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Legacy INS Interpretations of L-1B Visas Rules

Written By The Shapiro Law Group on March 14, 2012

Congress thought it had solved the problems created by multiple administrative interpretations of the L-1B visa requirements when it passed the Immigration Act of 1990 (IMMACT90) which, among other things, gave a statutory definition to the specialized knowledge prerequisite for obtaining an L-1B visa.

The L-1B visa is very popular in the age of globalization because it allows foreign employees of multi-national domestic companies to transfer to theU.S.when they have specialized knowledge that is needed here, pursuant to the terms of the Immigration and Nationality Act of 1970 (the INA) and IMMACT90.

IMMACT90 explicitly stated that 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 companys product and its application in international markets OR has an advanced level of knowledge of processes and procedures in the company.

Nonetheless, by 1994 the Immigration and Naturalization Service (now known as Legacy INS) issued a policy guidance memo to visa petition adjudicators stating that specialized knowledge need not be proprietary or unique [repealing an earlier administrative position] but it must be different or uncommon.

The so-called Puleo memo went on to list five specific examples of the kinds of specialized knowledge that might meet the criteria for an L-1B visa, inserting language into their examples not found in the IMMACT90 statute.

Then, in 2002, Legacy INS issued another policy guidance memo (the Obata memo) which added that where the alien [only] has knowledge of company processes or procedures, the knowledge must be advanced. The memo also asserted that an important factor for L-1B qualification is the degree to which an aliens knowledge contributes to the uninterrupted operation of the specific business for which [his] services are sought.

The persistent practice of narrowing the entryway for L-1B applicants with policy guidance unrelated to the INA or IMMACT90 demonstrates the need for stricter Congressional oversight, as well as the practical importance of having experienced counsel to advocate for L-1B transfer visa petitions.

If you are an employer or agent of an employer responsible for intra-company, inter-country transfers or compliance with immigration rules generally, please do not hesitate to contact our office for assistance at (847) 564-0712. You are also welcome to visit the pertinent section of our Website for additional information about our services.