dismissed L-1B Case: Computer Export

PUBLIC COpy
identifyingd$1adeIet.d to
preventclearlyURW8I'I1U1ted
invasionof peftonal privacy
U.S. Department of Homeland Security
20 Massachusetts Ave. NW, Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
FILE: LIN 02 196 50299 Office: NEBRASKA SERVICE CENTER Date: OCT 02 ZOO1
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(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.
Robert P. Wiemann, Chief
Odministrative Appeals Office
www.uscis.gov
LIN 02 196 50299
Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the petition for a nonimmigrant visa, and the
Administrative Appeals Office (AAO) dismissed the petitioner's subsequent appeal. The matter is now before
the AAO on a motion to reopen and reconsider. The AAO will grant the motion and affirm its previous
decision.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-IB nonimmigrant
intracompany transferee with specialized knowledge pursuant to § 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, an Oregon corporation, states that it is
engaged in the purchase and export of previously owned computers. The petitioner claims to be a subsidiary
of Elis Computers Ltd., located in Russia. The petitioner seeks to employ the beneficiary as the export
manager of its new office in the United States for a one-year period.
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be
employed by the petitioner in a capacity involving specialized knowledge or in a managerial capacity.
The AAO dismissed the petitioner's subsequent appeal, affirming the director's fmding that the petitioner had
not demonstrated that the beneficiary possesses specialized knowledge or that he would be employed in a
position involving specialized knowledge. The AAO withdrew the director's comments addressing whether
the beneficiary would be employed in a managerial capacity.
Counsel for the petitioner filed this timely motion to reconsider challenging the AAO's review of the record of
proceeding, and its analysis and interpretation of the beneficiary's job duties and claimed specialized
knowledge. Counsel submits a brief and documentary evidence in support of the motion.
The regulation at 8 C.F.R. § 103.5(a)(2) states:
A motion to reopen must state the new facts to be provided in the reopened proceeding and be
supported by affidavits or other documentary evidence.
The regulation at 8 C.F.R. § 103.5(a)(3) states:
A motion to reconsider must state the reasons for reconsideration and be supported by any
pertinent precedent decisions to establish that the decision was based on an incorrect
application of law or [Citizenship and Immigration Services (CIS)] policy. A motion to
reconsider a decision on an application or petition must, when filed, also establish that the
decision was incorrect based on the evidence of record at the time of the initial decision.
To establish L-I eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.c. § I 10I(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.
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The regulation at 8 C.F.R. § 214.2(1)(3) 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)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
lmowledge capacity, including a detailed description ofthe 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 lmowledge 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.
The regulation at 8 C.F.R. § 214.2(l)(3)(vi) also provides that if the petition indicates that the beneficiary is
coming to the United States in a specialized knowledge capacity to open or to be employed in a new office,
the petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been secured;
(B) The business entity in the United States is or will be a qualifying organization as
defined in paragraph (1)(l)(ii)(G) of this section; and
(C) The petitioner has the financial ability to remunerate the beneficiary and to
commence doing business in the United States.
This matter presents two related, but distinct issues: (1) whether the beneficiary possesses specialized
lmowledge; and (2) whether the proposed employment is in a capacity that requires specialized lmowledge.
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 lmowledge with respect to a company if the alien has a special
lmowledge of the company product and its application in international markets or has an
advanced level oflmowledge of processes and procedures of the company.
Furthermore, the regulation at 8 C.F.R. § 214.2(l)(I)(ii)(D) defines "specialized lmowledge" as:
LIN 02 196 50299
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[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.
The nonimmigrant visa petition was filed on May 28, 2002. In an appended letter dated May 24, 2002, the
petitioner stated that the beneficiary will perform the following duties as the U.S. company's export manager:
In this'position he will be responsible for export of computers and notebooks to the parent
company in Russia. He will communicate with the parent company and U.S. suppliers to
coordinate and arrange the export sale of computers and notebooks to Russia. He will interact
with sales personnel and distributors in Russia. He will represent the Company in contract
negotiations, resolve problems with Russian customers, and arrive at mutual agreements. He
will be responsible for sales forecasting, accounting, preparing and examining invoices, sales
confirmations and shipping documents for export orders to Russia. Moreover, [the
beneficiary] will be responsible for developing a market for these products in the United
States.
The petitioner noted that the beneficiary had been employed by the foreign entity as a sales manager from
January 1999 through August 2000, "during which time he has developed proprietary knowledge with regard
to Company's products and the industry in which the Company operates." The petitioner described the
beneficiary's previous position as follows:
Responsibilities include managing all aspects of the company's business related to the
importation of computers and notebooks from the U.S. to Russia. Manage all functions
related to the importation of company's products. Oversee the shipment of products and
overall business administration.
Finally, with respect to the beneficiary's specialized knowledge qualifications, the petitioner stated:
[The beneficiary] is uniquely qualified to contribute to our Company his knowledge and
expertise of Company's product line in the Russian market developed with our parent
company. He possesses knowledge that can only be gained through extensive prior
experience with the parent Company. The specialized knowledge gained in Russia is
extremely valuable to our Company.
[The beneficiary's] understanding of the Russian market and consumers demand, make him a
unique candidate for this position. Without the advanced level of knowledge of the processes
and procedures of the Company that [the beneficiary] developed as the Sales Manager, the
position in question cannot be filled adequately.
[The beneficiary] is amply qualified for the position of Export Manager. He has been working
for the parent company for over 1 year. Moreover, he has received a Bachelor's degree in
LIN 02 196 50299
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Accounting and Auditing from the State Academy of Economics and Law in Russia and a
Post-Baccalaureate degree in Information Systems from Portland State University.
The petitioner submitted a "work certificate" from the foreign entity which states that the beneficiary was
employed as its sales manager from January 15, 1999 through August 28, 2000. The petitioner provided a
copy of the beneficiary's resume which indicates that he was employed as sales manager with the foreign
entity from January 1999 through August 2000, where he was responsible for sales management, contractual
negotiations with key customers and order processing. According to the beneficiary's resume, he was
enrolled at the State Academy of Economics and Law in Russia from September 1995 through June 2000.
The petitioner did not submit any supporting documents to substantiate its claims that specialized knowledge
is required to fulfill the duties of the proffered position, nor evidence to establish that the beneficiary
possesses specialized knowledge.
In a request for evidence, dated August 5, 2002, the director instructed the petitioner to provide additional
evidence to establish that the beneficiary possesses specialized knowledge of a 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. The director also
requested more detailed descriptions of the beneficiary's previous and proposed duties, and evidence to
establish that the beneficiary has at least one continuous year of full-time employment abroad with the
petitioner or with the petitioner's foreign parent, branch, affiliate or subsidiary within the three years
immediately prior to the filing of this petition.
In an October 24, 2002 letter, counsel for the petitioner stated that the beneficiary possesses specialized
knowledge pursuant to section 214(c)(2)(B) of the Act because he "has a special knowledge of the company
product and its application in international markets." Counsel further explained the beneficiary's
qualifications as follows:
The company's Export Manager position requires special knowledge of the intricacies of the
Russian computer market. The Export manager is also expected to implement the parent
company's business model and structure while setting up the foreign branch to facilitate the
communication process and interrelation between companies. This involves a wide range of
processes, criteria, specific strategies, cultural peculiarities, knowledge and skill, including:
knowledge of the specifics of the Russian computer market, knowledge of the required
product, quality control and strict set of quality criteria, knowledge of the working
environment established in the parent company, managerial skills, price fluctuations on the
Russian market, business strategy and growth expectations, existing contacts with Russian
partners and suppliers, and fluency in Russian and English languages.
The petitioner also submitted an October 23, 2002 letter from the foreign entity's president, who stated that
the beneficiary, in his position with the foreign entity, "received diversified training while performing the
following duties: sales management, contractual negotiations with key customers and suppliers, customer
service supervising, human resources management, assisting the chief accountant, researching various product
and distribution issues, and wholesale division sales." The foreign entity's president further stated that the
LIN 02 196 50299
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beneficiary's proposed duties for the petitioner will include: branch operations management, outsourcing the
product for the parent company, contractual negotiations, retail and wholesale sales management, shipping
products to Russia, establishing an internet presence, hiring and training staff, and maintaining high quality
customer service.
The director denied the petition on February 28, 2003, concluding that the beneficiary would not be employed
in a specialized knowledge capacity. The AAO dismissed the petitioner's subsequent appeal on December 8,
2006. In its decision, the AAO noted that the beneficiary's proposed job duties are typical of those performed
by any employee responsible for opening a new office. Although the petitioner asserted that the position
requires knowledge of "processes, criteria, specific strategies," "the working environment established in the
parent company," and familiarity with "Russian partners and suppliers," the AAO noted that the petitioner
offered no explanation or documentary evidence related to these strategies, processes, criteria or environment.
The AAO further noted that, while the petitioner referred to the beneficiary's proprietary knowledge of the
foreign entity's "product line" and its application in international markets, both companies were engaged in
purchasing and reselling previously owned computers manufactured by well-established companies and did
not have a "product line." The AAO found that the knowledge of PC and notebook hardware and software
configurations is widespread in the petitioner's industry, and the petitioner's claims that the beneficiary's
knowledge was specific to the "intricacies of the Russian computer market," was, again, not supported by
documentary evidence. The AAO also observed that the evidence submitted demonstrated that the U.S.
company is purchasing computers in the United States and re-selling them to a primarily U.s.-based clientele,
while exports to Russia did not appear to be the primary focus of the business.
In addition, the AAO found that the petitioner failed to substantiate its claim that the beneficiary was
"specifically trained to open the U.S. branch utilizing the knowledge and skills gained during his employment
and training with the parent company's products, processes and procedures," that he was given substantial
assignments with the foreign entity, or that his claimed specialized knowledge could only be gained with the
foreign entity. The AAO concluded that based on the lack of explanation and supporting evidence, it was
impossible to determine exactly what "special" or "advanced" knowledge the beneficiary possesses or how he
acquired it.
Finally, the AAO determined that the petitioner failed to establish that the beneficiary even possessed a full
year of continuous full-time employment abroad with the foreign entity within the three years preceding the
filing of the petition, based on: (1) the petitioner's failure to provide additional documentary evidence to
establish the year of employment after the director found a one-sentence "Work Certificate" from the foreign
entity to be insufficient; and (2) evidence in the record indicating that the beneficiary attended the State
Academy of Economics and Law from September 1995 through June 2000. As the beneficiary's claimed
period of employment abroad was from January 1999 through August 2000, the AAO questioned whether he
was employed by the foreign entity on a full-time basis.
In support of the instant motion, filed on January 8, 2007, counsel for the petitioner submits a brief in which
she challenges the AAO's findings on several grounds. Counsel first contends that the beneficiary meets the
requirements of a specialized knowledge employee based on "over five years with the petitioner and its
foreign affiliate," noting that this experience, "and the training he has received during that time, gives him an
intimate and thorough understanding of the activities, products and procedures used by the petitioner."
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Counsel claims that the beneficiary's knowledge of the petitioner's "processes, procedures, and equipment" is
substantially different and advanced related to others in the field, due to his "experience and training,"
including "experience on the use of petitioner's business as applied in the U.S."
As noted in the previous AAO decision, the record contains no explanation or evidence related to any training
received by the beneficiary, and no evidence related to the "processes and procedures" used by the petitioner
or the related foreign entity. It is not sufficient for counsel to vaguely refer to processes and procedures
without actually identifying what these procedures are and explaining their significance. Specifics are clearly
an important indication of whether a beneficiary's duties encompass specialized knowledge; otherwise
meeting the definition would simply be a matter of reiterating the regulations. See Fedin Bros. Co., Ltd. v.
Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), afJ'd, 905 F.2d 41 (2d. Cir. 1990). The record contains no
documentary evidence or explanation regarding the beneficiary's training or experience, other than the foreign
entity's statement that the beneficiary received "diversified training" and gained experience in the areas of
sales, supplier negotiations, customer service, human resources, accounting, product research, and
"distribution issues."
Counsel's claim that the beneficiary "has over five years with the petitioner and its foreign affiliate," is also
not persuasive. The beneficiary's experience gained with the U.S. entity subsequent to the filing of the petition
is not eligible for consideration in this matter and will not establish that the beneficiary's knowledge is
"advanced" based on mere length of service. The petitioner must establish eligibility at the time of filing the
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or
beneficiary becomes eligible under a new set of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg.
Comm. 1978). The record indicates that the beneficiary's experience at the time of filing was limited to one
year and eight months as a "sales manager" with the foreign entity, which operates retail computer stores and
has a wholesale division. A detailed description of his duties with the foreign entity has not been provided,
and the AAO notes that the position of "sales manager" does not even appear on the foreign entity's
organizational chart submitted in response to the request for evidence. The company appears to employ retail
store managers, senior salespeople, salespeople, and a wholesale department manager, and thus it is not clear
what the beneficiary's exact role within the company might have been. The AAO cannot find that the
beneficiary gained specialized knowledge as a result of his employment with the foreign entity without a clear
description of what duties he performed, what experience he gained and what training he received.
As noted above, the AAO questioned whether the beneficiary possessed the one year of full-time employment
with the foreign entity within the three years preceding the filing of the petition, based on the petitioner's
failure to provide documentary evidence of his employment as requested by the director, as well as evidence
in the record that the beneficiary was attending the State Academy of Economics and Law from September
1995 through June 2000. On appeal, counsel asserts that the beneficiary completed his degree while working
full-time, and participated in a certificate program conducted in Russia by Portland State University from
January 1999 through June 2000. The petitioner submits a transcript for this eleven-course program.
The AAO acknowledges that the beneficiary could have completed the certificate program while working
full-time, but notes that the director specifically requested evidence of the beneficiary's qualifying year of
full-time employment abroad. The letter from the foreign entity did not specify whether the beneficiary was
employed in a full-time capacity, and the record contains no other documentary evidence, such as payroll
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records, to establish that the beneficiary's employment was on a full-time basis. Going on record without
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
Counsel next questions the AAO's determination that specialized knowledge is not required for the position
because the petitioner is purchasing and selling used equipment in the U.S. market. Counsel asserts that the
petitioner has "diversified" by selling in the U.S. market, but notes that the petitioner is primarily engaged in
exporting U.S. computers to the Russian market. Counsel claims that the business requires "specialized
knowledge of what the Russian market requires, exporting requirements, and exporting procedures." Counsel
further asserts that "with contracts worth over $100,000, knowledge of the market and the customer's
requirements and the exporting processes of the petitioner are essential." In addition, counsel asserts that the
beneficiary performs "the key services and functions of the petitioner, namely procuring properly configured
computers and notebooks in the U.S. and exporting them to Russia." In support of these assertions, counsel
has submitted contracts and invoices for goods sold to Russian customers during the months of October
through December 2003 for sales ranging between $55,000 and $115,000, as well as invoices for goods
exported to Russia during the latter half of 2001 and early 2002, for sales transactions valued at less than
$3,000.
The evidence submitted on motion shows a substantial increase in the value of sales transactions with Russian
customers when compared to the evidence submitted at the time the petition was filed in May 2002.
However, counsel has not persuaded the AAO that its determination was incorrect based on the evidence
presented at the time of filing, which included purchase orders, invoices and shipping documents showing
that the U.S. company was primarily engaged in purchasing used computers in the United States and re­
selling them to a primarily U.S.-based clientele. Such a conclusion was supported by the petitioner's reference
to its plans to establish an internet presence in the United States, as well as retail and wholesale operations.
The petitioner does not object to the AAO's conclusion that knowledge of foreign operating conditions is not
required to purchase and re-sell computers in the United States market.
Therefore, while the invoices submitted on appeal indicate that the U.S. company was regularly exporting
substantial shipments of computers to Russia 18 to 20 months after the filing of the petition, the evidence is
not probative of the petitioner's and beneficiary's eligibility as of the date of filing. A motion to reconsider
contests the correctness of the original decision based on the previous factual record, as opposed to a motion
to reopen which seeks a new hearing based on new or previously unavailable evidence. Matter of O-S-G-, 24
I&N Dec. 56 (BIA 2006)(citing Matter of Cerna, 20 I&N Dec. 399, 402 n.2. (BIA 1991). A motion to
reconsider a decision on an application or petition must, when filed, also establish that the decision was
incorrect based on the evidence of record at the time of the initial decision. 8 c.P.R. § 103.5(a)(3). A visa
petition may not be approved based on speculation of future eligibility or after the petitioner or beneficiary
becomes eligible under a new set of facts. See Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm.
1978);Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm. 1971).
Counsel's final argument is that the AAO and the director improperly determined that the proposed position
does not require specialized knowledge because the petitioner does not produce a product. Counsel explains
as follows:
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The company has a product, the computers it exports to Russia. The company does buy
computers from well-established u.s. companies, but that does not mean the computers are
standard equipment. Computers may be configured and modified for individual users or
markets. In a sense, the petitioner is producing a product, by ordering computers with
configurations unique to the Russian market.
* * *
Further, the Immigration and Nationality Act and corresponding regulations do not exclude
companies who do not produce a product from petitioning specialized knowledge employees.
The regulations define specialized knowledge as "special 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." 8 C.F.R. §
214.2(1)(1)(ii)(D).Clearly, [the beneficiary}possesses advanced knowledge of the petitioner's
processes and procedures, as well as special knowledge regarding the petitioner's product and
its application in the international markets of the U.S. and Russia.
Counsel references a letter from one of the petitioner's suppliers, dated October 15,2002, who states that the
beneficiary "oftentimes... requests specific configurations that is [sic} applicable to the Russian domestic
market," and who attests to the beneficiary's "unique and specialized knowledge of the Russian market."
Contrary to counsel's assertion the AAO did not dismiss the appeal in whole, or in part, because the petitioner
does not produce a product. Rather, the AAO rejected the petitioner's specific claim that the beneficiary
possesses specialized knowledge of a product line that is specific and proprietary to the petitioner and its
parent company, and its claim that knowledge of such products could only be gained with the foreign entity.
The AAO's analysis of this claim was as follows:
Neither the foreign entity nor the U.S. entity produces a product. Both companies are in the
business of purchasing and re-selling previously owned computers manufactured by well­
established companies in the industry. Knowledge of common PC and notebook software and
hardware configurations is clearly widespread throughout the computer re-sale market and is
not specific to the petitioner's organization. The petitioner attempts to distinguish the
beneficiary's knowledge as special by emphasizing the "intricacies of the Russian computer
market," noting that the market demands "specific configurations," "peculiar" packaging
requirements, and specific consignment documentation. The petitioner has not attempted to
explain or document the claimed "intricacies" or "peculiarities" of the Russian market, nor
explained how knowledge of the market would amount to specialized knowledge specific to
the petitioning organization. Nor has the petitioner supported its implausible claim that
knowledge of the Russian computer market can only be gained with the foreign entity.
Again, going on record without supporting documentary evidence is not sufficient for
purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec.
at 165.
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The arguments and evidence provided on motion do not address the AAO's specific reasons for rejecting the
petitioner's claims. The petitioner's claim that the export of used computers to the Russian market requires a
whole body of specialized knowledge related to technical configurations, documentation requirements, and
special export, packaging and customs handling processes that are somehow specific to the petitioner and its
parent company remains unsubstantiated. The petitioner still has not clarified or documented the particular
"unique" configurations that are specific to the Russian market, or explained why anyone familiar with
computer hardware and software could not request such configurations from suppliers. It seems reasonable
that the Russian buyers would submit specific requests to the petitioner identifying their software, hardware
and peripheral requirements. The record contains no explanation as to how specialized knowledge is required
to ensure that the U.S. suppliers "configure and modify" equipment for the Russian market. Without
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of
proof. The unsupported assertions of counsel do not constitute evidence. Matter ofObaigbena, 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).
Based on the foregoing discussion, the petitioner has not established that the beneficiary possesses specialized
knowledge or that he would be employed by the U.S. company in a position requiring specialized knowledge.
Finally, the AAO notes for the record that a search of the Oregon Secretary of State's public Internet site
(http://egov.sos.state.or.us) shows the petitioner's corporate status is "inactive" based on an administrative
dissolution of the company on November 19,2004. It is fundamental to this nonimmigrant classification that
there be a United States entity to employ the beneficiary. In order to meet the definition of "qualifying
organization," there must be a United States employer that is doing business. See 8 C.F.R. §
214.2(1)(I )(ii)(G)(2).
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 AAO's decision dated December 8, 2006 is affirmed.