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Comparing E-2 “Special Qualifications” to 
L1-B “Specialized Knowledge” Employees 
E-2 “Head Chef” in a Korean Restaurant ...
Comparing E-2 Special Qualifications to L1-B Specialized Knowledge Employees 
By Joseph P. Whalen (October 3, 2014) 
Conta...
Comparing E-2 Special Qualifications to L1-B Specialized Knowledge Employees 
By Joseph P. Whalen (October 3, 2014) 
Conta...
Comparing E-2 Special Qualifications to L1-B Specialized Knowledge Employees 
By Joseph P. Whalen (October 3, 2014) 
Conta...
Comparing E-2 Special Qualifications to L1-B Specialized Knowledge Employees 
By Joseph P. Whalen (October 3, 2014) 
Conta...
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Comparing E-2 to L1-B Employees

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Let's compare these two non-immigrant visa categories for workers. Both seem to seek to import existing foreign employees to continue doing business but from inside the United States.

In light of the DC Circuit's Remand in Fogo de Chao, I have to rethink this because L1-B "specialized knowledge" does NOT have to be "proprietary" it simply helps the petitioner to prove their proposition much better and easier.

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Comparing E-2 to L1-B Employees

  1. 1. Comparing E-2 “Special Qualifications” to L1-B “Specialized Knowledge” Employees E-2 “Head Chef” in a Korean Restaurant L1-B “Appraiser & Auctioneer” in the Liquidations and Auction Business MAY022014_01D17214.pdf SEP092014_03D7101.pdf Certain non-immigrant worker classifications are strikingly similar and thus confusing. This essay is a small attempt to shine a light on two of them in order to help the reader see the differences between them. This essay looks at the employee of a treaty trader (E-1) or treaty investor (E-2)1 with special qualifications and the intracompany transfree who is in possession of specialized knowledge (L1-B). There is another similar nonimmigrant worker classification which can sometimes be confused more with the L1-B than the E-1 or E-2 employee, and that is the H-1-B specialty occupation worker. It seems that all of the “special” folks can be confused with one another. I have previously compared the L-1-B and H1-B that article is here. The key concepts that are used to distinguish these two classifications are laid out below. These keys are used to unlock the reader’s understanding of the analysis underlying the evaluation of that evidence which adequately proves the facts that are then compared to the eligibility criteria found in the law when rendering a judgment as to the proper classification, if any, of the position as described in the petition. The simplest breakdown of these two classifications are as follows: 1.) for the E- 1/2 employees of a treaty trader/investor it is the essentiality of the key person’s “special qualification”—Is this person the treaty principal’s “right arm”?; but 2.) L1-B intracompany transferees are relied upon for their “special or advanced” intimate familiarity with strictly proprietary and/or confidential information. Such “specialized knowledge” is supposed to be unknown outside the company and therefore cannot be found in the open job market. The only qualified workers are those found “in-house”. Be sure to stick around for the punch-line at the end! It’s a doozy! 1 The example used herein is the case of an E-2 employee of a treaty investor because it is the only AAO non- precedent for any E nonimmigrant posted on the USCIS website as of this writing and it is quite recent. Website last accessed October 3, 2014. http://www.uscis.gov/laws/admin-decisions?topic_id=1&newdir=D17+-+Nonimmigrant+E- 2+Treaty+Investor/ and http://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L- 1A%20and%20L-1B)/Decisions_Issued_in_2014/SEP092014_03D7101.pdf
  2. 2. Comparing E-2 Special Qualifications to L1-B Specialized Knowledge Employees By Joseph P. Whalen (October 3, 2014) Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 2 E-2 “Head Chef” in a Korean Restaurant L1-B “Appraiser & Auctioneer” in the Liquidations and Auction Business MAY022014_01D17214.pdf SEP092014_03D7101.pdf Essential KSAs needed for E-2 NIV. vs. Proprietary KSAs needed for L1-B NIV. The key element in evaluating the “special qualifications” of the desired E-2 employee is “essentiality” of that person’s knowledge, skills, and abilities (KSAs) to the ultimate success or failure probability of the U.S. based business enterprise. The key element in evaluating “specialized knowledge” is whether or not the alien employee has and the U.S. position requires “it”. “It” means “a special knowledge of the company product and its application in international markets or procedures.” Most folks might better understand that last phrase as “proprietary and confidential information and/or knowledge” and necessarily the KSAs to put “it” to use in a productive manner in the U.S. for the petitioner. Section 101 (a)(15)(E)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101 (a)(15)(E) (ii) defines a treaty investor as: an alien entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he is a national, and the spouse and children of any such alien if accompanying or following to join him; .. . (ii) solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital . ... Section 101 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101 (a)(15)(L) defines an intracompany transferee as: an alien who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge …….
  3. 3. Comparing E-2 Special Qualifications to L1-B Specialized Knowledge Employees By Joseph P. Whalen (October 3, 2014) Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 3 E-2 “Head Chef” in a Korean Restaurant L1-B “Appraiser & Auctioneer” in the Liquidations and Auction Business MAY022014_01D17214.pdf SEP092014_03D7101.pdf The regulation at 8 C.F.R. § 214.2 (e)(3) states the following, in pertinent part, with regard to the employee of a treaty investor: . . . an alien employee of a treaty investor, if otherwise admissible, may be classified as E-2 if the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifications that make the alien's services essential to the efficient operation of the enterprise. The employee must have the same nationality as the principal alien employer.. Additionally, the regulation at 8 C.F.R. § 214.2(e)(18) defines the term "special qualifications" as those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the treaty enterprise. The regulation further states that in order to determine whether the skills possessed by the alien are essential to the efficient operation of the employing treaty enterprise, a [USCIS] officer must consider the following factors, where applicable: (i) The degree of proven expertise of the alien in the area of operations involved; whether others possess the applicant's specific skill or aptitude; the length of the The regulation at 8 C.F.R. § 214.2 (l)(2)(D)&(E) state the following, in pertinent part, on the meaning of two closely associated terms: (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. (E) Specialized knowledge professional means an individual who has specialized knowledge as defined in paragraph (l)(1)(ii)(D) of this section and is a member of the professions as defined in section 101(a)(32) of the Immigration and Nationality Act …. In this particular case, it was determined that: “….[t]he petitioner, a Nevada corporation established in March 2013, states that it a subsidiary of [REDACTED], located in the Philippines. The petitioner intends to operate a liquidations and auction business, as well as engage in the wholesale and retail of household furniture. It seeks to employ the beneficiary in the position of international appraiser and auctioneer for a period of one year. The director denied the petition concluding that the petitioner failed to establish that the beneficiary possesses specialized knowledge or that he would be employed in the United States in a position requiring specialized knowledge.”
  4. 4. Comparing E-2 Special Qualifications to L1-B Specialized Knowledge Employees By Joseph P. Whalen (October 3, 2014) Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 4 E-2 “Head Chef” in a Korean Restaurant L1-B “Appraiser & Auctioneer” in the Liquidations and Auction Business MAY022014_01D17214.pdf SEP092014_03D7101.pdf applicant's experience and/or training with the treaty enterprise; the period of training or other experience necessary to perform effectively the projected duties; the relationship of the skill or knowledge to the enterprise's specific processes or applications, and the salary the special qualifications can command; that knowledge of a foreign language and culture does not, by itself, meet the special qualifications requirement, and; (ii) Whether the skills and qualifications are readily available in the United States. In all cases, in determining whether the applicant possesses special qualifications which are essential to the treaty enterprise, a Service officer must take into account all the pa1ticular facts presented… In this particular case, it was determined that: “…the treaty enterprise provided minimal evidence to establish the applicant's degree of proven expertise in the field of Korean cuisine... [and, that “minimal evidence”] ... contains no information regarding the applicant's specific culinary skills, expertise in specific cooking styles or techniques, or the restaurant's menu.” FN1 Unlike many other employment-based nonimmigrant visa classifications, approval of an E-2 nonimmigrant visa is based on the filing of an application, not a petition. See 8 C.F.R. 214.2(e); see also 62 Fed. Reg. 48138 (Sept. 12, 1997). Therefore, for purposes of this decision, the alien will be referred to as an "applicant." I have to whole-heartedly agree with the determination that the petitioner failed to prove that: (1.) the position required any specialized knowledge or that; (2.) the beneficiary actually had any specialized knowledge. I am going to take advantage of the fact that I am not now working for USCIS and can fully exercise my first amendment rights to say it as I see it and hold nothing back. I can do that even if it seems a bit mean while trying to be funny. Here goes: Exactly how big is the stall at that flea market that you’d need an “international appraiser” and “auctioneer” to sell your close-out junk-ware? Also, what the heck is an “international appraiser”? Yes, I am a skeptical cynic that thinks that the application was a big waste of time, money, & effort! I could go on and on but that would defeat the purpose in my ulterior motive. I want you to read these AAO non- precedent decisions. Not only are they interesting and informative but the quality is improving.
  5. 5. Comparing E-2 Special Qualifications to L1-B Specialized Knowledge Employees By Joseph P. Whalen (October 3, 2014) Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 5 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: joseph.whalen774@gmail.com web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer DISCLAIMER: The opinions expressed herein are those of the writer only. That is to say that they are opinions of a layperson, non-attorney, non-economist, non-accountant, non-FINRA or SEC registered broker or adviser. Any information or consultation that seems like “incidental investment advice” is intended merely as educational, coaching, and mentoring2. Opinions are based on work experience as an Adjudications Officer within INS and USCIS with particular involvement in the revitalization of USCIS’ EB-5 Program, especially that portion dealing with Regional Centers. This writer wrote the “Unofficial Instructions” on how to apply for Regional Center Designation which later formed the basis for the I-924 Form Instructions. The writer is an outspoken advocate for improved adjudications at USCIS. Lastly, this reviewer is published in various immigration law outlets with well over 100 scholarly articles and opinion pieces widely circulated as well as a published contributing author in three EB-5 Law Books; co-editor in the most recent. NAICS Code: 611430 Professional and Management Development Training 2012 NAICS DEFINITION: 611430 PROFESSIONAL AND MANAGEMENT DEVELOPMENT TRAINING THIS INDUSTRY COMPRISES ESTABLISHMENTS PRIMARILY ENGAGED IN OFFERING AN ARRAY OF SHORT DURATION COURSES AND SEMINARS FOR MANAGEMENT AND PROFESSIONAL DEVELOPMENT. TRAINING FOR CAREER DEVELOPMENT MAY BE PROVIDED DIRECTLY TO INDIVIDUALS OR THROUGH EMPLOYERS' TRAINING PROGRAMS; AND COURSES MAY BE CUSTOMIZED OR MODIFIED TO MEET THE SPECIAL NEEDS OF CUSTOMERS. INSTRUCTION MAY BE PROVIDED IN DIVERSE SETTINGS, SUCH AS THE ESTABLISHMENT'S OR CLIENT'S TRAINING FACILITIES, EDUCATIONAL INSTITUTIONS, THE WORKPLACE, OR THE HOME, AND THROUGH DIVERSE MEANS, SUCH AS CORRESPONDENCE, TELEVISION, THE INTERNET, OR OTHER ELECTRONIC AND DISTANCE-LEARNING METHODS. THE TRAINING PROVIDED BY THESE ESTABLISHMENTS MAY INCLUDE THE USE OF SIMULATORS AND SIMULATION METHODS. That’s My Two-Cents, For Now! 2 See: 15 U.S.C. §80b–2. (a)(11) or go to: http://uscode.house.gov/view.xhtml?req=(title:15%20section:80b-2%20edition:prelim)%20OR%20(granuleid:USC- prelim-title15-section80b-2)&f=treesort&edition=prelim&num=0&jumpTo=true

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