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Constricting L-1B Visa Access

Written By The Shapiro Law Group on April 02, 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 company’s product and its application in international markets OR has an advanced level of knowledge of processes and procedures in the company.

Since that time, the U.S. Citizenship and Immigration Services, the former Immigration and Naturalization Service (now known as Legacy INS) and the Administrative Appeals Office (AAO) have all found non-statutory ways to constrict access to L-1B visas.

Among other things, the AAO has ruled that knowledge will not be considered special or advanced if it is universally or even widely held throughout a company. The AAO has pushed further to add that not all employees with specialized knowledge are eligible for classification as L-1B intra-company transferees.

However, INA section 101(a)(15)(L) and section 214(c)(2)(B), as amended by IMMACT90, provide that any employee who has 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 can satisfy the specialized knowledge requirements of the L-1B visa. Thus, there is no statutorily justified reason to deny L-1B visa petitions based on the number of employees holding a specialized knowledge within a company.

These additional constrictions on our domestic employers who are trying to compete globally are unnecessary, but very real. 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 immigration law Website for additional information about our services.