L-1 SPECIALIZED KNOWLEDGE
8 C.F.R. (l)(1)(ii)(D) currently provides the following definition of specialized knowledge:
Specialized Knowledge means 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.
BIA Precedent Decisions prior to 1990 (See Matter of Colley, Matter of Penner, and Matter of Sandoz Crop Protection Corporation) held that in order to qualify as a worker with Specialized Knowledge, the beneficiary of an L-1B petition must possess proprietary or unique knowledge. Under those cases a beneficiary would qualify only in cases where their employers were using unique or specially patented software or equipment not used by other employers in the same industry. For example, a beneficiary proficient in using software developed by his or her employer would qualify for L-1B status, but a beneficiary with expertise in highly sophisticated software developed by another company would not qualify.
INS issued a memo in 1988 recognizing that its interpretation of specialized knowledge was more restrictive than Congress intended, and that the concept of proprietary knowledge should be less restrictive. The Immigration and Nationality Act of 1990 soon relaxed the provisions outlined by earlier precedent decisions, however. An INS Memo dated March 9, 1994 interpreted the new definition of Specialized Knowledge as it is set forth in the INA of 1990. According to the INA and according to the memo, one does not need to have proprietary knowledge of a company’s products or procedures in order to enter the United States in a Specialized Knowledge capacity. One need only possess knowledge that is “different” or “uncommon” in the industry.
The key to showing that an L-1B beneficiary qualifies for a position is therefore to show that he possesses knowledge of the industry or the petitioning employer’s practices that is different or uncommon in the industry. It is helpful to inquire what it is about the beneficiary’s job duties that makes him or her valuable to his employer. What training has the employer provided to the beneficiary that is not commonly available in the industry? Why is the employer willing to transfer the beneficiary to the United States rather than hire someone else to fill the position in the United States?
An L-1B specialized knowledge beneficiary need not have obtained his specialized knowledge while working for the employer abroad. Many beneficiaries bring specialized knowledge of the industry and its application in international trade with them to positions abroad. If this is the case, the alien’s specialized knowledge is likely to have been a key factor that persuaded the foreign employer to hire him. This fact should be highlighted in the L-1B petition as evidence of the alien’s specialized knowledge.
