dismissed L-1B Case: Aviation

~dentifjbg data deleted to 
pweMdoerb unrrPladed 
b-nd-m 
US. Departmenl of Homeland Security 
20 Mass. Ave, N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(] 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj I 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the 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. 
Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, initially approved the petition for a nonimmigrant visa. 
Upon further review, the director determined that the beneficiary was not eligible for the benefit sought. 
Accordingly, the director properly served the petitioner with notice of her intent to revoke the approval and 
subsequently ordered that the approval be revoked. The matter is now before the Administrative Appeals 
Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner seeks to employ the beneficiary temporarily in the United States as a nonimmigrant 
intracompany transferee with specialized knowledge (L-IB) pursuant to section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. fj 1101(a)(15)(L). The petitioner is a corporation 
organized in the State of Florida that is a branch of . (Iberia), an 
international air carrier established and existing under the laws of Spain. The petitioner serves as the U.S. 
Headquarters for Iberia and seeks to employ the beneficiary as a First Officer (Co-Pilot) who will assist in 
commanding the airline's Airbus and aircraft. 
After properly issuing a notice of intent to revoke, and after reviewing the petitioner's rebuttal to that notice, 
the director revoked the approval, finding that the approval of the original petition involved gross error in that 
the beneficiary did not qualify for the classification sought. Specifically, the director determined that the 
petitioner had not established that the beneficiary possessed specialized knowledge such that the beneficiary 
could qualify for an L-IB visa, and, more specifically, that the L-1B classification sought was erroneous in 
light of the existing visa classification for nonimmigrant crewmembers under section 101(a)(15)(D) of the 
Act, 8 U.S.C. $ 1 101(a)(15)(D). 
Counsel for 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 submits a brief and additional evidence 
and asserts that the director's decision was arbitrary and capricious and contrary to law. Specifically, counsel 
contends that the director: (1) failed to distinguish the inherent differences involved in piloting a state-of-the- 
art commercial jet airliner and any other aircraft; (2) failed to distinguish between the type of commercial jet 
aircraft operated by the petitioner and its U.S. competitors; and (3) failed to adhere to the requirements for 
specialized knowledge as outlined in a 1994 Immigration and Naturalization Service (now Citizenship and 
Immigration Services (CIS)) memorandum. Counsel fails to contest the director's finding that the initial 
approval of the petition constituted gross error, and further fails to acknowledge the alternative visa 
classification available to the beneficiary in light of his stated position. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the Act. 
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. 5 214.2(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 (l)(l )(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 himher 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. 
The primary issue in this matter is whether the approval of the initial petition constituted gross error. 
However, before a concise review of this issue can be performed, it is necessary to examine the history of this 
petition and the circumstances that led to the petition's revocation. As previously stated, the initial petition 
sought to classify the beneficiary as a nonimrnigrant transferee with specialized knowledge. Section 
214(c)(2)(B) of the Act, 8 U.S.C. 5 1 184(c)(2)(B), provides the following: 
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(1)(l)(ii)(D) defines "specialized knowledge" as: 
[Slpecial 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 a letter dated April 9, 2003, counsel for the petitioner provided an overview of the beneficiary's 
background and experience. Counsel explained that the beneficiary had been employed by the petitioner 
since 1992 as a First Officer. More specifically, counsel indicated that the benefici had be n econd in 
command of the petitioner's Airbus series of aircraft, as well as the hnd aircraft. 
Additionally, a letter fiom the petitioner dated April 4, 2003 alleged t at the training provided by the 
petitioner to the beneficiary, and all of its pilots, was proprietary because it had "been developed since [the 
petitioner] was in its infancy," and further stated that such training was unique to the petitioner. The 
petitioner alleged that the trainlng provided to the beneficiary and the petitioner's other pilots, which consisted 
of classroom instruction, computerized instruction systems, flight simulators, and actual flight time, provided 
the pilots with specialized knowledge of the petitioner's commercial activities. 
Page 4 
With specific reference to the beneficiary, the petitioner stated that pilots that possessed his extensive career 
and training were the ideal candidates to be transferred to the United States to co-manage the petitioner's 
Miami-based flight routes. The petitioner contended that in order to qualify for this United States-based 
position, the beneficiary was required to have completed the petitioner's extensive training programs as well 
as meeting all licensure and aircraft certification requirements which requires extensive prior flight 
experience. The petitioner finally discussed the beneficiary's responsibilities as a First Officer of the Airbus 
senes of aircraft, and explained that the beneficiary assists with the command of the aircraft and is responsible 
for the safety and well-being of all passengers aboard the aircraft, as well as the aircrafl itself. 
The petitioner further discussed the unique circumstances governing the petitioner's Miami-based flight routes 
and the requirements to fly such routes. First, it alleged that all pilots must be Spanish nationals licensed by 
the Spanish government, since the petitioner is based in Spain. Additionally, it asserted that the pilots flying 
these routes were also subject to European and American licensing requirements under the JAR and FAA. 
Finally, the petitioner discussed the difference between the Airbus series of aircraft versus the Boeing series, 
and concluded that only a pilot trained to operate the Airbus series of aircraft by the petitioner would be 
qualified to piIot aircraft on these routes. Essentially, the petitioner's main assertions were that the 
beneficiary met the licensing requirements and possessed knowledge of the Airbus series of aircraft which 
enabled him to perform the duties associated with the petitioner's Miami-based routes. Finally, in concluding 
that its routes to and from Miami were proprietary in nature, the petitioner concluded that the beneficiary 
possessed the requisite specialized knowledge to properly qualify for a nonimmigrant visa under this 
category. 
The director agreed with counsel's preliminary assertions, and approved the petition for the period from April 
17, 2003 through December 28, 2005. After subsequent review of the file, however, the director issued a 
notice of intent to revoke the petition on October 20, 2003. 
The director determined that the beneficiary's claimed specialized knowledge, obtained during his 
employment with the petitioner, was more akin to the routinely obtained knowledge and training by all pilots 
in the profession. Specifically, the director noted that the petitioner had failed to show that the beneficiary's 
alleged knowledge was unique to the beneficiary, or that the beneficiary was 
outlined in the December 20, 2002 Memorandum for all Service Center Directors by Associate 
Commissioner, on the "Interpretation which 
Specialized Knowledge" memorandum by Additionally, the director 
found that the petitioner had failed to specialized knowledge was a 
direct result of his training and experience with the petitioner.' 
The petitioner filed a response to the notice of intent to revoke on November 11, 2003. In the response, 
counsel alleged that the director failed to consider the occupational requirements of pilots as set forth in the 
I 
The AAO further notes that the notice of intent to revoke also discussed the beneficiary's ineligibility for the 
visa classification in the event that the petitioner was seeking approval under a blanket petition granted in 
2002. As the petitioner subsequently confirmed that the classification was being sought under the individual 
petition, it is not necessary to further discuss this issue. 
Page 5 
Occupational Outlook Handbook, published by the U.S. Department of Labor, and further disregarded the 
licensing requirements for pilots operating aircraft under foreign carriers. By disregarding these provisions, 
counsel alleged that the director failed to acknowledge the unique requirements that must be met by pilots 
who will operate aircraft in the United States for foreign carriers. 
Additionally, the petitioner alleged that the distinction between the Airbus and Boeing series of aircraft was 
essential to this matter. Specifically, counsel asserted that since the petitioner and only two other caniers 
operated the Airbus series of aircraft out of Miami, pilots who were qualified to fly the Airbus series of 
aircraft and who were simultaneously familiar with the Latin America routes associated with the Miami hub 
were unusual and exceptional, and thus, since the beneficiary was one of these such pilots, he possessed the 
requisite specialized knowledge. 
Finally, counsel contested the director's reliance on th- memoranda. Counsel contended that 
the director's assertion that the beneficiary's knowledge is merely general, and not specialized, was erroneous 
in that the director ignored the large and voluminous evidence provided with the petition. Counsel claimed 
that the director's conclusion that no documentary evidence was provided to support the claimed speciaIized 
knowledge was flawed. and reasserted that the beneficiary's advanced training and experience equipped him 
with the specialized knowledge required for the visa classification. In his final summation, counsel requested 
reconsideration based on the beneficiary's skills and abilities in operating the Airbus series of aircraft, an 
aircraft which counsel asserted was not widely used by other companies. 
The director was not persuaded by counsel's numerous arguments. Consequently, the director issued a notice 
of revocation on December 4,2003. In the notice, the director concluded that the occupation of pilot is not an 
extraordinary occupation reserved for a few elite members. Instead, the director noted that the requirements 
for obtaining a pilot's license are routinely universal throughout the industry, and although the beneficiary had 
admittedly learned to fly the Airbus serles of aircraft while employed by the beneficiary, the Airbus series is 
not exclusive to the petitioner. Furthermore, the director found that the petitioner had failed to demonstrate 
how the training provided to the beneficiary through his course of employment with the petihoner differed 
from the training and experience he may have gained from a competitor airline. 
Finally, and perhaps most importantly, the director noted that the petitioner admitted to spending millions of 
dollars on training for its pilots. This statement indicates that all of the petitioner's pilots receive similar if not 
the same training, and although the petitioner submitted documentary evidence which outlined this training, 
there was no evidence pertaining to the beneficiary's personal training history. The director noted that while 
the petitioner's stated training and education program for its pilots was certainly extensive, there was no 
documentation in the record which established that the beneficiary had successfully completed this training. 
Since the record was devoid of particuIar documentation which would establish the beneficiary's specific and 
specialized training in the field, the director found that the petitioner had not satisfied its burden for purposes 
of this proceeding. 
In conclusion, the director noted that the Immigration and Nationality Act clearly specified a nonimmigrant 
classification that is specifically structured toward pilots. Under Section 101(a)(10) of the Act, 8 U.S.C. 5 
1101(a)(10), a "crewman" is defined as "a person serving in any capacity on board a vessel or aircrafi." The 
director concluded that without question, a pilot serves "in a capacity required for normal operation and 
service on board . . . an aircraft." Id. section 10l(a)(l 5)(D)(i) of the Act, 8 U.S.C. 5 1 101(a)(15)(D). The 
director determined that the beneficiary, as a nonimmigrant pilot, would properly fit under this visa 
classification and not the classification requiring specialized knowledge, and subsequently revoked the 
approval of the initial petition. 
Counsel submits a lengthy brief on appeal in support of the petitioner's assertions that the beneficiary 
possesses specialized knowledge. Counsel restates the points raised in the response to the notice of intent to 
revoke, and continues to assert that the beneficiary possesses specialized knowledge and thus qualifies for the 
visa classification prescribed under section 101 (a)(15)(L) of the Act, 8 U.S.C. § 1 10 1 (a)(15)(L). Counsel, 
however, fails to address the director's distinction of the D crewman visa classification from the L visa 
classification, and neglects to address the basis upon which the director revoked the petition. 
Upon review of the record of proceeding, the AAO concurs with the director's conclusion that the beneficiary 
does not possess specialized knowledge. The petitioner failed to distinguish the beneficiary's training and 
experience from that of his co-workers or from other similarly trained pilots in the industry. Undoubtedly, the 
petitioner is not the only airline which operates the Airbus series of aircraft. Although the beneficiary's 
training is impressive and noteworthy, there is nothing in the record that indicates that his ability to operate 
this aircraft distinguishes him from other equally qualified pilots in the industry. Additionally, the petitioner 
fails to provide documentation that the beneficiary received training or work assignments focused specifically 
on the Airbus aircraft. While the petitioner, through counsel, asserts that the beneficiary is virtually an expert 
wlth specialized knowledge, the lack of specificity pertaining to the beneficiary's work experience and training, 
particularly in comparison to others employed by the petitioner and in ths industry, fails to distinguish the 
beneficiary's knowledge as specialized. Without documentary evidence to support the claim, the assertions of 
counsel will not satisfy the petitioner's burden of proof. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 
1988); 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. 1 17, 120 (Comm. 1981) (citing Matter of Raulin, 13 I&N Dec. 61 8 
(R.C. 1970) and Matter of LeBlanc, 13 I&N Dec. 8 16 (R.C. 1971)).~ As stated by the Commissioner in 
2 Although counsel refers to numerous exhibits that accompany the appeal brief in support of these 
contentions, the documentation provided is insufficient to warrant a conclusion that the beneficiary possesses 
the requisite specialized knowledge required by the regulations. For example, the Basic Manual of 
Operations, with which it contends its pilots are required to be familiar, is provided in support of counsel's 
allegation that the beneficiary's knowledge is specialized and proprietary. The voluminous training manuals 
of the petitioner, however, do not establish that the beneficiary actually completed the required training. 
3 Although the cited precedents pre-date the current statutory definition of "specialized knowledge," the AAO 
finds them instructwe. 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 
Matter of Penner, 18 I&N Dec. 49, 52 (Cornrn. 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 ~Iassifrcations sought." Rather, the beneficiaries were considered to have 
unusual duties, skills, or knowledge beyond that of a slulled 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 cany out a key process or function which is important or essential to the 
business' operation. 
Id. 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, slulls, or knowledge beyond that of a skilled worker. 
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., "[slimply 
put, specialized knowledge is a relative . . . idea which cannot have a plain meaning." 745 F. Supp. at 15. 
Looking to the intent of Congress, the Congressional record specifically states that the L-1 category was 
intended for "key personnel." See generally, H.R. REP. No. 91-851, 1970 U.S.C.C.A.N. 2750. The term "key 
personnel" denotes a position within the petitioning company that is "of crucial importance." Webster's N 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. 
Accordingly, 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. 
Here, the petitioner makes no claim that the beneficiary's knowledge is more advanced than other employees, 
nor did the petitioner distinguish the beneficiary's knowledge, work experience, or training from the other 
employees. The lack of evidence in the record makes it impossible to classify the beneficiary's knowledge of 
the petitioner's commercial operations and of the Airbus series of aircraft specialized, and precludes a finding 
that the beneficiary's role is "of crucial importance" to the organization. Simply going on record without 
supporting documentary evidence is not sufficient for the purpose of meeting the burden of proof in these 
the Committee was recommending a statutory definition because of "[vlarying [i.e., not specifically incorrect] 
interpretations by INS," H.R. Rep. No. 101-723(I), 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 usefkl guidance concerning the 
intended scope of the "specialized knowledge" L-lB classification. 
proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of 
Calqornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). While it may be correct to say that the beneficiary is a 
highly slulled and productive employee, this fact alone is not enough to bring the beneficiary to the level of 
"key personnel." 
Moreover, in Matter of Penner, the Commissioner discussed the legislative intent behind the creation of the 
specialized knowledge category. 18 l&N Dec. 49 (Comm. 1982). The decision noted that the 1970 House 
Report, H.R. No. 91-85 1, stated that the number of admissions under the L-1 classification "will not be large" 
and that "[tlhe class of persons eligible for such nonimrnigrant visas is narrowly drawn and will be carefully 
regulated by the Immigration and Naturalization Service." Id. at 51. The decision further noted that the House 
Report was silent on the subject of specialized knowledge, but that during the course of the sub-committee 
hearings on the bill, the Chairman specifically questioned witnesses on the level of skill necessary to qualify 
under the proposed "L" category. In response to the Chairman's questions, various witnesses responded that 
they understood the legislation would allow "high-level people," "experts," individuals with "unique" skills, 
and that it would not include "lower categories" of workers or "skilled craft workers." Matter of Penner, id. at 
50 (citing H.R. Subcomm. No. 1 of the Jud. Comm., Immigration Act of 1970: Hearings on H.R. 445, 91st 
Cong. 2 10,2 18,223,240,248 (November 12, 1969)). 
Reviewing the Congressional record, the Commissioner concluded in Matter of Penner that an expansive 
reading of the specialized knowledge provision, such that it would include shlled workers and technicians, is 
not warranted. The commissioner emphasized that that the specialized knowledge worker classification was 
not intended for "all employees with any level of specialized knowledge." Matter of Penner, 18 I&N Dec. at 
53. Or, as noted in Matter ofColley, "[mlost employees today are specialists and have been trained and given 
specialized knowledge. However, in view of the House Report, it can not be concluded that all employees 
with specialized knowledge or performing highly technical duties are eligible for classification as 
intracompany transferees." 18 I&N Dec. at 119. According to Matter of Penner, "[sluch a conclusion would 
pennit extremely large numbers of persons to qualify for the 'L-1' visa" rather than the "key personnel" that 
Congress specifically intended. 18 I&N Dec. at 53; see also, 1756, Inc., 745 F. Supp. at 15 (concluding that 
Congress did not intend for the specialized knowledge capacity to extend all employees with specialized 
knowledge, but rather to "key personnel" and "executives. ") 
Counsel also alleges that CIS is not following its own guidelines as to the nature of specialized knowledge. 
Specifically, counsel refers to the December 20, 2002 Memorandum for all Service Center Directors by Fujie - - 
Ohata, Associate Commissioner, on the "Interpretation of Specialized Knowledge," which adopts the 
"Interpretation of Specialized Knowledge" memorandum by ated March 9, 1994. Relying 
on this memorandum, counsel asserts that CIS of "uniqueness" upon the 
beneficiary's duties when evaluating the evidence, and contends that an examination of the previously 
submitted description of the beneficiary's duties and knowledge shows that he has consequently satisfied the 
definition of specialized knowledge. Furthermore, counsel contends that the beneficiary's knowledge of the 
petitioner's business practices is specialized and cannot be replicated. While the beneficiary's skilIs and 
knowledge may contribute to the successfulness of the petitioning organization, thls factor, by itself, does not 
constitute the possession of specialized knowledge. 
The AAO notes that, with regard to counsel's reliance on the 2002 Associate Commissioner's memorandum, the 
memorandum was intended solely as a guide for employees and will not supersede the plain language of the 
statute or regulations. Although the memorandum may be usehl as a statement of policy and as an aid in 
interpreting the law, it was intended to serve as guidance and merely reflects the writer's analysis of the issue. 
Therefore, while the beneficiary's contribution to the economic success of the corporation 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 C.F.R. 5 214.2(1)(l)(ii)(D). As determined above, the beneficiary does 
not satisfy the requirements for possessing specialized knowledge. 
In the present matter, the petitioner has failed to demonstrate that the beneficiary's training, work experience, or 
knowledge of the company's operational procedures and of the Airbus series of aircraft and its application in 
international markets is more advanced than the knowledge possessed by others employed by the petitioner, or in 
the industry. It is clear that the petitioner considers the beneficiary to be an important employee of the 
organization. The AAO, likewise, does not dispute the fact that the beneficiary's knowledge has allowed him to 
competently perform his job in the foreign entity. However, the successful completion of one's job duties does 
not distinguish the beneficiary as "key personnel," nor does it establish employment in a specialized knowledge 
capacity. 
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 does not possess specialized knowledge; nor would the beneficiary be employed in a capacity 
requiring specialized knowledge. 
Since the issue of specialized knowledge in this matter has been thoroughly addressed, the AAO will now 
examine the basis for the director's revocation of the petition. On appeal from the revocation for 
nonimmigrant worker, the issue is not, strictly speaking, whether the beneficiary qualifies for the specific 
nonimmigrant classification. Even if the Service Center mistakenly approved an L-1B petition for an alien 
who does not qualify for L-IB status, that fact alone would not warrant revocation of the approval. Under 8 
C.F.R. $ 214.2(1)(9)(iii)(A)(5), only "gross error," and not simple mistake, warrants revo~ation.~ 
The primary issue in this matter is whether the approval of the initial petition constituted gross error. Under 
CIS regulations, the approval of an L-IB petition may be revoked on notice under six specific circumstances. 
8 C.F.R. 6 214.2(1)(9)(iii)(A). To properly revoke the approval of a petition, the director must issue a notice 
of intent to revoke that contains a detailed statement of the grounds for the revocation and the time period 
allowed for rebuttal. 8 C.F.R. § 214.2(1)(9)(iii)(B). 
4 
The AAO notes that the "gross error" standard applies to revocation of H, 0 and P nonimmigrant worker 
petitions, as well as to L petitions. 8 C.F.R. $5 2 14.2(h)(1 l)(iii)(A)(S), (0)(8)(iii)(A)(S) and (p)(lO)(iii)(A)(S). 
In the present matter, the director provided a detailed statement of the grounds for the revocation. Referring 
to the eligibility criteria at 8 C.F.R. 5 214.2(1)(3)(ii), the director reviewed the rebuttal evidence and 
concluded that the petitioner had not established that the beneficiary's position as a pilot, and more 
specifically titled as a First Officer, required specialized lcnowledge to the extent that it qualified for approval 
under the L-1B category, particularly in light of the regulations at INA 5 101(a)(10) and (1 5)(D) and 8 U.S.C. 
5 1 101 (a)(10) and (1 5)(D), which are specifically tailored toward nonimmigrant crewrnembers, including 
pilots and captains. The director subsequently revoked the approval on the basis of 8 C.F.R. 
5 2 14.2(1)(9)(iii)(A)(S): "Approval of the petition involved gross error." 
The term "gross error" is not defined by the regulations or statute. Furthermore, although the term has a 
juristic ring to it, "gross error" is not a commonly used legal term and has no basis in jurisprudence. See 
Black's Law Dictionary 562, 710 (7th Ed. 1999)(defining the types of legal "error" and legal terms using 
"gross" without citing "gross error"). The word "gross" is commonly defined first as "unmitigated in any 
way: UTTER," as in "gross negligence." Webster's I1 New College Dictionary 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 in the Federal Register. The term "gross error" was first used in the 
regulations relating to the revocation of a nonimmigrant L-1 petition. In the 1986 proposed rule, an L-1 
revocation 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 
"improvidently granted" might be given a broader interpretation than intended, the agency changed the final 
rule to use the phrase "gross error." 52 Fed. Reg. 5738, 5749 (Feb. 26, 1987)(Final Rule). As an example of 
gross error in the L-1 context, the drafter of the regulation stated: 
This provision was intended to correct situations where there was gross error in approval of 
the petition. For example, after a petition has been approved, it may later be determined that 
a qualifying relationship did not exist between the United States and the foreign entity which 
employed the beneficiary abroad. 
Id. In the context of the L-I nonimmigrant classification, the phrase "qualifying relationship" is a 
fundamental requirement for visa eligibility and is defined by the regulation. See 8 C.F.R. 
5 214.2(1)(l)(ii)(G). However, this element of eligibility is not a simple determination 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 I&N Dec. 
289 (Cornrn. 1982). As authorized by Congress, CIS is charged with the authority to make this determination 
based on the implementing regulations. See generally, section 2 14 of the Act, 8 U.S.C. 4 1 184. 
Accordingly, upon review of the regulatory history and the common usage of the term, the AAO interprets the 
term "gross error" to be an unmitigated or absolute error, such as an approval that was granted contrary to the 
requirements stated in the statute or regulations. Regardless of whether there can be debate as to the legal 
determination of eiigibility or whether there is a "clear answer," any approval that CIS determines to have 
been approved contrary to law must be considered an unmitigated error, and therefore a "gross error." This 
I I' 
Page 11 
view of "gross error" is consistent with the example provided in the Federal Register. See 52 Fed. Reg. at 
5749. 
Upon review, the present petition was properly revoked as the prior petition was approved in gross error; the 
petition was approved contrary to the eligibility requirements provided for in the regulations and because the 
proffered position requires classification under section lOl(a)(lS)(D) of the Act. 
Although the regulations do not define "gross error," the AAO notes the opinion of Judge Oberdorfer in Delta 
Air Lines, Inc. v, U.S. Department of Justice, No. 98-3050 (LFO) (D.D.C. Filed July 13, 1999). In Delta Air 
Lines, Judge Oberdorfer reversed the AAO's decisions affirming revocation of L-IB approvals for flight 
attendants, rejecting the AAO's conclusion that the approvals rested on gross error. As a non-precedent 
decision of a single District Court, his ruling on this point does not bind the AAO in unrelated cases. Matter 
of K-4, 20 I&N Dec. 715 (BL4 1993). Thus, Judge Oberdorfer's holding that there was no "gross error" in 
the Delta Air Lines case does not compel the same result here. 
First, the facts of this case make it readily distinguishable from the Delta Air Lines case. Delta Air Lines 
sought to describe the flight 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 Polish, and of 
Eastern European customs, according to Delta, distinguished them from flight attendants performing normal 
crew duties. In particular, Delta claimed that, in addition to normal crew duties, the flight attendants would 
5 Having examined the regulatory history of section 214.2(1)(9)(iii)(A)(5), as well as the common legal 
meaning of the term "gross," Judge Oberdorfer concluded that "gross error" is an "immediately obvious or 
glaringly noticeable mistake." Delta Air Lines, slip opinion at 4. Judge Oberdorfer also characterized "gross 
error" as a mistake that no reasonable person would make, because there would be no reasonable grounds to 
"debate as to the right answers." Id. 
Although the AAO defers to the decision of ludas it applies to the Delta Air Lines litigation, 
the AAO respectfully disagrees with the Court's interpretation of "gross error." By imposing a "reasonable 
person" standard on the interpretation of gross error, the Court's interpretation strips CIS of its authority to 
make eligibility determinations by applying its expertise as the agency charge with enforcing this section of 
law. See generally, section 214 of the Act, 8 U.S.C. tj 1184. Furthermore, the Court's "reasonable person" 
interpretation denies the agency its essential authority to correct erroneously approved petitions. 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 "right answer," despite the statutory requirements and the 
public policy established by Congress. Respectfully, it would be absurd to suggest that CIS or any agency 
must treat acknowledged errors as binding precedent. Sussex Engg. Lrd. v. Montgomery, 825 F.2d 1084, 1090 
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
The AAO notes that, when the issue came before ~ud~a~ain in a case not involving the "gross 
error" standard, he affirmed the AAO's conclusion that the flight attendants did not actually qualify as L-1B 
nonimmigrants. Delta 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 summarily. 2001 WL 1488616 (D.C.Ck. 2001). 
participate in training other flight attendants in skills specially suited to serving Eastern European clients. 
Judge concluded that a reasonable person could have found that the job duties, as described, 
qualified the beneficiaries as L-1B nonimmigrants. Id. slip opinion at 9-10. In the current case, by contrast, 
the petitioner claims that it is the beneficiary's specific duties as pilot that makes him eligible for L-1B 
classification. More specifically, the petitioner contends that the beneficiary's extensive training, and more 
particularly his ability to operate the Airbus series of aircraft, qualifies hm for this classification. 
Second, and more fundamentally, the petitioner's argument ignores the basic structure of the INA as it relates 
to alien crewmembers. Congress has provided a specific nonimmigrant visa classification for these aliens. 
WA 5 101(a)(10) and (15)(D), 8 U.S.C. 4 1101(a)(10) and (15)(D). Crewmembers are subject to special 
restrictions. These restrictions reflect the fiction that an alien crewrnember is "one of the agencies which 
brought the ship 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 failed to address or acknowledge this issue on appeal, the 
AAO finds it crucial to the outcome in this matter. 
The first distinction between crewmembers and other aliens who anive on a vessel or aircraft is that the 
crewmembers are not even subject to inspection, if they are not actually going to leave the vessel or aircraft. 
Matter of SS Greystoke Castle and M/V Western Queen, 6 I&N Dec. 112, 122 (BIA 1954; A.G. 1954). If the 
crewmember will remain aboard, no visa is required. Id. If the crewmember is supposed to remain on board, 
the carrier is subject to fine if the camer fails to prevent the crewmember fiom leaving the vessel or aircraft. 
INA § 254(a), 8 U.S.C. $ 1284(a). 
Second, if the crewmember is permitted to land, the crewmember is subject to more exacting restrictions than 
other nonimmigrants. A crewmember who seeks to land, like other nonimmigrants, is subject to inspection, 
and must have the appropriate visa. INA $6 212(a)(7)(B) and 235(a)(3), 8 U.S.C. 5s 1 182(a)(7)(B) and 
1225(a)(3). But if the crewmember is permitted to land, the crewmember must leave the United States on the 
same vessel or aircraft on which the crewrnember amved, unless the immigration inspector permits the 
crewrnember to leave on a different vessel or aircraft. INA 4 252(a), 8 U.S.C. 3 1282. In no case may a 
crewmember remain in the United States more than 29 days. Id. The carrier may not discharge the 
crewmember from employment while the crewrnember is in the United States without permission of the 
immigration authorities. Id. § 256, 8 U.S.C. $ 1286. 
If a crewmember absconds, but is apprehended before the vessel or aircraft leaves, the immigration authorities 
may expel the crewmember summarily, without having to resort to immigration court procedures. Id. $ 
252(b), 8 U.S.C. 5 1282(b). If an alien crewrnember is placed in removal proceedings, the alien crewmember 
is ineligible for cancellation of removal. Id. $240A(c)(l), 8 U.S.C. $ 1229b(c)(l). A crewmember is not 
eligible for adjustment of status, id. Q 245(c)(2), 8 U.S.C. 8 1225(c)(2), nor for a change of nonimrnigrant 
status, id. 248(1), 1258(1).~ 
Provided the underlying visa petition was timely filed, an alien crewmember can obtain relief fi-om the 
adjustment ineligibility if the alien pays the $1000 fee under INA 8 245(i), 8 U.S.C. 5 1255(i). 
This comprehensive statutory framework shows that Congress intended for aliens who are serving as 
crewmembers aboard international air or sea carriers to be subject to strict controls. By definition, these 
restrictions apply to an alien serving in "any capacity on board a vessel or aircraft." INA 9 101(a)(10), 8 
U.S.C. 1 lOl(a)(lO)(emphasis added). Approving an L-IB petition based on ordinary crewmember duties 
would thwart this statutory framework for the regulation of nonimmigrant crewmembers. In this case, the 
beneficiary, as pilot and more specifically as "first officer," is merely operating in a capacity that is required 
for normal operation and service on board the aircraft. See Section lOl(a)(lS)(D)(i), 8 U.S.C. 4 
1 10 1 (a)(I 5)(D). For this reason, the AAO concludes that approving a petition for a nonirnmigrant worker on 
behalf of an alien who is going to perform ordinary crewmember duties would involve "an immediately 
obvious or glaringly noticeable mistake." Delta Air Lines, slip opinion at 4. The Texas Service Center 
director correctly concluded that her approval of the L-1B petition involved gross error, and should be 
revoked. 
In visa petition proceedings, the burden of proving eligbility 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. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.