“Specialized Knowledge”: A Moving Target

One common but increasingly difficult nonimmigrant option for employers is the L-1B intracompany status. For qualifying international organizations, it is sometimes possible to transfer a foreign employee to work in the United States if they have “specialized knowledge.”  USCIS recently held a stakeholder meeting on the L-1B, and has subsequently published minutes, which can be found here.

The Immigration and Nationality Act states that a person can be transferred to the United States to work at the same employer or a subsidiary or affiliate “in a capacity that is managerial, executive, or involves specialized knowledge…”

The regulations define specialized knowledge to mean “special 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.”

Read closely, it is clear this is a vague and yet broad definition.  In practice, however, “specialized knowledge” has always been something of a moving target.

In recent years, particularly in light of the recession, it has become increasingly difficult to satisfy DHS that a person has such specialized knowledge, and therefore merits L-1B status. Adjudicators apply disparate definitions, and rely on their own interpretations of all sorts of administrative guidance which has been issued over the years.

At the end of the day, the approval or denial of an L-1B petition often comes down to the gut feeling of the adjudicator—a gut feeling which may well be based on shaky legal premises, such as the application of some sort of de facto labor market test.  It has become routine for new and novel expressions of the above stated regulation to find their way into requests for evidence, which ultimately are just another way of the adjudicator saying, “I don’t think so…..but let’s hear what else you have to say. ”

A successful L-1B petition therefore is an exercise in advocacy and persuasion, and typically needs to anticipate the reservations an adjudicator might have which aren’t plainly written into the regulations and other administrative guidance.