Catholic University Law Review


The L-1 visa program allows multinational companies to transfer both managerial/executive employees and employees who hold “specialized knowledge” to work in the United States. In the Information Technology (IT) industry, it has become increasingly difficult to get workers approved for intra-company transfer due to the way United States Citizenship and Immigration Services (USCIS) narrowly interprets the definition of specialized knowledge. Although USCIS has issued memoranda that indicate knowledge “need not be proprietary or unique,” in practice, knowledge of proprietary software is the most effective way to prove an employee in the IT industry has specialized knowledge. However, in the last few years, there has been a large shift within the IT industry away from the creation of proprietary products and software and toward open-source technologies and platforms. By definition, open source is the opposite of proprietary software. Any developer with access to the code can use the code to build his or her own product.

This Comment explores how the transition to open source platforms will affect the L-1B visa program. This Comment predicts that it will make it even more difficult for multinational IT companies to obtain L-1B approvals and argues that USCIS will need to adopt a new way of analyzing IT worker applications in order to keep up with the industry. In the alternative, this Comment recommends the creation of a new visa category specifically tailored to the changing needs of the IT industry.