product and its application in international markets, or
- an advanced level of knowledge of the processes and procedures of the company.
The memorandum defines knowledge as "special" where it "surpasses the usual; is distinct among other of a kind; and is distinguished by some unusual quality; uncommon; noteworthy." Thus, based on this definition of special, "specialized knowledge" is "different from that generally found in the particular industry. The knowledge need not be proprietary or unique, but it must be different or uncommon."
The memorandum then defines knowledge as "advanced" where it is "highly developed or complex; at a higher level than others," and "beyond the elementary or introductory; greatly developed beyond the initial stage." Thus, based on this definition of "advanced," the memorandum states that to be "advanced knowledge," the knowledge "need not be held narrowly throughout the company, only that the knowledge be advanced."
The Puleo memorandum also lists possible characteristics of a specialized alien, which are similar to those listed in the Norton memorandum:
- 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;
- Possessing knowledge which, normally, can be gained only through prior experience with that employer; and
- Possessing knowledge of a product or process, which cannot be easily transferred or taught to another individual.
The common theme in this list is that the knowledge which the beneficiary possesses, whether it is knowledge of a process or a product, would be difficult to impart to another without significant economic inconvenience to the United States or foreign firm. The memorandum then clarifies that this list is not all inclusive and need not all be met to establish specialized knowledge. The memorandum also confirms that determinig "specialized knowledge" does not require a labor market test. It notes that a finding of specialized knowledge "involves only an examination of the knowledge possessed by the alien, not whether there are similarly employed U.S. workers.
The Puleo memorandum was subsequently reaffirmed in a 2002 memorandum and in a 2004 memorandum, both issued by Fujie O. Ohata, Director of Service Operations of the INS.
The L-1 Visa Reform Act of 2004 did not change the definition of "specialized knowledge," but part of its purpose was to exclude from L-1B classification workers who will be "stationed primarily" at the worksite of an employer other than the petitioner or an affiliate, subsidiary, or parent if:
- the beneficiary will be "principally" under the "control and supervision" of the unaffiliated employer; or
- the placement at the nonaffiliated worksite is "essentially an arrangement to provide labor for hire for the unaffiliated employer" rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.
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