Court rules on L-1B ’specialized knowledge’ definition

10 Nov 14

UNITED STATES

A federal appeals court has overturned an L-1B visa decision by U.S. Citizenship and Immigration Services in which a foreign chef was denied a visa on the grounds that he did not have the requisite “specialized knowledge.”

The court said that the agency wrongly concluded that the definition of “specialized knowledge” categorically excludes knowledge acquired through cultural experience.

L-1 visas, also known as intra-company transfers, provide a way for companies to move employees from one of their foreign offices to U.S. branches or affiliates. These employees must have worked abroad for the foreign office for at least one of the previous three years. The L-1A category is for managers or executives, while the L-1B category is for employees who possess “specialized knowledge.”

The case involved a Brazilian steakhouse chain that applied for an L-1B visa for a chef, asserting that he had specialized knowledge of the culture and cuisine of southern Brazil. USCIS denied the chef’s visa, finding that “specialized knowledge” could not be based on culturally acquired knowledge gained from life experience.

The court disagreed. “[T]he agency has not offered a reasoned analysis of why the statutory phrase ‘specialized knowledge’ would woodenly debar any and all knowledge acquired through one’s cultural traditions, upbringing, or ‘life experience,’ or how that rule comports with … prior agency guidance. …,” the U.S. Court of Appeals for the D.C. Circuit said in a 2-1 decision. The court also found that the agency should have weighed the economic burden on the employer who, if denied a visa, would have to train in-house employees to acquire the specialized knowledge.

The court erased the decision and sent the case back to the agency to take a second look.

BAL Analysis: The ruling is a positive sign for employers applying for L-1B visas in that it did not give substantial deference to the agency on its interpretation of “specialized knowledge.” While the holding could be viewed as limited to “cultural” knowledge, this decision could possibly open the door to future federal court challenges to USCIS interpretation of this much-debated phrase. The definition of “specialized knowledge” has been largely discretionary and subject to increasingly narrow interpretation in recent years. Despite numerous calls for guidance, the agency has failed to provide updated instruction on what is and is not considered “specialized knowledge.”

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