- United States: State Department Issues Guidance Memo on Specialized KnowledgeAC
- January 27, 2011
- Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
The Department of State today published a memorandum on L-1B specialized knowledge issues that it earlier sent to consular posts. The memorandum establishes a new set of criteria that employers can expect to see used by consular officers adjudicating blanket L-1B visa applications. While the full effect of the memorandum on consular adjudications remains to be seen, it does refer to concepts such as “proprietary knowledge” and “key personnel” that hearken back to the law that existed prior to the enactment of the Immigration Act of 1990 (IMMACT 90), when a more restrictive definition of specialized knowledge was in place.
The Department elaborates briefly on the criteria to be considered by posts in their adjudications:
- Proprietary Knowledge - The State Department suggests that while proprietary knowledge is not strictly required, its presence should be more or less dispositive in an adjudication. The Department goes on to cite the legacy Immigration and Naturalization Service (INS) position that the standard is met when “it would be difficult to impart to another without significant economic inconvenience.”
- Key Personnel - The memorandum suggests that for larger companies, there should be a distinction between “key” and “normal” personnel - based on length of experience, level of knowledge or level of responsibility. The memorandum goes on to state that a large company can have a large number of employees who would meet the specialized knowledge standard, but they should be distinguishable from ordinary skilled workers.
- More than Ordinary - The State Department suggests that employees need not be extraordinary to meet the specialized knowledge standard, but their work should involve knowledge of special company projects or greater than normal experience or knowledge.
- “Job Shops” and Employer-Employee Relationships - The memorandum largely tracks USCIS guidance on the Visa Reform Act, which precludes placement of an employee at the worksite of another unaffiliated employer (i.e., not an affiliate, subsidiary or parent company) if the worker will be controlled and supervised by the unaffiliated employer or if the placement is not in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary. The right of control is the key ingredient in an employer-employee relationship. The source of remuneration would not be controlling.
Impact on Employers
While the law and regulations on L-1B blanket applications have not changed, employers should prepare to address the criteria outlined in the new memorandum. The memorandum re-introduces concepts that pre-date the enactment of IMMACT 90, when a more restrictive definition of specialized knowledge was in effect, but it is too early to tell whether this will change actual adjudications in practice. Consular officers will undoubtedly continue to have a large amount of discretion to identify specialized knowledge on a case-by-case basis.
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