In Pursuit Of "Specialized Knowledge"

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When
one examines the many visa categories through which a foreign national may
lawfully enter or remain in our country, certain values are immediately
evident. Categories which allow foreign nationals entry through U.S. Citizen or
Lawful Permanent Resident relatives bespeak the value our nation places on
family unity. Categories which allow foreign nationals to stay due to
persecution in their home country or domestic abuse in our own country, speak
to our nation’s humanitarian values. And, of course, categories that allow
foreign nationals to enter through employer sponsorship speaks to the value our
nation places on capitalism within its own borders, and on its competitiveness
in the global marketplace.



As a
nation of immigrants, we recognize that foreign nationals have much to
contribute to our marketplace. It is this recognition of foreign talent that
lent itself to the creation of the L-1B “specialized knowledge” visa, a visa
designed so that multinational business owners—business people with offices abroad
and in the United States (or those who wish to open an office in the United
States)—can bring foreign workers with “specialized knowledge” of the business’s
product or process into the U.S. temporarily, so that its workers can perform
the necessary specialized services in the U.S.



Unfortunately,
however, for many businesses petitioning for the L-1B “specialized knowledge” visa,
procuring the benefit has become a tedious battle. Petitioners are often
required to provide evidence of facts that are irrelevant for the purposes of
demonstrating specialized knowledge, or worse, denied visas for failing to
demonstrate that specialized knowledge is required in cases where overwhelming
evidence has demonstrated that such knowledge is necessary for the job.



For
example, take one case where a petitioner was denied an L-1B “specialized
knowledge” visa for its employee because it failed to demonstrate that working
on its product required “specialized knowledge”. In the denial, USCIS
acknowledged that the company had a proprietary product and that the employee
had knowledge of its proprietary product. However, USCIS stated that this failed
to meet the definition of “specialized knowledge” because the company had
failed to demonstrate that it was the only company in the industry that
provided its service. To the reasonable person, such a denial seems absurd;
such a policy could render obsolete the entire category of specialized
knowledge and certainly undermines the capitalist values that inspired the L-1B
“specialized knowledge” visa category in the first place. If the L-1B “specialized
knowledge” category requires a showing that a business is the only one in the
industry to provide a service, no business with a competitor would be able to transfer
a worker to the U.S. under the L-1B “specialized knowledge” category. Coca-Cola
would be unable to bring in a worker with knowledge of its proprietary product
because Pepsi provides a similar service. A showing that an industry is the
only one of its kind to provide a service is clearly not a requirement for
showing “specialized knowledge”, but, unfortunately, denials for failing to
demonstrate the existence of “specialized knowledge” are often the result of
absurd interpretations of the L-1B “specialized knowledge” category requirements.


One
cannot entirely fault USCIS officers, however, for their sometimes absurd interpretations
of “specialized knowledge”. The definition of “specialized knowledge” has long
been the subject of contention in court cases due to its ambiguity in the
regulations at 8 C.F.R. §214.2(l)(1)(ii)(D), which define specialized knowledge
as “[S]pecial knowledge possessed by an individual of the petitioning
organization’s product, service, research, equipment, techniques, management,
or other interests and its application in international markets, or an advanced
level of knowledge or expertise in the organization’s processes and procedures”.

Legacy
INS attempted, multiple times, to provide guidance to the term “specialized
knowledge” identifying knowledge of a proprietary product as an indicator that
specialized knowledge exists (See Matter
of Sandoz Crop Protection Corp,
19 I&N Dec. 666 [Comm. 1988], and Matter of Penner, 18 I&N Dec. 49
[Comm. 1982]), especially where the employee’s duties relating to the
proprietary product are “necessary in order for the company to remain
competitive.” (Matter of Colley, 18
I&N Dec. 117 [Comm. 1981]). However, the regulatory definition of
“specialized knowledge” (born of the Immigration Act of 1990) did not require
proprietary knowledge as a prerequisite for L-1B classification.  In 1994, James A. Puleo issued a memorandum
attempting to delineate what it is that makes up “specialized knowledge”, and
included such factors as “knowledge that is valuable to an employer’s
competitiveness in the marketplace” and “knowledge of a product or process
which (could not) be easily transferred or taught to another individual”. (Memorandum on Interpretation of Specialized
Knowledge
from James A. Puleo, Acting Executive Associate Commissioner,
Office of Operations, CO 214L-P [March 9, 1994]). In 2002, a memorandum issued
by Fujie Ohata gave a broad interpretation of the term, defining “specialized
knowledge” as “a type of specialized or advanced knowledge that is different
from that generally found in the particular industry.” (Memorandum on Interpretation of Specialized Knowledge from Fujie O.
Ohata, Associate Commissioner, Service Center Operations, Immigration Services
Division, HQSCOPS 70.6.1 (Dec. 20, 2002). In 2011, the Department of State again
attempted to issue guidance as to how adjudicators of L-1B visa petitions
should define specialized knowledge. Referencing the earlier INS cases, it identified
proprietary knowledge of a product as an indicator that “specialized knowledge”
exists, especially where knowledge “would be difficult to impart to another
without significant economic inconvenience.” (U.S. Department of State, Cable, “Guidance
on L Visas and Specialized Knowledge, Reference Document: STATE: 002106, 01/11”
January 2011.)


Most
recently, as this blog elaborated, in
October 2014 the United States Court of Appeals for the District of Columbia
Circuit came down hard on USCIS for its “wooden” application of the law in
denying a chef an L-1B specialized knowledge visa. (See Fogo De Chao (Holdings) Inc. v. U.S. Dept. of Homeland Security, et
al.
No. 1:10-cv-01024 [Court of Appeals for the District of Columbia, Filed
on 10/21/2014]). The Fogo court
declined to give the USCIS decision “Chevron” deference as the regulations
circularly parrot the statute, rather than provide a definition of “specialized
knowledge”. It held that specialized knowledge could be obtained through deep
immersion in a culture and also identified “economic hardship” as key in
identifying where “specialized knowledge” exists. The Fogo decision, while helpful to practitioners seeking legislative
support for a broader definition of specialized knowledge, also serves to
highlight the desperate need for a more concrete definition of “specialized
knowledge”.

United
States Secretary of Homeland Security Jeh Johnson recognized the need for
guidance in his November 20, 2014 Memo to USCIS Director Leon Rodriquez and
USCIS Acting Director Thomas S. Winkowski, Policies
Supporting U.S. High-Skilled Business and Workers
. Specifically, Section D,
“Bringing Greater Consistency to the L-1B Visa Program”, directs USCIS to
“issue a policy memorandum that provides clear, consolidated guidance on the
meaning of ‘specialized knowledge’,” and acknowledges the critical importance
of the L-1B Visa Program for multinational companies as an “essential tool for
managing a global workforce as companies choose where to establish new or
expanded operations, research centers, or product lines, all of which stand to benefit the U.S. economy.” (emphasis added).

As
USCIS drafts its guidance it should take care to note the capitalist values
that inspired the creation of this visa category. This category was created, as
noted by Secretary Johnson, “to benefit the U.S. economy”. To woodenly
interpret this category so as to rule out many qualified workers, to create
unnecessary limitations, all of this would only serve to hurt our own economy
and to limit our own country’s competitiveness in the global marketplace. The Fogo de Chao decision, which allows for
a broader interpretation of specialized knowledge, provides a good reference
point as to how to interpret “specialized knowledge”. The guidance should be
clear so that there can be no more ambiguity for USCIS officers attempting to
interpret “specialized knowledge”.

“Specialized
knowledge” should be found to exist where an employer would incur significant
economic loss in training another individual to do the work required of an
employee. “Specialized knowledge” should be found where the work requires
knowledge of a proprietary product. Even if a company does not have a
proprietary product, specialized knowledge should be found where an employee’s knowledge
may be uncommon or advanced, and need not be narrowly drawn within the company
and reserved for a select few. Specialized knowledge should also be found where
a company may not have a product, but has developed a unique methodology for
delivering services to customers.  The
guidance should state unambiguously the long-standing USCIS rule that was
reiterated in the aforementioned Ohata memo, that “there is no test of the U.S.
Labor Market in determining whether an alien possesses specialized knowledge.
Only an examination of knowledge possessed by the alien is necessary”. USCIS
should be reminded that our country desires the services of qualified L-1B
individuals and it should be encouraged to interpret “specialized knowledge”
broadly, so as not to preclude workers who qualify to benefit our country under
this category. Essentially, a foreign national should be found eligible for the
L-1B visa where it can be shown that the person’s set of skills or knowledge is
complex, and has contributed to the success of the foreign entity, and will be
replicated in the United States on this person’s transfer.

The
United States of America takes great pride in its capitalist ideals, and
strives to be the most competitive nation on earth. The L-1B visa allows the
United States to do just that.  USCIS
should ensure that its guidance with relation to the L-1B “specialized
knowledge” visa category comports with our nation’s values.







This post originally appeared on The Insightful Immigration Blog. Reprinted with permission.






About The Author













Rachel Weissman




Rachel Weissman is a Contract Associate at Cyrus D. Mehta & Associates, and is pending admission to the N.Y. State Bar after passing the bar examination. She graduated with a J.D. from Brooklyn Law School in 2014, where she focused her studies on Immigration Law and served as Treasurer of the Brooklyn Law Immigration Society. She looks forward to a day when the definition of “specialized knowledge” is interpreted to allow multinational business owners to easily transfer their “specialized knowledge” employees to the United States.








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