The New L1-B Specialized Knowledge AAO Decision Format

by Joseph Whalen

Upon perusing the AAO Administrative Decisions in the L-1 Intracompany Transferee category covering the past few years (2011 forward), I only found maybe three decisions addressing the L1-B, Specialized Knowledge non-immigrant visa. Thanks to various practitioners posting victorious cases very recently decided by AAO (in April and May 2013), we can see a distinct change in the presentation of the statutory definition and maybe a re-interpretation of specialized knowledge. Some might argue that second point and I invite them to do just that, I'd enjoy the dialogue. Here is the new verbiage in the analysis section that I heartily welcome:

"In order to establish eligibility, the petitioner must show that the individual will be employed in a specialized knowledge capacity. 8 C.F.R. § 214.2(l)(3)(ii). The statutory definition of specialized knowledge at Section 214(c)(2)(B) of the Act is comprised of two equal but distinct subparts. First, an individual is considered to be employed in a capacity involving specialized knowledge if that person "has a special knowledge of the company product and its application in international markets." Second, an individual is considered to be employed in a capacity involving specialized knowledge if that person "has an advanced level of knowledge of processes and procedures of the company." See also 8 C.F.R. § 214.2(l)(1)(ii)(D). The petitioner may establish eligibility by submitting evidence that the beneficiary and the proffered position satisfy either prong of the definition."

In the present case, the petitioner's claims are based on the first/second prong, asserting that the beneficiary has

  1. a special knowledge of the company's product and their application in international markets

  2. -OR-
  3. (b) an advanced knowledge of the company's processes and procedures.....

Earlier verbiage was stuck in a rut and did not even mention the statutory definition, instead sticking solely to discussion of the regulatory definition and evidentiary criteria. This step backward is a good thing as USCIS like INS before it was too in love with the regulations even when those regulations did not keep up with statutory changes. There are many obsolete and ultra vires regulations still guiding the everyday work of adjudicators to the detriment of all. Even District Court Judges were stuck in that rut, merely parroting the regulations supplied to it in agency briefs. Only a handful of more conscientious Judges were doing the legwork and homework to find those obsolete and ultra vires regulations. Good show to AAO on taking a proactive approach in this matter.

There seemed to be a moratorium on deciding "specialized knowledge" petitions for a while. It now looks like the dam has burst or the floodgates have opened. To this point, the newly re-formatted decisions that have been made available (to me anyway) are sustained appeals. I am eager to see how AAO upholds a denial. Will it perform a de novo review under the re-worked approach? I request any examples.

That's my two-cents, for now.

About The Author

Joseph Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.