DOS Cable on L-1 Visa Specialized Knowledge

1. This cable has been cleared by INS/CO - J. Brown.

2. VO has received several requests for advisory opinions with respect to the adjudication of L-1 visas, in particular those cases where applicants are beneficiaries of petition based on "specialized knowledge." ConOffs have stated that they are seeing applicants, who while they are undoubtedly competent professionals do not appear to have knowledge that in any way sets them apart from any other professionals working in a given industry - computer programmer/analysts for example.

3. VO offers the following guidance for assisting posts in the adjudication of L-1 Visa applicants:

• An L-1 applicant must posses "specialized" knowledge of the company product and its application in international markets or repeat or must possess an advanced level of knowledge of the processes and procedures of the company. (INS petition examiners have been instructed to utilize the common dictionary definitions of "special" and "advanced," as proved in Webster's II New Riverside University and Webster's Third New International Dictionary.)
• An applicant can be said to possess specialized knowledge if he/she can show that he/she possesses knowledge that is different from that generally found in a particular industry. Consuls must keep in mind that while the knowledge need not repeat not be proprietary or unique, it must be different or uncommon. Consuls must be satisfied that the knowledge possessed by an applicant is not general knowledge held commonly throughout the industry but that it is truly specialized.
• To meet the requirement that an applicant have advanced knowledge Consuls must keep in mind that such knowledge need not be narrowly held in the company only that, according to Webster, it be "beyond the elementary or introductory; greatly developed beyond the initial stage."
• 9 FAM 41.64 N8.2-2, outlines elements that constitute specialized knowledge capacity. In addition, INS also has instructed its adjudicators that specialized knowledge includes possession of knowledge of a product or process which cannot be easily transferred or taught to another individual.
• To assist Consuls, below are some general examples provided by INS of situations where an alien can be said to possess specialized knowledge. Post are cautioned that these examples are far from exhaustive and are provided as guides only:
  • The foreign firm manufactures a product no one else does and the alien is familiar with the various procedures involved in such manufacture, use or service of such product.
  • The foreign company manufactures a product which is significant different from others in the industry. Although the product has some similarities to others, the knowledge required to sell, manufacture or service the product is different from other products to the extent the US or foreign firm would experience significant interruption of business in order to train a new worker to assume the duties to be assigned to the applicant.
  • The applicant has knowledged of a foreign firm's business procedures or methods of operation to the extent that the US firm would experience a significant interruption of business in order to train a US worker to assume his duties.
  • The applicant has knowledge of a process or a product which is of a sophisticated nature, although not unique to the foreign firm, which is not generally known in the US.

4. In adjudicating L-1 "specialized knowledge" visa applications, Consuls must keep in mind that applications are based on petitions? The facts of which have already been examined and approved by INS using the elements set out above. VO reiterates most strongly, that, as set forth in 8 FAM 41.54 N3.1, the presentation of an approved I-129 is to be considered as prima facie evidence that the requirements for L status have been met. Posts must keep in mind that the large majority of approved L petitions are valid, and involve bona fide establishments, relationships and individual qualifications which conform to the INS regulations.

5. Only in cases (which VO anticipates will not be frequently) when an interview develops information about the applicant's "specialized knowledge"? (or lack thereof) that does not appear to have been available to INS at the time of the approval of the petition should a petition be returned.

6. If a Conoff has substantial doubt as to whether a "specialized knowledge" applicant meets the above standards, prior to returning a petition to INS, it may be advisable to request an advisory opinion from CA/VO/L/A. The request should contain the statements made by the applicant during the interview about the nature of the "specialized knowledge" that the applicant is alleged to possess which are inconsistent with the possession of such knowledge, show that the knowledge is not specialized, or that it is not actually required for the job. It should also contain post's description of other information it developed that led to a determination that the applicant did not meet the regulatory requirements and the description of job requirements and the alien's qualification as stated in the petition (in that regard, ConOffs may require applicants to provide a copy of the petition in questionable cases.)

Christopher

Note: Pouch addresses protected by IM/SO

27MM5K21