dismissed L-1B Case: Aviation

U.S. Department of Homeland Security 
20 Mass Ave. N.W . Rm. A3042 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
ERVICE CENTER Date: 
IN RE: Petitloner: 
Beneficiary: 
SEP 0 1 zcos 
Petit~on: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)( 15)(L) of the lmmlgrat~on 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This 1s the decision of the Adm~nistratlve Appeals Office in your case. All documents have been returned to 
the office that or~g~nally dec~ded your case. Any further inquiry must be made to that oftice. 
- *a--- - -./. '& 
&ert P. Wlemann, Dlrector 
Adm~n~strat~ve Appeals Office 
Page 2 
DISCUSSION: The Director, Tcxas Scrvlce Center, initially approved the petition for a nonimm~grant visa. 
Upon further review, 'the director determined that the benefic~ary was not el~g~ble for the benefit sought. 
Accordingly, the dir~ctor~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 Admlnistratlve Appeals 
Office (AAO) on appeal. The AAO will d~srniss the appeal. 
The petitioner seeks to employ the. beneficiary temporarily in the United States as a nonimmigrant 
intracompany transferee with specialized knowledge (L- 1 B). pursuant to section 1.0 1 (a)( 15)(L) of the 
Immigration and Nationality Act. (the Act), 8,,U.S.C. 5 1101(a)(15)(L). The petitioner is a coaoration 
organized in the State of Florida that is a branch of (fieria), an 
international air carrier established and existing under the laws of Spaln. The petitloner serves as the U.S. 
Headquarters for Iber~a and seeks to employ the beneficiary as a Captain who w~ll command the a~rlme's 
Alrbus 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 thc beneficiary 
could qualify for an L-IB visa, and, more specifically, that the L-IB 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. $ 1101(a)(15)(D). 
Counsel for the petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion, 
and forwarded thc appeal to the AAO for review.. On appeal; counsel submits a brief and additional evidence 
, and asserts that the diqctor'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 petit,on 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 cligibilily, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the Act. 
Specifically, with~n.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 managcriii, executive, or specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) further states that an ~nd~vldual pet~tion filed on Form 1-125) shall be 
accompanied by: 
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(i) Evidence that the petitioner and the organization which employed or will employ the alien are 
qualifying organizations as defined'in paragraph (I)(l)(ii)(G) of this section. 
(ii) Evidence that the alren will be employed in an executive, managerial, or specialized 
knowledge capacity, includihg a detailid 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 statcd. the initial petition 
sought to classify the beneficiary as a nonimmigrant trarisfcrec with specialized knowledge. Section 
2 14(c)(2)(B) of the Act, 8 U.S.C. 4 1184(c)(2)(B), provides the following: 
For purposes of sectlon 101(a)(15)(L), an allen 1s cons~dered to be servlng In a capaclty 
lnvolvlng special~zed knowledge w~th respect to a company if the alten has a specla1 
knowledge of the company product and ~ts applicat~on m lnternat~onal markets or has an 
advanced level of knowledge of processes and procedures of the company. 
Furthermore, the regulation at 8 C.F.R. 4 2 14.2(1)(l)(ii)(D) defines "specialized knowledgeM.as: 
[Slpec~al knowledge possessed by an ind~v~dual of the pct~t~onlng organrzat~on's product, 
servrce, research, equipment, techniques, management, or other Interests and its application In 
rnternat~onal markets, or an advanced level of knowledge or expertise In the organ~zat~on's 
processes and procedures. 
In a letter dated April 23, 2003, counsel for the petitioner provided an overview of the beneficiary's 
background and experience. Specifically, counsel explained that the beneficiary had been employed by the 
. petitioner for 22 years, and that he had held the position of Captain since 1996. Furthermore, counsel stated 
that the beneficiary had been acting as Captain for the petitioner's Airbus and series of 
aircraft since 2001. Counsel alleged that 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. Counsel .alleged that the training provided to the 
beneticiary and the petitioner's other piloti, 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, counsel stated that pilots that possessed his extensive career and 
training were the ideal candidates to be transferred to the United States to manage the petitioner's Miami- 
based flight routes. Counsel contended that in order to qualify for this United States-based position, the 
beneficiary was required to have accumulated, approximately twenty thousand hours of flight time in the 
capacity of First Officer. Counsel finally discusses the beneficiary's responsibilities as a Captain of the 
Airbus series of aircraft, and explained that the.beneficiary exercises complete command of the aircraft and 
. flight crews in additioh to being completely responsible for the safety and well-being of all passengers aboard 
the aircraft. 
Finally, counsel discussed the unique circumstances governing the petitioner's Miami-based flight routes'and 
. the requirements to fly Such routes. First, chunsel alleged that all pilots must be Spanish nationals licensed by 
the Spanish government, since the petitioner is based in Spain. Additionally, counsel asserted that the pilots 
flying these routes were also subject to European and American licensing requirements under, the JAR and 
FAA. Finally, counsel discussed the difference between the Airbus series of aircraft versus the Boeing sel'es, 
and concluded that only a pilot trained to operate the Airbus series of aircraf? by the petitioner would be 
qualified to pilot aircraft on these routes. Essentially, counsel's main asseitions 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 the 
petitioner's 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 a three-year period 
from May 12,2003 through May 12,2006. After subsequent review of the file, however, the director issued a 
notlce of intent to revoke the petition on December 5,2003. 
The direitor 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 responsible for its existence, as 
outlined in the December 20, 2002 Memorandum for all Service Center Directors by Fujie Ohata, Associate 
Commissioner, on the "lnterpretat~on of Specialized Knowledge," which adopts the "Interpretation of 
Specialized Knowledge" 'memorandum by James A. Puelo dated March 9, 1994. Additionally, the director 
found that the petitioner had failed to corroborate its claims that the beneficiary's specialized knowledge was a 
direct result of his training and experience with the 
The petitloner filed a response to the notice of intent to revoke on December 30, 2003. In the response, 
counsel alleged that the director faded to consider the occupat~onal requirements of pllots as set forth in the 
I The AAO further notes that the notice of intent to revoke also discussed the beneficiary's lnellglbllrty for the 
vlsa class~fication in the event that the petitioner was seeking approval under a blanket petitlon granted In 
2002. As the pet~t~oner subsequently confirmed that the classification was belng sought under the lndlvldual 
petltlon, ~t IS not necessary to further dlscuss thrs Issue. 
Pagc 5 
Occupational Outlook Handbook, published by thc U.S. Department of Labor, and further disregarded the 
licensing requirements for pilots operating aircrafi 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 carriers 
operated the Airbus series of aircraR 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 benefibiary was one of these such pilots, he possessed the 
requisite specialized knowledge. 
Finally, counsel contested the director's reliance on than-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 specialized 
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 bene.ficiaryls 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 January 27, 2004. 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 series 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 petitioner dlffered 
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 forits 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 particular 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 dtrector noted that the Immlgratlon and Nat~onallty Act clearly spec~fied a non~mmlgrant 
classlficat~on that 1s spec~fically structured toward pllots. Under Sect~on IOl(a)(lO) of the Act, 8 U.S.C. 4 
1 101(a)(10), a "crewman" is defined as "a person servlng In any capaclty on board a vessel or arcraft." The 
dlrector concluded that w~thout question, a pllot serves "m a capac~ty required for normal operation and 
service on board . . . an aircraft." Id. section 101(a)(15)(D)(i) of the Act, 8 U.S.C. 4 1 101(a)(15)(D). The 
dlrector detenn~ned that the beneficiary, as a nonimmigrant pilot, would properly fit under this visa 
classlficat~on and not the classification requiring specialized knowledge, and subsequently revoked the 
approval of the mitial pet~tion. 
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 pretxribed' under section 101(a)(1 s)(L) of .the Act, 8 U.S.C. $ 1 101(a)(15)(L). Counsel, 
however, failsto address the director's distinction of the 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 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 fr& 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 tr=ining or work assignments focused specifically 
on the Airbus aircraft. While the petitioner, through counsel, asserts that the beneficiary is virtually an expert 
with specialized knowledge, the lack of specificity pertaining to the beneficiary's work experience and training, 
particularly in coinpkison to, others employed by the petitioner and in this 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 Obaigbcna, 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 cons~der the importance of the 
beneficiary's knowledge of the bus~ness's product or servlce, management operations, or dec~s~on-making 
process. Matter of Collty, 18 I&N Dec. 1 17, 120 (Comm. 198 1 ) (cltlng Matter of Raultn, 13 I&N Dec. 61 8 
(K.C. 1970) and Matter of LeBlanc, 13 I&N Dec. 81 6 (R.C. 1971)).) As stated by the Commlssloner 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 ben,eficiaryTs knowledge is specialized and proprietary. The volhinous 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 instructive. Other than deleting the former requirement that specialized knowledge had to be 
"proprietary," the 1990 Act did not significantly alter the definition of "speci'alized 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 
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Matter of Penner, 18 I&N Dec. 49, 52 (~omm. 1982), when considering whether the beneficiaries possessed 
specialized knowledge, "the ZeBlanc and ~ahlin decisions did not find that the occupations inherently 
qualified the beneficiaries for the classifications sought." Rather; the beneficiaries were considered to have 
unusual duties. skills, or knowledge beyond that of a skilled worker. Id. The commissioner also provided the 
following clarif cation: 
A d~stinctlon can be made between a person whose slulls and knowledge enable him or her to 
produce a product through phys~cal or skilled labor and the person who 1s employed primarily 
for h~s abil~ty to carry out a key process or function which is ~mportant 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 kn~wledge'be~ond 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, hlc., "[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." ~ei?~enerall~, 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 II New 
College Dictionary 605 (Houghton Mifflin Co. 2001). In general, all employees can reasonably be 
considered "important" to a petitioner's enterprise. If an employee did not contribute to the overall economic 
success of an enterprise, there would be no rational economic reason to employ that person. .An employee of 
"crucial importance" or "key personnel" must rise above the level of the petitioner's average employee. 
Accordingly, based on the definition of "specialized knowlkdgew 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,petitionerls 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.othcr 
employees. The lack of evidence in'the.record makes it impossible to classify the beneficiary's knowlcdgc of 
the petitioner's commercial operations and of the Airbus series of aircrafi 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 recommend~ng a statutory defin~tlon because of "[vlarylng [i.e., not specifically incorrect] 
lntcrprelatlons by INS," H.R. Rep. No. 101-723(1), at 69, 1990 U.S.C.C.A.N. at 6749. Beyond that, the 
Comm~ttee 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, remaln useful gu~dance concerning the 
intended scope of the "specialized knowledge" L-1B class~ficatlon. 
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Page 8 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comrn. 1998) (citing Matter of Treasure Croft of 
Calfornia, 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 benefic~ary 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 I&N Dec. 49 (Comm. 1982). The decision noted that the 1970 House 
Report, H.R. No. 91-851, stated that the number of admissions under the L-1 .classification "will norbe large" 
and that "[tjhe class of persons eligible for such nonimmigrant 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 witnesseson the level of skill necessary to qualify 
under the proposed "L" category. In response to the Chairman's questions, various wimesses responded that 
they understood the' legslation would aUbw "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., ~mmi~tion Act of 1970: Hearings on H.R. 445, 9 1st 
Cong. 21 0,2 1 8,223,240,248 (November 12, 1969)). 
, . 2.. 
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 skilled 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 Pmner, 18 I&N Dec. at 
53. Or, as noted in Matter of Colley, "[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 transfe;ees." 18 1&N Dec. at 119. According to Matter of Penner, "[sluch a conclusion would 
permit extremely large numbers of persons to qualify for the 'L-1' .visav 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 inlend' 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 KnowIedge," 'which adopts the 
"Interpretation of Specialized Knowledge" memorandum by James A. Puelo;dated March 9, 1994. Relying 
on this memorandum, counsel asserts that CIS erroneously imposed a standard 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 skills and 
knowledge may contribute to the successfulness of the petitioning organization, ths factor, by itself, does not 
constitute the possession of specialized knowledge. 
The AAO notes that, w~th regard to counsel's rel~ance on the 2002 Assoc~ate Commiss~oner's memorandum, the 
memorandum was Intended solely as a gulde for employees and wlll 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 ald m 
interpreting the law, ~t was Intended to serve as guidance and merely reflects the wnter's analysis of the issue. 
Therefore, wh~le the benefictary's contrlbut~on to the economic success of the corporatton may be cons~dered, the 
regulations spec~fically requlre that the beneficiary possess an "advanced level of knowledge" of the 
organizatton's process and procedures, or a "specla1 knowledge" of the pehtioner's product, service. research, 
equipment, techn~ques, or management. 8 C.F.R. 5 214.2(1)(l)(n)(D). As determtned above, the benefictary does 
not sat~sfy the requtrements for possesstng speclallzed knowledge. 
In the present maher, the petitioner has failed to demonstrate that the beneficiary's training; work experience, or 
howledge of the coinpany'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.beneficiary1s 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 classificat'ion. Even if tlie Service Center mistakenly approved an L- I B petition for an alien 
who does not qualify for L-1 B status, that fact alone would not warrant revocation of the approval. Under 8 
, C.F.R. § 2 14.2(1)(9)(iii)(A)(S), only "gross error," and not simple mistake, warrants revocation.' 
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-1B petition may be revoked on notice under six specific circumstances. 
8 C.F.R. 5 214.2(1)(9)(iii)(A). To properly revoke the approval of a petition, the diiector 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. 4 2 14.2(1)(9)(iii)(~). 
' The AAO notes that the "gross error" standard appl~es to revocat~on of H, 0 and P nonlmmlgrant worker 
petltlons, as well as to L petmons. 8 C.F.R. $5 214.2(h)(l1)(111)(A)(5), (0)(8)(1il)(A)(5) and (p)(IO)(tn)(A)(5) 
m Page 10 
In the present matter, the director provided a detailed statement of the grounds for the revocation: Refemng 
to the elig~bility 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 Captain, required specialized knowledge to the extent that it qualified for approval 
under the L-1B category, particularly in light of the regulations at MA 4 101(a)(10) and (15)(D) and 8 U.S.C. 
1 10 1 (a)(l 0) and (1 5)(D), .which are specifically tailored ..toward nonimmigrant crewmembers, including 
pilots and captains. The director subsequently revoked the approval on the basis of 8 C.F.R. 
214.2(1)(9)(iii)(A)(5): . . "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 ~iction& 562, 710 (7th.Ed. 1999)(dCfining 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: UTrER," as in "gross negligence." Webster's TI 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 tm "gross error" was first used in the 
regulations relating to the revocation of a nonimrnigrant 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. 1859 1, 18598 
(May 2 1, 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-1 nonimrnigrant classification, the phrase "qualifying relationship" is' a 
fundamental requirement for visa eligibility and is defined by the regulation. See 8 C.F.R. 
9 214.2(1)(l)(ii)(G). However, this element of eligibility is hot 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 ~edical Systems, /nc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 
289 (Comm. 1982). As authorized by Congress, CIS is charged with the authority to make this determination 
based on the implementing regulations. &e generally, section 2.14 of the Act. 8 U.S.C. Q 1184. 
. , 
Accord~ngly, upon revlcw of the regulatory hlstory and the common usage of the term, the AAO Interprets the 
term "gross error" to be an unm~t~gated or absolute error, such as an approval that was granted contrary to the 
requuements stated In the statute or regulations. Regardless of whether there can be debate as to the legal 
determination of eligib~hty or whether there IS a "clear answer," any approval that CIS determines to have 
been approved contrary to law must be cons~dered an unm~t~gated error, and therefore a "gross error." Th~s 
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 pet~tlon was properly revoked as the pnor petltion was approved m gross error; the 
petlt~on was approved contrary to the eligibility requirements provided for In the regulations and because the 
proffered posltton requires classification under section 101(a)(15)(D) of the Act. 
Although the regulatidns do not define "gross error," the AAO notes the opinion of Judge Oberdorfer in Delta 
Air Lines, bzc. 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-1B approvals for flight 
attendants, rejecting the AGO'S conclusion'that the approvals rested on gross error. As a non-precedent. 
decision ~f a single D'istrict Court, his ruling on this point does not bind the AAO in unrelated cases. Matter 
of K-S-, 20 I&N Dec. 715 (BIA 1993). Thus, Judge Obirdorfer'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 dutiesin such a way as to make them appear different 'from nonnal 
crew duties. Cf Delta Air Lines, slip opinion at 6-9.. The flight attendants' knowledge of Polish, and of 
Eastern European customs, according to De1ta;distinguished them from flight attendants performi"g.~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 mist& 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 Judge ~berdorfer as it applies to the Della 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 2 14 of .the Act, 8 U.S.C. 4 1 184. Furthermore, the Court's "reasonable person" 
interprctaiion denies the agency. its essentia'l authority to correct erroneously approved petitions. Finally, the 
"reasonable person" standard imposed by the Court would have CIS let stand a petjtion that was approved 
contrary to law, as long as there is debate as to the "right answer," despite the statutory requirements and- the 
pub!ic policy established by Congress. Respectfully, it would be absurd to suggest that CIS or any agency 
m~st treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgonzery, 825 F.2d 1084, 1090 
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
The AAO notes that, when the issuecame before Judge ~berdbrfer again in a case not involving the !'gross 
error" standard, he affirmed the AAO's conclusion that thk flight attendants did not actually qualify as L-1B 
nonimmigrants. Delta Air Lines, Inc. v. U. S. Departnzent of Justice. No. 00-2977 (LFO) (D.D.C. April 6, 
200 I).. The D.C. Circuit affirmed this judbynent summarily. 2001 WL 1488616 (D.C.Cir. 2001). . 
Page 12 
participate in training othef" flight attendants in skills specially spited to serving Eastern European clients. 
Judge Oberdorfer concluded that a reasonable person could have found that the job duties, as described, 
qualified the beneficiaries as L-IB 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 pilotthat 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 him 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 nonirnmigrant visa classificaticin for these aliens. 
. INA Ej 101(a)(10) and (15)(D), 8 U.S.C. 4 1 101(a)(10) and (1 5)(D). Crewmembers are subject to special 
restnctions. These restrictions reflect the fiction that an alien crewmember 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). Althougli 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 arrive on a vessel or aircraft is that the 
crewmembers are not even subject to inspection, if they are not actually going to leave thc vessel or aircraft. 
Mutter of SS Greys~oke Castle and M/V Western Queen, 6 I&N Dec. 1 12, 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 camer is subject to fine if.the carrier fails to prevent the crewmember from leaving the vessel or aircraft. 
INA Ij 254(a), 8 U.S.C,. 5-1284(a). , ' 
, !. 
Second, if the crewmember is permitted to land, the crewmember is subject to more exacting restrictions than 
other nonimmigants.. A crewmember who seeks to land, like other nonimmigrants, is subject to inspection. 
and must have the appropriate visa. [NA $4 212(a)(7)(B) and 235(a)(3), 8 U.S.C. $4 1182(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 crewmember amved, unless the immigration inspector permits the 
crewmember to leave on a different vessel or aircraft. INA 4 252(a), 8 U.S.C. 4 '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 crewmember is in the United States without permission of the 
immigration authorities. Id. $ 256, 8 U.S.C. 4 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. § 1282(b). If an alien crewmember is placed in removal proceedings, the alien crewmember 
is ineligible for cancellation of removal. Id. §240A(c)(l), 8 U.S.C. tj 1229b(c)(l). A crewmember is not 
eligible for adjustment of status, id. 6 245(c)(2), 8. U.S.C. Ej 1225(c)(2), nor for a change of nonimmigrant 
status, id. 248(1), 1258(1).' 
Provided the underlying visa petition was timely filed, an alien crewmember can obtain relief from the 
adjustment ineligibility if the alien pays the $1000 fee under INA 245(i), 8 U.S.C. Ij 1255(i). 
- 
Page 13 
This compr~hensive statutory framework'shows that Congress intended for aliens who are serving as 
crewmembers aboard international air or sea carriers to be subject to .strict controls. By definition, these 
restrictions apply to an alien serving in "any capacity on board a vessel or aircraft." INA 9 lOl(a)(IO), 8 
U.S.C. !$ 1 lOl(a)(lO)(emphasis added). Approving an L-1B petition based on ordinary crewrnember duties 
would thwart this statutory framework for the regulation of nonimmigrant crewmembers. In this case, the 
beneficiary, a? pilot and more specifically as "captain," 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. 9 1 101 (a)(15)(D). 
For this reason, the AAO concludes that approving a petition for a nonimmigrant worker on behalf of an alien 
who is going to perfor& 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 vlsa petltlon proceedings, the burden of provlng eligiblllty for the benefit sought remains entirely wlth the 
petitloner. 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 w~ll be denied. 
ORDER: The appeal IS dismissed.