NSC Addresses Language Used in Certain L-1 RFEs
U.S. Department of Justice
Immigration and Naturalization Service
Nebraska Service Center
P.O. Box 82521
Lincoln, NE 68501-2521
1/27/2002
KATHLEEN A. MOCCIO
MARKETA LINDT
BY FAX
This is in response to a memorandum from the Nebraska Service Center AILA
liaisons, Kathy Moccio and Marketa Lindt raising concerns that the NSC is
applying a new higher standard in adjudicating L-1 petitions. The memorandum
included a Summary of L-1 Issues from RFE's which summarized the language found
in RFE's forwarded to the liaison by AILA members. The list encompassed three
and one-half pages, involving twelve different petitions. Ten of the RFE's came
from one officer.
The liaison group also included the specific paragraphs felt to be burdensome or
irrelevant to the classification. They are as follows, accompanied by
explanation:
Provide detailed description of duties and percentage of time.
This is a standard paragraph used primarily in L-1A adjudications to determine
if the majority of the duties of the position are managerial or executive in
nature. The officer used it in this case to determine if the position requires
specialized knowledge. It is not routinely used in L-1B adjudications and the
officer was counseled to its further use.
Provide an organizational chart.
This is evidence required of an L-1A and has no bearing in L-1B adjudication.
Officers have been instructed to cease the use of these first two paragraphs in
L-1B cases.
Please identify how many employees work within the departments where the
beneficiary is currently employed and where he will be employed. Also, identify
how many personnel within the U.S. entities/and foreign entities possess
"specialized knowledge" equivalent to that which is possessed by the
beneficiary.
The liaison group is correct in their assessment that this is a burdensome
request. There is no provision in law or regulation that dictates the number of
specialized knowledge employees that may be employed by any one employer.
The documentation does not demonstrate that the beneficiary's knowledge is
unlike that of any other consultants/skilled workers. The evidence submitted
must show that the experience possessed by the beneficiary is unique to the
industry and not routinely possessed by peers similarly educated or engaged
within the industry.
The liaison group described the phrase "unique to the industry" as an "invented
and inappropriate standard for L-1B adjudication. The James A. Puleo
Interpretation of Special Knowledge Memo of March 9, 1994, which to the best of
my knowledge has not been superceded, states that the specialized knowledge need
not be proprietary or unique, merely different and advanced. He further states
that the knowledge must be "special or advanced"; special meaning surpassing the
usual, distinct among others of its kind or distinguished by some unusual
quality; uncommon or noteworthy. Rather than requiring that the knowledge be
unique or 'one of a kind' the officer should have required that the knowledge be
unusual or distinct. The standard paragraph used by NSC adjudicators since
before 1996 states, as does the Puleo memo, that the knowledge be special and
advanced. The officer has been instructed to refrain from straying from the
standard paragraphs.
In addition, the evidence must establish that the beneficiary's duties in the
United States require a person of specialized knowledge.
The liaison group makes the comment "This standard does not derive from the law,
INS regulations or memos." This standard has been used since before 1996 and it
makes sense that if a petitioner is filing an L-1B petition for a specialized
knowledge position that the position would require a person who possesses
specialized knowledge.
What is the length of time the beneficiary has been performing the described
duties? What percentage of the beneficiary's time will be spent using the
company's equipment to produce a product? How old is the equipment being used at
the U.S. location? Is comparable and/or similar equipment currently being used
in other U.S. plants? Do any of the company's other locations use the same
equipment as the petitioning organization? Did the beneficiary actually
participate in or own responsibility for the design and development of the
equipment? Does the beneficiary have the ability to make technical modifications
to existing equipment?
This is not a standard and it has no relevance to the classification. In fact it
was included in only one petition. The officer was attempting to establish
specialized knowledge, again the officer was instructed that this request was
burdensome, lacked relevance and was instructed to cease its use.
Submit evidence of the complete range of employment categories available to the
beneficiary in the organization…evidence must be submitted to establish the full
range of related positions utilized by the petitioner in its business and that
the beneficiary holds what would be considered as a specialized or advanced
position in relation to other employees holding the same position with the
organization.
This paragraph is burdensome and irrelevant and it is not an adopted standard.
The officer who used it has been informed as such. However, in this case the
officer is trying to determine that the beneficiary has knowledge that is
advanced in comparison to peers within the petitioning entity.
State the number of persons holding the same or similar position as the
beneficiary at the U.S. location where the beneficiary will be employed. …how
were the beneficiary's duties performed prior to this petition and by whom?
…Does any employee at the foreign and U.S. locations perform the duties stated
in the beneficiary's proposed position? If so, why is that employee not being
used by the petitioning organization?
The 1994 Puleo memo states; "The determination of whether an alien possesses
specialized knowledge does not involve a test of the United States labor market.
Whether or not there are United States workers available to perform the duties
in the United States is not a relevant factor since the test for specialized
knowledge involves only an examination of the knowledge possessed by the alien,
not whether there are similarly employed United States workers." Again, the NSC
has not changed the standard, this paragraph was included in four petitions all
from the same officer, and that officer has been counseled that the L petitions
do not include a test of the labor market.
The evidence of record does not establish that the beneficiary's knowledge is
uncommon, noteworthy, or distinguished by some unusual activity that is not
generally known by practitioners in the beneficiary's field of endeavor.
The AILA comment is "This does not reflect the correct standard." While it may
not be the exact wording NSC has historically used, it does not deviate from the
standard. The Puleo memo clearly states that the knowledge must be special and
advanced, and then defines advanced as 'highly developed or complex; at a higher
level than others'. By definition then, that knowledge would be uncommon or
noteworthy. To prove that it is uncommon, noteworthy or advanced, one should
provide evidence that it was not generally known by others in the field.
Explain why most workers in the petitioner's field would encounter difficulty
learning to perform the duties and responsibilities of the position.
The comment is that this does not reflect the current standard. And while not
totally incorrect, this request is vague and ambiguous and speaks to a test of
the labor market that is not a requirement of the L classification. Officers
have been so advised.
If the beneficiary acquired his "specialized knowledge" only through practical
employment experience, please describe, in detail, how the beneficiary's
training and/or experiences differ from the training and experience an
individual would receive who is similarly engaged within the industry.
The officer is attempting to determine if the beneficiary has advanced knowledge
of the petitioner's products, practices or processes. Regardless, the paragraph
is onerous and requires the petitioner to make judgements about their industry
that would be arduous and would have little bearing on the final decision. This
paragraph was found in only one case and does not represent the direction of the
NSC.
Provide evidence to substantiate the proprietary nature of the petitioner's
products, or its training processes and procedures such as the holding of a
patent or an exclusive license on the products and training methodologies.
Describe in detail the uniqueness and proprietary nature of the petitioner's
products, services, policies, processes, methodologies, marketing techniques,
quality control strategies, or procedures as compared with similar systems,
programs and processes that are utilized throughout the industry.
The Immigration Act of 1990 wrote proprietary knowledge out of the L-1B
regulations, thereby changing the standard. The Nebraska Service Center does not
hold those who seek L-1B to this former standard, officers have been trained
that only in cases where the petitioner insists that the beneficiary has
proprietary knowledge is the matter ever broached. If the petitioner can
establish that the beneficiary meets the more restrictive standard, it is a much
easier decision for the officer. This paragraph is not a standard and the
officer has been instructed on when and in what manner to address this issue.
Describe the impact upon the petitioner's business if the petitioner is unable
to obtain the alien's services, and what alternative action will be taken to
fill the responsibilities.
This appears to be an attempt by the officer to test the labor market, which was
written out of the regulations with IMMACT 90. The request requires the
petitioner to speculate on a matter that it not relevant to the matter of
specialized knowledge. In this case the paragraph was utilized by one officer on
three cases and the officer has been instructed that it has no bearing on L
adjudications.
Submit copies of any transcripts, syllabi, course descriptions, or letters
issued by the training institute or petitioner, which will clearly establish the
actual course content, level of complexity and duration of the beneficiary's
specialized training.
This paragraph is not and will likely never be a standard at the NSC, the
officer is attempting to determine if the beneficiary has advanced or special
knowledge of some aspect of the petitioner's business, product, practices or
procedures.
Adjudications Officers are trained to look at documentary evidence and make
their decisions based upon that evidence. Statements made by the petitioner are,
for the most part, self-serving and provide little in the way of hard evidence.
The Service has long held that merely going on record, without submitting
documentation does not constitute evidence. If the evidence is available, it
does assist the officer in making an informed decision.
If the beneficiary attended any company-specific vocational, technical or
professional development courses that are related to the company's products,
processes, and/or procedures, etc., please provide documentation that supports
that claim, i.e., diplomas, course completion certificates, etc. The
documentation that you provide must identify the beneficiary by name. Identify
the inclusive period of study, and describe the course content.
The comment is that often, this documentation is not available. Once again it
appears that the officer is working to establish that the beneficiary possesses
specialized knowledge that would be considered advanced within the petitioner's
entity. It stands to reason, that if such documentation existed, either the
petitioner or the beneficiary would have access to it. If the evidence does not
exist, a statement from the petitioner to that effect would be sufficient to
satisfy the officer.
Also included, was a case in which the attorney objected to a request for
evidence letter that contained some of the paragraphs listed above. This request
for evidence also stated 'the evidence must establish that the beneficiary's
duties abroad for the qualifying employment abroad, and the duties in the United
States, require a person with specialized knowledge.'
Regulations do not differentiate between L-1A and L-1B in that they require
evidence that the alien will be employed in an executive, managerial, or
specialized knowledge capacity (8CFR 214.2(l)(3)(ii)) and evidence that the
alien's prior year of employment abroad was in a position that was managerial,
executive, or involved specialized knowledge… (8CFR 214.2 (l)(3)(iv)). Potential
L-1A managers or executives must have served in a managerial or executive
position with the foreign entity. It must be interpreted that a potential
specialized knowledge alien have served it a similar capacity with the foreign
entity. In any event, any L-1B petition for an alien with specialized knowledge
should be accompanied by evidence that beneficiary worked in an L qualifying
position abroad and would be employed in a specialized knowledge position in the
United States, in order to qualify in this classification.
This case was not one of the twelve cases on the summary sheet listed on the
AILA memo, however the officer who wrote the majority of these RFE's also wrote
that one. It can be determined that the problem is not widespread, and the
officer has been instructed to review these cases and issue new requests.
In all, the Nebraska Service Center continues to adjudicate L-1B petitions in
accordance with the law, regulations, and the guidance provided by the Puleo
Memo of 1994 with rare exceptions. The product supervisor appreciates the
relationship between the Center and the liaison group so that the problems that
do arise can be dealt with in a cooperative, timely manner.
Respectfully,
Dennis Grabast
Supervisory Center Adjudications Officer
Nebraska Service Center
CC: Terry Way
CC: Charles Carlton