knowledge, and the INS's refusal to recognize this proof was arbitrary and capricious. These contentions are examined in the sections below.
Plaintiffs contend that the INS regulation defining specialized knowledge capacity, 8 C.F.R. § 214.2(1)(1)(ii)(D) was promulgated improperly. The regulation, they claim, was adopted in the face of significant criticism. Moreover, plaintiffs assert the INS rejected without explanation three cases decided contemporaneously with the passage of the 1970 amendments. See Matter of LeBlanc, 13 I. & N. Dec. 816 (R.C. 1971); Matter of Vaillancourt, 13 I. & N. Dec. 654 (R.C. 1971); Matter of Raulin, 13 I. & N. Dec. 618 (R.C. 1970). Upon analysis, both contentions must be rejected.
The first contention is meritless. The proposed rule was criticized because it required that the petitioner's knowledge be unique and narrowly held in the organization. In the final rule, the INS responded by reinstating "the standard that knowledge which is not readily available in the United States should be considered in determining specialized knowledge." Final Rule, 52 Fed. Reg. 5738, 5741 (1987). Plaintiffs do not specify what criticisms were outstanding after this response. Absent any evidence that the INS disregarded other criticisms, the INS is entitled to a presumption of regularity. See Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402, 415, 28 L. Ed. 2d 136, 91 S. Ct. 814, 823 (1971).
Similarly, plaintiffs cannot fairly contend that the agency's regulation is infirm merely because it rejects an earlier interpretation. In Chevron U.S.A., Inc., v. Natural Resources Defense Council, the Court deferred to an agency interpretation even though it presented a complete about-face. See 467 U.S. 837, 857-58, 104 S. Ct. 2778, 2789, 81 L. Ed. 2d 694 (1984). An administrative agency need only "bear the burden of rationally explaining its departure from its previous interpretation." General American Transp. Corp. v. I.C.C., 277 U.S. App. D.C. 78, 872 F.2d 1048, 1054 (D.C. Cir. 1989) (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 41-44, 77 L. Ed. 2d 443, 103 S. Ct. 2856, 2865-67 (1983)). Moreover, in an informal rulemaking procedure an agency need not provide an extensive explanation. It need only "incorporate in the rules adopted a concise general statement of their basis and purpose." 5 U.S.C. § 553(c) (1988). The INS easily satisfies that standard.
The INS' rationale is clear, though it requires some digging to find it. The new regulation was meant to "better articulate the case law." Final Rule, 52 Fed. Reg. at 5740-41. Consequently, its rationale is embedded in the cases codified. These cases make two points with regards to LeBlanc, Raulin, and Vaillancourt. First, they argue, there is no conflict between the new standard and these early regional decisions. "The LeBlanc and Raulin decisions did not find that the occupations inherently qualified the beneficiaries for the classifications sought." Matter of Penner, 18 I. & N. 49, 52 (1982). Instead, the later cases read these early decisions as finding that the particular beneficiaries had unusual duties which involved the sort of specialized knowledge contemplated by Congress. Id. Second, to the extent the later cases reject the earlier ones, it is because earlier cases are in error. The early cases largely ignored the legislative history. The later cases, however, noted in the legislative history a clear intent to limit the L-1 category to "key personnel," see House Report at 5-6, and consequently adopted a narrow definition of specialized knowledge. See Penner, 18 I. & N. Dec. at 50-52; Matter of Colley, 18 I. & N. Dec. 117, 119 ((1981). Therefore, to the extent the earlier cases adopted a broad definition, they were erroneous, and the new regulations were necessary to "conform Service policy to the intent of Congress." Final Rule, 52 Fed. Reg. at 5738.
Chevron governs the review of an agency's interpretation. In that landmark case, the Supreme Court announced the general rule that where there is a gap in a statute, "there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation." Id. 467 U.S. at 843-44. Agencies may, indeed are expected to, alter and refine their interpretation of what fills such gaps through the exercise of their technical expertise, their assessment of the wisdom of the implicated policies, and their experience with the day-to-day operation of rules designed to implement these policies. See id. at 865-66, 104 S. Ct. at 2792-93. Judicial review must therefore be deferential.
Specifically, the Court adopted a two-pronged test:
First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.
Id. at 104 S. Ct. 2781-82 (citations omitted). Thus, the INS need only adopt an interpretation that fits within the parameters set by Congress. If the statute is clear, there may only be one such interpretation. By contrast, if the statute is ambiguous or incomplete, there may be many such interpretations. In such cases, a reviewing court's task is not to determine whether the INS has chosen the best possible interpretation but rather whether that choice is supported by reasonable arguments.
The term "specialized knowledge" appears as part of the definition of the class of individuals qualifying for favorable "nonimmigrant" status under 8 U.S.C. § 1101(a)(15)(L) (1988):
an alien who, immediately preceding the time of his application for admission into the United States has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge, and the alien spouse and minor children of any such alien if accompanying him or following to join him.