dismissed L-1B Case: Dance

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
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u.s.Citizenship
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Office: TEXAS SERVICE CENTER Date:SRC 04 097 53747FILE:
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(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.
~fL
1RObert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 04 097 53747
Page 2
DISCUSSION: The Director, Texas 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 Florida corporation, claims to be a dance and cultural center. It seeks to temporarily employ
the beneficiary as principal Indian dance instructor and director of cultural activities in its new office 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)(l5)(L) of the Immigration and Nationality Act (the Act), 8
U.S.C. § 1101(a)(l5)(L).
The director denied the petition, determining that the petitioner had not established that the beneficiary
possessed specialized knowledge as required by the regulations.
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 for the petitioner asserts that the director
failed to consider relevant evidence submitted and urges a reevaluation of the extensive evidence submitted
prior to adjudication. In support of this position, a brief and additional evidence are submitted.
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(l5)(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)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies him/her 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) further 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:
SRC 04097 53747
Page 3
(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 (l)(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 gained specialized
knowledge during her employment with the foreign entity 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 of the 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 dated February 16,2003, counsel for the petitioner advised that the beneficiary had been em..o ed
abroad by Shri Rajiv Gandhi College of Dental Sciences and Hospital, which is managed by I
Education Trust, the foreign parent, since June 2000. The petitioner stated that dunng er
employment abroad, she held the position of Director of Cultural Activities. In this capacity, her duties
included teaching students and employees of the college traditional Indian dance and arranging cultural
activities. The petitioner claimed that the beneficiary held a Bachelor's Degree in history but gained her
specialized knowledge from being a leading Indian-style Traditional Dancer from 1975 to 1997. Regarding
the beneficiary's U.S. position, the petitioner stated: .
[The beneficiary's] title will be Principal Indian Dance Instructor and Director of Cultural
Studies as an L-IB beneficiary with specialized knowledge. Her duties will be to initially
teach all the Indian Dance Classes and hire additional dance instructors as needed. [The
beneficiary] will also perform marketing activities on behalf of the Dance Company in order
to recruit new dance students, publicize their new company by contacting local schools,
cultural organizations and religious institutions, direct mail solicitations, newspaper,
television, and radio advertisements, creation and distribution of brochures of company, etc.
H is also anticipated that [the beneficiary] will be contacting various performing arts centers
and nonprofit organizations in the immediate area which will also further publicize and
market their company in a positive light.
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The petitioner also submitted supporting documentation in the form of photographs, awards, and
media articles pertaining to the beneficiary's accomplishments.
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 detailed request for evidence was issued on
March I, 2004, 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 the exact nature of the beneficiary's
knowledge, including a statement regarding her role and contributions to the petitioner's services.
The petitioner, through counsel, responded in a letter dated March 26, 2004. In the letter, counsel explained
that the beneficiary's knowledge was in a traditional form of Indian dance called Bharatanatyam, which is a
popular dance form in South India and which has its roots in Indian tradition dating back over 3000 years.
Counsel continued by stating that a student generally must study under an accomplished guru for ten to
twelve years before facing her first public performance, referred to as Arangetram. Counsel explained that
the beneficiary had her Arangetram in 1974, only four years after she began her studies. Essentially, counsel
claimed that the beneficiary was a child prodigy in Bharatanatyam dancing.
To summarize the beneficiary's qualifications, the petitioner provided the following list:
• Beneficiary performed her Arangetram in four years instead of the usual 10-12 years.
• Beneficiary was awarded a four (4) year scholarship in Bharatanatyam dance classes.
• Beneficiary won First Prize three years in a row in Bharatanatyam Inter-School
Dancing Competition.
• Beneficiary has performed in over 350 dance programs in India and throughout the
world over a 20 year career and has been the subject of countless newspaper articles,
reviews, pictorial displays, etc.
• Beneficiary has been a Bharatanatyam dance judge on several occasions over the
years.
• Beneficiary's popularity is so renown that in a short period of time she was able to
obtain three letters from leading nonprofit Indian organizations in South Florida
attesting to her abilities and popularity and the fact that because she is who she is,
they will send their children to her school. .
• Beneficiary has also been a leading film and television actress in India from 1980­
1998 who won Best Actress and Second Best Actress Awards as further testimony to
her talents.
Upon review of the evidence submitted, the director determined that the record failed to establish that the
beneficiary possesses specialized knowledge. The director specifically noted that the petitioner had failed to
show that the beneficiary's knowledge was so advanced or specialized that only a few employees could
perform the same duties in the industry. On appeal, counsel for the petitioner contends that in light of the
extensive evidence submitted, the director's decision was clearly erroneous. Counsel submits additional
documentary evidence including an explanation by the beneficiary in her own words regarding her specialty.
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.
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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(1)(3)(ii). As required in the regulations, the
petitioner must submit a detailed description of the services to be performed sufficient to establish specialized
knowledge. Id. A specific occupation will not inherently qualify a beneficiary as possessing specialized
knowledge. Matter of Colley, 18 I&N Dec. 117, 120 (Comm. 1981) (citing Matter of Raulin, 13 I&N Dec.
618 (R.C. 1970) and Matter ofLeBlanc, 13 I&N Dec. 816 (R.C. 1971)).1
In the present matter, the petitioner provided a lengthy description of the beneficiary's employment in a
branch of the foreign entity as director of cultural affairs. However, despite this detailed overview, the
petitioner failed to provide evidence regarding what exactly set the beneficiary's knowledge apart from other
similarly trained persons in the field and what training she had received to set her apart from other similarly
qualified individuals in the petitioner's organization. While the basis for the petition falls upon a claim that
the beneficiary was a child prodigy and world renowned for her dancing, the petitioner has not sufficiently
documented how the beneficiary's performance of her daily duties distinguishes her knowledge as specialized.
In fact, the overview of duties suggests that the beneficiary occupies an administrative position, and provides
no additional information as to why another similarly trained or qualified individual could not perform the
same duties. The beneficiary's claimed specialized knowledge was gained during her career as a dancer, not
as an employee of the foreign entity. For the purposes of this visa classification, the beneficiary's specialized
knowledge must relate specifically to the petitioner's organization.
Furthermore, the record indicates that the beneficiary was employed in one of five facilities overseen by the
foreign entity's educational trust. Since four of these facilities were colleges and one was a hospital, it
appears that the beneficiary's dance instruction and direction of cultural affairs was an ancillary activity to the
primary purpose of the foreign entity's organizations. The beneficiary was employed by Shri Rajiv Gandhi
College of Dental Sciences and Hospital. It is evident, therefore, that dance instruction at such a facility is not
the primary purpose of the foreign organization; instead, one would agree that the primary purpose would be
dentistry and hospital services as the name of the business suggests. This assumption is further supported by
the petitioner's submission of brochures which clearly highlight dentistry as the organization's primary
purpose. Furthermore, it is clear based on the petitioner's letter of support that a primary function of the
beneficiary's duties was to organize cultural activities and provide dance lessons to children of the college's
employees. As a result, it does not appear that the beneficiary was regarded as key personnel of the foreign
organization, since the AAO is not persuaded that a dance instructor was considered key personnel of a
hospital of dentistry.
In addition, although the beneficiary has worked for the foreign entity since June of 2000, there is no evidence
to show that this period of employment with the petitioner has resulted in specialized knowledge of something
1 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 "specialized knowledge" from the prior
INS interpretation of 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(I), at 69, 1990 U.S.C.C.A.N. at 6749. Beyond that, the Committee Report simply restates the
tautology that became section 214(c)(2)(B) of the Act. Id. The AAO concludes, therefore, the cited cases, as
well as Matter of Penner, remain useful guidance concerning the intended scope of the "specialized
knowledge" L-IB classification.
SRC 04 097 53747
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unique to the petitioner which other similarly-trained persons could not have gained from working in the
industry in general. Rather, the focus of the petition is the beneficiary's reputation in the industry, which,
based on the evidence submitted, is indeed impressive. However, there is nothing in the record to suggest that
another similarly-trained person with the standard 10-12 years of study in Bharatanatyam under an
accomplished guru could not perform the duties of the beneficiary as cultural director abroad and dance
instructor in the United States. The beneficiary's reputation as a dancer and successful movie actress may
contribute to the success of the petitioning company, but these attributes do not equate to specialized
knowledge as defined in the regulations and statute.
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. at 120 (citing Matter of Raulin, 13 I&N Dec. 618 and Matter of
LeBlanc, 13 I&N Dec. 816). As stated by the Commissioner in Matter of Penner, 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 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 demonstrates that the beneficiary is more akin to an employee
whose skills and experience enable her to provide a specialized service, rather than an employee who has
unusual duties, skills, or knowledge beyond that of an educated and/or skilled worker. The foreign entity is a
college of dentistry. The beneficiary provides ancillary services in the form of dance instruction and
arranging cultural tours primarily for the children of college employees. The beneficiary's position, therefore,
is not one that requires knowledge of a specific methodology or process unique to the petitioner. Instead, it is
a position that is not of crucial importance to the foreign organization and therefore does not appear to have
contributed to the financial success of the organization. Specifically, the beneficiary and her position with the
foreign entity are not even discussed in the brochures promoting the foreign entity's business. Thus, it is
reasonable to conclude that other similarly trained persons in the industry could perform the beneficiary's
duties.
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 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 knowledge" and the congressional record related to that
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term, the AAO must make comparisons not only between the claimed specialized knowledge employee and
the general labor market, but also between that employee and the remainder of the petitioner's workforce.
Moreover, while it appears that the U.S. business and the beneficiary's proposed position therein is focused
solely on dance instruction, there is still insufficient evidence to show that the beneficiary's knowledge is so
advanced or specialized that a similarly-trained dance instructor could not perform the duties of the proposed
position. The evidence in the record confirms that all dancers trained in Bharatanatyam must complete a 10­
12 year training period under an accomplished guru. Although the beneficiary's talent allowed her to give her
first performance in significantly less time than generally expected, the fact that she is an extremely talented
dancer does not automatically bestow specialized knowledge upon her. Again, while her reputation and
renown may generate more interest in her classes and certainly increase business in the United States, this
factor, by itself, does not constitute the possession of specialized knowledge. Therefore, while the
beneficiary's contribution to 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.F.R. § 214.2(l)(I)(ii)(D). Mere skill and 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 restnctrve
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 a capacity requiring specialized knowledge. For these
reasons, the appeal will be dismissed.
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.