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Specialized Knowledge vs Specialty Occupation


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  • 1. Specialized Knowledge vs Specialty Occupation By Joseph P. Whalen (June 11, 2012)During periods of great demand for the limited number of H1-B visas, somepetitions have been filed for L1-B visas instead. The problems encountered havebeen either that the beneficiary and petitioner did not have the required pre-existing employer-employee relationship in order to qualify the beneficiary as an“intracompany transferee”, or the U.S. job location was not at a real affilate of theforeign employer (if there was a foreign employer), or the position itself was reallyfor a more general “specialty occupation” worker rather than a true “specializedknowledge” worker who has proprietary knowledge of the petitioner’s services,products, processes and/or procedures. While these two distinct visaclassifications are similar, they are not freely interchangeable. It is useful tocompare them side-by-side. As a starting point in such a comparison it is probablya good idea to go back and look at the controlling statutes and their implementingregulations separate and apart from any precedents or policy and guidancememoranda. I will offer no further discussion in this essay and leave the readerwith some of the more pertinent portions of the statutes and regulations. L1-B H1-B Specialized Knowledge Specialty Occupation INA § 101(a)(15)(L) INA § 101(a)(15)(H)(L) subject to section 214(c)(2), an alien (H) an alienwho, within 3 years preceding the time (i)of his application for admission into the (b) ....... in a specialty occupationUnited States, has been employed described in section 214(i)(1) or as acontinuously for one year by a firm or fashion model, who meets thecorporation or other legal entity or an requirements for the occupationaffiliate or subsidiary thereof and who specified in section 214(i)(2) or, in theseeks to enter the United States case of a fashion model, is oftemporarily in order to continue to distinguished merit and ability, and withrender his services to the same respect to whom the Secretary of Laboremployer or a subsidiary or affiliate determines and certifies to the Attorneythereof in a capacity that is managerial, General that the intending employer hasexecutive, or involves specialized filed with the Secretary an applicationknowledge, and the alien spouse and under section 212(n)(1) , or (b1) who isminor children of any such alien if entitled to enter the United States underaccompanying him or following to join and in pursuance of the provisions of anhim; agreement listed in section 214(g)(8)(A) Page 1 of 6
  • 2. , who is engaged in a specialty occupation described in section 214(i)(3) , and with respect to whom the[It is noted that the references Secretary of Labor determines and certifies to the Secretary of Homelandto the Attorney General in Security and the Secretary of State thatrelation to the visa the intending employer has filed withclassification processing and the Secretary of Labor an attestationprocedures have been under section 212(t)(1) , or (c) who is coming temporarily to the United Statestransferred to the Secretary of to perform services as a registeredHomeland Security and nurse, who meets the qualificationsthereafter further delegated to described in section 212(m)(1) , and with respect to whom the Secretary ofUSCIS rather than “the Labor determines and certifies to theService” which referred to the Attorney General that an unexpiredformer INS.] attestation is on file and in effect under section 212(m)(2) for the facility (as defined in section 212(m)(6) ) for which the alien will perform the services; INA § 214 INA § 214(c) (2) (A) The Attorney General shall (i) (1) Except as provided in paragraphprovide for a procedure under which an (3), for purposes of sectionimporting employer which meets 101(a)(15)(H)(i)(b) , sectionrequirements established by the 101(a)(15)(E)(iii) , and paragraph (2),Attorney General may file a blanket the term "specialty occupation" meanspetition to import aliens as an occupation that requires-nonimmigrants described in section101(a)(15)(L) instead of filing (A) theoretical and practical applicationindividual petitions under paragraph (1) of a body of highly specializedto import such aliens. Such procedure knowledge, andshall permit the expedited processing ofvisas for admission of aliens covered (B) attainment of a bachelors or higherunder such a petition. degree in the specific specialty (or its equivalent) as a minimum for entry into(B) For purposes of section the occupation in the United States.101(a)(15)(L) , an alien is considered tobe serving in a capacity involving (2) For purposes of sectionspecialized knowledge with respect to a 101(a)(15)(H)(i)(b) , the requirements of Page 2 of 6
  • 3. company if the alien has a special this paragraph, with respect to aknowledge of the company product specialty occupation, are-and its application in internationalmarkets or has an advanced level of (A) full state licensure to practice in theknowledge of processes and occupation, if such licensure is requiredprocedures of the company. to practice in the occupation,(C) The Attorney General shall provide (B) completion of the degree describeda process for reviewing and acting upon in paragraph (1)(B) for the occupation,petitions under this subsection with orrespect to nonimmigrants described insection 101(a)(15)(L) within 30 days (C)after the date a completed petition hasbeen filed. (i) experience in the specialty equivalent to the completion of such degree, and(D) The period of authorized admissionfor- (ii) recognition of expertise in the specialty through progressively(i) a nonimmigrant admitted to render responsible positions relating to theservices in a managerial or executive specialty.capacity under section 101(a)(15)(L)shall not exceed 7 years, or (3) For purposes of section 101(a)(15)(H)(i)(b1) , the term(ii) a nonimmigrant admitted to render `specialty occupation means anservices in a capacity that involves occupation that requires--specialized knowledge under section101(a)(15)(L) shall not exceed 5 years. (A) theoretical and practical application ***** of a body of specialized knowledge; and(F) An alien who will serve in a capacityinvolving specialized knowledge with (B) attainment of a bachelors or higherrespect to an employer for purposes of degree in the specific specialty (or itssection 101(a)(15)(L) and will be equivalent) as a minimum for entry intostationed primarily at the worksite of an the occupation in the United States.employer other than the petitioningemployer or its affiliate, subsidiary, orparent shall not be eligible forclassification under section101(a)(15)(L) if- Page 3 of 6
  • 4. (i) the alien will be controlled andsupervised principally by suchunaffiliated employer; or(ii) the placement of the alien at theworksite of the unaffiliated employer isessentially an arrangement to providelabor for hire for the unaffiliatedemployer, rather than a placement inconnection with the provision of aproduct or service for which specializedknowledge specific to the petitioningemployer is necessary. 8 CFR § 214.2 Special requirements for admission, extension, and maintenance of status.(l) Intracompany transferees — (h) Temporary employees —(1) Admission of intracompany (1) Admission of temporary employeestransferees — (ii) Description of classifications.(i) General. Under section101(a)(15)(L) of the Act, an alien who (B) An H–1B classification applies to anwithin the preceding three years has alien who is coming temporarily to thebeen employed abroad for one United States:continuous year by a qualifyingorganization may be admitted ( 1 ) To perform services in a specialtytemporarily to the United States to be occupation (except agricultural workers,employed by a parent, branch, affiliate, and aliens described in sectionor subsidiary of that employer in a 101(a)(15) (O) and (P) of the Act)managerial or executive capacity, or in a described in section 214(i)(1) of the Act,position requiring specialized that meets the requirements of sectionknowledge. An alien transferred to the 214(i)(2) of the Act, and for whom theUnited States under this nonimmigrant Secretary of Labor has determined andclassification is referred to as an certified to the Attorney General that theintracompany transferee and the prospective employer has filed a labororganization which seeks the condition application under sectionclassification of an alien as an 212(n)(1) of the Act;intracompany transferee is referred to asthe petitioner. The Service has ( 2 ) To perform services of anresponsibility for determining whether exceptional nature requiring exceptionalthe alien is eligible for admission and merit and ability relating to a Page 4 of 6
  • 5. whether the petitioner is a qualifying cooperative research and developmentorganization. These regulations set forth project or a coproduction projectthe standards applicable to these provided for under a Government-to-classifications. They also set forth Government agreement administered byprocedures for admission of the Secretary of Defense;intracompany transferees and appeal ofadverse decisions. Certain petitioners ( 3 ) To perform services as a fashionseeking the classification of aliens as model of distinguished merit and abilityintracompany transferees may file and for whom the Secretary of Laborblanket petitions with the Service. has determined and certified to theUnder the blanket petition process, the Attorney General that the prospectiveService is responsible for determining employer has filed a labor conditionwhether the petitioner and its parent, application under section 212(n)(1) ofbranches, affiliates, or subsidiaries the Act.specified are qualifying organizations.The Department of State or, in certaincases, the Service is responsible fordetermining the classification of thealien.(l) Intracompany transferees — (h) Temporary employees — *****(1) Admission of intracompany (4) Petition for alien to perform servicestransferees in a specialty occupation, services ***** relating to a DOD cooperative research(ii) Definitions — and development project or coproduction project, or services of(A) Intracompany transferee means an distinguished merit and ability in thealien who, within three years preceding field of fashion modeling (H–1B) —the time of his or her application foradmission into the United States, has (i)(A) Types of H–1B classification. Anbeen employed abroad continuously for H–1B classification may be granted toone year by a firm or corporation or an alien who:other legal entity or parent, branch,affiliate, or subsidiary thereof, and ( 1 ) Will perform services in a specialtywho seeks to enter the United States occupation which requires theoreticaltemporarily in order to render his or and practical application of a body ofher services to a branch of the same highly specialized knowledge andemployer or a parent, affiliate, or attainment of a baccalaureate or highersubsidiary thereof in a capacity that is degree or its equivalent as a minimum Page 5 of 6
  • 6. managerial, executive, or involves requirement for entry into thespecialized knowledge. Periods spent in occupation in the United States, andthe United States in lawful status for awho is qualified to perform services inbranch of the same employer or a the specialty occupation because he orparent, affiliate, or subsidiary thereofshe has attained a baccalaureate orand brief trips to the United States forhigher degree or its equivalent in thebusiness or pleasure shall not be specialty occupation;interruptive of the one year of *****continuous employment abroad but such (ii) Definitions .periods shall not be counted toward *****fulfillment of that requirement. Specialty occupation means an ***** occupation which requires theoretical(D) Specialized knowledge means and practical application of a body ofspecial knowledge possessed by an highly specialized knowledge in fieldsindividual of the petitioning of human endeavor including, but not limited to, architecture, engineering,organizations product, service, research,equipment, techniques, management, or mathematics, physical sciences, socialother interests and its application in sciences, medicine and health,international markets, or an advanced education, business specialties,level of knowledge or expertise in the accounting, law, theology, and the arts,organizations processes and procedures.and which requires the attainment of a bachelors degree or higher in a specific(E) Specialized knowledge professional specialty, or its equivalent, as ameans an individual who has specialized minimum for entry into the occupationknowledge as defined in paragraph in the United States.(l)(1)(ii)(D) of this section and is amember of the professions as defined insection 101(a)(32) of the Immigrationand Nationality Act.Deals with the movement of an Deals with finding “new blood” from“existing employee” from one office to abroad to fill a void in a specific skillanother which happens to be from set (specialty occupation) in the laboranother country to the United States. market in the United States. Page 6 of 6