Guidance on L Visas and Specialized Knowledge
STATE 002016, 01/11
1. The following guidance is in response to a request [redacted] for specific guidelines for L visa adjudications, particularly in regard to evaluating claims of "specialized knowledge," and will be useful to all posts. There is a concern about the potential for inconsistent adjudicatory standards at different constituent posts and clear standards would allow for more consistent adjudication.
2. Unfortunately, the statutory language defining "specialized knowledge" is not simple or clear. Specialized knowledge is defined in INA 214(c)(2):
(B) For purposes of section 1101 (a)(15)(L) of this title, an alien 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.
3. The phrase "specialized knowledge" is not otherwise defined in the law, and there have been few
administrative or judicial opinions interpreting it. This statutory definition has been called tautological,
in that it states an alien will serve in a capacity involving specialized knowledge if the alien has special
knowledge. As 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."
4. 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. 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.
5. Despite the lack of simple, bright-line, legal criteria, there are factors which have been cited by INS/DHS sources as valid for making specialized knowledge determinations. Post can use the following
criteria to assist in making this adjudication:
6. 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." Legacy INS has in the past indicated that proprietary knowledge will meet
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.
7. 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.
8. The concept of "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.
10. Job shops - In addition to specialized knowledge criteria, the issue of job shops is important to the
determination of ineligibility and is of apparent concern to Post.
11. Employer/employee relationship - L is a status for persons being transferred to work within a company structure and not for another company, and the issue of employer/employee relations has always been critical to the L adjudication. The INA flags the importance of this issue in INA 214(c)(2):
(F) An alien who will serve in a capacity involving specialized knowledge with respect to an employer for
purposes of section 1101 (a)(15)(L) of this title and will be stationed primarily at the worksite of an
employer other than the petitioning employer or its affiliate, subsidiary, or parent shall not be
eligible for classification under section 1101 (a)(15)(L) of this title if-
(i) the alien will be controlled and supervised principally by such unaffiliated employer; or
(ii) the placement of the alien at the worksite of the unaffiliated employer 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.
12. The INA restrictions on job shops reflect general legal definitions of the employer/employee relationship. Standards on making employer/employee determinations can also be found in the L FAM notes:
9 FAM 41.54 N8 EMPLOYER-EMPLOYEE RELATIONSHIP (CT:VISA-1569; 10-04-2010)