January 27, 2012 - The American Immigration Lawyers Association (AILA) has submitted a memo to USCIS providing critical feedback on the USCIS interpretation of the term “specialized knowledge,” and outlining the correct standards and evidentiary requirements that should be followed in determining eligibility for L-1B classification.  The AILA memo to USCIS reviews the history of L-1B specialized knowledge and highlights the changes enacted by Congress in 1990. 

Congress acted in 1990 to eliminate the varying restrictions imposed on the L-1B specialized knowledge category by requiring that, for L-1B purposes, the knowledge be “special knowledge of the company product and its application in international markets,” or that the knowledge be “an advanced level of knowledge” of the company’s processes and procedures. 

However, in recent months, USCIS and US Consular posts have significantly restricted the number of L-1B approvals.  The decline in L-1B approvals has been accomplished through unpublished, non-binding decisions made by the USCIS Administrative Appeals Office (AAO), as well as the selective review of prior legislative and regulatory history, selective reliance on precedent administrative decisions and federal district court cases that addressed the L-1B classification as it appeared prior to Congressional intervention in 1990, and selective application of common dictionary definitions of the terms “special” and “advanced.”

The AILA Memo strongly requests USCIS to apply the sound reasoning found in the regulations and policy memorandum that properly interpreted the intent of Congress with respect to L-1Bs.

BAL Comment:  Over the past several years, both USCIS and US Consular posts have adopted an increasingly narrow interpretation of the L-1B visa category, causing problems and delays for many companies.  Both BAL and AILA, through lobbying efforts, continue to implore USCIS to examine the serious flaws in the government’s current approach.

- Berry Appleman & Leiden LLP