dismissed L-1B Case: Diamonds/Jewelry

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PUBLIC copy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: EAC-04-150-536 18 Office: VERMONT SERVICE CENTER Date: SEP 0 7 20~ 
Petition: 
 Petition for a Nonirnmigrant Worker Pursuant to Section 101 (a)(lS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert --" a iemann, Chief 
Administrative Appeals Office 
EAC-04-150-53618 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as a diamond assorter under 
the L-1B nonimmigrant, intracompany transferee program for specialized knowledge pursuant to section 
101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). 
claims to import, export, and distribute diamonds and jewelry, and states that it is a subsidiary of 
in Mumbai, India. The petitioner was formed under the laws of the state of New York. 
The director denied the petition concluding that the petitioner had not established that the beneficiary has 
been or will be employed in a specialized knowledge capacity. 
The petitioner subsequently filed an appeal. On appeal, counsel for the petitioner asserts that the beneficiary 
does possess specialized knowledge and will be working in such a capacity. In support of this assertion, the 
petitioner submits a brief and supporting evidence, including several affidavits. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101 (a)(15)(L) of the Act, 8 U.S.C. 5 1 101 (a)(15)(L). Specifically, 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 within the three years preceding the beneficiary's 
application for admission into the United States. In addition, the beneficiary must seek to enter the United 
States temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate 
thereof in a managerial, executive, or specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies hirnlher 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. 
EAC-04-150-536 18 
Page 3 
The issues to be discussed in the present matter are related but distinct, whether or not the beneficiary 
possesses specialized knowledge and whether the petitioner has established that the beneficiary's position in 
the United States will involve specialized knowledge as required by the regulation at 8 C.F.R. § 
214.2(1)(3)(ii), and whether the beneficiary was employed abroad in a capacity that utilized specialized 
knowledge as required by 8 C.F.R. 9 214.2(1)(3)(iv). 
Section 214(c)(2)(B) of the Act, 8 U.S.C. 
 11 84(c)(2)(B), provides the following: 
For purposes of section 101 (a)(15)(L), an alien is considered to be serving in a capacity 
involving specialized knowledge with respect to a company if the alien has special 
knowledge of the company product and its application in international markets or has an 
advanced level of knowledge of processes and procedures of the company. 
Furthermore, the regulation at 8 C.F.R. 
 214.2(1)(l)(ii)(D) defines specialized knowledge as: 
[Slpecial knowledge possessed by an individual of the petitioning organization's product, 
service, research, equipment, techniques, management, or other interests and its application in 
international markets, or an advanced level of knowledge or expertise in the organization's 
processes or procedures. 
In an April 13, 2004 letter filed with the initial petition, the petitioner described the beneficiary's specialized 
knowledge job duties abroad as follows: 
[The beneficiary's] focus in the overseas firm has been constantly striving towards providing 
our clients with the best quality of diamonds, and studded jewelry, international quality, and 
competitive prices. 
The beneficiary's job duties in the U.S. were described as follows: 
Select, buy and sorts diamonds according to size for use in designer watches and 
jewelry using sieve, loupe, and precision measuring instruments; 
Coordinate with the [bluyers and ljlewelry [dlesigners for latest trends and reads 
work orders to determine sizes required to fit mountings; 
Measures diamonds and colored stones using gauge and loupe, and sort diamonds, 
using sieve of specified diameter, to segregate sizes required as per customer 
preferences; 
Grades and places diamonds of specified size in containers, 
Studies grade, quality, color (skin), and physical structure of rough or finished 
diamonds and sorts them according to quality and type, using magnifying class or 
loupe; 
Accurately rate and price small diamonds manufactured at [foreign organization] in 
India, for distribution to the U.S. buyers and jewelry designers; 
EAC-04-150-53618 
Page 4 
Determines buying budgets and discusses the same with the President for obtaining 
confirmation on buying and selling activities; 
On June 1,2004, the director sent the petitioner a request for additional evidence (RFE). 
In response, counsel for petitioner submitted a three page letter but no additional evidence. 
On September 16, 2004, the director denied the petition. The director determined that the beneficiary did not 
possess specialized knowledge and that the position abroad and the proffered position in the United States do 
not require a person with specialized knowledge. 
The petitioner subsequently appealed. On appeal, counsel for the petitioner asserts that the beneficiary 
possesses specialized knowledge and the position in the United States requires such specialized knowledge. 
In examining the specialized knowledge capacity of the beneficiary, the AAO will look to the petitioner's 
description of the job duties and the weight of the evidence supporting any asserted specialized knowledge. 
See 8 C.F.R. 9 214.2(1)(3)(ii). The petitioner must submit a detailed description of the services to be 
performed sufficient to establish specialized knowledge. Id. It is also appropriate for the AAO to then 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. A specific occupation will not 
inherently qualify a beneficiary as possessing specialized knowledge. Matter of Colley, 18 I&N Dec. 1 17, 120 
(Comrn. 198l)(citing Matter of Raulin, 13 I&N Dec. 618 (R.C. 1970) and Matter of LeBlanc, 13 I&N Dec. 
816 (R.C. 1971)).' 
In making a determination as to whether or not knowledge possessed by a beneficiary is special or advanced 
the MO relies on the statute and regulations, prior precedent decisions, and legislative history. This yields a 
multiple pronged analysis to determine whether the petitioner has employed and will employ the beneficiary 
in a specialized knowledge capacity. In examining whether an alien has "special knowledge" of the 
petitioner's product and its application in international markets or an "advanced level" of knowledge of its 
processes and procedures, the AAO will consider whether the beneficiary: 1) is part of the petitioner's "key 
personnel" (See generally, H.R. Rep. No. 91 -85 1, 1970 U.S.C.C.A.N. 2750); 2) is more than a specialist or a 
skilled employee (Matter of Penner, 18 I&N Dec. at 50); 3) has knowledge that qualifies as "special" under 
the plain meaning of the term; 4) performs a key process or function for the petitioner (See Matter of Penner, 
I 
 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 regulation or precedent decisions interpreting the term. The Committee Report simply states that the 
Committee was recommending a statutory definition because of "[v]arying [i.e., not specifically incorrect] 
interpretations by INS," H.R. Rep. No. 101-723(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 MO 
concludes, therefore, that the cited cases, as well as Matter of Penner, remain usehl guidance concerning the 
intended scope of the "specialized knowledge" L-1B classification. 
EAC-04-150-53618 
Page 5 
id.); and 5) possesses certain characteristics that have been deemed to be illustrative of specialized knowledge 
(see Memo. from James A. Puleo, Acting Exec. Assoc. Commr., Office of Operations, Immigration and 
Naturalization Serv., to All Dist. Dir. et al., Immigration and Naturalization Serv., Interpretation of Special 
Knowledge, 1-2 (Mar. 9, 1994) (copy on file with Am. Immig. Law. Assn.). 
In this case the petitioner failed to respond to the director's WE. The director specifically requested a 
detailed explanation of what qualified the beneficiary's knowledge as specialized, what training and 
experience led to the beneficiary's acquisition of such knowledge, and why the position in the United States 
required this specialized knowledge. The petitioner failed to provide any explanation in its response to the 
director, instead submitting only a three page letter from counsel. Failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
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 of Obaigbena, 19 
I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503, 506 (BIA 1980). The non-existence or other unavailability of required evidence creates a 
presumption of ineligibility. 8 C.F.R. 5 103.2(b)(2)(i). 
On appeal counsel for petitioner asserts that the beneficiary is a key employee, that the beneficiary's 
experience abroad provided the experience which constitutes the beneficiary's specialized knowledge, and 
that the beneficiary possesses various characteristics of a specialized knowledge. Counsel's arguments are not 
persuasive. First, counsel's arguments are not supported by the evidence presented. As stated above, the 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). Although counsel has submitted letters from the various parties, these letters are not 
sufficiently objective or independent to demonstrate that the knowledge possessed by the beneficiary is 
actually specialized. In addition the letters do not contain any articulation of the beneficiary's specialized 
knowledge. For example, a vague assertion that an employee is able to differentiate diamonds is not 
sufficiently probative to illustrate why the beneficiary's knowledge is uncommon or noteworthy among the 
petitioner's employees and within this particular ind~stry.~ 
The failure to provide a detailed description of the beneficiary's position and duties leaves the record without 
any evidence that the position requires specialized knowledge, or that the beneficiary has been and will 
' Counsel's assertions in response to the RFE and on appeal regarding conflict diamonds are contrary to the 
common understanding of the term. Specifically, counsel states that the beneficiary's specialized knowledge 
includes the ability to differentiate between "real diamonds and conflict diamonds, which are created in [a] 
laboratory." Taking administrative notice, the AAO notes that conflict diamonds are "real" diamonds; what 
differentiates conflict diamonds is that they are mined in war zones, are being used to finance armed conflicts, 
and have been banned from commercial distribution by many countries. Wikipedia, Conflict Diamond, 
htt~:!/en.wikipedia.orcr/wiki/Conflict diamonds (last updated August 30, 2006). Thus, absent a detailed 
explanation and supporting evidence to support his claim, counsel's assertion of the beneficiary's ability to 
differentiate diamonds which are not different in physical composition appears to be a fabrication, possibly 
intended to materially mislead the Citizenship and Immigration Service as to the eligibility of the beneficiary. 
EAC-04-150-53618 
Page 6 
actually perform these specialized knowledge duties. Based on the petitioner's ambiguous description of the 
beneficiary's duties, and the failure to distinguish those duties among other employees with the foreign parent 
and within this particular industry, the AAO is unable to determine that that the beneficiary's position abroad 
and proffered position in the United States require specialized knowledge. Without a detailed description of 
the beneficiary's skill relative to the petitioners' other employees or to the market as a whole, the AAO can 
not determine whether the beneficiary possesses "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." See section 214(c)(2)(B) of the Act. In addition to a lack of probative evidence supporting 
counsel's assertions, the record as it is currently constituted does not establish that the knowledge possessed 
by the beneficiary meets the plain meaning of special, that the beneficiary is performing a key process or 
function, or that the beneficiary is more than merely a skilled employee. 
From a practical point of view, the mere fact that a petitioner alleges that an alien's knowledge is somehow 
different does not, in and of itself, establish that the alien possesses specialized knowledge. The petitioner 
bears the burden of establishing through the submission of probative evidence that the alien's knowledge is 
uncommon, noteworthy, or distinguished by some unusual quality and not generally known by practitioners in 
the alien's field of endeavor. In this case that burden has not been met. 
All companies are different, and it can generally be expected that no two companies will employ the same 
procedures. Standing alone, however, an alien's knowledge of minor variations in style or manner of 
operations cannot be considered specialized. Legacy INS memo, HQSCOPS, 7016.1, "Interpretation of 
Specialized Knowledge" (December 20,2002). 
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. v. Attorney General, supra at 16. Based on the evidence presented, it is concluded 
that the beneficiary was not employed abroad, and will not be employed in the future, in a specialized 
knowledge capacity. Nor has it been established that the knowledge possessed by the beneficiary of the 
petitioner's business procedures is advanced. For thls reason the petition must be denied. 
The petitioner failed to adequately and fully respond to the director's RFE, and for this reason the appeal will 
be denied. Moreover, the record as it is currently constituted does not demonstrate that the beneficiary 
possesses "specialized knowledge" as defined in section 214(c)(2)(B) of the Act, 8 U.S.C. 5 11 84(c)(2)(B), 
and the regulation at 8 C.F.R. 8 214.2(1)(l)(ii)(D), nor has counsel demonstrated that the beneficiary has been 
or would be employed in a capacity utilizing any such specialized knowledge as required by 8 C.F.R. 9 
2 14.2(1)(3)(ii) and (iv). 
In visa 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. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is denied.