dismissed L-1B Case: Art Auctions

identifyingdatadeletedto
preventclearly unwail~
invasionofpersonalpI1vaey
PUBLICCOpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship'
and Immigration
Services
FILE: SRC 05 252 53095 Office: TEXAS SERVICE CENTER Date: JUN 05 2flJl
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.c. § llOl(a)(l5)(L)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision ofthe Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
c::---~·.:z .~
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 05 252 53095
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner, a Michigan corporation, claims to be an art gallery, auction house, and retail facility. It seeks
to temporarily employ the beneficiary as an art auctions instructor specialist in the United States and filed a
petition to classify the beneficiary as a nonimmigrant intracompany transferee with specialized knowledge
pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. §
1l01(a)(15)(L). The director determined that the petitioner had not established that (1) the beneficiary had
been employed abroad in a specialized knowledge position; (2) the intended employment in the United States
required specialized knowledge; or (3) the petitioner maintained a qualifying relationship with a foreign
organization.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director
arbitrarily ignored evidence and arbitrarily dismissed the appeal. In support of this position, a brief and
additional evidence are submitted.
To establish L-I eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.c. § 1101(a)(15)(L). Specifically, within three years
preceding the beneficiary's application for admission into the United States, a qualifying organization must
have employed the beneficiary in a qualifying managerial or executive capacity, or in a specialized
knowledge capacity, for one continuous year. In addition, the beneficiary must seek to enter the United States
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate thereof
in a managerial, executive, or specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) further states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(1)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies himlher to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
This first issue in this matter presents two related, but distinct, questions: (1) whether the beneficiary gained
specialized knowledge during his employment abroad and was thus employed in a specialized knowledge
position; and (2) whether the proposed employment is in a capacity that requires specialized knowledge.
Section 214(c)(2)(B) of the Act, 8 U.S.C. § 1184(c)(2)(B), provides the following:
SRC 05 252 53095
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For purposes of section 101(a)(15)(L), 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.
Furthermore, the regulation at 8 C.F.R. § 214.2(l)(1)(ii)(D) defines "specialized knowledge" as:
[S]pecia1 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.
In the L supplement to Form 1-129, the petitioner explained that the beneficiary obtained a Bachelor's Degree
in Fine Arts from Florida International University, and that he had served as an Art Auctioneer Instructor
Specialist for the petitioner since December 2002. The petitioner also provided the following overview of the
beneficiary's position for the past three years:
[The beneficiary] has been providing auction services for [the petitioner's] art auctions as an
Art Auctioneer abroad since December 2002. In providing services on cruise ships for art
auctions for [the petitioner's] collections, [the beneficiary] has been required to be fully
knowledgeable about the broad range of art offered for sale and [the petitioner's] auction
procedures. [The petitioner] manages the activities of its Art Auctioneers onboard cruise
ships. Since 1994, [the petitioner] has maintained a presence on these cruise ships and
provides each Art Auctioneer with accommodations, office space, several computers, in­
house [Point-of-Sa1e auction software of the petitioner], promotional items, and any other
materials necessary to carry out our art auctions.
While providing services for [the petitioner's] art auctions abroad, [the beneficiary] has
complied with our high standards of professionalism and has met [the petitioner's] sales
expectations. He has related [the petitioner's] artwork in a way others can easily understand.
He has exhibited exceptional knowledge at [the petitioner's] previews, in which an
Auctioneer explains the piece of art, its history, and the artistic merit found within the piece.
[The beneficiary] has a keen knowledge of fine art history and application promoted by [the
petitioner]. He also has inside knowledge of the procedures, practices, methods, policies,
marketing strategies, terminologies, and other advanced knowledge of intricate details of [the
petitioner's] operations. He has substantial knowledge of [the petitioner's] promoted classical
art and of contemporary and modem artists' normal dealings with [the petitioner]. He has the
ability to deal not only with artists, art dealers, merchants, and auctioneers of close contact
with [the petitioner], but with interested members of the public who are familiar with us.
While providing auction services for [the petitioner], [the beneficiary] has both managed and
developed original sales promotion programs. Such programs include scripting, broadcasting
and appearing in daily television programs, and generating printed sales materials. He has
also developed conferences, delivered speeches, and participated in other various cross­
promotional events for [the petitioner's] benefit. [The beneficiary] conducts up to five
auctions per week, along with private showings, for the benefit of [the petitioner]. He
collaborates with hotel management on shipboard displays, personally selecting positioning
of individual pieces. [The beneficiary] has achieved an outstanding sales record through his
SRC 05 252 53095
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innovative presentation methods, his original advertising ideas, and his generation of sales
programs. He is very skilled in conducting [the petitioner's] business dealings, negotiations,
and pricing.
The petitioner also provided the following detailed overview of the beneficiary's proposed duties in the
United States on the L supplement to Form 1-129:
As an Art Auction Instructor Specialist, [the beneficiary] will train Art Auctioneers in the
U.S. on crucial auctioneering skills such as calling bids, knowledge of the rules of reserve,
skills of negotiations, artistic expressions, speech skills, and knowledge of pricing. He will
also train them in administrative work and necessities that go along with conducting an art
auction at sea, such as the use of [the petitioner's] in-house Point of Sale (POS) art auction
software, which allows auctioneers to access [the petitioner's] databases from anywhere in the
world.
[The petitioner] provides managerial oversight for the Art Auctioneers at sea. Due to the
nature of cruising in international waters, they are sometimes isolated and out of
communication with [the petitioner] in the U.S. Art Auctioneers must therefore be trained
exceedingly well so that they are capable of dealing with every possible situation associated
with an art auction. The skills that must be taught include the ability to review and interpret
to potential buyers the artworks to be exhibited, how to deal with bidders, how to prepare and
complete auction paperwork, and how to deal with customs officials throughout the world,
and anything else that might need to be done on these unique environments.
[The beneficiary] will also be responsible for preparing Auctioneers to promote our auctions
and generally making sure that Auctioneers are able to see to it that an auction ends with a
successful conclusion of the transaction and are capable of providing assistance so that the
product can leave the ship anywhere in the world. He will train Auctioneers, following [the
petitioner's] techniques and procedures, on how to best visually organize their artistic
materials in a way that is eye-catching and organized, as well as conducive to the best profit
and satisfaction of the exhibition customers.
The auction business, particularly when held on a cruise ship in international waters, contains
many subtle nuances and pitfalls. [The beneficiary], through his nearly three years of
experience with [the petitioner], has identified and mastered these peculiarities, which is why
it is our desire to utilize [the beneficiary's] experience in the Art Auctions Instructor
Specialist position so that he can impart his specialized knowledge to other auctioneers.
The director found the initial evidence submitted with the petition insufficient to warrant a finding that the
beneficiary possessed the required specialized knowledge and would be employed in the United States in a
position that required specialized knowledge. Consequently, a detailed request for evidence was issued on
September 26,2005, which requested evidence that the beneficiary possesses specialized knowledge that was
uncommon, noteworthy or distinguished by some unusual quality and not generally known by practitioners in
the field. Specifically, the director requested evidence showing that the beneficiary's knowledge of the
petitioner's processes and procedures was different from elementary or basic knowledge possessed by others
in the industry. In addition, the director posed some direct questions pertaining to the petitioner's employees,
including the number of other art auction instructor specialists employed by the petitioner, the number of
employees trained to conduct auctions at sea, and the number of employees currently working in this capacity
for the petitioner.
SRC 05 252 53095
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The petitioner responded on November 29,2005. The petitioner submitted an undated statement from ~
_, the petitioner's ~tor, which addressed the director's specific questions regarding the
petitioner's employees. __ indicated that the petitioner currently employed six persons in the
position of "Art Auctions Instructions Specialist" worldwide. Additionally, he indicated that currently, there
were 200 individuals currently being trained as art auctioneers, and noted that this number also included those
providing auctioneering services during their training. Finally, _indicated that in the near future,
or more specifically, within the next three years, the petitioner would train 500-600 people worldwide to
become art auctioneers.
The petitioner also submitted a statement dated October 28, 2005, prepared by_ the petitioner's
chief financial officer, which attempted to explain the manner in which the beneficiary's knowledge was more
advanced than the knowledge others commonly possessed throughout the industry. The statement provided
that:
Our auctioneers (aside from their instructors) are required to be knowledgeable in [the
petitioner's] advanced inventory control systems, in our auction processes and techniques,
and our pricing technology, while mastering the ability to hold formal auctioneer gatherings.
In addition, the auctioneer must also be familiar with the rules and regulations related to the
various cruiselines. All of those abilities have to be harmonized with the knowledge of art
history and trends, details about the artists' styles and techniques, and the ability to blend all
of this information together in an auction performance in international waters, on their own,
without any available surrounding help. One can therefore imagine the very advanced and
unique skills that the instructor for such art auctioneers must possess. Obviously, the person
who trains those auctioneers must himself possess an even greater, more advanced level of
such specialized knowledge.
A letter from counsel dated November 29, 2005 further outlined the training the beneficiary provided to the
petitioner and the training that he in tum would offer in the United States. Counsel explained that the training
was threefold: (1) classroom training, lasting approximately two to four weeks; (2) hands-on training, where
auctioneers in training are rotated between cruise ships from three days to two weeks to observe and assist
professional sales and auctioneering staff; and (3) proprietary computer systems training, which is taught via
hands-on training and classroom instruction, in the petitioner's alleged proprietary system for inventory
analysis and sales forecasting. Counsel also submitted outlines of the petitioner's training programs in support
of these statements.
The petitioner also relied on a March 9, 1994 Guidance memorandum from James A. Puleo, Acting Executive
Associate Commissioner, re-affirmed by a memorandum from Fujie Ohata, Associate Commissioner for
Service Center Operations dated December 20, 2002. Specifically, the petitioner asserts that the
characteristics outlined in the memorandum are clearly possessed by the beneficiary.
Upon review of the evidence submitted, the director determined that the record failed to establish that the
beneficiary possesses specialized knowledge or that the position of art auctions instructor specialist required
an employee with specialized knowledge as defined by the regulations. The director specifically noted that
the petitioner had failed to show that the beneficiary's duties and training were significantly different from
other similarly-qualified persons working for the petitioner and concluded that the beneficiary did not hold a
"key personnel" position with the petitioner. On appeal, counsel for the petitioner contends that the director
implemented improper standards during adjudication and that the evidence submitted clearly shows that the
beneficiary's knowledge of the critical aspects of the petitioner's business is specialized and advanced.
SRC 05 252 53095
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On review, the record does not contain sufficient evidence to establish that the beneficiary was employed
abroad in a specialized knowledge capacity, possesses specialized knowledge, or that the proposed
employment would be in a specialized knowledge capacity.
When examining the specialized knowledge capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). As required in the regulations, the
petitioner must submit a detailed description of the services to be performed sufficient to establish specialized
knowledge. Id.
In the present matter, the petitioner provided a lengthy description of the beneficiary's employment for the
past three years as well as his proposed responsibilities in the United States. However, despite this detailed
overview, the petitioner failed to provide evidence regarding what exactly set apart the beneficiary's
knowledge from other similarly trained auctioneers in the field and what training he had received to set him
apart from other similarly qualified individuals working for the petitioner and in the industry in general. The
petitioner has not sufficiently documented how the beneficiary's performance of his daily duties distinguishes
his knowledge as specialized. In fact, the overview of duties and the statements of the petitioner and counsel
suggest that the beneficiary occupies one of six positions, and that since the petitioner intends to train 500-600
auctioneers within the next three years, the beneficiary's position will be one of many. The petitioner
provides no additional information as to why none of the other five art auction instructor specialists could
perform the same duties.
Despite counsel's contention on appeal that the beneficiary possesses specialized and advanced knowledge of
the petitioner's proprietary computer systems as well as specialized knowledge of art history and the art
industry in general, there is insufficient evidence to conclude that these factors alone attribute him with
specialized knowledge. The record contains no definitive evidence supporting the contention that the
beneficiary's knowledge is uncommon and more advanced than similarly trained professionals working for
the petitioner and in the field in general.
Furthermore, despite the documentation of the training provided to art auctioneers by the petitioner, it does
not appear that this training is so unique that other auctioneers in the industry with a degree in fine arts could
not feasibly be trained to perform the same duties as the beneficiary. For instance, the petitioner claims that
classroom training requires two to four weeks of instruction, whereas hands-on training can be as little as
three days. It seems inconceivable that such a short period of training renders the beneficiary's knowledge so
advanced that others in the industry cannot perform the same or similar duties. While it is understood that the
beneficiary's training, combined with his three years of experience in the industry, form the basis for the
petitioner's contention that he possesses specialized knowledge, no comprehensive evidence to establish that
the beneficiary's qualifications are so specialized or advanced that few others compare to him for purposes of
this analysis. Moreover, the beneficiary's purpose for coming to the United States is to train other
similarly-qualified persons to perform the same auctioneering duties that he performs abroad, thereby
indicating that the positions in both the foreign entity and the United States are simply that of "art
auctioneer," a position filled by multiple employees of the petitioner.
The claim that the beneficiary allegedly received specialized and advanced knowledge of the petitioner's
allegedly proprietary computer systems, without specific documentation explaining the manner and nature of
this training, is subject to scrutiny. Although the petitioner claims that this system is proprietary to the
petitioner, no evidence to support this claim has been provided. Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14
I&N Dec. 190 (Reg. Comm. 1972)). Although the beneficiary has worked abroad for the petitioner since
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December 2002, there is no evidence to show that this period of employment with the petitioner has resulted
in specialized knowledge of something unique to the petitioner which other similarly-trained persons could
not have gained from working in the industry in general.
The regulation at 8 C.F.R. § 214.2(1)(3)(viii) states that the director may request additional evidence in
appropriate cases. Although specifically and clearly requested by the director, the petitioner failed to provide
documentary evidence to support its claims that the beneficiary obtained a specialized level of knowledge
through his work with the petitioner abroad, and that this knowledge was uncommon and distinctive from the
knowledge and training of his colleagues. No documentation was submitted that distinguishes the beneficiary
from other art auctioneers in the industry. More importantly, no documentation distinguishing him from the
other art auction instructor specialists employed by the petitioner has been submitted. Finally, no evidence
that the beneficiary exclusively received training in a computer system that was proprietary only to the
petitioner has been submitted.'
The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying
the petition. See 8 C.F.R. § 103.2(b)(14). In this case, the petitioner relies on the AAO to accept its
uncorroborated assertions that the beneficiary possessed specialized knowledge at the time of filing and thus
was employed in a qualifying capacity abroad, both prior to adjudication and again on appeal. However,
these assertions do not constitute evidence. As previously stated, going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter ofSoffici, 22 I&N Dec. at 165.
Furthermore, the petitioner fails to specifically clarify how the beneficiary possesses specialized knowledge
of a methodology, application or process of the petitioner merely by being familiar with art and art history and
the auctioneering process in general. Although the petitioner claims that the beneficiary received training
from the petitioner regarding its gallery procedures, no evidence to support a finding that the petitioner's
practices are so different from other art galleries in the industry. It has also not been proven that the petitioner
is the only employer of art auctioneers for cruise ships, thereby leaving open the possibility that there are
many other similarly trained auctioneers working for various cruise lines that have identical training and
experience as the beneficiary. Absent evidence to the contrary, there is nothing to suggest that other
similarly-qualified persons in the industry are not equally familiar with these procedures. Although the
petitioner does claim that a fundamental part of the training for its employees is in its proprietary computer
system, there is insufficient evidence describing the nature of this system, the length of time it has been in
use, or the manner in which employees receive training in this system. There is no indication in the record
that a similarly-trained person, with a degree in fine arts and three years of experience with the petitioner, is
not equally familiar with these computer applications as well as the auction procedures used by the petitioner
and could not perform the same duties. The fact remains that the record does not demonstrate that the
beneficiary possesses specialized knowledge of any process or methodology exclusively used and
implemented by the petitioner as claimed. While his extensive familiarity with the petitioner's gallery
procedures and the art industry in general certainly makes him a valuable asset to the company, there is
nothing to suggest, other than a brief claim in the response to the request for evidence, that the beneficiary
1 While a beneficiary is no longer required to have proprietary knowledge, such knowledge can still be a basis
for this determination. Thus, although experience with a proprietary product or procedure does not serve as
prima facie evidence that the beneficiary possesses specialized knowledge, when such a claim is made,
Citizenship and Immigration Services (CIS) must carefully evaluate the claimed knowledge and the depth of
the beneficiary's experience in order to determine whether it rises to the level of specialized knowledge as
contemplated by 8 C.F.R. § 214.2(1)(1)(ii)(D).
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acquired specialized knowledge of any unique or proprietary methodologies or procedures in the three years
he has worked for the petitioner. There is no evidence to show that this period of employment with the
petitioner has resulted in specialized knowledge of something unique to the petitioner which other similarly­
trained persons could not have gained from working for the petitioner or in the industry in general.
In this case, the petitioner and counsel rely on the AAO to accept its uncorroborated assertions that the
beneficiary possessed specialized knowledge at the time of filing and thus was employed in a qualifying
capacity abroad, both prior to adjudication and again on appeal. Without documentary evidence to support
the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988);
Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA
1980).
It is also appropriate for the AAO to look beyond the stated job duties and consider the importance of the
beneficiary's knowledge of the business's product or service, management operations, or decision-making
process. Matter of Colley, 18 I&N Dec. 117, 120 (Comm. 1981) (citing Matter of Raulin, 13 I&N Dec. 618
(R.c. 1970) and Matter of LeBlanc, 13 I&N Dec. 816 (R.C. 1971))? As stated by the Commissioner in
Matter ofPenner, 18 I&N Dec. 49, 52 (Comm. 1982), when considering whether the beneficiaries possessed
specialized knowledge, "the LeBlanc and Raulin decisions did not find that the occupations inherently
qualified the beneficiaries for the classifications sought." Rather, the beneficiaries were considered to have
unusual duties, skills, or knowledge beyond that of a skilled worker. Id. The Commissioner also provided the
following clarification:
A distinction can be made between a person whose skills and knowledge enable him or her to
produce a product through physical or skilled labor and the person who is employed primarily
for his ability to carry out a key process or function which is important or essential to the
business firm's operation.
!d. at 53.
In the present matter, the evidence of record demonstrates that the beneficiary is more akin to an employee
whose skills and experience enable him to provide a specialized service, rather than an employee who has
unusual duties, skills, or knowledge beyond that of an educated and/or skilled worker. Moreover, the
petitioner's failure to submit documentary evidence demonstrating the nature in which he acquired specialized
2 Although the cited precedents pre-date the current statutory definition of "specialized knowledge," and
counsel raises that very argument with regard to the director's reliance on Matter ofPenner in support of the
denial, the AAO finds them instructive. Other than deleting the former requirement that specialized
knowledge had to be "proprietary," the 1990 Act did not significantly alter the definition of "specialized
knowledge" from the prior INS interpretation of the term. The 1990 Committee Report does not reject,
criticize, or even refer to any specific INS regulation or precedent decision interpreting the term. The
Committee Report simply states that the Committee was recommending a statutory definition because of
"[v]arying [i.e., not specifically incorrect] interpretations by INS," H.R. Rep. No. 101-723(1), at 69, 1990
U.S.C.C.A.N. at 6749. Beyond that, the Committee Report simply restates the tautology that became section
214(c)(2)(B) of the Act. Id. The AAO concludes, therefore, the cited cases, as well as Matter of Penner,
remain useful guidance concerning the intended scope of the "specialized knowledge" L-IB classification.
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skills that set him apart from others creates a presumption of ineligibility. What remains unclear is why the
beneficiary's knowledge is so specialized and unique, as alleged by the petitioner, despite the fact that he is
one of six persons occupying the same position within the petitioner, and will inevitably help train 500-600
people for this role in the next three years. It is not unreasonable, therefore, to conclude that other similarly
trained persons in the auctioneering sector have also become familiar with the cruise ship auctioneering
business and the petitioner's computer systems. Again, since the petitioner has failed to demonstrate a
specific methodology or process unique to the petitioner of which the beneficiary has obtained specialized
knowledge, it is reasonable to conclude that other similarly trained persons could achieve the same level of
knowledge as the beneficiary by simply working as an art auctioneer in the industry for three years.
It should be noted that the statutory definition of specialized knowledge requires the AAO to make
comparisons in order to determine what constitutes specialized knowledge. The term "specialized
knowledge" is not an absolute concept and cannot be clearly defined. As observed in 1756, Inc. v. Attorney
General, "[s]imply put, specialized knowledge is a relative ... idea which cannot have a plain meaning." 745
F. Supp. 9, 15 (D.D.C 1990). The Congressional record specifically states that the L-l category was intended
for "key personne1." See generally H.R. Rep. No. 91-851, 1970 U.S.CCA.N. 2750. The term "key
personnel" denotes a position within the petitioning company that is "of crucial importance." Webster's II New
College Dictionary 605 (Houghton Mifflin Co. 2001). In general, all employees can reasonably be
considered "important" to a petitioner's enterprise. If an employee did not contribute to the overall economic
success of an enterprise, there would be no rational economic reason to employ that person. An employee of
"crucial importance" or "key personnel" must rise above the level of the petitioner's average employee.
Contrary to counsel's objections on appeal, based on the definition of "specialized knowledge" and the
congressional record related to that term, the AAO must make comparisons not only between the claimed
specialized knowledge employee and the general labor market, but also between that employee and the
remainder of the petitioner's workforce.
The claim that the beneficiary has specialized knowledge remains unsupported due to the failure to submit
any documentation that the alleged hands-on experience he received in three years made him an expert in the
field. While the beneficiary's skills and knowledge may contribute to the successfulness of the petitioning
organization, this factor, by itself, does not constitute the possession of specialized knowledge. Therefore,
while the beneficiary's contribution to the economic success of the petitioner may be considered, the
regulations specifically require that the beneficiary possess an "advanced level of knowledge" of the
organization's process and procedures or a "special knowledge" of the petitioner's product, service, research,
equipment, techniques, or management. 8 CF.R. § 214.2(l)(l)(ii)(D). Mere familiarity with the sector in
general does not constitute specialized knowledge for purposes of this matter. As determined above, the
beneficiary does not satisfy the requirements for possessing specialized knowledge.
The legislative history for the term "specialized knowledge" provides ample support for a restrictive
interpretation of the term. In the present matter, the petitioner has not demonstrated that the beneficiary
should be considered a member of the "narrowly drawn" class of individuals possessing specialized
knowledge. See 1756, Inc., 745 F. Supp. at 16. Based on the evidence presented, it is concluded that the
beneficiary was not employed abroad in a specialized knowledge capacity, does not possess specialized
knowledge, and will not be employed in a capacity requiring specialized knowledge. For this reason, the
appeal will be dismissed.
The second issue in this matter IS whether the petitioner and the foreign organization are qualified
organizations as defined by 8 CF.R. § 214.2(l)(l)(ii)(G). The regulation defines the term "qualifying
organization" as a United States or foreign firm, corporation, or other legal entity which:
SRC 05 252 53095
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(1) Meets exactly one of the qualifying relationships specified in the definitions of a parent,
branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section;
(2) Is or will be doing business (engaging in international trade is not required) as an employer
in the United States and in at least one other country directly or through a parent, branch,
affiliate, or subsidiary for the duration of the alien's stay in the United States as an
intracompany transferee; and
(3) Otherwise meets the requirements of section 101(a)( 15)(L) of the Act.
Additionally, the regulation at 8 c.P.R. § 214.2(1)(1)(ii) provides in pertinent part:
(I) "Parent" means a firm, corporation, or other legal entity which has subsidiaries.
(1) "Branch" means an operating division or office of the same organization housed in a
different location.
(K) "Subsidiary" means a firm, corporation, or other legal entity of which a parent owns, directly
or indirectly, more than half of the entity and controls the entity; or owns, directly or
indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent
of a 50-50 joint venture and has equal control and veto power over the entity; or owns,
directly or indirectly, less than half of the entity, but in fact controls the entity.
(L) "Affiliate" means
(1) One of two subsidiaries both of which are owned and controlled by the same parent
or individual, or
(2) One of two legal entities owned and controlled by the same group of individuals,
each individual owning and controlling approximately the same share or proportion
of each entity, or
(3) In the case of a partnership that is organized in the United States to provide
accounting services along with managerial and/or consulting services and that
markets its accounting services under an internationally recognized name under an
agreement with a worldwide coordinating organization that is owned and controlled
by the member accounting firms, a partnership (or similar organization) that is
organized outside the United States to provide accounting services shall be
considered to be an affiliate of the United States partnership if it markets its
accounting services under the same internationally recognized name under the
agreement with the worldwide coordinating organization of which the United States
partnership is also a member.
•
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In this matter, the petitioner claims that the beneficiary has been employed abroad by Park West at Sea, which
it claims on the Form 1-129 is its affiliate. The director found the initial evidence in the record to be
insufficient to establish that a qualifying relationship existed between the entities, and requested more
information and documentation in the request for evidence issued on September 26, 2005. In counsel's
response to the director's request dated November 29, 2005, the following statements were provided:
Kindly note that much ofthe operation of [the petitioner] in international waters is conducted
under the name "Park West at Sea"; however, the legal entity is the same, as Park West at Sea
is merely an assumed name to be used under Michigan law for the corporation. Otherwise, it
is the same legal entity operating within the United States as [the petitioner], as the one
operating outside the U.S. as "Park West at Sea."
* * *
As explained above, there really is no foreign entity, as Park West at Sea is the same entity as
[the petitioner].
The director denied the petition on the basis that there was no foreign entity by which the beneficiary had
been employed and, therefore, there could be no qualifying relationship as required by the regulations. On
appeal, counsel alleges that "there is no need to show a qualifying relationship when it is the same company
operating outside the U.S." While the AAO agrees with this general statement, the petitioner in this matter
has failed to establish its overseas operations.
The regulations governing the issuance of L-1 visas are intended to facilitate the transfer of employees
working for a parent, branch, subsidiary, or affiliate of the U.S. entity to the United States for a temporary
period. Based on this premise, the critical factor to be examined is whether one of these key relationships has
been established.
The evidence contained in the record indicates that the petitioner in this matter is a Michigan corporation
incorporated in 1970. The petitioner provides for the record a document entitled "Certificate of Assumed
Name," dated April 14, 1995, which indicates that the petitioner will also transact business under the assumed
name of "Park West at Sea." The record further indicates that the petitioner will operate art auctions and
manage galleries on multiple cruise lines and cruise ships, including Carnival, Holland America, and
Norwegian Cruise Lines.
Given the admission that there is no foreign entity, the only remaining means by which the petitioner could
claim a qualifying relationship is through a branch office's operations. In defining the nonimmigrant
classification, the regulations specifically provide for the temporary admission of an intracompany transferee
"to the United States to be employed by a parent, branch, affiliate, or subsidiary of [the foreign firm,
corporation, or other legal entity]." 8 C.F.R. § 214.2(l)(l)(i) (emphasis added). The regulations define the
term "branch" as "an operating division or office of the same organization housed in a different location." 8
C.F.R. § 214.2(l)(1)(ii)(J). Citizenship and Immigration Services has recognized that the branch office of a
foreign corporation may file a nonimmigrant petition for an intracompany transferee. See Matter ofKloetti, 18
I&N Dec. 295 (Reg. Comm. 1981); Matter of Leblanc, 13 I&N Dec. 816 (Reg. Comm. 1971); Matter of
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Schick, 13 I&N Dec. 647 (Reg. Comm. 1970); see also Matter of Penner, 18 I&N Dec. 49, 54 (Comm.
1982)(stating that a Canadian corporation may not petition for L-lB employees who are directly employed by
the Canadian office rather than a United States office). When a foreign company establishes a branch in the
United States, that branch is bound to the parent company through common ownership and management. A
branch that is authorized to do business under United States law becomes, in effect, part of the national
industry. Matter ofSchick, supra at 649-50.
Likewise, a United States company may file a nonimmigrant petition for an intracompany transferee who has
been employed abroad by a branch office of the company, provided that the foreign branch office meets these
same requirements in the country or countries in which it operates. Generally, probative evidence of a foreign
branch office would include the following: a business license establishing that the petitioner is authorized to
engage in business activities in the country in which it claims to operate; copies of U.S. and foreign tax
returns and wage reports; copies of a lease for office space in a foreign country; and finally, any relevant local
tax forms or documents that demonstrate that the petitioner is a branch office of a U.S. entity. Specially in
this matter, given the claim that the branch offices operate out of and on board cruise ships, the petitioner is
also required to establish the following: where the business is actually conducted, i.e., in a U.S. port, in a
foreign port, on a U.S. owned and flagged ship while on the high seas, or on a foreign owned and flagged ship
while on the high seas; that the business conducted is regular, systematic, and continuous; and that the
necessary facilities and office space has been secured from the cruise ships on which the petitioner operates.'
Despite counsel's claims that the cruise ships travel to foreign ports and thereby prove that the beneficiary has
been employed abroad as required by the regulations, this claim is insufficient to satisfy the burden of proof
in this matter. Without documentary evidence to support the claim, the assertions of counsel will not satisfy
the petitioner's burden of proof. Again, the unsupported assertions of counsel do not constitute evidence.
Matter of Obaigbena, 19 I&N Dec. at 534; Matter ofLaureano, 19 I&N Dec. 1; Matter ofRamirez-Sanchez,
17 I&N Dec. at 506. As noted above, the regulation at 8 C.F.R. 214.2(1)(1)(ii)(G)(2) defines "qualifying
organization" as a United States or foreign firm, corporation, or other legal entity which "is or will be doing
business (engaging in international trade is not required) as an employer in the United States and in at least one
other country directly or through a parent, branch, affiliate, or subsidiary for the duration of the alien's stay in the
United States as an intracompany transferee. As the petitioner has not provided sufficient evidence that it does
business through a branch office in at least one other country other than the United States, it has failed to establish
that it has a qualifying relationship with a branch office or other entity abroad. As a result, the petition may not
be approved.
While not directly addressed by the director, the record does not contain sufficient evidence that the petitioner
or the foreign entity are engaged in the regular, systematic, and continuous provision of goods and/or
services. The regulation at 8 C.F.R. §214.2(1)(1)(ii)(H) defines the term "doing business" as "the regular,
systematic, and continuous provision of goods and/or services by a qualifying organization and does not include
3 While ships on the high seas are treated as parts of the nation to which they belong, and whose flag they fly,
a ship in port is subject to the law of that port. See The Cuzco, 225 F. 169, 175-176 (W.D. Wash. 1915).
Therefore, it is necessary for sufficient details to be provided on the claimed foreign business operation to
evidence whether it is truly being conducted in at least one other country. See 8 C.F.R. §
214.2(1)(1)(ii)(G)(2).
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the mere presence of an agent or office of the qualifying organization in the United States and abroad." In this
matter, despite the petitioner's claims that both entities operate art auction houses and retail venues, no
evidence showing the sale or auction of goods has been presented. The regulation at 8 C.F.R. § 214.2(l)(3)(i)
requires evidence that the petitioner and the foreign entity submit evidence that they are qualifying
organizations as defined by 8 C.F.R. § 214.2(l)(1)(ii)(G)(2). The petitioner has failed to submit evidence that
the two entities are doing business. For this additional reason the petition may not be approved.
Finally, the evidence in the record is unclear with regard to the beneficiary's actual employer, and whether he
serves as an employee or an independent contractor. Although not addressed by the director, this raises the
question of whether the beneficiary has actually been employed by a qualifying organization for one full year
out of the three years immediately preceding the filing of the petition. See 8 C.F.R. §214.2(l)(3)(iii).
Furthermore, it is unclear who will be his employer when he enters the United States.
Specifically, the Policy and Procedure Manual submitted into evidence indicates that the beneficiary is
actually an independent contractor, not an employee. Specially, subsection 7 of section 5, which is entitled
"Art Auctioneer Job Description," states that: "[i]n addition to these prior specifics from the cruise lines, t is
important to remember that the Art Auctioneer is bound by all terms in the Independent Contractor (IC)
Agreement signed by him/her." It is noted that the beneficiary an IC agreement is required between the
beneficiary and each cruise line to which he will render his services. However, no copies of these agreements
have been submitted. With regard to the director's request for evidence of wages paid to the beneficiary, the
petitioner responded by stating that W-2 forms were not required and that the beneficiary was paid by
"intermediaries." In addition, the petitioner claimed that the majority of his compensation came directly from
sales art auctions on board the ship, which directly contradicts the petitioner's claim on Form 1-129 which
states that the beneficiary received an annual salary of $60,000 per year plus company benefits.
Absent evidence of wages paid to the beneficiary and the source of such wages, the AAO cannot determine
whether the beneficiary was actually employed by the petitioner for one full year out of the three years
immediately preceding the filing of the petition. In addition, it is unclear to whom the beneficiary will render
his services in the United States. Going on record without supporting documentary evidence is not sufficient
for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). For
this additional reason, the petition may not be approved.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on a de novo basis).
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683
(9th Cir. 2003).
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The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit
sought remains entirely with the petitioner. Section 291 of the Act, 8 U .S.c. § 1361. Here , that burden has
not been met.
ORDER: The appeal is dismissed.