dismissed L-1B Case: Aviation

U.S. Department of IIomeland ~ecurih 
20 Mass. Ave, N.W.. Rm. A3042 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Imrnigration 
Services 
Petition: Petihon fa a Nonimmigrant Worker Pursuant to Sectlon 101 (a)(lS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
. . I his is the decis~on of the Admmlstrative Appeals Office in your case. All documents have been returned to 
the office that originally dec~ded your case. Any further inquiry must be made to that office. 
R 
Adminlstrat~ve Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, lnitlally approved the pet~t~on for a nonimmigrant vlsa. 
Upon further revlew, the director determined that the beneficiary was.not elig~ble for the benefit sought. 
Accordingly, the director properly served the pet~tloner with notice of her intent*to revoke the approval and 
subsequently ordered that the approval be revoked. The matter 1s now before the Administrahve Appeals 
Office (AAO) on appeal. The AAO will d~smss the appeal. 
The petitioner seeks to employ the beneficiary temporarily in the Un~ted States as a nonlmmigrant 
intracompany transferee with specialized knowledge (L-IB) pursuant to section 10 1 (a)(15 )(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. $ 1101(a)(15)(L). The pehtioner 1s a corporation 
organized ~h the State of Flonda that is a branch of I] (Iberia), an 
international air carrler established and existing under the laws of Spain. The petltioner serves as the U.S. 
Headquarters for and seeks to employ the beneficiary as a Captain who will command the alrl~ne's 
A~rbus A3 19, A320, and A32 1 aircraft. 
After properly Issuing a not~ce of Intent to revoke, and after revlewing the petitloner's rebuttal to that notice, 
the d~rector revoked the approval, findmg that the approval of the origlnal petition ~nvdved gross error in that 
the beneficlary dld not quallfy for the classification sought. Specifically, the dlrector determined that thc 
petrtioner had not established that the beneficlary possessed speclallzed knowledge such that the beneficlary 
could qual~fy for an L-IB vlsa, and, more specifically, that the L-IB classificatlon sought was erroneous m 
llght of the existlng vlsa classificatlon for nonimrmgrant crewmembers under sectlon 101(a)(15)(D) of the 
Act, 8 1J.S.C. 8 1101(a)(15)(D). 
Counsel for the petitloner subsequently filed an appeal. The director declined to treat the appeal as a motlon. 
and forwarded the appeal to the AAO for revlcw. On appeal, counsel submits a brlef and addltlonal evldence 
and asserts that the d~rector's decision was arbitrary and caprlclous and contrary to law Speclfically, counsel 
contends that the director: (1) fa~led to distlngutsh the Inherent differences involved m pilot~ng a state-of-the- 
art commercial jet alrllner and any other alrcrafti (2) failed to dlstingulsh between the type of cominerclal jet 
a~rcraft operated by the petltloner and ~ts U.S. compet~tors; and (3) failed to adhere to the requirements for 
spec~alized knowledge as outlined m a 1994 Imrnlgratlon and Naturallzat~on Serv~ce (now Cltizensh~p and 
Tmmrgrat~on Serv~ces (CIS)) memorandum. Counsel fails to contest the director's findmg that the lnltlal 
approval of the petrtlon constituted gross error, and further falls to acknowledge the alternative visa 
class~ficat~on ava~lable to the beneficlary In light of his stated posltion 
TO establ~sh L-1 ellglb~l~ty, the petltioner must meet the crltena outl~ned in sectlon 101(a)(15)(1.) of the Act 
Speclfically, w1t111n three years preceding the beneficiary's applicahon for admlss~on Into the Un~ted States, a 
qual~fylng organization must have employed the beneficlary m a quahfyng managenal or executive capacity, 
or m a spccial~zed knowledge capacity, for one cont~nuous year. In add~tlon, the benefic~ary must seek to 
enter the United States temporarily to contmue rendermg h~s or her servlces to the same employer or a 
subsldlary or offillate thereof m a managend, cxecutlve, or specialized knowledge capacity. 
The regulation at 8 C.F.R. 4 214.2(1)(3) further states that an individual petitlon +led on Form 1-129 shall be 
accompan~ed by: 
(i) Evidence that the petihoner and the organization which employed or will employ the alien are 
qualifying organizations as defined in paragraph (l)(l)(~i)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or speclallzed 
knowledge capacity, including a detailed descnpt~on of the services to be performed. 
(iii) Evldence that the alien has at least one continuous year of full time employment abroad 
with a qualifjrlng organization within the three years preceding the fillng of the petition. 
(IV) Evldence that the alten's prlor year of employnlent abroad was In a posltlon that was 
managenal, executive or lnvolved spec~allzed knowledge and that the allen's pnor educat~on, tra~n~ng, 
and employment qualifies himher to perform the Intended smces m the Unlted States; however, the 
work m the Unlted States need not be the same work which the allen performed abroad. 
The primary Issue m this matter is whether the approval of the in~t~al pet~tion constituted gross error. 
However, before a conclse review of this Issue can be performed, it IS necessary to examtne the history of thls 
petltlon and the circumstances that led to the petition's revoeat~on. As previously stated, the ln~tlal pet~tion 
sought to classify the beneficiary as a nonimgrant transferee wth specialized knowledge. Sectlon 
2 14(c)(2)(B) of the Act, 8 U.S.C. 9 1 184(c)(2)(B), provides the followng: 
For purposes of sectlon 101(a)(15)(L), an allen is considered to be semng in a capaclty 
involving specialized knowledge w~th respect to a company if the allen 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. 6 214.2(1)(1)(ii)(D) defines "specialized knowledge" as: 
[Slpeclal knowledge possessed by an individual of the petitioning organlzat~on's product, 
scrvlce, research, equipment, techniques, management, or other ~nterests and its applicat~on In 
international markets, or an advanced level of knowledge or expertise in the organlzat~on's 
processes and procedures. 
In a letter dated Apnl 8, 2003, counsel for the pet~tioner provided an overview of the benefic~ary's 
background and expmence. Specifically, counsel explamed that the benefic~ary had bccn employed by the 
pet~tloner slnce 1979, and that he had held the posrt~on of Capta~n smce 1993. Add~tionally, a letter From the 
pet~t~oner dated Apnl4, 2003 alleged that the traming prov~ded by the pet~tioner to the beneficiary, and all of 
lts p~lots, was proprietary because it had "been developed slnce [the petitioner] was In its mfancy," and further 
stated that such tralning was unique to the pet~tioner. The pet~tloner alleged that the training prov~ded to the 
beneficmy and the petitioner's other pilots, whlch consisted of classroom ~nstruction, computcr~zed , 
instruct~on systems, illght simulators, and actual flight tlrne, provided the pilots wlth speclali~ed knowledge 
of the petitloner's commerc~al actlv~ties. Furthermore, the petitioner stated that the benefic~ary had served as 
a flight ~nstructor from 1990 to 1993, where he tralned new and expenenced p~lots In the operation of the 
petrtioner's alrcraft series. 
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With specific reference to the beneficiary, the pet~honer stated that pilots that possessed his extenswe career 
and training were the ideal candidates to be transferred to the Unlted States to manage the petitioner's Miami- 
based flight routes. The pet~tioner contended that in order to qualify for this Unlted States-based posttion, the - 
beneficiary was required to have s~gn~ficant flight experience with the petitioner and approximately twenty 
thousand hours of flight tlme. The petlt~oner finally dlscussed the beneficiary's respons~bilities as a Captam 
of the Airbus smes of alrcraft, and explained that the beneficiary exerclses complete command of the aircraft 
and fllght crews in add~tion to being completely responsible for the safety and well-being of all passengers 
aboard the aircraft. 
The petitloner further dlscussed the unique crcumstances governing the petitloner's Miami-based flight routes 
and the requlrements to fly such routes. First, it alleged that all pllots must be Spanlsh nationals licensed by 
the Spanish government, since the petitioner is based m Spam. Additionally, it asserted that the pilots flylng 
these routes were also subject to European and American licens~ng requlrements under the JAR and FAA. 
Finally, the petdioner discussed the difference between the Airbus series of aircraft versus the Boeing senes, 
and concluded that only a pilot trained to operate the Airbus series of atrcraft by the petiboner would be 
qualified to pilot aircraft on these routes. Essentially, the petitioner's main assertions were that the 
beneficlary met the l~cens~ng requirements and possessed howledge of the Alrbus senes of alrcraft which 
enabled him to perform the duties associated with the petitioner's Mlamr-based routes. Finally, m concluding 
that ~ts routes to and kom Mlami were proprietary In nature, the petitloner concluded that the beneficrary 
possessed the rcquislte specialized knowledge to properly qualify for a nonimmigrant vlsa under this 
category. 
The director agreed with counsel's preliminary assertions, and approved the petlt~on for a three-year penod 
from April 21,2003 through April 21,2006. After subsequent review of the file, however, the director issued 
a notlce of intent to revoke the petition on October 14,2003. 
The dlrector determined that the beneficiary's claimed specialized knowledge, obtalned dmng hts 
employment with the petitloner, was more akln to the routmely obtained knowledge and tralnlng by all pllots 
In the profession. Specifically, the director noted that the petitioner had faded to show that the beneficiary's 
alleged knowledge was unlque to the beneficlary, or that the beneficiary was responsible for its ex~stencc, as 
outlined In the December 20, 2002 Memorandum for all Service Center Directors by Fujle Ohata, Associate 
Comrmssloner, on the "Interpretation of Speclallzed Knowledge," which adopts the "lnterpretatlon of 
Specialized Knowledge" memorandum by mated March 9, 1994. Additionally, the director 
found that the petltloner had failed to corroborate ~ts claims that the beneficiary's specialized knowledge was a 
direct result of his traintng and experience with the petitioner-.' 
The petitioner filed a response to the notlce of intent to revoke on November 10, 2003. In the response, 
counsel alleged that the director faded to consider the occupational requirements of pilots as set forth in the 
I - I'he AAO further notes that the notice of Intent to revoke also discussed the beneficiary's inellgibillty for the 6 
vlsa classlficatlon in the event that the petttioner was seeking approval under a blanket petition granted in 
2002. As the petitioner subsequently confirmed that the class~ficatlon was be~ng sought under the individual 
petition, ~t IS not necessary to further discuss this issue. 
Occupational Outlook Handbook, published by the U.S. Department of Labor, and further disregarded the 
l~censing requirements for pilots operating aircraft under foreign carriers. By disregarding these prowslons, 
counsel alleged that the director failed to acknowledge the unique requirements that must be met by' pilots 
who will operate alrcraft in the United States for fore~gn canters. 
Additionally, the petitioner alleged that the d~stinction between the Airbus and Boeing serles of alrcraft was 
essential to th~s matter. Specifically, counsel asserted that slnce the petitioner and only two other carners 
operated the Alrbus series of aircraft out of Miami, pllots who were qualified to fly the Airbus series of 
aircraft and who were simultaneously familiar with the Latin America routes associated with the M~ami hub 
were unusual and excephonal, and thus, slncc the beneficiary was one of these such pllots, he possessed the 
requisite special~zed knowledge. 
Fmally, counsel contested the director's reliance on the Ohata and Puelo memoranda. Counsel contended that 
the director's assertion that the beneficiary's knowledge is merely general, and not specialized, was erroneous 
In that the d~rector Ignored the large and volummous evidence prov~ded wth the petitron. Counsel claimed 
that the director's conclus~on that no documentary evidence was provided to support the claimed spec~alized 
knowledge was flawed, and reasserted that the beneficiary's advanced training and experience equipped him 
with the speclal~zed knowledge requlred for the vlsa classification. In his final summation, counsel requested 
reconsideration based on the benefclary's skills and abllihes m operating the Airbus series of aircraft, an 
alrcraft whlch counsel asserted was not widely used by other companies. 
The director was not persuaded by counsel's numerous arguments. ~onse~uentl~, the director Issued a notice 
of revocatron on December 3,2003. In the notlce, the director concluded that the occupation of pilot IS not an 
extraordinary occupat~on reserved for a few elite members. Instead, the director noted that the requirements 
for obtaining a pilot's license are routinely unlversai throughout the industry, and although the beneficiary had 
admittedly learned to fly the Alrbus serles of aircraft while employed by thc benefictary, the Arrbus series IS 
not exclusive to the pet~tioner. Furthermore, the director found that the petitioner had fa~lcd to demonstrate 
how the training provided to the beneficiary through his course of employment with the petitioner differed 
from the training and experience he may have gained from a competitor airhne. 
Finally, and perhaps most ~mportantly, the director noted that the petitloner admitted to spending rn~lllons of 
dollars on tralning for ~ts prlots. This statement indicates that all of the petitioner's p~lots recelve sim~lar tf not 
the same trainmg, and although the petitioner submitted documentary evidence which outllned th~s tralning, 
there was no evldence pertain~ng to the beneficiary's personal training iustory. The director noted that while 
the pct~t~oner's stated tralning and education program for 11s pilots was certainly extensive, there was no 
documentat~on in the record wh~ch established that the beneficiary had successfully completed thls tralning 
Since the record was devold of particular documentat~on whlch would establish the benefic~ary's spec~fic and 
specialized trainlng in the field, the director found that the pet~tioner had not satisfied ~ts burden for purposes 
of th~s proceedmg. 
In conclus~on, the director noted that the Immigration and Nationality Act clearly specified a nonimmigrant 
classificat~on that 1s spec~ficaily structured toward pilots. Under Sect~on 101(a)(10) of the Act, 8 U.S.C 9: 
1101(a)(10), a "crewman" 1s defined as "a person serving in any capac~ty on board a vessel or a~rcraft." The 
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dlrector concluded that without question, a pilot serves "in a capacity required for normal operation and 
service on board . . . an aircraft." Id. section lOl(a)(lS)(D)(i) of the Act, 8 U.S.C. $1 101(a)(15)(D). The 
director determ~ned that the benefic~ary, as a nonimmgrant pllot, would properly fit under thls visa 
classificat~on and not the classification requiring specialized knowledge, and subsequently revoked the 
approval of the initla1 petition. 
Counsel submrts a lengthy brief on appeal m support of the petitioner's assert~ons that the benefic~ary 
possesses specialized knowledge. Counsel restates the points raised in the response to the nottce of Intent to 
revoke, and conhnues to assert that the beneficiary possesses specialized knowledge and thus qual~fies for the 
msa claswficatlon prescribed under sect~on 101(a)(15)(L) of the Act, 8 U.S.C. § 1101(a)(15)(L). Counsel, 
however, fails to address thc d~rector's d~stinction of the D crewman visa classificat~on from the L vlsa 
classificat~on, and neglects to address the bas~s upon wh~ch the director revoked the petition. 
Upon revlew of the record of proceeding, the AAO concurs w~th the director's conclusion that the beneficmy 
does not possess specialized knowledge. The pet~t~oner faded to distingu~sh the beneficlary's tralnlng and 
expenence from that of hls co-workers or from other s~mlarly trained pllots In the industry. Undoubtedly, the 
petltioner 1s not the only airline which operates the Airbus serles of aircraft. Although the benefic~ary's 
tra~n~ng is impress~ve and noteworthy, there 1s nothlng m the record that ind~cates that h~s ability to operate 
this aircraft dlst~ngu~shes him from other equally qualified pilots in the industry. Addltlonally, the petltioner 
fails to provide documentation that the beneficiary recelved tralning or work ass~gnments focused specifically 
on the Airbus amraft. Whde the pet~honer, through counsel, asserts that the beneficiary u virtually an expert 
with spec~al~zed knowledge, the lack of specific~ty pertaining to the beneficiary's work expenence and trammg, 
part~cularly m compmson to others employed by the petitioner and m this mdustry, fails to d~snnguish the 
beneficrary's knowledge as specialized. Without documentary evldence to support the claim, the assertions of 
counsel will not sat~sfy the pet~tioner's hurden of proof. Matter of Obuigbenu, 19 I&N Dec. 533, 534 (RIA 
1988); Mutter ofRumirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).~ 
It is also appropriate for the AAO to look beyond the stated lob dut~es and cons~der the Importance of the. 
beneficlary's knowledge of the business's product or servlce, management operat~ons, or dec~s~on-rnak~ng 
process. Mutter of Colley, 18 I&N Dec. 117, 120 (Comm. 198 1) (citing Matter of Rnulrn, 13 I&N Dec. 61 8 
(R.C. 1970) and Matter of LeBlanc, 13 I&N Dec. 816 (R C. 1971))~ As stated by the Commiss~oncr In 
2 
Although counsel refers to numerous exhibrts that accompany the appeal br~ef In support of these 
contentions, the docu,mentatlon prowded 1s lnsuffic~ent to warrant a conclusion that the beneficlary possesses 
the requisite speclal~zed knowledge requlred by the regulations. For example, the Bas~c Manual of 
Operat~ons, wth whlch it contends ~ts pilots are requ~red to be famlllar, 1s prov~ded in support of counsel's 
allegation that the beneficiary's knowledge is spec~allzed and proprietary. The voluminous tratning manuals 
of the pet~tioner, however, do not establish that the benefic~ary actually completed the required tra~nmg. 
Although the clted precedents pre-date the current statutory definition of "special~zed knowledge," the AAO 
finds them lnstmct~ve. Other than deletlng the former requirement that speclallzed knowledge had to be 
"proprietary," the 1990 Act did not significantly alter the definltlon of "specialized knowledge" from the prior 
INS interpretation of the term. The 1990 Comrmttee Report docs not reject, critlclze, or even refer to any 
s~cclfic INS regulation or precedent decis~on interpret~ng the tern. 'I'he Comm~ttee Keport s~mply states that 
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Matter ofPenner, 18 I&N Dec. 49, 52 (Comm. 1982), when considering whether the beneficiaries possessed 
spec~alized knowledge, "the LeBlanc and Raulin decisions did not find that the occupations inherently 
qualified the beneficiaries for the classifications sought." Rather, the beneficlanes were considered to have 
unusual duties, slulls, or knowledge beyond that of a skilled worker. Id. The Cornmissloner also provided the 
following clanficat~on: 
A distinction can be made between a person whose shlls and knowledge enable him or her to 
produce a product through physical or skilled labor and the person who 1s employed primarily 
for his ab~lity to carry out a key process or function whlch is important or essential to the 
business' operatron. 
Id. at 53. In the present matter, the evidence of record demonstrates that the beneficiary is more akin to an 
employee whose slulls and experience enable him to provide a specialized servlce, rather than an employce 
who has unusual dutres, skills, or knowledge beyond that of a skilled worker. 
It should be noted that the statutory definition of specialized knowledge requlres the AAO to make 
compansons in order to determine what constitutes specialized knowlcdge. The tenn "speclahzed 
knowledge" IS not an absolute concept and cannot be clearly defined. As obsewed In 1756. Itlc., "Ls]imply 
put, specialized knowlcdge is a relat~ve . . . idea whlch cannot ha e a plain meaning" 745 F. Supp. at 15. 
Looking to the lntent of Congress, the Congressional record spec 'i fically states that the L-1 category was 
rntended for "key personnel." Seegenerally, H.R. REP. No. 91-851,)970 U.S.C.C.A.N. 2750. The term "key 
personnel" denotes a poslt~on with~n the petitioning company that 1s"of crucial importance." Wehster's II New 
College Dictionary 605 (Houghton Mifflin Co. 2001). In general, all employees can reasonably bc 
cons~dered "imnportant" to a pethoner's enterprise. If an employee d~d not contribute to the overall economic 
success of an enterprise, there would be na ratlonal economc reason to employ that person An employee of 
"cruclal importance" or "key personnel" must rise above the level of the petitioner's average employee. 
Accordmgly, based on the definition of "speclalued knowledge" and the congressional record related to that 
term, the AAO must make comparisons not only between the clarmed specialized knowledge employee and 
the general labor market, but also between that employee and the rema~nder of the petitloner's workforce. 
Here, the petitioner makes no claim that the beneficiary's knowledge is more advanced than other employees, 
nor d~d the petihoner distinguish the beneficiary's knowledge, work experience, or training from the other 
employees. The lack of ev~dence in the record makes ~t impossible to class~fy the beneficiary's knowledge of 
the petitioner's commercial operations and of the A~rbus senes of a~rcraft specialized, and precludes a findlng 
that the beneficiary's role is "of cruc~al ~mportance" to the organizat~on. Simply going on record wthout 
supporting documentary evidence is not sufficient for the purpose of meeting the burden of proof In these 
the Comrmttee was recommending a statutory definition because of "[vlarylng [i.e., not spec~fically mcorrcct] 
lnterpretatlons by INS," H.R. Rep. No. 101-723(1), at 69, 1990 U.S.C.C.A.N. at 6749. Beyond that, the 
Commrttee Report simply restates the tautology that became scction 214(c)(2)(B) of the Act. Id. The AAO 
concludes, therefore, the cited cases, ag well as Marter of Pennev, remain useful gu~dance concerning the 
e intended scope af the "special~zed knowledgen L-IB classification. 
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Page 8 \ 
proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citlng Matter of Treasure Crafr of 
Culifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). While it may be correct to say that the beneficiary is a 
hlghly skilled and productive employee, this fact alone is not enough to bring the beneficiary to the level of 
"key personnel." 
Moreover, in Matter of Peliner, the Comm~ssioner discussed the legislative Intent behind the creat~on of the 
speclallzed knowledge catcgory. 18 I&N Dec. 49 (Comm. 1982). The decision noted that the 1970 House 
Report, H.R. No. 91-851, stated that the number of adrnisslons under the L-1 classification "will not be large" 
and that "[tlhe class of persons ehgiblc for such nonimmigrant visas IS narrowly drawn and w~ll be carefully 
regulated by the Immigration and Naturalization Service." Id. at 5 1. The dec~sion further noted that the House 
Report was dent on the subject of specialtzed knowledge, but that during the course of the sub-committee 
heanngs on the blll, the Chalrman specifically questioned witnesses on the level of slull necessary to qual~fy 
under the proposed "L" category. In response to the Chairman's questions, varlous witnesses responded that 
they understood the legislation would allow "high-level people," "experts," mdivlduals wtth "unlque" skills, 
and that ~t would not Include "lower categories" of workers or "skilled craft workers." Matter of Pmner, id at 
50 (cltmg H.R. Subcomm. No. 1 of the Jud. Comm., Immigration Act of1970: Hearings on t1.R 445, 91st 
Cong. 210,218,223,240,248 (Novemlier 12, 1969)). 
Kevlewing the Congressional record, the Cornmissloner concluded in Matter of Penner that an expans~ve 
read~ng of the special~zed knowledge provision, such that it would include slulled workers and technicians, is 
not warranted. The Commissioner emphasized that that the special~zed knowledge worker class~fication was 
not intended for "all employees with any level of spectalized knowledge." Matter of Penner, 18 I&N Dec. at 
53. Or, as noted m Matter of Collqy, "[mlost employees today are special~sts and have been tralned and glven 
spec~al~zcd knowledge. However, m vlew of the House Report, it can not be concluded that all employees 
w~th spcclallzed knowledge or performmg highly technical duttes are ellglble for classificahon as 
lntracompany transferees." 18 I&N Dec. at 119. According to Matter of Penner, "[sluch a conclus~on would 
pemt extremely large numbers of persons to qualify for the 'L-I' vtsa" rather than the "key personnel" that 
Congress spec~fically tntended. 18 I&N Dec. at 53; see also, 1756. Inc , 745 F. Supp. at 15 (concludmg that 
Congress did not intend for the specialized knowledge capac~ty to extend all employees wlth spec~alized 
knowledge, but rather to "key personnel" and "execut~ves.") 
Counsel also alleges that CIS is not followng ~ts own gu~dellnes as to the nature of specialized knowledge. 
Spec~fically, counsel refers to the December 20, 2002 Memorandum for all Serv~ce Center Directors by Fujrc 
Ohata, Associate Cornmlssloner, on the "Interpretation of S ec~al~zed Knowledge," which adopts the 
March 9, 1994. Rely~ng ' "Interprctatlon of Specialized Knowledge" memorandum by 
on thls memorandum, counsel asserts that CIS erroneously imposed a standard of "uniqueness" upon the 
beneficiary's dut~es when evaluat~ng the evidence, and contends that an exam~nat~on of the previously 
submitted description of the benefic~ary's duties and knowledge shows that he has consequently satisfied the 
definlt~on of spec~allzed knowledge. Furthermore, counsel contends that the benefic~arv's knowledge of the 
petitioner's business practices is specialized and cannot be replicated. Wh~le the beneficiary's skills and 
knowledge may contribute to the successfulness of the petltlon~ng organization, this factor, by itself, does not 
const~tute the possession of spcc~alized knowledge. 
SRC 03 132 50186 
Page 9 
The AAO notes that, wlth regard to counsel's~reliance on the 2002 Associate Commissioner's memorandum, the 
memorandum was intended solely as a guide for ckployees and w11 not supersede the plain language of the , 
statute or regulat~ons. Although the memorandum may be usehl as a statement of policy and as an aid In 
interpretmg the law, ~t was intended to serve as guidance and merely reflects the w-r~ter's analysls of the issue. 
Therefore, while the beneficiary's contribution to the economic success of the corporation may be cons~dered, the 
reylatlons specifically, requlre that the beneficiary possess an "advanced level of knowledge" of the 
organization's process and procedures, or a "special knowledge" of the pebtioner's product. servlce, research, 
equipment, techniques, or management. 8 C.F.R. fj 214.2(1)(1)(ii)(D). As determined above, the beneficlary does 
not satis@ the requirements for possessing speciallzed knowledge. 
In the present matter, the petitioner has failed to demonstrate that the beneficiary's trainmg, work experience, or 
knowledge of the company's opent~onal procedures and of the Aubus series of aircraft and its application In 
tnternatlonal markets is more advanced than the knowledge possessed by others employed by the pehtioner, or in 
the industry. It 1s clear that the petitioner considers the beneficiary to be an Important employee of the 
organization. l'he AAO, Ilkewise, does not dispute the fact that the beneficiary's knowledge has allowed hlm to 
competently perform h~s job in the foreign entity. However, the successful completion of one's job duties does 
not disbnguish the beneficlary as "key personnel," nor does it establish employment m a spec~allzed knowledge 
capaclty. 
The legislat~ve history for the term "specialized knowledge" provldes ample support for a restrlctlve 
interpretation of the term. In the present matter, the petitloner has not demonstrated that the beneficmy 
should be cons~dered a member of the "narrowly drawn" class of ind~vlduals possessing specialized 
knowledge. See 1756. Inc, 745 F. Supp. at 16. Based on the evidence presented, lt IS concluded that the 
beneficiary does not possess specialized knowledge; nor would the beneficiary be empioyed in a capaclty 
requlnng speciallzed knowledge. ' 
Since the issue of specialized knowledge in thls matter has been thoroughly addressed, the AAO wlll now 
examlne the basis for the director's revocatlon of the petition. On appeal from the revocatlon for 
non~mmigrant worker, the issue IS not, shctly speahng, whether the beneficiary qualifies for the speclfic 
non~mmigrant class~ficatlon. Even if the Service Center mistakenly approved an L-IB petltion for an alien 
who does no1 quahfy for L-I B status, that fact alone would not warrant revocat~on of the approval. Under 8 
C.F.R. 5 214.2(1)(9)(111)(A)(5), only "gross error," and not slmple mlstake, warrants revo~ation.~ , 
The pnmary issue m th~s matter is whether the approval of the initla1 petltion constituted gross error. Under 
CIS regulations, the approval of an L-IB pet~tion may be revoked on notice under six speclfic circumstances. 
8 C.F.R. § 214.2(1)(9)(ili)(A). To properly revoke the approval of a petlt~on, the director must Issue a notice 
of Intent to revoke that contalns a detalled statement of the grounds for the revocat~on and the time per~od 
allowed for rebuttal. 8 C.F.R. 5 2 14.2(1)(9)(iii)(B). 
4 
The AAO notes that the "gross error" standard applies to revocatjon of H, 0 and P non~mm~grmt worker 
Petltlons, as well as to L pet~tions. 8 C.F.R. $5 214.2(h)(l l)(iii)(A)(S), (o)(R)(iii)(A)(S) and (p)(10)(1n)(A)(5). 
SRC 03 132 50186 
Page 10 
In the present matter, the dlrector provided a detailed statement of the grounds for the revocatlon. Referring 
to the eligibility criteria at 8 C.F.R. tj 214.2(1)(3)(ii), the dlrector reviewed the rebuttal evidence and 
concluded that rhe petitioner had not established that the beneficiary's pos~t~on as a pllot, and more 
spec~fically titled as a Captain, required spec~alized knowledge to the extent that it qualified for approval 
under the T2-1B category, particularly in light of the regulations at TNA 4 101(a)(10) and (1 5)(D) and 8 U.S.C. 
9 1101(a)(10) and (15)(D), which are spec~ficall~ tailored toward nonlmrnigrant crewmembers, including 
pilots and captains. The director subsequently revoked the approval on the basis of 8 C.F.R. 
§ 214.2(1)(9)(ili)(A)(s): "Approval of the petition involved goss error." 
The term "gross error" is not defined by the regulations or statute. Furthermore, although the term has a 
junstlc nng to ~t, "gross error" is not a commonly used legal term and has no basls In jurisprudence. See 
Black's Law Dichonary 562, 710 (7th Ed. I999)(defining the types of legal "error" and legal terms using 
"gross" without citing "goss error"). The word "gross" is commonly defined first as "unmitigated in any 
way: UTTER," as in "gross negligence." Webster's 11 New College Dict~onary 491 (2001). 
As the term "gross error" was created by regulation, it is most instructive to examine the comments that 
accompanied the publication of the rule m the Federal Register. The term "gross error" was first used in the 
regulations relatlng to the revocation of a nonimmigrant L-1 pet~tion. In the 1986 proposed nile, an L-1 
revocatlon would be permitted if the approval had been "improvidently granted." 5 1 Fed. Reg. 18591, 18598 
(May 21, 1986)(Proposed Rule). After receiving comments that expressed concern that the phrase 
"~rnprovidently granted" might be given a broader interpretat~on than intended, the agency changed the final 
rule to use the phrase "gross error." 52 Fed. Reg. 5738, 5749 (Teb. 26, 1987)(Fmal Rule). As an example of 
. gross error ln the L-1 context, the draAer of the regulation stated: 
This provision was intended to correct situations where there was gross error m approval of 
the petltlon. For example, after a petitlon has been approved, ~t may later be determined that 
a qualifying relationsh~p did not ex~st between the United States and the foreign entity whlch 
employed the beneficiary abroad. 
Id. In the context of the L-1 nonimmigrant classlficatlon, the phrase "quaIifylng relabonshlp" 1s a 
fundamental requirement for visa eligibility and is defined by the regulation. See 8 C.F.R. 
214.2(1)(l)(ii)(G). However, this element of el~gibllity is not a simple determ~natlon or one where there is 
always a clear answer. See Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see 
also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 18rN Dec. 
289 (Corn. 1982). As authorized by Congress, CIS is charged wlth the authority to make this detemnatlon 
based on the implementing regulations. See generally, section 214 of the Act, 8 U.S.C. 5 1184. 
Accordingly, upon review of the regulatory history and the common usage of the term, the AAO Interprets the 
term "~OSS e~~or" to be an unmitigated or absolute error, such as an approval that was granted contrary lo the 
requirements stated in the statute or regulations. Regardless of whether there can be debate as to the legal 
determination of eligibliity or whether there is a "clear answer," any approval that CIS detennines to have 
been approved contrary to law must be considered an unmitigated error, and therefore a "gross error." This 
SRC 03 132 501 86 
Page 1 1 
view of "gross error" is cons~stent with the example provided in the Federal Register. See 52 Fed. Reg. at 
Upon revlew, the present petition was properly revoked as the prior pet~tion was approved in gross error; the 
petltlon was approved contrary to the ellgbility requrrements provided for in the regulations and because the 
proffered posltion requires classification under sectlon 101 (a)(15)(D) of the Act. 
Although the regulations do not define "gross error,'' the AAO notes the oplnion of Judge Oberdorfer in Delta 
Air Lines, lnc. v. US. Department-of Justice, No. 98-3050 (LFO) (D.D.C. Filed July 1 3, 1999). In Delta Air 
Lines, Judge Oberdorfer reversed the AAO's decisions affirming revocat~on of LIB approvals for tl~ght 
attendants, rejecting the AAO's conclusion that the approvals rested on gross error. As a non-precedent 
decislon of a stngle Dlsmct Court, his ruling on this point does not bind the AAO m unrelated cases. Matter 
c$K-S-, 20 I&N Dec. 715 (BIA 1993). Thus, Judge Oberdorfer's holding that there was no "gross error" m 
the Delta Air Lines case does not compel the same result here. 
First, the facts of this case make it read~ly distinguishable from the Delta Air Lines case. Delta Alr Llnes 
sought to descnbe the fl~ght attendant duties in such a way as to make them appear different from normal 
crew duties. ' Cf Delta Air Lines, slip opinion at 6-9. The flight attendants' knowledge of Pol~sh, and of 
Eastern European customs, according to Delta, dist~ngulshed them from flight attendants performing noha1 
crew duties. In particular, Delta claimed that, in addition to normal crew duties, the fllght attendants would 
5 
Hav~ng examined the regulatory history of section 214.2(1)(9)(111)(A)(5), as well as the common legal 
meanlng of the term "gross," Judge Oberdorfer concluded that "gross error" 1s an "immediately obvious or 
glanngly noticeable mistake." Delta Air Lines, slip opinion at 4. Judge Oberdorfer also characterized "@'OSS 
error" as a mlstake that no reasonable person would make, because there would be no reasonable grounds to 
"debate as to the right answers." Id. 
Although the AGO defers to the decision of Judge Qberdorfer as it applies to the Delta Azr Lines Iltlgat~on, 
the AAO respectfully disagrees with the Court's interpretation of "gross error." By ~mposing a "reasonable 
person" standard on the interpretation of gross error, the Court's interpretation strlps CIS of its authority to 
make elig~bil~ty deterrmnations by applying its expert~se as the agency charge with enforcing th~s sectlon of 
law. See generally, sectlon 2 14 of the Act, 8 U.S.C. $ 1 184. Furthermore, the Court's "reasonable person" 
lnterpretatloll den~es the agency its essential authonty to correct erroneously approved pet~tlons. Finally, the 
"reasonable person" standard Imposed by the Court would have CIS let stand a petition that was approved 
contrary to law, as long as there is debate as to the "nght answer," desp~te the statutory requ~rements and the 
publlc pollcy established by Congress. Respectfully, ~t would be absurd to suggest that CIS or any agency 
must treat acknowledged errors as blndlng precedent. Sussex Engg. Ltd. v Montgomely, 825 F.2d 108.1, 1090 
(6th Clr. 1987), cert. denied, 485 U.S. 1008 (1988). 
The AAO notes that, when the issue came before Judge Oberdorfer again in a case not involving the "gross 
error" standard, he affirmed the AAO's conclus~on that the flight attendants d~d not actually qualifjl as L-1B 
nonlnimigrants. Della Air Lines, Inc. v. US Department of Justice, No. 00-2977 (LFO) (D.D.C. April 6, 
2001). The D.C. Circuit affirmed this judgment summanly. 2001 WL 1488616 (D.C.Cir. 2001). 
SRC 03 132 50186 
Page 12 
parlicipate in training other fllght attendants rn skills specially suited to serving Eastern European cllents. 
Judge Oberdorfer concluded that a reasonable person could have found that the job dutles, as descnbed, 
qualified the beneficiaries as L-IB nonlmigrants. Id. slip opinlon at 9-10. In the current case, by contrast, 
the pehtloner claims that ~t is the beneficiary's specific dut~es as pilot that makes him elrglble for L-IB 
class~ficatlon. More specrfically, the petitioner contends that the beneficiary's extenslve tratnmg. and more 
part~cularly hls ablllty to operate the A~rbus senes of aircraft, qualifies hm for ths classlficatlon. 
Second, and more fb&mentally, the petitioner's argument ignores the basic structure of the NA as it relates 
to alien crewmembers. Congress has provided a specific non~rnmigrant visa classification for thcse aliens. 
INA § 101(a)(10) and (15)@), 8 U.S.C. 5 1101(a)(10) and (15)(D). Crewmembers are subject to special 
restnctions. These restnctlons reflect the fiction that an alien crewmember is "one of the agenc~es whlch 
brought the sh~p in, rather than an alien brought in by the ship." Osaka Shosen Line v. United States, 300 U.S. 
98,103 (1937). Although counsel for the petitioner falled to address or acknowledge this lssue on appeal, the 
AAO finds it crucial to the outcome in this matter. 
The first drstmctlon between crewmembers and other aliens who amve on a vessel or aircraft 1s that the 
crewmembers are not even subject to inspection, if they are not actually golng to leave the vessel or alrcraft. 
Matter of SS Greystoke Castle and M/V Western Queen, 6 I&N Dec. 112, 122 (BIA 1954; A.G. 1954). If the 
crewrnember will remaln aboard, no visa is requ~red. Id If the crewmember is supposed to remain on board, 
the camer is subject to fine ~f the canier fails to prevent the crewmember from leaving the vessel or aircraft. 
INA 5 254(a), 8 U.S.C. tj 1284(a). 
Second, if the crewmember IS perm~tted to land, the crewmember 1s subject to more exactlng restnctions than 
other nonimrnigrants. A crewrnember who seeks to land, like other nonimmigrants, is subject to mspection, 
and must have the appropriate visa. INA $5 212(a)(7)(B) and 235(a)(3), 8 U.S.C. 4s 1182(a)(7)(B) and 
1225(a)(3). But if the crewmember is permttted to land, the crewmember must leave the Unlted States on the 
same vessel or a~rcraft on which the crewmember amved, unless the imm~gation inspector permlts the 
crewrnember to leave on a d~fferent vessel or aircraft. INA fj 252(a), 8 U.S.C. $ 1282. In no case may a 
crewmember remain in the '~nlted States more than 29 days. Id. The carrier may not d~scharge the 
crewmember from employment while the crewrnember is in the United States without perm~ss~on of the 
rmm~gration authont~es. Id. 9 256,8 U.S.C. tj 1286. 
If a crewmember absconds, but is apprehended before the vessel or aircraft leaves, the immigration authorities 
may expel the crewmember summarily, without hav~ng to resort to immigration court procedures. Id. 4 
252@), 8 U.S.C. 4 1282(b). If an alien crewmember is placed In removal proceedings, the allen crewrnember 
is ineligible for cancellation of removal. Id. $240A(c)(l), 8 U.S.C. 4 1229b(c)(l). ,A crewmember 1s not 
ellglble for adjustment of status, id. 6 245(c)(2), 8 1J.S.C. g 1225(c)(2), nor for a changc of nonlmmigrant 
status, id. !j 248(1), 1258(1).~ 
6 
Provided the underlying visa petition was tlmely filed, an alien crewmember can obtain rellef fi-om the 
adjustment ineligibility if the alien pays the $1000 fee under INA tj 245(i), 8 U.S.C. 4 1255(1). 
SRC 03 132 50186 
~agk 13 
This comprehensive statutory framework shows that Congress intended fa aliens who are servlng as 
crewmembers aboard International air or sea camers to be subject to stnct controls. By definition, these 
rcs~ctions apply to an alien servlng in "any capacity on board a vessel or a~maft." MA 4 101(a)(10), 8 
U.S.C. 9 1 10 1 (a)(l O)(emphasis added). Approving an L- 1 B petition based on ordinary crewmember dut~es 
would thwan this statutory framework for the regulation of nonimmigrant crewrnembers. In this case, the 
beneficmy, as pilot and more spec~fically as "captarn," is merely operating m a capacity that 1s requlrcd for 
normal operation and service on board the aircraft. See Section lOl(a)(l5)(D)(i), 8 U.S.C. § 1 lOl(a)(l5)(D). 
For this reason, the AAO concludes that approving a petibon for a nonimmigant worker on behalf of an allen 
who is golng to perform ordinary crewmember duties would involve "an irnrned~ately obv~ous or glaringly 
notleeable mistake." Delta Air Lines, sllp opinion at 4. The Texas Servlce Center d~rector correctly 
concluded that her approval of the L-1B pet~tion lnvolved gross error, and should be revoked. 
In vrsa petition pmceedlngs, the burden of proving eligihll~ty for the benefit sought rema~ns entlrely w~th the 
petitioner. Sectlon 291 of the Act, 8 U.S.C. 1361. Here, that burden has not been met. Accordingly, the 
director's decls~on will be affirmed and the petltion wlll be denied. 
ORDER: The appeal is dismissed.