dismissed L-1B Case: Aviation

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PUBLICCOpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: LIN 06 12451939 Office: NEBRASKA SERVICE CENTER Date: cx:T G~ •
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.c. § llOl(a)(l5)(L)
ON 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.
.~
Robe .ematm:hief
Administrative Appeals Office
www.uscis.gov
LIN 0612451939
Page 2
DISCUSSION: The Director, Nebraska 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 corporation registered in the State of Alaska, claims to be engaged in specialty aerial work
and the operation of an air taxi service. It seeks to extend the temporary employment of the beneficiary as a
helicopter pilot 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. § 1101(a)(15)(L). The beneficiary was initially granted a two-year period
of stay in L-1B classification to work in the petitioner's new office and the petitioner now seeks to extend his
status.
The director determined that the petitioner had not established that (l) a qualifying relationship existed
between the petitioner and the foreign employer; (2) the beneficiary possessed specialized knowledge; or (3)
the intended employment in the United States required specialized knowledge.
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 claims that the director's decision was
erroneous, and submits arguments in support of the petitioner's claimed compliance with the regulatory
requirements.
To establish L-1 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)(l5)(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.
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The first issue in the present matter is whether the petitioner and the foreign organization are qualified
organizations as defined by 8 C.F.R. § 214.2(l)(1)(ii)(G). The regulation defines the term "qualifying
organization" as a United States or foreign firm,corporation, or other legal entity which:
(1) Meets exactly one of the qualifying relationships specified in the defmitions 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)(l 5)(L) ofthe Act.
Additionally, the regulation at 8 C.F.R. § 214.2(l)(l)(ii) provides:
(1) "Parent" means a firm, corporation, or other legal entity which has subsidiaries.
(J) "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
LIN 0612451939
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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.
In this case, the petitioner claims that the U.S. entity is the subsidiary of the foreign employer, Prism
Helicopters Ltd., located in British Columbia, Canada. In support of this contention, the petitioner claimed on
the L Classification Supplement to Form 1-129 that the foreign entity owned 49% of the petitioner.
In a letter from counsel dated March 7,2006, more details regarding the petitioner's ownershi were supplied.
Specifically, counsel stated that the foreign entity owned 49% of the petitioner, and resident of
the petitioner, owned 51%. With regard to the foreign entity, counsel stated that 1t " irects and makes all
major decisions affecting [the petitioner], including financial, accounting and payroll administration."
Also submitted with the initial petition were three stock certificates, which demonstrated the following claims
of ownership:
510 Voting Shares
120 Voting Shares
370 Non-Voting Shares
On April 18,2007, the director requested additional evidence. Specifically, the director noted that the Soloys
appeared to own and control the petitioner based on their 51% ownership and 75% interest in the voting
shares of the company. The director requested evidence explaining how the foreign entity, as minority
shareholder with 49% ownership and only 25% of the voting shares, was in fact in control of the petitioner as
claimed.)
Counsel responded on July 7,2007. In response to the director's request, a document entitled "Agreement of
Control between Prism Helicopters Ltd. (Prism Canada) and Prism Helicopters Inc. (Prism USA). was
submitted. This document, which was undated, unsigned, and labeled "DRAFT" at the top of the page,
indicated that the share and voting stock structure of the petitioner was formed in a manner which would
satisfy FAA requirements, and that overall control of the petitioner would be maintained by i sole
owner of Prism Canada. The agreement further indicates that when .ttained U.S. citizenship, all
shares and voting stock would be transferred to Prism Canada.
Upon review of the evidence submitted, the director concluded that the record was insufficient to support a
finding that the foreign entity owned and controlled the petitioner, such that a parent-subsidiary relationship
existed. The director subsequently denied the petition on August 15, 2006. The petitioner appealed the
decision, asserting that the control agreement submitted in response to the request for evidence clearly
established that the foreign entity controlled the petitioner.
) It is noted for the record that the director misstated the percentage of voting shares owned by each party. As
a percentage of the voting shares issued, it appears that the Soloys own 81% and the foreign entity owns 19%,
not 75% and 25%, respectively.
LIN 0612451939
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The regulation and case law confirm that ownership and control are the factors that must be examined in
determining whether a qualifying relationship exists between United States and foreign entities for purposes
ofthis visa classification. Matter ofChurch Scientology International, 19 I&N Dec. 593 (BIA 1988); see also
Matter ofSiemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 18 I&N Dec. 289
(Comm. 1982). In context of this visa petition, ownership refers to the direct or indirect legal right of
possession of the assets of an entity with full power and authority to control; control means the direct or
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter
ofChurch Scientology, 19 I&N Dec. at 595.
Upon review of the record of proceeding, the petitioner has not established that it has the required qualifying
relationship with the foreign entity.
In this case, the petitioner has provided documentary evidence in the form of three stock certificates which
outline the shareholder interests in the U.S. entity, and it has supplemented this evidence with a "control
agreement" and explanatory statements which discuss the nature of the foreign entity's role in the oversight of
the petitioner. The corporate stock certificates, on their face, indicate that the foreign entity owns 49% of the
petitioner and only 19% of the company's voting stock.
The definition of subsidiary pertains to 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.
The AAO will address each factor separately. First, based on the evidence submitted, it is clear that the foreign
entity does not own, directly or indirectly, more than half of the entity and control the entity. The record reflects
that the Soloys own more than half of the entity (51%) and that they control the entity (by virtue of owning 81%
of the voting shares in the company). Second, it is likewise clear that the foreign entity does not own, directly or
indirectly, half of the entity and control the entity, since the stock certificates reflect that the foreign entity owns
only 49% of the petitioner. Third, the foreign entity does not own, directly or indirectly, 50 percent of a 50-50
joint venture and have equal control and veto power over the entity. No claim of a joint venture is made in the
record, and the petitioner does not dispute the 51% versus 49% ownership ratio set forth in the stock certificates.
Therefore, the critical issue to examine in this matter is whether the foreign entity owns, directly or indirectly, less
than half of the entity, but in fact controls the entity. The first part of this definition is satisfied, since it is
undisputed that the foreign entity owns less than half of the petitioner (49%). The critical element, therefore, is
whether the foreign entity controls the petitioner.
Control may be de jure by reason of ownership of 51% of outstanding stocks of the other entity or it may be
de facto by reason of control of voting shares through partial ownership and by possession of proxy votes.
Matter of Hughes, 18 I&N Dec. at 293. Since the fact that the foreign entity is the minority owner of the
petitioner with 49% of the outstanding shares, the issue before the AAO is whether the foreign entity has de
facto control of the petitioner.
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In order to establish de facto control of an entity, the petitioner must provide agreements relating to the
control ofa majority of the shares' voting rights through proxy agreements. Id. A proxy agreement is a legal
contract that allows one individual to act as a substitute and vote the shares of another shareholder. See
Black's Law Dictionary 1241 (7th Ed. 1999). The agreement of two individuals to vote shares in concert does
not rise to the level of a proxy agreement that would give one individual control over the voting rights of a
majority of the issued shares.
According to the petitioner, the "control agreement" submitted for the record is sufficient to prove that the
foreign entity is in fact in control of all aspects of the U.S. entity. The petitioner indicates that the
disbursement of 81% of the voting shares to the Soloys is an attempt to comply with FAA regulations, and is
not indicative of the true control of the company. However, the absence of a ratified shareholders' agreement
or voting proxy raises doubts with regard to the validity of the petitioner's claim. The petitioner urges the
AAO to disregard the 510 voting shares of the Soloys, which represent 81% of the voting shares issued, and
instead rely on an unsigned and undated document which claims that _owner of the foreign entity,
in fact controls the petitioner. As stated above, such an informal agreement does not rise to the level of a
proxy agreement, and is not acceptable as proof of the foreign entity's right to vote the shares of the Soloys.
Based on the evidence presented, it is concluded that the petitioner and the foreign entity did not maintain a
parent-subsidiary relationship as of the filing date of this petition, and thus did not have a qualifying
relationship as required by the regulations.
The·second issue in this matter presents two related, but distinct, issues: (1) whether the beneficiary possessed
specialized knowledge as a result of 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:
For purposes of section 101(a)(l5)(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 ofthe company.
Furthermore, the regulation at 8 C.F.R. § 214.2(l)(l)(ii)(D) defines "specialized knowledge" as:
[S]pecial 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 from counsel dated March 7, 2006, the petitioner advised that the beneficiary had been employed
for over five years in the industry. The petitioner claimed that the beneficiary possessed a Canadian
commercial pilot's license, had received certificates for participating in numerous specialty training courses,
and held certificates for several ratings. The certificates provided indicate that the beneficiary completed
training in numerous programs such as pilot decision-making and transportation of dangerous goods,
programs which appeared to be recurring requirements for pilots to maintain their Canadian licenses.
Regarding his specialized knowledge, counsel stated:
LIN 06 12451939
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[The beneficiary] will continue to temporarily perform the duties of long line helicopter pilot.
[The beneficiary] is a fully licensed helicopter pilot. He has completed specialized training
courses offered for specialty aerial work by [the foreign entity] for Vertical Reference (Long
Line), drill moves on mining operations, placement of non-specific equipment with precision
up to 200-foot line, moving people and sling equipment from camp to camp, and has worked
as a helicopter pilot since 2000. [The beneficiary] is specially endorsed with
Counsel further stated that in the three years preceding the filing of the petition, the beneficiary was employed
abroad in Canada as a helicopter pilot specializing in fire fighting applications, seismic, and international
work.
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 det~iled request for evidence was issued on
April 18, 2006, 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 documentary evidence of what exactly the beneficiary possessed
specialized knowledge, including a more detailed description of the beneficiary's special or advanced duties.
The director also requested information pertaining to the petitioner's other employees, specifically those who
occupied the same or similar positions to that of the beneficiary. Furthermore, the director requested
information regarding the training the beneficiary has received.
In response to a request for additional evidence that the beneficiary possessed specialized knowledge and that
the proffered position required specialized knowledge, counsel explained that long line vertical reference
specialty flying is unusual and distinct, and that not all helicopter pilots are able to perform such a task. The
petitioner also submitted documentation regarding two training courses in the area of long line vertical flying,
which the petitioner provided to its pilots. According to the documentation provided regarding these courses,
which were labeled as "recruitment courses," the beneficiary and other similarly trained pilots would be
required to repeat these courses once per year. The petitioner further explained that not all commercial pilots
possessed the ability to perform this type of flying. Finally, counsel indicated that of the 609,737 FAA
acknowledged pilots in the United States and abroad, less than one percent of them are similarly licensed as
the beneficiary. A commercially licensed pilot, according to counsel, must obtain an additional 500 hours of
training to be licensed to fly for a commercial operation carrying passengers, such as the petitioner's
operation.
On August 15, 2006, the director denied the petition. The director determined that the record failed to
establish that the beneficiary possesses specialized knowledge or that the position of helicopter pilot with the
petitioner required an employee with specialized knowledge as defined by the regulations. The director
specifically noted that, while the beneficiary's position certainly required a skilled pilot, the record contained
no evidence that other similarly trained professionals in the industry could not perform the same duties. The
director concluded that the petitioner had failed to show that the beneficiary possessed special or advanced
knowledge of a product, process or procedure specific to the petitioner, or that the beneficiary's knowledge
gained as a result of his employment abroad was uncommon or noteworthy in comparison.
On appeal, counsel for the petitioner requests reconsideration of the beneficiary's qualifications, and claims
that the director erred by requiring the beneficiary's knowledge to be unique as opposed to merely specialized
LIN 0612451939
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or advanced. Counsel relies on a 1994 legacy Immigration and Naturalization Services (INS) memorandum
from then Associate Commissioner James A. Puleo in support of these claims.
The AAO disagrees. On review, the record does not contain sufficient evidence to establish that the
beneficiary 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) and (iv). 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 vague description of the beneficiary's duties, and concludes
that his knowledge of long line vertical reference flying gained abroad instilled him with specialized
knowledge which was carried over into his position in the United States. Specifically, the petitioner relies on
the fact that the beneficiary's attendance at the petitioner's training courses after obtaining a commercial
pilot's license distinguishes the beneficiary as an employee that is more than merely skilled.
Despite specific requests by the director, namely, what exactly set apart the beneficiary's knowledge from
other similarly trained persons in the field and what training he had received from the foreign entity to set him
apart from other similarly qualified individuals in the industry, no concrete evidence was submitted. The
petitioner has not sufficiently documented how the beneficiary's performance of his daily duties distinguishes
his knowledge as specialized. Despite counsel's vague explanations in response to the request for evidence,
most of which merely repeat the statements deemed insufficient from the initial petition, these claims do
nothing to distinguish the beneficiary from any other similarly-trained and educated person who has received
training in this specific area of long line vertical reference work. Furthermore, the record contains no
definitive evidence supporting the contention that the beneficiary's knowledge is uncommon or more
advanced compared to similarly trained professionals in the field. Despite the petitioner's claim that only a
small percentage of FAA recognized pilots are trained in this area, no documentation to support this claim has
been submitted. Going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter 0/Soffici, 22 I&N Dec. 158, 165 (Comm. 1998)
(citing Matter a/Treasure Craft a/California, 14 I&N Dec. 190 (Reg. Comm. 1972».
Moreover, there is no evidence in the record that the beneficiary received any specialized training in a specific
product or process of the petitioner, or a specific flying process or procedure implemented especially by the
foreign entity and its American counterpart. While the petitioner submits training certificates showing that
the beneficiary completed courses identified as FAA Part 133 and FAA Part 135, it appears that these courses
are annual training courses offered generally throughout the industry, and not especially by the petitioner.
There is no claim in the record that a specialized method or approach is offered by the petitioner which would
preclude other persons training in the field of helicopter piloting, which lack experience working for the
petitioner. The petitioner has failed to show that his period of employment abroad resulted in specialized
knowledge of the petitioner's products, processes or other interests which other similarly-trained pilots could
not have gained from working in the industry in general. Again, however, the major issue is that counsel and
the petitioner have failed to support their claims with corroborating evidence. Id.
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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 for one year in a qualifying
capacity abroad, both prior to adjudication and again on appeal. However, these assertions do not constitute
evidence. Again, going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Id. The petitioner's failure to provide sufficient evidence
of the beneficiary's training and experience renders it impossible to conclude that the beneficiary's
employment abroad or in the United States requires specialized knowledge.
Moreover, counsel alleges that CIS is not following its own policy guidelines as to the nature of specialized
knowledge. Specifically, counsel asserts that the director erred by requiring the beneficiary's knowledge to
be proprietary or unique. See Memo. from cting Exec. Assoc. Commr., Office of
Operations, Immigration and Naturalization Serv., to All Dist. Dir. et aI., Interpretation of Special
Knowledge, 1-2 (March 9, 1994) (copy on file with Am. Immig. Law Assn.). However, while the petitioner
need not establish that the beneficiary's knowledge is proprietary or unique, the knowledge must be different
or uncommon. Id. As discussed above, the peti(ioner has not established that the beneficiary's knowledge
meets this lesser, but still strict, standard. On appeal, counsel simply restates the previously submitted
description of the beneficiary's duties and the knowledge they require and asserts that, since the beneficiary is
one of ten out of forty pilots who possesses knowledge of long line vertical reference work, he has
consequently satisfied the definition of specialized knowledge. Additionally,prior to adjudication and again on
appeal, the petitioner alleges that the beneficiary's knowledge is valuable to the petitioner's productivity,
competitiveness, and financial position. While the beneficiary's skills and knowledge may contribute to the
success of the petitioning organization, this factor, by itself, does not constitute the possession of specialized
knowledge. While the beneficiary'scontributionto 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 c.P.R. § 214.2(l)(l)(ii)(D). As determined above, the beneficiary does
not satisfy the requirementsfor possessing specializedknowledge.
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 ofRaulin, 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
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 of Penner 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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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.
Id. at 53.
In the present matter, the evidence of record is minimal and severely restricts the AAO from drawing any
reasonable conclusions about the beneficiary's qualifications. However, absent evidence to the contrary, it
appears that at best, the beneficiary is more akin to an employee whose skills and experience enable him to
provide a specialized service, based on his first-hand exposure to the long line vertical reference techniques,
rather than an employee who has unusual duties, skills, or knowledge beyond that of an educated and/or
skilled worker. It is reasonable to conclude that the flying technique employed by the beneficiary is not
restricted to the petitioner's business alone, and thus other similarly trained pilots are present in the United
States and undoubtedly have received the same training. Again, since the petitioner has failed to demonstrate
a specific methodology or process of the petitioner of which the beneficiary has obtained specialized
knowledge, it is reasonable to conclude that other similarly trained pilots could achieve the same level of
knowledge as the beneficiary by attaining the same education and simply working in the industry for an equal
number of 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 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 etitionin company that is "of crucial importance." Webster's II New
College Dictionary 605 . As discussed above, counsel's main argument is that
the beneficiary's skills, and specifically his knowledge of long line vertical flying and reference work, are
extremely important to the petitioner, since they enable the petitioner to compete effectively in the
marketplace. While this is one important factor in determining specialized knowledge, this factor alone
cannot serve as the basis for the petitioner's claim. Merely asserting on appeal that the beneficiary is valuable
to the petitioner's competitiveness in the industry, without discussing any other characteristics or training
unique or special to the beneficiary to set him apart from similarly trained persons in the petitioner's industry
is insufficient to satisfy the petitioner's burden of proof. Without documentary evidence to support the claim,
the unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533,
534 (BIA 1988); Matter ofLaureano, 19 I&N Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec.
503,506 (BIA 1980).
Contrary to counsel's arguments, all employees, in general, 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. On appeal, counsel asserts
that 25% (10 out of 40) of the petitioner's helicopter pilots are trained in the manner of the beneficiary.
Accordingly, based on the definition of "specialized knowledge" and the Congressional record related to that
LIN 06 124 51939
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tenn, 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 training and on-the-job experience he received abroad rendered him
uniquely or especially skilled in the area claimed. Therefore, 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. While the beneficiary's contribution to the success of the company
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. § 214.2(l)(1)(ii)(D). Mere skill or
knowledge in 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 does not possess specialized knowledge, was not employed abroad in a position involving
specialized knowledge, and would not be employed in the United States in a capacity requiring specialized
knowledge. For this reason, the appeal will be dismissed.
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), afJ'd. 345 F.3d 683
(9th Cir. 2003).
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.