Question: I understand that I can try to get a person who has specialized knowledge to come over in my company which was previously approved under an L-1 Visa. Can you let me know the specifics?
Answer: The statutory language defining “specialized knowledge” is not simple or clear. Specialized knowledge is a foreign national that is considered to be serving in a capacity involving specialized knowledge with respect to a 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 phrase “specialized knowledge” is not otherwise defined in the law, and there have been few administrative or judicial opinions interpreting it. The DHS/AAO noted, “the definition is less than clear, since it contains undefined, relativistic terms and elements of circular reasoning.” A decision by a District Court in Washington, D.C. was even more critical: “Simply put, specialized knowledge is a relative and empty idea which cannot have a plain meaning.”
Given the relative lack of statutory clarity or interpretative guidance, determinations as to specialized knowledge by necessity will often depend on the consular officer’s expertise in the context of the specific case’s circumstances. It will also depend on how detailed the L-1 Specialized Knowledge Petition is put together. Again, this has been noted by the AAO: “By deleting this element in the ultimate statutory definition and further emphasizing the relativistic aspects of “special knowledge,” Congress created a standard that requires USCIS to make a factual determination that can only be determined on a case-by-case basis, based on the agency’s expertise and discretion. Rather than a bright-line standard that would support a more rigid application of the law, Congress gave legacy INS a more flexible standard that requires adjudication based on the facts and circumstances of each individual case.
Question: In other words, it is difficult to define. However, what standards can the adjudicator use?
Answer: When putting the petition together, show the proprietary nature of the knowledge – While it is not strictly required that specialized knowledge involve knowledge of procedures or techniques proprietary to the petitioning company, the possession of significant proprietary knowledge can in itself meet the specialized knowledge requirement. This is expressly stated in INA 214(c)(2), which makes reference to “special knowledge of the company product and its application in international markets” or “advanced level of knowledge of processes and procedures of the company.”
Show that the L requirement when it “would be difficult to impart to another without significant economic inconvenience.” This knowledge can be acquired through on-the-job training. In other words, if everyone is specialized, then no one is. The legislative history indicates that the specialized knowledge requirement was intended for “key” personnel. While it could be true in a small company that all experienced employees are “key,” for a larger company there should be a distinction between “key” and normal personnel. This could be made based on length of experience, level of knowledge, or level of responsibility – e.g., the person has been made responsible for more complicated and/or sensitive projects. If a company is claiming that all the employees working on technical issues should be considered to have specialized knowledge, the company is probably employing too low a standard. On the other hand, there is no legal basis to require any specific limit on the number of employees that can be considered key. As indicated, for a small company, all employees with responsible positions may be key. A large company can have a large number of key employees who would meet the specialized knowledge criteria, but there should be a distinction between those employees and ordinary skilled workers.
Question: What else should be shown?
Answer: Try to show that what the L-1 specialized employee knows is “more than ordinary” – The use in the INA of the terms “special” and “advanced” implies that the employee has more skills or knowledge than the ordinary employee. This does not require an “extraordinary” level of skills, merely more than that of the ordinary employee in the company or the field. This could involve knowledge of special company projects or greater than normal experience and/or knowledge of software techniques.
Therefore, as with many other types of petitions, it must be heavily documented and properly prepared.
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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California Bar Board of Legal Specialization and he is admitted to the United States Supreme Court, the California Supreme Court and the U.S. Courts of Appeals for the 11th, 10th, 9th, 8th, 6th, 5th, 4th, 3rd, 2nd and 1st Circuits. Mr. Lerner handles all types of immigration cases, but does a significant amount of deportation cases. As a deportation attorney, he is able to apply for many types of relief in Immigration Court, such as Cancellation of Removal, Asylum, Convention Against Torture, Adjustment of Status and more. Office in Long Beach and clients all over the State of California. Please call (866) 495-0554 for a free consultation or e-mail Brian D. Lerner at blerner@californiaimmigration.us
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