[email protected](716) 604-4233 or (716) 768-6506 Page 1 Clarifying Specialized Knowledge for Intracompany Transferees By Joseph P. Whalen (November 30, 2014) A. Introduction 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 1990 1 that the concept of “proprietary” knowledg e 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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Clarifying specialized knowledge for intracompany tranferees
In this article, I am putting forth an approach to addressing the concept of "specialized knowledge" as "knowledge, skills, and abilities" (KSAs) required for L1-B nonimmigrant petitions.
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Clarifying Specialized Knowledge for Intracompany Transferees
By Joseph P. Whalen (November 30, 2014)
A. Introduction
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]
“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:
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.[2]
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.
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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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 mentoring6. 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 adjudicat ions 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.
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6 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-