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Musings On The L1-B Specialized Knowledge Visa                        By Joseph P, Whalen (February 7, 2012)Ostensibly, th...
In the statute, specialized knowledge is further restricted to the company’sproduct and its application and/or the company...
Grammar rule 2      Uncountable nouns dont use a or an. This is because you cant count them.      For example, advice is a...
For Easy Reference:INA § 101 DEFINITIONS(a) As used in this Act-                             *      *      *      *     * ...
prescribe. The approval of such a petition shall not, of itself, be construed asestablishing that the alien is a nonimmigr...
the United States and provide the spouse with an `employment             authorized endorsement or other appropriate work ...
INA § 101 DEFINITIONS(a) As used in this Act-                             *      *      *       *    *       (44)         ...
(iii) exercises wide latitude in discretionary decision-making;      and      (iv) receives only general supervision or di...
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Musings on the L1-B visa

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Intracompany Transferee Visas.

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Musings on the L1-B visa

  1. 1. Musings On The L1-B Specialized Knowledge Visa By Joseph P, Whalen (February 7, 2012)Ostensibly, the L1-B Specialized Knowledge visa permits a multinational companyto shift employees from international offices or facilities into the United States inorder to continue their work for the same employer. Some folks display a greatdeal of confusion about what would constitute the required “specializedknowledge”. Still others are not confused but want everyone else to be. Congresshas expressed some very specific intent in a little thing known as the statute.INA § 214 (c) (2) (B) tell us that [f]or purposes of section 101(a)(15)(L) , an alienis considered to be serving in a capacity involving specialized knowledge withrespect 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.Specialized knowledge is confined to that of the company because that specializedknowledge is intended to be considered or viewed as proprietary information ofthe petitioning company. The statute starts out fairly restrictive within that firstcontext relating to the pre-existing capacity in which the employee was alreadyserving abroad for the petitioning employer. The whole issue of exactly who canbe the U.S. based petitioner is a whole other matter that applies across manycategories and has been beaten to death already elsewhere. That said however, if analien possessing specialized knowledge of a company other than the company whois filing the petition, then the petitioner has filed for the wrong category; or thewrong company has filed the petition; or perhaps no petition is required.If a company wants to temporarily hire new blood from abroad, they need to filefor an H1-B or O-1in order to bring this specialty worker or alien of extraordinaryability to the U.S. If some other company is selling a product that needs preciseinstallation or after-sales service, that is covered by a B-1 visa which does notrequire a petition. If the alien worker really works for someone else, a tenuousrelationship between the foreign employer and the petitioning employer won’tsuffice. See Matter of Del Mar Ben, Inc., 15 I&N Dec. 5 (Reg. Comm’r 1974) asopposed to Matter of Chartier, 16 I&N Dec. 284 (BIA 1977). See also the firstand fifth prongs of Matter of Penner, 18 I&N Dec. 49 (Comm’r 1982). Page 1 of 8
  2. 2. In the statute, specialized knowledge is further restricted to the company’sproduct and its application and/or the company’s processes and procedures. SeeMatter of Colley, et al., 18 I&N Dec. 169 (Comm’r 1981) (the occupations did notinherently qualify the beneficiaries and the Service looked for elements beyondgeneral job tasks and duties for the specialized knowledge related to theproprietary interests of the business, its management, and concerned skills orknowledge related to the proprietary interests of the business, its management, andconcerned skills or knowledge not readily available in the job market.) and Matterof Sandoz Crop Protection Corp., 19 I&N Dec. 666 (Comm’r 1988) (Specializedknowledge involves proprietary knowledge and an advanced level of expertise notreadily available in the United States job market. .... A petitioners ownership ofpatented products or copyrighted works, in and of itself, does not establish that aparticular employee has specialized knowledge. In order to qualify, the beneficiarymust himself or herself be a key person ....)Here is a good point to stop and reassess something very fundamental. How do youread a statute or regulation? I would answer: “Slowly, painstakingly, andrepeatedly.” The first consideration is your basic grammar skills. When you read itremember that it was “word-smithed” very carefully so as to give meaning to everylittle bit. It was written and re-written countless times and the original author mayend up saying in regard to what is left from his/her first draft: “Well, they kept“the” and “and”.” I am not kidding about that because that is often the case. Thefinal resulting text may look almost nothing like what was initially written.The following is found at: http://www.english-at-home.com/grammar/articles/ “In English, knowing when to use a or the can be difficult. Fortunately, there are rules to help you, but you need to know what type of noun you are using. Grammar rule 1 When you have a single, countable English noun, you must always have an article before it. We cannot say "please pass me pen", we must say "please pass me the pen" or "please pass me a pen" or "please pass me your pen". Nouns in English can also be uncountable. Uncountable nouns can be concepts, such as life, happiness and so on, or materials and substances, such as coffee, or wood. Page 2 of 8
  3. 3. Grammar rule 2 Uncountable nouns dont use a or an. This is because you cant count them. For example, advice is an uncountable noun. You cant say "he gave me an advice", but you can say "he gave me some advice", or "he gave me a piece of advice". Some nouns can be both countable and uncountable. For example, we say "coffee" meaning the product, but we say "a coffee" when asking for one cup of coffee. Grammar rule 3 You can use the to make general things specific. You can use the with any type of noun – plural or singular, countable or uncountable. "Please pass me a pen" – any pen. "Please pass me the pen" – the one that we can both see. "Children grow up quickly" – children in general. "The children I know grow up quickly" – not all children, just the ones I know. "Poetry can be beautiful"- poetry in general. "The poetry of Hopkins is beautiful" – Im only talking about the poetry Hopkins wrote.The statute specifically refers to the company in some places in order to berestrictive as to the proprietary product and its application as well as theproprietary processes and procedures. In a more general sense, the statute refers toa company in order to fit the visa category into a specific context of companies.After all, the visa is intended for intra-company transferees. So, while the visacategory applies broadly to many multinational companies, the statute narrows theprecise groups of employees within those companies who may be most easilyimported to the U.S. The L1-A is for executives and managers and the L1-B is forthe few key specialized knowledge employees. Page 3 of 8
  4. 4. For Easy Reference:INA § 101 DEFINITIONS(a) As used in this Act- * * * * * (15) The term "immigrant" means every alien except an alien who is within one of the following classes of nonimmigrant aliens * * * * * (L) 3c/ subject to section 214(c)(2), 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 other legal entity 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, and the alien spouse and minor children of any such alien if accompanying him or following to join him;FN 3c Section 101(a)(15)(L) was amended by section 2(b) of Public Law 107-125, dated January 16, 2002, by inserting the phrase "subject to section214(c)(2)".INA § 214 ADMISSION OF NONIMMIGRANTS[NOTE: Attorney General replaced with Secretary of Homeland Security] * * * * * (c) (1) The question of importing any alien as a nonimmigrant under subparagraph (H) , (L) , (O) , or (P)(i) of section 101(a)(15) (excluding nonimmigrants under section 101(a)(15)(H)(i)(b1) ) in any specific case or specific cases shall be determined by the [Secretary of Homeland Security], after consultation with appropriate agencies of the Government, upon petition of the importing employer. Such petition shall be made and approved before the visa is granted. The petition shall be in such form and contain such information as the [Secretary of Homeland Security] shall Page 4 of 8
  5. 5. prescribe. The approval of such a petition shall not, of itself, be construed asestablishing that the alien is a nonimmigrant. ..........(2) (A) The [Secretary of Homeland Security] shall provide for a procedure under which an importing employer which meets requirements established by the [Secretary of Homeland Security] may file a blanket petition to import aliens as nonimmigrants described in section 101(a)(15)(L) instead of filing individual petitions under paragraph (1) to import such aliens. Such procedure shall permit the expedited processing of visas for admission of aliens covered under such a petition. 1c/ 1g/ (B) For purposes of section 101(a)(15)(L) , 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. (C) The [Secretary of Homeland Security] shall provide a process for reviewing and acting upon petitions under this subsection with respect to nonimmigrants described in section 101(a)(15)(L) within 30 days after the date a completed petition has been filed. (D) The period of authorized admission for- (i) a nonimmigrant admitted to render services in a managerial or executive capacity under section 101(a)(15)(L) shall not exceed 7 years, or (ii) a nonimmigrant admitted to render services in a capacity that involves specialized knowledge under section 101(a)(15)(L) shall not exceed 5 years. (E) 1c/ In the case of an alien spouse admitted under section 101(a)(15)(L) , who is accompanying or following to join a principal alien admitted under such section, the [Secretary of Homeland Security] shall authorize the alien spouse to engage in employment in Page 5 of 8
  6. 6. the United States and provide the spouse with an `employment authorized endorsement or other appropriate work permit. (F) 1f/ An alien who will serve in a capacity involving specialized knowledge with respect to an employer for purposes of section 101(a)(15)(L) and will be stationed primarily at the worksite of an employer other than the petitioning employer or its affiliate, subsidiary, or parent shall not be eligible for classification under section 101(a)(15)(L) if- (i) the alien will be controlled and supervised principally by such unaffiliated employer; or (ii) the placement of the alien at the worksite of the unaffiliated employer is essentially an arrangement to provide labor for hire for the unaffiliated employer, rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.FN 1c Section 214(c)(2)(A) was amended by section 2(a) of Public Law 107-125, dated January 16, 2002. Section 214(c)(2)(E) was added by section 1 ofPublic Law 107-125.FN 1f Section 412(a) of Public Law 108-447 added paragraph (F) to section214(c)(2) of the Act.Applicability - The amendment made by section 412(a) of Public Law 108-447shall apply to petitions filed on or after June 6, 2005, whether for initial, extended,or amended classification.FN 1g Section 413(a) of Public Law 108-447, amended section 214(c)(2)(A) ofthe Act by striking the last sentence (relating to reduction of the 1-year period ofcontinuous employment abroad to 6 months).Applicability - The amendment made by section 413(a) of Public Law 108-447shall apply only to petitions for initial classification filed on or after June 6,2005. Page 6 of 8
  7. 7. INA § 101 DEFINITIONS(a) As used in this Act- * * * * * (44) (A) The term "managerial capacity" means an assignment within an organization in which the employee primarily- (i) manages the organization, or a department, subdivision, function, or component of the organization; (ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization; (iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and (iv) exercises discretion over the day- to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisors supervisory duties unless the employees supervised are professional. (B) The term "executive capacity" means an assignment within an organization in which the employee primarily- (i) directs the management of the organization or a major component or function of the organization; (ii) establishes the goals and policies of the organization, component, or function; Page 7 of 8
  8. 8. (iii) exercises wide latitude in discretionary decision-making; and (iv) receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.(C) If staffing levels are used as a factor in determining whether anindividual is acting in a managerial or executive capacity, theAttorney General shall take into account the reasonable needs of theorganization, component, or function in light of the overall purposeand stage of development of the organization, component, or function.An individual shall not be considered to be acting in a managerial orexecutive capacity (as previously defined) merely on the basis of thenumber of employees that the individual supervises or has supervisedor directs or has directed. Page 8 of 8

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