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Clarifying Specialized Knowledge for Intracompany Transferees

By Joseph P. Whalen (November 30, 2014)

A. Introduction

Within the analysis presented in the remand decision in Fogo De Chao (Holdings) Inc. v. United States Department of Homeland Security ___F.3d___(D.C. Cir. 2014) [No. 13-5301, October 21, 2014], the court makes the

blunt point of unequivocally and unambiguously accepting that when Congress

created a statutory definition of “specialized knowledge” for the L1-B nonimmigrant

visa via legislation passed in 19901 that the concept of “proprietary” knowledge was

affirmatively quashed as stated in the legislative history as was the INS’ other

imposed requirement that the needed personnel with said “specialized knowledge”

could not be easily found or demanded skills “not readily available” in the United

States. Since it is now an accepted interpretation at the Circuit Court of Appeals

level, I felt that I needed to rethink how I was viewing and interpreting the statutory

definition. While I firmly stand by the proposition that IF such knowledge is indeed

“proprietary” THEN the case will be much stronger and an easier sell. However,

since it is not required that such knowledge actually be “proprietary” then I offer the

proposition that the “specialized knowledge” in question in a given case must at the

very least be “integral” to the key position to be filled by the nonimmigrant

intracompany transferee, and the employees with that specialized knowledge be

somewhat “rare” even within the company. Not just any employee can be deemed to

posses “specialized knowledge” and if everybody has that knowledge, how can it be

reasonably described as specialized?

B. Replacing “Proprietary” with “Integral” and “Rare” for “Specialized”

First things first, one needs to examine the definitions of “specialized” as well as that

of “proprietary” and then the suggested replacement which is “integral” and “rare”.

But there is still more than meets the eye. Knowledge coveys the possession of

“information” so, I look at the definition of “proprietary information”. Additional

definitions shall also be presented herein. The first definition to examine is the one

that provides our overall context, specifically, “specialized”.

1 Pub. L. 101-649 Immigration Act of 1990 [IMMACT 90]

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a. Definition2 of “Specialized”3

specialized adjective

also British specialised / s̍pɛʃəˌlaɪzd/

Learner's definition of SPECIALIZED

[more specialized; most specialized]

: made or used for one particular purpose, job, place, etc.

specialized regions of the brain

specialized gear for deep-sea fishing

a specialized habitat

specialized knowledge/skills

Above From: http://www.learnersdictionary.com/definition/specialized

b. Definition of “Rare”

rare1

rer/

adjective (of an event, situation, or condition) not occurring very often.

"a rare genetic disorder"

synonyms: infrequent, scarce, sparse, few and far between, thin on the ground, like

gold dust, as scarce as hen's teeth; ….

(of a thing) not found in large numbers and consequently of interest or value.

"the jellyfish tree, one of the rarest plants on earth"

synonyms: unusual, recherché, uncommon, unfamiliar, atypical, singular

"rare stamps"

unusually good or remarkable.

"he plays with rare strength and sensitivity"

synonyms: exceptional, outstanding, unparalleled, peerless, matchless, unique,

unrivaled, inimitable, beyond compare, without equal, second to none,

unsurpassed; ….

In the case of “specialized knowledge” required of a position and the person

filling it, in reality, we are talking about the required “knowledge, skills, and

abilities” (KSAs) that are normally present with any job description or vacancy

2 The underlined words in these definitions are hyperlinked.

3 "Specialized." Merriam-Webster.com. Merriam-Webster, n.d. Web. 29 Nov. 2014. http://www.merriam-

webster.com/dictionary/specialized

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announcement. In my opinion, in this instance, the above definition of the

adjective “specialized” as it pertains to a “condition” is most suitable to apply

to the “specialized” KSAs for the L1-B non-immigrant visa category.

Additionally, we are talking about “specialized knowledge” used for one

particular job. The necessary rare KSAs needed should likewise be held by

few employees even within the same company, hence the need to “import” an

employee on an L1-B visa in the first place. So, that means that qualified L1-

B intracompany transferees should be in the minority, that is, qualified

persons will comprise a relatively small percentage of the employer’s global

workforce. Such a situation also reinforces the need to import a particular

employee in the first place. If too many employees have that knowledge, then

that situation implies that it is either easily found among the workforce-at-large

or it is relatively easy for the employer to impart that knowledge to all its new

hires.

c. Definition of “Proprietary Information”

“This is information that is known only to the owner of the information. It is

not information that is made available to the general public at any time. It can

relate to budget information and research results that belong to the company.”

Above From: Law Dictionary: What is PROPRIETARY INFORMATION?

definition of PROPRIETARY INFORMATION (Black's Law Dictionary)

d. Definition of “Integral” to be applied to “Knowledge, Skills, and

Abilities” of the Intracompany Transferee

“integral adjective basic, cardinal, central, constituent, elemental, essential,

essential to

completeness, fundamental,indispensable, integrant, necessarius, necessary,

needed, needful, prerequisite, primary, required, requisite, vital

Associated concepts: integral part of a case

See also: essential, indispensable, inherent, item, necessary, total, unit

Burton's Legal Thesaurus, 4E. Copyright © 2007 by William C. Burton.

Used with permission of The McGraw-Hill Companies, Inc.”

Above from: http://legal-dictionary.thefreedictionary.com/integral

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e. Legal Definition of the Article “a”

“The article "a" is not necessarily a singular term; it is often used in the sense

of "any" and is then applied to more than one individual object. Lewis v. Spies, 43 A.D.2d 714, 350 N.Y.S.2d 14, 17. So under a statute providing that the

issuance of "a" certificate to one carrier should not bar a certificate to another

over the same route, a certificate could be granted to more than two carriers

over the same route. State ex rel. Crown Coach Co. v. Public Service Commission, 238 Mo. App. 287, 179 S.W.2d 123, 127 [(K.C. 1944)]. Also,

article "a" in statute making it a crime for a person to have in his possession a

completed check with intent to defraud includes the plural. People v. Carter, 75 CA.3d 865, 142 Cal.Rptr. 517, 520.4 But the meaning depends on context.

For example, in Workers' Compensation Act, on, or in or about "a" railway,

factory, etc., was held not to mean any railway, factory, etc., but the railway,

factory, etc., of the employer. Where the law required the delivery of

a copy of a notice to husband and a copy to wife, the sheriffs return that he

had delivered "a copy" to husband and wife was insufficient. State v. Davis, Tex.Civ. App., 139 S.W.2d 638, 640.” [Highlighting added]

Above from Black’s Law Dictionary (6th Ed.) found at:

http://archive.org/stream/BlacksLaw6th/Blacks%20Law%206th_djvu.txt

f. Definition of the Articles “the, a, & an”

i. definite article noun

plural definite articles

Learner's definition of DEFINITE ARTICLE

[count] grammar : the word the is used in English to refer to a person or thing that

is identified or specified

also : a word that is used in a similar way in another language —

compare INDEFINITE ARTICLE

Above derived from: http://www.learnersdictionary.com/definition/definite%20article

ii. indefinite article noun

plural indefinite articles

4 “Whether the checks are blanks, subject to Penal Code section 475, or completed checks subject to section 475a, or fictitious instruments subject

to section 476, it is possible that each check will victimize a different person.[2]

Section 475a cannot be distinguished upon that ground. Nor can we distinguish section 475 from section 475a because the former says "any" check and the latter says "a" check. The Bowie opinion reasoned that although the word "any" was singular, the singular includes the plural, citing Penal Code section 7.

[3] The same may be said of the article "a" in

section 475a.”

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Learner's definition of INDEFINITE ARTICLE

[count]

: the word a or an used in English to refer to a person or thing

that is not identified or specified

In “I gave a book to the boy” the word “a” is an indefinite

article and the word “the” is a definite article.

also : a word that has a similar use in another language

Above derived from: http://www.learnersdictionary.com/definition/indefinite%20article

C. INA Definition of “Specialized Knowledge” for L1-B Nonimmigrant Visas

INA § 214 [8 U.S.C. 1184] Admission of nonimmigrants.

* * * * *

(c) Petition of importing employer.

(2) * * * *

(B) For purposes of section 1101(a)(15)(L) of this title, 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 product and its application in

international markets or has an advanced level of knowledge of

processes and procedures of the company.

D. The Uselessness of the Regulatory Definition of “Specialized Knowledge”

The D.C. Circuit Court of Appeals wrote of the lack of worth of the

regulatory definition of “specialized knowledge” in that it did little more than

parrot the statutory definition. It adds no real interpretive value nor provides

any useful insight. Specifically on this topic and in explaining why no

deference was given to the USCIS and AAO reliance on their supposed

expertise on this topic was summed up in the following passages.

“No deference is due, however, to an agency’s

interpretation of its own regulation when, “instead of using its

expertise and experience to formulate a regulation, it has

elected merely to paraphrase the statutory language.” In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litig., 709 F.3d 1, 18 (D.C. Cir. 2013) (quoting Gonzales

v. Oregon, 546 U.S. 243, 257 (2006)). Rather, where “the

underlying regulation does little more than restate the terms of

the statute itself[,]” the agency has left the statute as it found

it, adding nothing material to Congress’s language and

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providing nothing of its own in which to ground an

interpretation to which a court might defer. Gonzales, 546

U.S. at 257 (citing Auer v. Robbins, 519 U.S. 452 (1997)).”

* * * * *

“Nor does the Appeals Office’s interpretation of the

statutory language in a non-precedential ruling trigger

Chevron5 deference, as the government’s counsel openly

conceded at oral argument, see Oral Arg. Tr. 25:13–20. Cf. International Internship Program v. Napolitano, 718 F.3d

986, 987 n.1 (D.C. Cir. 2013) (reserving that question).”

Fogo De Chao at 14.

E. The Offending Regulatory Definition

8 CFR § 214.2 Special requirements for admission, extension, and

maintenance of status.

* * * * *

(l) Intracompany transferees—

* * * * *

(1) Admission of intracompany transferees—

* * * * *

(ii) Definitions—

* * * * *

(D) Specialized knowledge means special knowledge

possessed by an individual of the petitioning organization's

product, service, research, equipment, techniques,

management, or other interests and its application in

international markets, or an advanced level of knowledge

or expertise in the organization's processes and

procedures.

F. Various Ways of Reading the Statutory Definition

a. Misapplied Grammar Rules?

In applying the rules of grammar as to the definite and indefinite

articles contained in the statutory definition, I had previously viewed

and read the “information” that was the subject of the “specialized

5 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)

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knowledge” to be “proprietary”. The D.C. Circuit has recently

affirmed that that is an incorrect reading. While proprietary

information will most assuredly be most helpful to arrive at an easier

approval, it is not mandatory.

b. Proprietary Information---Incorrect Reading

I read “specialized knowledge” with respect to a company, to be found

if the alien has:

i. a special knowledge of the company product and its application

in international markets or

ii. an advanced level of knowledge of processes and procedures of the company [emphases added]

To adhere to the reading by the D.C. Circuit, it appears that I have

previously overemphasized the significance of the definite article “the”

in narrowing the focus of the information subject to classification as

“specialized”. I have underemphasized the significance the use of the

indefinite articles “a” and “an” as to the characterization and source of

that knowledge. How they got the knowledge is less important than the

fact that they do indeed have it.

c. Focus and Application of Specialized Knowledge---Incorrect Reading

I have previously misread the focus and application of the “specialized

knowledge” of the transferred employee in carrying out the specific

duties of the position. I have relied more on the older interpretation

which stressed and relied upon the need to demonstrate “proprietary information” not available among workers in the U.S. labor force.

d. Character and Source of Specialized Knowledge—Incorrect Reading

I have previously misread the acceptable characterization and source of

the information to be applied by a specialized knowledge employee. I

dare say that AAO also made the same or similar mistakes when, in

Fogo De Chao, it attempted to exclude from all consideration

“…Gasparetto’s cultural background, knowledge, and training [], as a

matter of law, [and that it could not]constitute specialized knowledge.”

Supra at 2. Regardless of how he got it, he did, in fact, posses it.

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e. Assessing “Special” & “Advanced” applied to “Specialized Knowledge”

It seems that recent cases have more or less begun to coalesce on the

meanings of two key words in both the statutory and regulatory

definitions. The two descriptors of knowledge are “special” and

“advanced” and they apply to the characterization of the knowledge of

the company’s products and procedures which is sought to be classified

as “specialized”. Such knowledge is somewhat unique and beyond the

ordinary

“As both "special" and "advanced" are relative terms, determining

whether a given beneficiary's knowledge is "special" or "advanced"

inherently requires a comparison of the beneficiary's knowledge against

that of others in the petitioning company and/or against others holding

comparable positions in the industry. The ultimate question is whether

the petitioner has met its burden of demonstrating by a preponderance

of the evidence that the beneficiary's knowledge or expertise is

advanced or special, and that the beneficiary's position requires such

knowledge.”

Above from: (AAO NOV032014_02D7101.pdf) at p. 8 [L1-B Dismissed]

G. L1-B Analytical Framework as of November 3, 2014

“In visa petition proceedings, the burden is on the petitioner to

establish eligibility. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966).

The petitioner must prove by a preponderance of evidence that the

beneficiary is fully qualified for the benefit sought. Matter of Chawathe,

25 I&N Dec. 369, 376 (AAO 2010). In evaluating the evidence,

eligibility is to be determined not by the quantity of evidence alone but

by its quality. Id. The director must examine each piece of evidence for

relevance, probative value, and credibility, both individually and within

the context of the totality of the evidence, to determine whether the fact

to be proven is probably true.

In order to establish eligibility, the petitioner must show that the

individual's prior year of employment abroad was in a position

involving specialized knowledge. 8 C.F.R. § 214.2(l)(3)(iii). The

statutory definition of specialized knowledge at Section 214(c)(2)(B) of

the Act is comprised of two equal but distinct subparts. First, an

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individual is considered to be employed in a capacity involving

specialized knowledge if that person "has a special knowledge of the

company product and its application in international markets." Second,

an individual is considered to be serving in a capacity involving

specialized knowledge if that person "has an advanced level of

knowledge of processes and procedures of the company." See also 8

C.F.R. § 214.2(l)(1)(ii)(D). The petitioner may establish eligibility by

submitting evidence that the beneficiary and the proffered position

satisfy either prong of the definition.

Once the petitioner articulates the nature of the claimed specialized

knowledge, it is the weight and type of evidence which establishes

whether or not the beneficiary actually possesses specialized knowledge.

USCIS cannot make a factual determination regarding the beneficiary's

specialized knowledge if the petitioner does not, at a minimum,

articulate with specificity the nature of the claimed specialized

knowledge, describe how such knowledge is typically gained within the

organization, and explain how and when the beneficiary gained such

knowledge.

As both "special" and "advanced" are relative terms, determining

whether a given beneficiary's knowledge is "special" or "advanced"

inherently requires a comparison of the beneficiary's knowledge against

that of others in the petitioning company and/or against others holding

comparable positions in the industry. The ultimate question is whether

the petitioner has met its burden of demonstrating by a preponderance

of the evidence that the beneficiary's knowledge or expertise is

advanced or special, and that the beneficiary's position requires such

knowledge.”

Above from: (AAO NOV032014_02D7101.pdf) at p. 7 [L1-B Dismissed]

H. Case Preparation Steps for an Employee with “Specialized Knowledge”

Similar to the steps for claiming that an employee will be managing an

“essential function” as a “function manager”, the employee said to be in

possession of “specialized knowledge” needs to be coming from, and will be

going to, a position requiring its use.

The first step to that end is to define and/or describe the alleged “specialized

knowledge” with specificity. In other words, how is the knowledge “special”

or “advanced” and what is the position requiring its use?

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Second is the need to demonstrate that the position is for naught without

that specialized knowledge component. In other words, why is this alleged

“specialized knowledge” integral to this position?

Third, the employer needs to demonstrate through reliable, credible, and

probative evidence that the required KSAs are rare even among its own

workforce and this will imply that it is a skill set that is not quick, easy, or

inexpensive to teach to a new hire, even one that comes from the workforce-

at-large with the same underlying basic skills.

Fourth and lastly, one must clearly demonstrate that the beneficiary, inter

alia; possess the desired “specialized knowledge”. So, in addition to having

been an employee for a sufficient period of time, that beneficiary must have

been employed in a capacity that required this alleged “specialized

knowledge” for at least one continuous year within the three years prior to

admission. The case is easier to determine if the employee meets the one

year requirement at time of filing the I-129 petition, but that issue is left

unanswered here as it is beyond the scope of this discussion.

I. Example of “Specialized Knowledge”

From the May 21, 2014, AAO Non-Precedent of an L1-B Sustained Appeal:

“The petitioner submitted detailed and credible evidence to

demonstrate that the beneficiary possesses special knowledge of the

company's systems, tools and methodologies and their application in

international markets. The petitioner established that these systems,

tools and methodologies are proprietary to the petitioner, such that

they are not widely known in the industry. The petitioner also

submitted evidence that the beneficiary's knowledge is not only

exclusive to the petitioner, but that it is of significant complexity and

requires a significant period of training or experience to perform at the

beneficiary's level. The petitioner also submitted evidence of the

beneficiary's educational background and work experience that

contributes to her special knowledge of the company's proprietary

technology. See 8 C.F.R. § 214.2(l)(3)(iv).

The petitioner has provided very detailed explanations of the

beneficiary's job duties with the foreign employer, including specific

examples of internal projects the beneficiary worked on, the

proprietary applications and methodologies she used in the course of

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her work, the contributions she made to the development of company

processes in her area of specialization, and the significant impact she

had on the organization's test automation processes as a result of her

specialized knowledge. Further, the record reflects that the petitioner

has adequately documented its claims with relevant supporting

documentation. The totality of the evidence establishes that the

beneficiary possesses specialized knowledge, that she has acquired

specialized knowledge through her work with the foreign entity and

that such knowledge is necessary for the beneficiary to carry out the

duties of her foreign and proposed positions.

In conclusion, the evidence submitted establishes that the beneficiary

possesses specialized knowledge and that he will be employed in a

specialized knowledge capacity with the petitioner in the United States.

See Section 214(c)(2)(B) of the Act. Accordingly, the director's

determination to the contrary will be withdrawn.” Infra at p. 5

(AAO MAY212014_01D7101) L1-B Sustained-Onsite Quality Assurance Engineer

J. Conclusion

Once again, I remind the reader that, the specialized knowledge need not be

“proprietary” but IF it happens to be “proprietary” THEN it is more likely

than not going to weigh heavily in favor of petition approval. Other important

considerations about the nature of the “specialized knowledge” are that it be

integral (necessary) and rare (uncommon). The most important consideration

is that they have the KSAs you desperately need.

Integral knowledge, skills, and abilities (KSAs) are those without which

the job cannot be done completely and correctly.

The rarity of the necessary KSAs is demonstrated even within the same

company. That in itself should be enough but one may need to

demonstrate why the necessary KSAs are not available “at-large” within

the particular occupation.

In addition, IF the needed KSAs were possessed by a large percentage

of company’s employees THEN that would likely be interpreted as

either that the KSAs are easy to impart on a new hire or which are

readily available in the general population of similarly trained

individuals at-large (example: software designers or process engineers).

Assembling a winning L1-B package can be quite tricky, ask for help if you

need help. Don’t waste your efforts on a substandard filing.

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ABOUT THE AUTHOR

I tell you what you NEED to hear, not what you WANT to hear!

Joseph P. Whalen Independent EB-5 Consultant, EB-5

Advocate, Mentor, Trainer and Advisor 238 Ontario Street | No. 6 | Buffalo, NY 14207

Phone: (716) 604-4233 (cell)

or (716) 768-6506 (home, land-line) E-mail: joseph.whalen774@gmail.com

web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer

DISCLAIMER: The opinions expressed herein are those of the writer only. That is to say that they are opinions of a layperson, non-attorney, non-economist, non-accountant, non-FINRA or SEC registered broker or adviser. Any information or consultation that seems like “incidental investment advice” is intended merely as educational, coaching, and mentoring6. Opinions are based on work experience as an Adjudications Officer within INS and USCIS with particular involvement in the revitalization of USCIS’ EB-5 Program, especially that portion dealing with Regional Centers. This writer wrote the “Unofficial Instructions” on how to apply for Regional Center Designation which later formed the basis for the I -924 Form Instructions. The writer is an outspoken advocate for improved adjudicat ions at USCIS. Lastly, this reviewer is published in various immigration law outlets with well over 100 scholarly articles and opinion pieces widely circulated as well as a published contributing author in three EB-5 Law Books; co-editor in the most recent.

NAICS Code: 611430 Professional and Management Development Training

2012 NAICS Definition: 611430 Professional and Management Development Training

This industry comprises establishments primarily engaged in offering an array of short duration courses and seminars for management and professional development. Training for career development may be provided directly to individuals or through employers' training programs; and courses may be customized or modified to meet the special needs of customers . Instruction may

be provided in diverse settings, such as the establishment's or client's training facilities, educational institutions, the workplace, or the home, and through diverse means, such as correspondence, television, the internet, or other electronic and distance-learning methods. The training provided by these establishments may include the use of simulators and simulation methods.

That’s My Two-Cents, For Now!

6 See: 15 U.S.C. §80b–2. (a)(11)

or go to: http://uscode.house.gov/view.xhtml?req=(title:15%20section:80b-2%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section80b-

2)&f=treesort&edition=prelim&num=0&jumpTo=true