Now more than ever large-scale American companies need the support of global talent in order to compete in an international marketplace. But, as noted by the American Immigration Lawyers Association (AILA) our domestic agencies responsible for immigration still sometimes function in a way that restricts American companies by denying applications for L-1B visa transfers on hyper-technical grounds.
The L-1B visa allows foreign employees of domestic companies with global operations to transfer to the U.S. when they have specialized knowledge that is needed here, pursuant to the terms of the Immigration and Nationality Act of 1970 and the Immigration Act of 1990.
However, the U.S. Citizenship and Immigration Services, the former Immigration and Naturalization Service (now known as Legacy INS) and the Administrative Appeals Office (the AAO) which hears appeals on visa determinations, have all found ways to narrow the openings for L-1B visa transfers authorized by Congress.
Over time, these authorities have narrowed the definition of specialized knowledge despite the intent of Congress in the 1990 act to expand the ability of multinational companies to transfer overseas employees to the United States who have knowledge of the companys processes and procedures. .
The immigration authorities have, at various times, suggested that specialized knowledge must be noteworthy or uncommon, as well as advanced or narrowly held, and sometimes even related to a proprietary right or process.
In fact, the House Committee Report for the Immigration Act of 1990 explicitly stated that specialized knowledge need not relate to a petitioner companys proprietary interests. The Congressional Record indeed is full of statements about the value of the L-1B visa to multi-national corporations, and the exacerbated problems created by varying interpretations of specialized knowledge by the Legacy INS.
As AILA has noted, it is time for the USCIS, the AAO, and the Legacy INS to bring their interpretations and actions in line with Congressional intent. Their persistent practice of narrowing the entryway for L-1B applicants with unpublished rulings demonstrates the need for stricter Congressional oversight, as well as the practical importance of having experienced counsel to advocate for L-1B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.