The interpretation of "specialized knowledge" for the L-1B classification has evolved substantially over the years since the L-1 visa category was created in 1970. The term has been analyzed in decisions by the Board of Immigration Appeals (BIA), elaborated on in agency guidance, addressed by regulations, and modified by legislation. Most recently, however, there has been increased scrutiny of the L-1 program that has led to rigid application of the specialized knowledge standard that runs contrary to the purpose for which the program was created.

I. History

The L visa category was created to facilitate the temporary transfer of foreign nationals to work in managerial or executive capacities or with specialized knowledge for the same employer or its parent, branch, subsidiary, or affiliate in the U.S. BIA decisions began addressing the meaning of "specialized knowledge" in the 1980s. The BIA focused on the term "key personnel." It also distinguished highly skilled employees from those with "specialized knowledge" and further held that specialized knowledge involved "proprietary knowledge" and "an advanced level of expertise not readily available in the U.S. job market."

In 1983, the INS finalized it regulatory definition of "specialized knowledge":

. . . knowledge possessed by an individual, which relates directly to the product or service of an organization or to the equipment, techniques, management, or other proprietary interests of the petitioner not readily available in the job market. The knowledge must be relevant to the organization itself and directly concerned with the expansion of commerce or it must allow the business to become competitive in the market place.

But then in 1987, due to concerns over adequacy of the definition, INS further amended the definition to read as follows:

. . . knowledge possessed by an individual whose advanced level of expertise and proprietary knowledge of the organization's product, service, research, equipment, techniques, management, or other interests of the employer are not readily available in the United States labor market. This definition does not apply to persons who have general knowledge or expertise which enables them merely to produce a product or provide a service.

Then, in 1988, Associate Commissioner of INS, Richard E. Norton issued a memorandum (Norton memorandum) which noted that the term "proprietary knowledge" was being interpreted too literally and many employees whom Congress intended to cover under the L classification were being excluded. The memorandum thus recommended that "proprietary knowledge include "specialized knowledge possessed by an employee of the organization's product, service, research, equipment techniques, management, or other interests that is different from or surpasses the ordinary or usual knowledge of an employee in the particular field." The memo further described the following as some characteristics of an employee who has specialized knowledge:

• 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; and
• Possessing knowledge, which, normally, can be gained only through prior experience with that employer.

The regulatory definition of "specialized knowledge was further amended by Congress in the Immigration Act of 1990 (IMMACT). The bill redefined specialized knowledge as special knowledge of the company product and its application in international markets, or an advanced level of knowledge of processes and procedures of the company. It eliminated the requirement that the foreign national's specialized knowledge be "proprietary," exclusive to the petitioning company, or not readily available to the U.S. labor market. INS amended its regulations accordingly.

II. Current Definition

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:

1.  special knowledge of the company product and its application in international markets, or
2.  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 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:

1. the beneficiary will be "principally" under the "control and supervision" of the unaffiliated employer; or
2. 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

III. Application in the Context of L-1B Workers for IT Consulting Companies

The unique and evolving nature of the information technology (IT) consulting firms has presented a challenge to adjudicators at USCIS. Recently, there have been a large number of Requests for Evidence (RFEs) issued on L-1B petitions filed by IT consulting companies. Those RFEs generally ask for the following additional information:

1. whether the job duties require an individual of specialized knowledge and are distinct from labor for hire;
2. whether the foreign national has the requisite specialized knowledge; and
3. more information on the relationship between petitioner and its client.

Whether the job duties require an individual of specialized knowledge and are distinct from labor for hire

The large number of RFEs issued suggest that the job duties in these cases are general IT tasks that any computer programmer or IT worker could perform. Specifically, USCIS usually finds that changing a client's already existing system and/or software rather than developing the petitioner's own software does not require specialized knowledge. USCIS also notes that the beneficiary will be working on a product that is used to conform to the client's specifications and needs, rather than a product unique to the specifications and needs of the petitioner. Based on these observations, the agency denies the L-1B petition, reasoning that specialized knowledge is not required to complete the job duties.

Yet what USCIS summarily dismisses as general IT tasks are the necessary first steps in identifying and developing the appropriate IT solution that is ultimately the petitioner's service and of which specialized knowledge is required. Modifying or upgrading a client's existing system or software involves significant analysis and study of that system, an understanding of the client's goals and objectives in wanting these changes, an assessment of the host environment in which those changes will be implemented, and a review of compatibility issues with other existing software and/or hardware in that host environment are the groundwork to then identify the appropriate IT solution developed by the petitioner. Rather than imposing its own specifications on the client, most IT consulting companies customize their applications and software as well as their processes to meet each client's specific needs. Knowing how to optimally customize the IT consulting company's software, applications, and processes to a particular client requires specialized knowledge of a company's products, services, and techniques as well as an advanced knowledge of the consulting company's proprietary processes and procedures.

Moreover, the Service discounts the advanced level of knowledge of the internal processes and tools that are essential for efficient and optimal delivery of IT services, reasoning that since such processes are taught in short training programs, knowledge of such processes cannot rise to the level of specialized knowledge. However, It is not the training itself that gives the employee specialized knowledge, but the experience of applying the information learned during training that equips the person with specialized knowledge. The individuals normally selected for deployment have not only been trained on certain processes, products, or procedures, but they have accumulated experience in applying this knowledge on certain projects in development labs, which makes their knowledge specialized.

Additionally, in the case of IT consulting companies, the knowledge needed to perform the job duties in the U.S. at client sites usually can only be obtained through prior experience with the company abroad. The business realities are such that individuals deployed to the U.S. to service clients need to be capable of performing their tasks immediately; they cannot be trained upon arrival to the U.S. on the tools, products, processes, and procedures nor is there time for them to acquire the necessary level of expertise to perform these job duties once they are in the U.S. It is also important to note that it is highly disruptive to IT consulting businesses if foreign national workers can not be deployed but U.S. workers had to hired and trained to assume the duties of those workers.

Whether the foreign national has the requisite specialized knowledge

The RFEs and denials appear to want objective evidence that confirms the foreign national's specialized knowledge. Statements from the petitioner that the beneficiary has specialized knowledge are dismissed as mere assertions. USCIS asks for proof that the knowledge is narrowly held within the company and information on the amount of time it normally takes an employee to obtain such knowledge.

However, based on IMMACT and subsequent USCIS interpretations, there is no legal requirement that the specialized knowledge be narrowly held among a small number of the petitioner's employees; rather, the knowledge must not be general and commonly held throughout the industry. The focus should not be whether the knowledge is held widely in the company, but within the industry at large. This line of inquiry runs counter to the realities of today's knowledge economy where large international companies that specialize in very technical fields with many thousands of employees will clearly have a larger number of specialized knowledge workers quantitatively, although the percentage of such workers in any given global business may be relatively small versus the whole.

Recently in the adjudication of L-1B petitions, USCIS has also been requiring that the specialized knowledge be of the products, services, processes, and procedures of the actual petitioning organization-and not of the subsidiaries, affiliates, or parent companies. However, when dealing with large international companies, it is not uncommon for subsidiaries, affiliates, and branches to have different names and to not have their own proprietary products, services, techniques, procedures, or methodologies. Instead, these entities often leverage their brand-name parent company's products and services. The approach taken by the USCIS is outdated.

More information on the relationship between petitioner and the client where the L-1B worker will work

Specifically, USCIS seeks master service agreements, statements of work, purchase orders or other proof of payment for services, detailed milestones of the project, and letters from petitioner's HR confirming the terms of employment of the foreign national beneficiary and who will supervise him or her.

Unfortunately, the business reality is such that these documents have been designed with considerations other than immigration in mind and often do not adequately cover the information the agency seeks to confirm. The contents of these documents will often be generic and not provide information on the foreign national beneficiary's specialized knowledge or whether the position at hand will require specialized knowledge.

Again, the USCIS approach is outdate. The focus of the inquiry should be on whether the foreign national has specialized knowledge; documents such as a master services agreement or purchase orders will not enable the USCIS to make a determination.