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
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