dismissed L-1B Case: Education

U.S. Department of Homeland Security
20 Mass. Ave., NW, Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
PUBLICcoPt·
File: EAC 05 252 52777 Office: VERMONT SERVICE CENTER Date: APR 0 4 tOtl7
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)(15)(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.
tL~
cj-Robert P. Wiemann, Chief
Administrative Appeals Office
EAC 05 252 52777
Page 2
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Vermont Service Center.
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be
dismissed.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of social
studies teacher as an L-IB 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
petitioner states that it is a private high school. The petitioner claims that it is an affiliate of Keio
University, located in Tokyo, Japan.
The director denied the petition on October 21, 2005, concluding that the petitioner failed to establish that the
position offered to the beneficiary requires an employee with specialized knowledge, that the beneficiary has
such knowledge, or that the beneficiary was employed in a specialized knowledge position by the foreign
company.
On appeal, counsel for the petitioner states that the petitioner's processes and methodologies would be
difficult to impart to another individual in the United States without significant economic inconvenience to
the u.s. entity. Counsel contends that the director's decision was based on an incorrect standard when the
director stated that the beneficiary's knowledge may be broadly held by others in the same field in Japan.
Counsel contends that the director must focus on the teaching industry in the United States rather then in
Japan. Counsel asserts that the knowledge required for the position in the United States is not common to the
teaching industry in the U.S., and is not easily transferable. Counsel also states that the "essential business
processes and procedures are proprietary teaching methods that are at the heart of [the U.S. entity's] business
interests and management." Counsel states that the petitioner's teaching methods are different from the rest
of the industry. Counsel submits a brief and documentary evidence in support of the appeal.
To establish L-I 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. § ll0l(a)(15)(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 (l)(I)(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.
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(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 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.
This matter presents two related, but distinct issues: (1) whether the beneficiary possesses specialized
knowledge; 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:
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 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)(I)(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.
The nonimmigrant petition was filed on September 21,2005. The petitioner indicated on Form 1-129 that the
beneficiary would be employed as a "Teacher of Social Studies." In addition, the Form 1-129 states that the
beneficiary has been employed by the foreign company from November 1, 2004 until July 31, 2005 in the
position of Assistant Archival Researcherffeaching Assistant. In addition, the beneficiary previously worked
for the foreign entity from March 2003 until March 2004 in the position of Lecturer/Instructor.
In a support letter dated September 19, 2005, the petitioner described the duties the beneficiary performed for
the foreign company in Japan as the following:
From November 2004 through July 2005, [the beneficiary] was employed by [the foreign
entity] in Tokyo, Japan as a Researcher and Teaching Assistant in Japanese History,
preparing and delivering lectures to students, as well as assisting in the compilation,
administration and grading of examinations. From April 2003 through March 2004, [the
beneficiary] served in the position of Lecturer/Instructor [for the foreign entity] in Tokyo,
Japan, performing essentially the same duties as those of the "U.S. Position" described
above. [The beneficiary] was responsible for all aspects of classroom instruction in the area
EAC 05 252 52777
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of Japanese History and related subjects in accordance with the teaching models and
educational standards, processes, and procedures of [the petitioner]. She prepared and
delivered lectures to students, as well as compiled administered and graded examinations
based on these lectures. [The beneficiary] advised students on academic curricula and
university options, and attended faculty meetings and educational conferences. [The
beneficiary] has extensive experience leading classroom instruction in History, Social
Studies and related subjects within the (petitioner's] school system, giving her the
specialized knowledge required for the position of Teacher of Social Studies at [the U.S.
company], and qualifying her for an L-lB intra-company transfer visa.
In addition, the petitioner provided the following description of the beneficiary's proposed position as a
teacher of social studies in the United States:
In this position, [the beneficiary] would be responsible to all aspects of classroom instruction
in the area of Social Studies and related subjects in accordance with the teaching models and
educational standards, processes, and procedures of [the petitioner's group]. More
specifically, [the beneficiary] would prepare and deliver lectures to students, as well as
compile, administer and grade examinations based on these lectures. She would also advise
students on academia curricula and university options. In addition to her classroom teaching
responsibilities, [the beneficiary] would conduct research in the area of Social Studies, and
would review new textbooks for possible inclusion in course instruction. [The beneficiary]
would also attend and participate in faculty meetings and educational conferences.
The petitioner asserted that the beneficiary qualifies for the position in the United States since she has
"conducted classroom instruction in the employ of [the petitioner's] schools for one year and nine months in
Tokyo." The petitioner asserts that through this practical experience, the beneficiary developed a specialized
knowledge of "Japanese educational regulations, requirements, and guidelines" and "an advanced level of
knowledge and experience in the organization's educational policies and procedures."
In support of the petition, the petitioner submitted an informational brochure for its school and a certificate of
employment from the foreign entity.
On September 26,2005, the director issued a notice requesting additional evidence in order to establish that
the beneficiary has specialized knowledge. Specifically, the director requested: (1) evidence that the
beneficiary's proposed job duties in the U.S. require specialized knowledge, including a comparison of the
beneficiary's credentials with those similarly employed in the field; (2) evidence that the beneficiary has been
and will be employed in a specialized capacity, including evidence to affirm that the processes and
procedures utilized in performing the proferred duties are indeed specialized in nature; (3) a more detailed
description of the nature of the procedures used by the beneficiary; (4) documentary evidence establishing the
beneficiary possessed specialized knowledge above that which is normally possessed by other teachers in the
industry; (5) evidence to establish that the beneficiary possesses knowledge of a product or process that
cannot be easily transferred or taught to another individual; (6) documentation of the total length of classroom
or on the job training courses, including a copy of the training syllabus; (7) a description of the minimum
amount of time required to train a person to work in the position of social studies teacher; (8) the number of
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employees at the U.S. company and at the foreign company; and, (9) a description of the type of training
program the U.S. employees attended in order to adequately perfonn the duties of the proposed position, and
documentary evidence of this training program.
The petitioner responded to the director's request for evidence on October 11, 2005. Counsel for the
petitioner submitted a letter dated October 7, 2005, responding to the director's request for additional
evidence. In response to the director's request that the petitioner demonstrate that the beneficiary has
specialized knowledge or has been employed in a specialized knowledge capacity, counsel for the petitioner
explained that the U.S. entity is an "international, co-educational secondary school" with the mission to
prepare students to enter the petitioner's university in Japan and other leading colleges and universities.
Counsel asserted that the petitioning company combines "traditional 'receptive/passive' Japanese educational
methods with an 'active' education classroom teaching style which encourages students to observe, think, and
express themselves." Counsel further stated that the U.S. school conducts approximately 70% of the classes
in English and 30% of the classes in Japanese. In addition, the U.S. school provides "curricula, instructors,
counselors and support to Japanese students in accordance with government standards established by the
Japanese Ministry of Education as 'an overseas educational institution," and is accredited with the U.S.
education authorities." Counsel explained that the petitioner tailors its curriculum to satisfy the guidelines for
Japan and the United States.
Counsel further explained that many of the students that attend the U.S. school will go on to attend
universities in Japan and thus the curriculum must prepare the students for an education in Japan. Counsel
states that the U.S. entity's curriculum "dictates that certain specific subject matter, specifically Japanese
History, Japanese Literature, Japanese Civics and Government, and Japanese Language be taught exclusively
in Japanese by educators who are credentialed in Japan for the subject matter with teaching certificates or, in
the alternative, by educators with experience teaching in the Japanese school system, and with an intimate
knowledge of Japanese culture and its oral and written language." Counsel also asserts that in order to satisfy
the high standard established by the petitioning organization, the position of teacher of social studies is a
position that "requires specialized knowledge of the Japanese educational system, teaching methods, and
standards texts." Counsel states that the beneficiary has specialized knowledge of the petitioner's techniques
and "intimate knowledge of Japan's language, culture and its history by virtue of her education, experience,
and Japanese teaching certification."
In the petitioner's response, counsel further compared the beneficiary's knowledge to those similarly
employed in the field. Counsel stated that the beneficiary is special and distinct "among U.S. teachers
generally and among U.S. workers who teach at [the U.S. entity] because they are not similarly qualified by
their academic background and work experience to successfully teach these specialized courses in Japanese
using Japanese texts."
In response to the director's request for the petitioner to demonstrate that the knowledge possessed by the
beneficiary is not general knowledge held commonly throughout the industry, counsel explained that the
beneficiary's ability to "read and teach with Japanese texts in Japanese, and to prepare Japanese class outlines
and administer tests in Japanese" is not general knowledge throughout the industry.
----------------------------- .--- - .. j
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Finally, in response to the director's request for information on the manner in which the beneficiary has
gained her specialized knowledge, counsel for the petitioner outlined the beneficiary's educational
background and work experience with the petitioner. Counsel asserted that the beneficiary was awarded a
bachelors' degree and a master's degree in history, and is in her third year of studies for her Ph.D. in history.
In addition, counsel states that the petitioner employed the beneficiary for nine months as a researcher and
teaching assistant in Japanese history, and one year as a lecturer/instructor. During her employment with the
foreign company, the beneficiary was responsible for the "compilation, administration and grading of
examination in Japanese;" "all aspects of classroom instruction in the area of Japanese history and related
subjects in accordance with the teaching models and educational standards, processes, and procedures of the
[petitioning company]"; "prepared and delivered lectures to students"; and "advised students on academic
curricula and university options"; and "attended faculty meetings and educational conferences." Counsel
asserted that the petitioner does not provide a formal training program but instead the beneficiary developed
her specialized knowledge by "practicing the teaching methods and acquiring a high level of skill through her
work experience, through her studies and through her Japanese teaching certificates."
Counsel emphasized that the beneficiary possesses teaching certification credentials from Japan; advanced
knowledge of the course subject manager, the ability to read, speak and teach in Japanese, and noted that
these skills could not be easily transferred to an individual in the United States. Counsel asserted that the
"required depth of knowledge could only be gained by an individual who spent considerable time in Japan to
learn the complexities of the native language and culture in addition to pursuing studies of Japan's history and
Japanese educational standards and teaching methods."
In response to the director's request, the petitioner submitted a list of authorized textbooks for high school
Japanese history; a sample course study for Japanese history used by the petitioner; a specialized high school
teaching certificate for the subjects of geography and history issued to the beneficiary from the Chiba Board
of Education; a specialized junior high school teaching certificate for the subject of social studies issued to
the beneficiary from the Chiba Board of Education; a certificate of enrollment for the beneficiary issued by
Keio University; a copy of the beneficiary's academic record from Keio University; a graduation certificate
issued to the beneficiary; and an employment letter for the beneficiary.
On September 21,2005, the director denied the petition. The director observed that based on the duties
described by the petitioner, it did not appear that the beneficiary has specialized knowledge or that the
position requires specialized knowledge. The director stated that the "knowledge necessary to perform
classroom instruction in the area of social studies appears common to the industry in Japan" and the
teaching models and methodologies practiced by the petitioner appear easily transferable to other
teachers. The director found that the petitioner did not establish that comparable employees with
knowledge and training similar to that possessed by the beneficiary could not perform the proposed
duties. The director further determined that the beneficiary did not appear to possess knowledge or
expertise beyond what is commonly held in her field.
On appeal, counsel for the petitioner states that the petitioner's processes, which include the Japanese
educational system and standards and the petitioner's teaching methods, and the petitioner's products, which
is based on a comprehensive course curriculum and subject matter of Japanese Social Studies taught in native
Japanese, would be difficult to impart to another individual in the United States without significant economic
inconvenience to the U.S. entity. Counsel contends that the director's decision was based on an incorrect
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standard when the director stated that the beneficiary's knowledge may be broadly held by others in the same
field in Japan. Counsel contends that the director must focus on the teaching industry in the United States
rather than in Japan. Counsel asserts that the knowledge required for the position in the United States is not
common to the teaching industry in the U.S., and is not easily transferable. Counsel also states that the
"essential business processes and procedures are proprietary teaching methods that are at the heart of [the
U.S. entity's] business interests and management." Counsel states that the petitioner's teaching methods are
different from the rest of the industry. Finally, counsel states that only an examination of the knowledge
possessed by the beneficiary is necessary to demonstrate whether the individual qualifies for L-IB
classification as afftrmed in a legacy Immigration and Naturalization Service (INS) memorandum. See
Memorandum from Assoc. Comm., INS, Interpretation of Specialized Knowledge (December
20, 2002)("Ohata Memo''). Counsel also cites Matter ofPenner, 18 1& N Dec. 49 (Comm. 1982), noting
that the AAO looked for "elements beyond general job tasks and duties, defining specialized knowledge as
being related to the proprietary interests of the business and its management, and concerning skills or
knowledge not readily available in the job market."
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has been
employed in a specialized knowledge position or that the beneficiary is to perform a job requiring specialized
knowledge in the proffered U.S. position. In examining the specialized knowledge capacity of the
beneficiary, the AAO will look to the petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii).
The petitioner must submit a detailed job description of the services to be performed sufftcient to establish
specialized knowledge. Id. Based upon the vague job description of the proposed duties and lack of
supporting evidence, the AAO cannot determine whether the U.S. position requires someone who possesses
knowledge that rises to the level of specialized knowledge as defmed at 8 C.F.R. § 214.2(l)(l)(ii)(D).
In the present matter, the petitioner provided a generic description of the beneficiary's intended employment
with the U.s. entity and of her proposed responsibilities as a social studies teacher at the petitioner's academic
institution that fails to identify, much less document, how the beneficiary's performance of the proposed job
duties distinguishes her knowledge as specialized. The job description submitted could easily describe any
teacher position focusing on Japanese history and culture, and makes no mention of any specialized skills or
knowledge utilized in the position. The petitioner emphasizes throughout the record that its school offers a
unique curriculum as it is tailored to satisfy the educational requirements of both the United States and Japan.
However, the petitioner offers no further explanation regarding the beneficiary's experience with the
petitioner's claimed "proprietary" teaching methods outside of her employment with the foreign company for
one year and nine months. The petitioner does not attempt to fully describe the complexity ofthe petitioner's
teaching process and methods, or -adequatelyexplain why other employees could not be trained to teach with
the petitioner's methods. 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
(Corom. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
The petitioner has repeatedly asserted that the petitioning company's processes and procedures are
proprietary teaching methods due to the fact that the U.S. entity is a prestigious academic institution and it's
curriculum provides students with an education that satisfies the educational requirements of the United
States and Japan. The petitioner did not provide an explanation of the petitioner's proprietary teaching
methods except noting that some of the classes are taught in Japanese and that the petitioning company
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combines "traditional 'receptive/passive' Japanese educational methods with an 'active' education
classroom teaching style which encourages students to observe, think, and express themselves." The
petitioner does not explain how this proprietary teaching method is any different from teaching methods
utilized by other internationalacademic institutions. Furthermore, there is no evidence in the record that the
beneficiary actually participated in the development of such methodologies and processes that might lead to
the conclusion that her level of knowledge is comparatively "advanced." 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.
In addition, contrary to the assertions of the petitioner, there is no evidence on record to suggest that the
processes and procedures pertaining to Japanese social studies teaching positions within the u.s.
company are different from those applied for other academic institutions providing education in Japanese
social studies. In addition, the petitioner has not explained how the knowledge of the petitioner's teaching
methods rises to the level of specialized knowledge, particularly since the methods do not appear to differ
from teaching methods utilized by academic institutions. The methods include lecturing, classroom
interaction, preparing examinations, grading examinations, and providing guidance to the students. The
petitioner emphasizes that there is a difference since the classes are taught in Japanese and the subject
matter relates to Japanese history and culture. Teaching a course in a different language or in a subject
matter not related to the United States does not rise to the level of specialized knowledge as required by
the regulations.
While academic institutions may develop a teaching program tailored to its own needs and its student's
needs, it has not been established that there would be substantial differences such that knowledge of the
petitioning company's processes and teaching standards would amount to "specialized knowledge." It
appears that the petitioner employs individuals who have received a degree in education, and there is no
evidence that the petitioner's employees must undergo any specific training in the petitioner's proprietary
teaching methods.
In addition, the petitioner did not submit any documentation to evidence that the beneficiary received
additional training that was not provided to other teachers employed by the foreign company. Thus, the
AAO cannot conclude that the beneficiary has an "advanced knowledge" of the petitioner's proprietary
teaching methods over and above from other employees of the petitioner or other employees in the
teaching industry. The petitioner did not distinguish the beneficiary's knowledge, work experience, or
training from those of the other employees within the organization. The beneficiary had worked with the
foreign company for one year and nine months, however, the petitioner did not submit documentation
evidencing that the beneficiary received specific training in the petitioner's proprietary teaching methods.
Based on the petitioner's statements and the evidence presented, it impossible to classify the beneficiary's
knowledge of the petitioner's techniques and methods as advanced. The AAO cannot conclude that the
beneficiary's role is "of crucial importance" to the organization or that she qualifies as "key personnel"
within the petitioner's family of companies based on her training and previous assignments. See Matter of
Penner, 18 I&N Dec. 49, 54 (Corom. 1982). It may be correct to say that the beneficiary is a highly
skilled employee, but this is not enough to bring the beneficiary to the level of "key personnel."
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The beneficiary's claimed specialized knowledge is based on her native knowledge of the Japanese language
and culture, her academic credentials in teaching, and work experience. Although it may be unusual for an
academic institution in the United States to provide a curriculum in English and Japanese that satisfied the
educational requirements for the United States and Japan, mere familiarity with the Japanese language and
culture does not constitute specialized knowledge. The combination of the beneficiary's language and
cultural knowledge, education and work experience does not rise to the level of specialized knowledge
contemplated by the statutory and regulatory definitions and precedent decisions. Again, the claimed
specialized knowledge must relate specifically to the petitioning company.
On appeal, counsel asserts that the director erred by comparing the beneficiary's specialized knowledge in
teaching Japanese social studies from other teachers in Japan. It is appropriate for CIS to examine the home
country as well when considering the general knowledge of a product within a specific industry,
especially given that the same specialized knowledge was claimed for the beneficiary's required one year
of employment abroad with the foreign entity. While the method of teaching social studies in Japanese
does not need to be proprietary, it should not be common and generally shared by other Japanese teachers.
In this case, no evidence was presented indicating that a Japanese-speaking social studies teachers are
uncommon in Japan, or that the teaching methods used by the beneficiary are uncommon or somehow
different from other teachers in that region of the world. Accordingly, the beneficiary could not be
considered to be employed abroad in a position involving specialized knowledge, as required by 8 C.F.R.
§ 214.2(l)(3)(iv).
On appeal, counsel restates the petitioner's "unique" products, the beneficiary's experience with the foreign
entity's "unique products," and the inconvenience the petitioner would experience if it is unable to retain the
beneficiary's services, and concludes that she has consequently satisfied the defmition of specialized
knowledge. Additionally, counsel alleged that the beneficiary's knowledge is valuable to the petitioner's
productivity, competitiveness, and financial position. While the beneficiary's skills and knowledge may
contribute to the success of the petitioning organization, this factor, by itself, does not constitute the
possession of specialized knowledge. The beneficiary's contribution to the economic success of the academic
institution may be considered; however, 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(lX1)(iiXD).
As determined above, the beneficiary does not satisfy the requirements for possessing specialized knowledge.
Based on the above, the AAO concurs with the director's conclusion that the petitioner has failed to
demonstrate that the beneficiary has acquired specialized knowledge as defined in the statute and regulations.
The AAO does not dispute the likelihood that the beneficiary is a teacher who understands the petitioner's
teaching methods and the Japanese culture, and is able to apply it within the context of the petitioner's
specific environment. However, it is 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 ofColley, 18 I&N Dec. 117, 120 (Comm. 1981)(citing Matter
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ofRaulin, 13 I&N Dec. 618(R.C. 1970) and Matter ofLeBlanc, 13 I&N Dec. 816 (R.c. 1971)).1 As stated by
the Commissioner in Matter of Penner, when considering whether the beneficiaries possessed specialized
knowledge, "the LeBlanc and Raulin decisions did not fmd that the occupations inherently qualified the
beneficiaries for the classifications sought." 18 I&N Dec. at 52. 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' operation.
Id. at 53.
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. at 15. 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 term, the
AAO must make comparisons not only between the claimed specialized knowledge employee and the
general labor market, but also between the employee and the remainder of the petitioner's workforce. While
it may be correct to say that the beneficiary in the instant case is a highly skilled and productive employee,
this fact alone is not enough to bring the beneficiary to the level of "key personnel."
1Although 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 1990 Committee Report does not reject, criticize, or
even refer to any specific INS regulation or precedent decision interpreting the term. The Committee
Report simply states that the Committee was recommending a statutory definition because of "[v]arying
[i.e. not specifically incorrect] interpretations by INS," H.R. Rep. No. 101-723(1), at 69, 1990
U.S.C.C.A.N. at 6749. Beyond that, the Committee Report simply restates the tautology that became
section 214(c)(2)(B) of the Act. Id. The AAO concludes, therefore, that the cited cases remain useful
guidance concerning the intended scope of the "specialized knowledge" L-lB classification. The AAO
supports its use of Matter of Penner, as well in offering guidance interpreting "specialized knowledge."
Again, the Committee Report does not reject the interpretation of specialized knowledge offered in
Matter ofPenner.'
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Moreover, in Matter ofPenner, 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-l classification "will not be large"
and that "[t]he 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 lmowledge, but that during the course of the sub-committee
hearings on the bill, the Chairman specifically questioned witnesses on the level of skill necessary to qualify
under the proposed "L" category. In response to the Chairman's questions, various witnesses responded that
they understood the legislation would allow "high-level people," "experts," individuals with "unique" skills,
and that it would not include "lower categories" of workers or "skilled craft workers." Matter ofPenner, id.
At 50 (citing H.R. Subcomm. No.1 of the Jud. Comm., Immigration Act of 1970: Hearings on H.R. 445,91 81
Congo 210, 218,223,240,248 (November 12, 1969».
Reviewing the Congressional record, the Commissioner concluded in Matter of Penner that an expansive
reading of the specialized lmowledge provision, such that it would include skilled workers and technicians, is
not warranted. The Commissioner emphasized that the specialized lmowledge worker classification was not
intended for "all employees with any level of specialized lmowledge." Matter ofPenner, 18 I&N Dec. at 53.
Or, as noted in Matter of Colley, "[m]ost 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 transferees." 18 I&N Dec. at 119. According to Matter ofPenner, "[s]uch a conclusion would
permit extremely large numbers of persons to qualify for the 'L-I' visa" rather than the "key personnel" that
Congress specifically intended. 18 I&N Dec. at 53; see also, 1756, Inc. V. Attorney General, 745 F. Supp. at
15 (concluding that Congress did not intend for the specialized lmowledge capacity to extend to all
employees with specialized knowledge, but rather to "key personnel" and "executives.")
The record does not distinguish the beneficiary's lmowledge as more advanced than the knowledge
possessed by other teachers that teach Japanese social studies. The petitioner has not established that the
beneficiary has received extensive training or has participated in developing proprietary methodologies
for the petitioner. The beneficiary is claimed to have "advanced" knowledge of the company's business
processes, procedures and methodologies, as well as "specialized knowledge" in the petitioner's
proprietary teaching methods created by and utilized by the company. However, as the petitioner has
failed to document any specific training in the petitioner's claimed proprietary teaching methods other
than the beneficiary's one year and nine months work experience with the petitioner, or otherwise
describe or document the purported knowledge, these claims are not persuasive. 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. Without this information, the AAO has no basis to
compare the beneficiary's knowledge to that of other workers within the company, and therefore it can
not be concluded that her knowledge is "advanced." There is no indication that the beneficiary has any
knowledge that exceeds that of any experienced teacher, or that she has received special training in the
company's methodologies or processes which would separate her from any other similarly employer
worker with the foreign company. However, notwithstanding the lack of documentation, the petitioner
EAC 05 252 52777
Page 12
failed to demonstrate that the beneficiary's knowledge is more than the knowledge held by a skilled
worker. See Matter ofPenner, 18 I&N Dec. at 52.
The petitioner noted that the beneficiary obtained her specialized knowledge by working with the foreign
company for one year and nine months. If the AAO were to follow the petitioner's reasoning, then any
employee who had worked as a teacher with the parent company for more than one year possesses
specialized knowledge. However, based on the intent of Congress in its creation of the L-1B visa category,
as discussed in Matter ofPenner, even showing that a beneficiary possesses specialized knowledge does not
necessarily establish eligibility for the L-lB intracompany transferee status. The petitioner should also submit
evidence to show that the beneficiary is being transferred to the United States as a crucial employee.
In sum, the beneficiary's duties and skills demonstrate knowledge that is common among teaching
professionals working in the beneficiary's specialty in the educational field. The petitioner has failed to
demonstrate that the beneficiary's training, work experience, or knowledge of the company's processes is
more advanced than the knowledge possessed by others employed by the petitioner, or that the processes and
methods used by the petitioner are substantially different from those used by other academic institution. The
AAO does not dispute the fact that the beneficiary's knowledge has allowed her to successfully perform her
job duties for the foreign entity. However, the successful completion of one's job duties does not distinguish
the beneficiary as possessing special or advanced knowledge or as a "key personnel," nor does it establish
employment in a specialized knowledge capacity. As discussed, the petitioner has not submitted probative
evidence to establish that the beneficiary's knowledge is uncommon, noteworthy, or distinguished by some
unusual quality and not generally known in the beneficiary's field of endeavor, or that his knowledge is
advanced compared to the knowledge held by other similarly employed workers within the petitioner and the
foreign entity.
The legislative history of 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 has not been employed abroad and would not be employed in the United States in a
capacity involving specialized knowledge. For this reason, 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.