Clarifying specialized knowledge for intracompany tranferees
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Clarifying Specialized Knowledge for Intracompany Transferees
By Joseph P. Whalen (November 30, 2014)
Within the analysis presented in the remand decision in Fogo De Chao (Holdings) Inc. v. United States Department of Homeland Security ___F.3d___(D.C. Cir. 2014) [No. 13-5301, October 21, 2014], the court makes the blunt point of unequivocally and unambiguously accepting that when Congress created a statutory definition of “specialized knowledge” for the L1-B nonimmigrant visa via legislation passed in 19901 that the concept of “proprietary” knowledge was affirmatively quashed as stated in the legislative history as was the INS’ other imposed requirement that the needed personnel with said “specialized knowledge” could not be easily found or demanded skills “not readily available” in the United States. Since it is now an accepted interpretation at the Circuit Court of Appeals level, I felt that I needed to rethink how I was viewing and interpreting the statutory definition. While I firmly stand by the proposition that IF such knowledge is indeed “proprietary” THEN the case will be much stronger and an easier sell. However, since it is not required that such knowledge actually be “proprietary” then I offer the proposition that the “specialized knowledge” in question in a given case must at the very least be “integral” to the key position to be filled by the nonimmigrant intracompany transferee, and the employees with that specialized knowledge be somewhat “rare” even within the company. Not just any employee can be deemed to posses “specialized knowledge” and if everybody has that knowledge, how can it be reasonably described as specialized?
B. Replacing “Proprietary” with “Integral” and “Rare” for “Specialized”
First things first, one needs to examine the definitions of “specialized” as well as that of “proprietary” and then the suggested replacement which is “integral” and “rare”. But there is still more than meets the eye. Knowledge coveys the possession of “information” so, I look at the definition of “proprietary information”. Additional definitions shall also be presented herein. The first definition to examine is the one that provides our overall context, specifically, “specialized”.
1 Pub. L. 101-649 Immigration Act of 1990 [IMMACT 90]
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a. Definition2 of “Specialized”3
specialized adjective also British specialised /ˈspɛʃəˌlaɪzd/ Learner's definition of SPECIALIZED [more specialized; most specialized] : made or used for one particular purpose, job, place, etc. specialized regions of the brain specialized gear for deep-sea fishing a specialized habitat specialized knowledge/skills
Above From: http://www.learnersdictionary.com/definition/specialized
b. Definition of “Rare”
rare1 rer/ adjective (of an event, situation, or condition) not occurring very often. "a rare genetic disorder" synonyms: infrequent, scarce, sparse, few and far between, thin on the ground, like gold dust, as scarce as hen's teeth; ….
(of a thing) not found in large numbers and consequently of interest or value. "the jellyfish tree, one of the rarest plants on earth" synonyms: unusual, recherché, uncommon, unfamiliar, atypical, singular
unusually good or remarkable. "he plays with rare strength and sensitivity"
exceptional, outstanding, unparalleled, peerless, matchless, unique,
unrivaled, inimitable, beyond compare, without equal, second to none, unsurpassed; ….
In the case of “specialized knowledge” required of a position and the person filling it, in reality, we are talking about the required “knowledge, skills, and abilities” (KSAs) that are normally present with any job description or vacancy
2 The underlined words in these definitions are hyperlinked. 3 "Specialized." Merriam-Webster.com. Merriam-Webster, n.d. Web. 29 Nov. 2014. http://www.merriam- webster.com/dictionary/specialized
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e. Legal Definition of the Article “a”
“The article "a" is not necessarily a singular term; it is often used in the sense of "any" and is then applied to more than one individual object. Lewis v. Spies, 43 A.D.2d 714, 350 N.Y.S.2d 14, 17. So under a statute providing that the issuance of "a" certificate to one carrier should not bar a certificate to another over the same route, a certificate could be granted to more than two carriers over the same route. State ex rel. Crown Coach Co. v. Public Service Commission, 238 Mo. App. 287, 179 S.W.2d 123, 127 [(K.C. 1944)]. Also, article "a" in statute making it a crime for a person to have in his possession a completed check with intent to defraud includes the plural. People v. Carter, 75 CA.3d 865, 142 Cal.Rptr. 517, 520.4 But the meaning depends on context. For example, in Workers' Compensation Act, on, or in or about "a" railway, factory, etc., was held not to mean any railway, factory, etc., but the railway, factory, etc., of the employer. Where the law required the delivery of
a copy of a notice to husband and a copy to wife, the sheriffs return that he had delivered "a copy" to husband and wife was insufficient. State v. Davis, Tex.Civ. App., 139 S.W.2d 638, 640.” [Highlighting added]
Above from Black’s Law Dictionary (6th Ed.) found at: http://archive.org/stream/BlacksLaw6th/Blacks%20Law%206th_djvu.txt
f. Definition of the Articles “the, a, & an”
i. definite article noun plural definite articles Learner's definition of DEFINITE ARTICLE [count] grammar : the word the is used in English to refer to a person or thing that is identified or specified also : a word that is used in a similar way in another language — compare INDEFINITE ARTICLE Above derived from: http://www.learnersdictionary.com/definition/definite%20article ii. indefinite article noun plural indefinite articles 4 “Whether the checks are blanks, subject to Penal Code section 475, or completed checks subject to section 475a, or fictitious instruments subject to section 476, it is possible that each check will victimize a different person. Section 475a cannot be distinguished upon that ground. Nor can we distinguish section 475 from section 475a because the former says "any" check and the latter says "a" check. The Bowie opinion reasoned that although the word "any" was singular, the singular includes the plural, citing Penal Code section 7. The same may be said of the article "a" in section 475a.”
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Learner's definition of INDEFINITE ARTICLE [count] : the word a or an used in English to refer to a person or thing that is not identified or specified In “I gave a book to the boy” the word “a” is an indefinite article and the word “the” is a definite article. also : a word that has a similar use in another language
Above derived from: http://www.learnersdictionary.com/definition/indefinite%20article
C. INA Definition of “Specialized Knowledge” for L1-B Nonimmigrant Visas
INA § 214 [8 U.S.C. 1184] Admission of nonimmigrants.
* * * * *
(c) Petition of importing employer.
(2) * * * *
(B) For purposes of section 1101(a)(15)(L) of this title, an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.
D. The Uselessness of the Regulatory Definition of “Specialized Knowledge”
The D.C. Circuit Court of Appeals wrote of the lack of worth of the regulatory definition of “specialized knowledge” in that it did little more than parrot the statutory definition. It adds no real interpretive value nor provides any useful insight. Specifically on this topic and in explaining why no deference was given to the USCIS and AAO reliance on their supposed expertise on this topic was summed up in the following passages.
“No deference is due, however, to an agency’s
interpretation of its own regulation when, “instead of using its
expertise and experience to formulate a regulation, it has
elected merely to paraphrase the statutory language.” In re
Polar Bear Endangered Species Act Listing & Section 4(d)
Rule Litig., 709 F.3d 1, 18 (D.C. Cir. 2013) (quoting Gonzales
v. Oregon, 546 U.S. 243, 257 (2006)). Rather, where “the
underlying regulation does little more than restate the terms of
the statute itself[,]” the agency has left the statute as it found
it, adding nothing material to Congress’s language and
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providing nothing of its own in which to ground an
interpretation to which a court might defer. Gonzales, 546
U.S. at 257 (citing Auer v. Robbins, 519 U.S. 452 (1997)).”
* * * * *
“Nor does the Appeals Office’s interpretation of the
statutory language in a non-precedential ruling trigger
Chevron5 deference, as the government’s counsel openly
conceded at oral argument, see Oral Arg. Tr. 25:13–20. Cf.
International Internship Program v. Napolitano, 718 F.3d
986, 987 n.1 (D.C. Cir. 2013) (reserving that question).”
Fogo De Chao at 14.
E. The Offending Regulatory Definition
8 CFR § 214.2 Special requirements for admission, extension, and maintenance of status.
* * * * *
(l) Intracompany transferees—
* * * * *
(1) Admission of intracompany transferees—
* * * * *
* * * * *
(D) Specialized knowledge means special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures.
F. Various Ways of Reading the Statutory Definition
a. Misapplied Grammar Rules?
In applying the rules of grammar as to the definite and indefinite articles contained in the statutory definition, I had previously viewed and read the “information” that was the subject of the “specialized
5 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
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knowledge” to be “proprietary”. The D.C. Circuit has recently affirmed that that is an incorrect reading. While proprietary information will most assuredly be most helpful to arrive at an easier approval, it is not mandatory.
b. Proprietary Information---Incorrect Reading
I read “specialized knowledge” with respect to a company, to be found if the alien has:
i. a special knowledge of the company product and its application in international markets or
ii. an advanced level of knowledge of processes and procedures of the company [emphases added]
To adhere to the reading by the D.C. Circuit, it appears that I have previously overemphasized the significance of the definite article “the” in narrowing the focus of the information subject to classification as “specialized”. I have underemphasized the significance the use of the indefinite articles “a” and “an” as to the characterization and source of that knowledge. How they got the knowledge is less important than the fact that they do indeed have it.
c. Focus and Application of Specialized Knowledge---Incorrect Reading
I have previously misread the focus and application of the “specialized knowledge” of the transferred employee in carrying out the specific duties of the position. I have relied more on the older interpretation which stressed and relied upon the need to demonstrate “proprietary information” not available among workers in the U.S. labor force.
d. Character and Source of Specialized Knowledge—Incorrect Reading
I have previously misread the acceptable characterization and source of the information to be applied by a specialized knowledge employee. I dare say that AAO also made the same or similar mistakes when, in Fogo De Chao, it attempted to exclude from all consideration “…Gasparetto’s cultural background, knowledge, and training , as a matter of law, [and that it could not]constitute specialized knowledge.” Supra at 2. Regardless of how he got it, he did, in fact, posses it.
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e. Assessing “Special” & “Advanced” applied to “Specialized Knowledge”
It seems that recent cases have more or less begun to coalesce on the meanings of two key words in both the statutory and regulatory definitions. The two descriptors of knowledge are “special” and “advanced” and they apply to the characterization of the knowledge of the company’s products and procedures which is sought to be classified as “specialized”. Such knowledge is somewhat unique and beyond the ordinary
“As both "special" and "advanced" are relative terms, determining whether a given beneficiary's knowledge is "special" or "advanced" inherently requires a comparison of the beneficiary's knowledge against that of others in the petitioning company and/or against others holding comparable positions in the industry. The ultimate question is whether the petitioner has met its burden of demonstrating by a preponderance of the evidence that the beneficiary's knowledge or expertise is advanced or special, and that the beneficiary's position requires such knowledge.”
Above from: (AAO NOV032014_02D7101.pdf) at p. 8 [L1-B Dismissed]
G. L1-B Analytical Framework as of November 3, 2014
“In visa petition proceedings, the burden is on the petitioner to establish eligibility. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove by a preponderance of evidence that the beneficiary is fully qualified for the benefit sought. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). In evaluating the evidence, eligibility is to be determined not by the quantity of evidence alone but by its quality. Id. The director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true.
In order to establish eligibility, the petitioner must show that the individual's prior year of employment abroad was in a position involving specialized knowledge. 8 C.F.R. § 214.2(l)(3)(iii). The statutory definition of specialized knowledge at Section 214(c)(2)(B) of the Act is comprised of two equal but distinct subparts. First, an
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individual is considered to be employed in a capacity involving specialized knowledge if that person "has a special knowledge of the company product and its application in international markets." Second, an individual is considered to be serving in a capacity involving specialized knowledge if that person "has an advanced level of knowledge of processes and procedures of the company." See also 8 C.F.R. § 214.2(l)(1)(ii)(D). The petitioner may establish eligibility by submitting evidence that the beneficiary and the proffered position satisfy either prong of the definition.
Once the petitioner articulates the nature of the claimed specialized knowledge, it is the weight and type of evidence which establishes whether or not the beneficiary actually possesses specialized knowledge. USCIS cannot make a factual determination regarding the beneficiary's specialized knowledge if the petitioner does not, at a minimum, articulate with specificity the nature of the claimed specialized knowledge, describe how such knowledge is typically gained within the organization, and explain how and when the beneficiary gained such knowledge.
As both "special" and "advanced" are relative terms, determining whether a given beneficiary's knowledge is "special" or "advanced" inherently requires a comparison of the beneficiary's knowledge against that of others in the petitioning company and/or against others holding comparable positions in the industry. The ultimate question is whether the petitioner has met its burden of demonstrating by a preponderance of the evidence that the beneficiary's knowledge or expertise is advanced or special, and that the beneficiary's position requires such knowledge.”
Above from: (AAO NOV032014_02D7101.pdf) at p. 7 [L1-B Dismissed] H. Case Preparation Steps for an Employee with “Specialized Knowledge” Similar to the steps for claiming that an employee will be managing an “essential function” as a “function manager”, the employee said to be in possession of “specialized knowledge” needs to be coming from, and will be going to, a position requiring its use. The first step to that end is to define and/or describe the alleged “specialized knowledge” with specificity. In other words, how is the knowledge “special” or “advanced” and what is the position requiring its use?
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Second is the need to demonstrate that the position is for naught without that specialized knowledge component. In other words, why is this alleged “specialized knowledge” integral to this position? Third, the employer needs to demonstrate through reliable, credible, and probative evidence that the required KSAs are rare even among its own workforce and this will imply that it is a skill set that is not quick, easy, or inexpensive to teach to a new hire, even one that comes from the workforce- at-large with the same underlying basic skills. Fourth and lastly, one must clearly demonstrate that the beneficiary, inter alia; possess the desired “specialized knowledge”. So, in addition to having been an employee for a sufficient period of time, that beneficiary must have been employed in a capacity that required this alleged “specialized knowledge” for at least one continuous year within the three years prior to admission. The case is easier to determine if the employee meets the one year requirement at time of filing the I-129 petition, but that issue is left unanswered here as it is beyond the scope of this discussion. I. Example of “Specialized Knowledge” From the May 21, 2014, AAO Non-Precedent of an L1-B Sustained Appeal: “The petitioner submitted detailed and credible evidence to demonstrate that the beneficiary possesses special knowledge of the company's systems, tools and methodologies and their application in international markets. The petitioner established that these systems, tools and methodologies are proprietary to the petitioner, such that they are not widely known in the industry. The petitioner also submitted evidence that the beneficiary's knowledge is not only exclusive to the petitioner, but that it is of significant complexity and requires a significant period of training or experience to perform at the beneficiary's level. The petitioner also submitted evidence of the beneficiary's educational background and work experience that contributes to her special knowledge of the company's proprietary technology. See 8 C.F.R. § 214.2(l)(3)(iv). The petitioner has provided very detailed explanations of the beneficiary's job duties with the foreign employer, including specific examples of internal projects the beneficiary worked on, the proprietary applications and methodologies she used in the course of
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her work, the contributions she made to the development of company processes in her area of specialization, and the significant impact she had on the organization's test automation processes as a result of her specialized knowledge. Further, the record reflects that the petitioner has adequately documented its claims with relevant supporting documentation. The totality of the evidence establishes that the beneficiary possesses specialized knowledge, that she has acquired specialized knowledge through her work with the foreign entity and that such knowledge is necessary for the beneficiary to carry out the duties of her foreign and proposed positions. In conclusion, the evidence submitted establishes that the beneficiary possesses specialized knowledge and that he will be employed in a specialized knowledge capacity with the petitioner in the United States. See Section 214(c)(2)(B) of the Act. Accordingly, the director's determination to the contrary will be withdrawn.” Infra at p. 5 (AAO MAY212014_01D7101) L1-B Sustained-Onsite Quality Assurance Engineer
Once again, I remind the reader that, the specialized knowledge need not be “proprietary” but IF it happens to be “proprietary” THEN it is more likely than not going to weigh heavily in favor of petition approval. Other important considerations about the nature of the “specialized knowledge” are that it be integral (necessary) and rare (uncommon). The most important consideration is that they have the KSAs you desperately need.
Integral knowledge, skills, and abilities (KSAs) are those without which the job cannot be done completely and correctly.
The rarity of the necessary KSAs is demonstrated even within the same company. That in itself should be enough but one may need to demonstrate why the necessary KSAs are not available “at-large” within the particular occupation.
In addition, IF the needed KSAs were possessed by a large percentage of company’s employees THEN that would likely be interpreted as either that the KSAs are easy to impart on a new hire or which are readily available in the general population of similarly trained individuals at-large (example: software designers or process engineers).
Assembling a winning L1-B package can be quite tricky, ask for help if you need help. Don’t waste your efforts on a substandard filing.
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ABOUT THE AUTHOR
I tell you what you NEED to hear, not what you WANT to hear!
Joseph P. Whalen Independent EB-5 Consultant, EB-5 Advocate, Mentor, Trainer and Advisor 238 Ontario Street | No. 6 | Buffalo, NY 14207 Phone: (716) 604-4233 (cell) or (716) 768-6506 (home, land-line) E-mail: firstname.lastname@example.org
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