dismissed L-1B Case: Education

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
.Services.
File: WAC 0719354166 Office: CALIFORNIA SERVICE CENTER Date: om' 21 2001
INRE:
Petition:
Petitioner:
Beneficiary:
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
. and Nationality Act, 8 V.S.c. § 1l01(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.. .
RO~f
Administrative Appeals Office
, "'",
www.uscis.gov
WAC 0719354166
Page 2
DISCUSSION: The Director, California 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 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 V.S.c. §'1101(a)(15)(L). The petitioner, a non-profit California corporation, operates
a language institute. It claims to be subsidiary of Yonsei University, located in Korea. The petitioner seeks to
employ the beneficiary as its academic dean for a period of three years.
The director denied the petition concluding that the petitioner failed to establish that the beneficiary possesses
specialized knowledge or that the prospective' position in the United States requires an individual with
specialized knowledge.
-,
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
applied an overly-stringent standard in analyzing whether the beneficiary possesses knowledge, and failed to
consider factors set forth in a 1994 legacy Immigration and Naturalization Services (INS) memorandum.
Counsel asserts that "the beneficiary's knowledge is specialized because of her 'special' understanding of the
procedures and processes" of the foreign entity, which is "uncommon in the educational industry." Counsel
submits a brief 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. § 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 manageria~ 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'manag~rial, executive, or specialized knowledge capacity. .
The regulation at 8 c.F.R. §214.2(l)(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.
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(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.
WAC 07 19354166
Page 3
(iv) Evidence that the 'alien 's prior year of employment abroad 'was in a position that was. , . , ,I
managerial , executive or involved specialized knowledge and that the alien 's prior
education , training" and employmen~, .qualifies him/her to perform , the intended "
services inthe United States ; however , the work in the United States need not be the ,
'. t '
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 the following:
For purposes of section 101(a)(15)(L), ~n 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 cO,mpany 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)(1)(ii)(D) 'defines "specialized knowledge" as:
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, [S]pecialknowledge 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 petit ion was filed on June 14, 2007. In a fetter dated June 12, :2007; the petitioner
described the beneficiary's proposed position as f~llows:
The duties and responsibilities of the Academic Dean 'is [sic] to maintain and upgrade
academic integrity of [the petitioner] so that its 'stated mission, purpose and objectives are
fulfilled. The specific duties and responsib ilities of [the beneficiary] as Academic Dean
include:
1. Supervise and oversee the operation of-academic departments and certificate programs ;
2. .Recruit qualified faculty and recommend for employment to the Director ;
3. Schedule courses 'to,be offered each term ;
4. Make faculty assignt?ents;
5.. Coordinate on-going curriculum improvement to achieve ' the institutional goals of
academic excellence;
6. Continually improve instructional methodology;
7. Monitor ~nd implement changes in applicable laws and regulations regarding scholastic
regulations and graduation requirement ; I "
8. , Prepare annual, budget for all the educat ional programs offered by [the petitioner] ; .
9. Conduct annual evaluation of faculty and staff under her jurisdiction; ,
WAC 0719354166
Page 4
10. Coordinate conflict resolution among the faculty , between faculty and administrative
staff, and between ' faculty and student prior to referring the Grievance Coordination '
Committee ; , , , "
11. Make recommendation to the ' Director for promotion, demotion , suspension , or
termination .
The petitioner provided evidence that the beneficiary received her bachelor's 'and master's degrees in
Education from the foreign entity. The petitioner indicated that the beneficiary was originally employed as an
. ,. '.
instructor in the foreign entity's 'education department from 1988 until 1990 , and since 1991, has served as a
Korean language instructor at the foreign entity's Institute of Language Research and Education. The
petitioner provided a letter from the foreign entity , dated February 26, 2007, verifying the beneficiary's
employment since 1991, but did not provide a description of the duties she performs in her role as a language
instructor.
The petitioner described the beneficiary's qualificat ions as follows:
. . . .
In addition to the knowledge andexperience of Korean language education , [the beneficiary]
is a person with "specialized knowledge" who' has advanced level ,of expertise in processes '
and procedures of [the foreign entity]. Due to her involvement with [the foreign entity], and
the familiar knowledge of our academic programs , [the beneficiary] is uniquely qualified for
the position of Academic Dean of [the petitioner].
The director issued a request for additional evidence on June 27 , 2007, requesting that the petitioner 'provide
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additional. evidence to establish that the beneficiary possesses specialized knowledge . . Specifically , the '
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director instructed ,the petitioner to .provide: (1) a copy of the foreign entity's organizational chart and the total
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number of employees working at the location where the beneficiary is employed ; (2) the U.S. company's
organizational chart; (3) an explanation regarding any special or advanced duties the beneficiary performed
abroad and those she will perform in the United States , with an explanation as to how those duties differ from
other workers employed by .the petitioner or similar U.S. employers; (4) a detailed explanation regarding the
exact equipment, system , product , technique or serviCe ~f which the beneficiary has specialized knowledge ,
and an explanation as to whether it is used by other employers; (5) an explanation ' regarding how the
beneficiary's training or, experience is uncommon , noteworthy , or distinguished by some unusual quality and
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not generally known by practitioners in her field ; and (7) information regarding ' the impact upon the
'petitioner's business if the petitioner is unable to obtain the beneficiary's services.
, "
In, a response dated 'June 28, 2007, counsel for the petitioner referenced a 1994 legacy Immigration and
, Naturalization Service memorandum from James A . Puleo which provides guidance in the interpretation of,
specialized knowledge. See,Memorandum of , Acting Executive Associate Commissioner ,
USINS, Interpretation of Special Knowledge, CO 214L-P. (March 9, 2004)(Puleo memorandum). Counsel
asserted that the Puleo memorandum established a lesser standard for special ized knowledge ,and noted that
the petitioner need only e stablish that the beneficiary has either special knowledge of the company product
and its application ,in international markets, or an advanced level of knowledge of .the processes and
procedures ofthe company .
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WAC 07 19354166
Page 5
Counsel stated that "the beneficiary, due to her longstanding continuous \elatioIJ,ship with [the foreign entity's]
language program, fulfills the criteria of special knowledge regarding company services that is different ,
uncommon and not generally known throughout the i!1dustry."Counsel further explained as follows:
The service that [the foreign entity] and [the petitioner] provide is education and the
Beneficiary's knowledge of the services provided by her university is at a tremendously high
level. Beneficiary has worked as a University language instructor for 16 years. ... Due to the
extended period of time as an instructor at the [foreign entity], specifically, the Institute of
Language Research and Education at [the foreign entity], Beneficiary has fine tuned
knowledge of the department technicalities , its vision and philosophy, the research conducted
within the department and the language techniques utilized within the school. Furthermore,
during this period ... the Beneficiary participated in development of curriculum and tests and
also worked as an Assistant to the Head Academic Dean. Only an individual with significant
knowledge similar to the Beneficiary, could effectively carry the principles , vision an~
techniques of the [foreign entity] in Korea , and successfully implement them at [the
petitioner].
Due to her , prolonged exposure In this particular field, the Beneficiary's knowledge is
considered unique and uncommon . [The foreign entity] has been a benchmark in the field of
Korean language instruction both domestically , and internationally , as annually [the foreign
entity] attracts hundreds of students worldwide , to visit Korea to obtain a deeper grasp of
Korean language and culture. A good number of students who attend these summer sessions
are U .S. citizens. Therefore , any instructor ~ith experience working at [the foreign entity's]
Language Center is uniquely entitled to experience teaching to:individuals from a vast array '\
, Of cultures, and diverse demographics. Not only is Beneficiary experienced in .teaching the
Korean Language , she is also sublimely skilled at interacting with a diverse contingent of
students. This specialized knowledge is a necessity if one is to serve as dean of an institute
rooted in the melting pot of Los Angeles , California. Needless to say, Beneficiary is
sufficiently qualified as having special knowledge of the service that her employer provides,
and.her experience of 16 years at [the foreign entity] is unique and uncommon in the field,
and it is those skills that will allow her to excel at [the petitioning company]. '
Counsel further stated that the beneficiary possesses an advanced level of knowledge of the petitioner's
processes and 'procedures. ,Counsel explained that the foreign entity is a prestigious university which imparts
"much more than just ·head knowledge." -Counsel stated that serving as dean of the U.S. entity "requires
knowledge of more than just consonants, grammar , or administration," and that "specialized knowledge in this
cOI~text demands for the employee not only to know intricacies of the service being offered , but also advanced
detailed knowledge of the systematic processes and procedures of petitioning company." With respect to the
beneficiary's qualifications ,_counsel stated: .
Beneficiary has detailed knowledge of the procedural aspects of the [petitioning
organization's] language programs due to her command over the program's exclusive
educational materials: The courses that are taught at [the foreign entity] , and' influence the
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Page 6
classes taught at [the petitioning company] only utilize textbooks published by [the foreign
university] and the Beneficiary has an abundance of experience in employing those texts.
[The petitioner's organization] institutes special procedures and processes in teaching
language to its students, and it would' therefore necessitate placing a dean with substantial
experience with the curriculums to serve in a leadership role such as the Beneficiary. Lesser
seasoned instructors, or instructors with experience outside of [the foreign entity's] program
would be characterized as having general experience and could not fill the position that
Beneficiary was appointed to.'
Counsel also emphasized that the beneficiary was formerly a student at the foreign entity, having earned both
, her bachelor's and master's degree there. Counsel stated that "the duality of her relationship with [the foreign
university], as both instructor and student gives her special insight into the procedures and processes of the
school that other less experienced instructors would lack." .Counsel asserted 'that the beneficiary is "unrivaled,
by her peers in this respect."
Finally, again citing to the Puleo memorandum, counsel argued that the knowledge that the beneficiary
possesses would be difficult to impart to a third party and would "ultimately cause economic inconvenience"
to the petitioner and the foreign entity in the event that the beneficiary could not be hired for the position of
dean. Counsel stated that the beneficiary is "ideally qualified" and that it would be inefficient and costly to
train another individual to fill the position. Counsel noted that it would take "countless hours of training" to
impart the knowledge held by the beneficiary, at great cost to both companies, as the beneficiary herself "is
one of few individuals who can impart a specific type of unique knowledge to a potential trainee."
The petitioner submitted a copy of the beneficiary's resume, prepared on June 12, 2007, which shows that in
addition to her position as instructor, she concurrently served as "Assistant to the Head of Academic Affairs"
at the foreign entity's language institute from March 2004 through February 2007. The petitioner also
provided a second employment letter from the foreign entity, dated June 13,. 2007, indicating that the
beneficiary held the position of assistant to the head of academic affairs from March 1,2004 to February 28,
2007.
The director denied the petition on ~uly 13,2007, concluding that the petitioner had failed to establish that th~
beneficiary possesses specialized knowledge or that she would be employed in the United States in a position
requiring specialized knowledge. The director acknowledged the beneficiary's extensive period' of
employment with the foreign entity, but observed that the record lacks evidence to substantiate the petitioner's
claims that the beneficiary's current or proposed, position involves specialized knowledge or that the
beneficiary possesses specialized knowledge. ' The director noted that the duties of the proffered position are
substantially similar to duties performed by individuals employed as academic deans of similar institutions,
and found that "the education and skills required to perform those duties are not so unusual as to warrant a/ . ,
conclusion that others in the field of education do not possess them."
The director further found that the petitioner failed to provide a detailed list of the duties performed by the
beneficiary for the foreign entity, and therefore did not substantiate its claim that she has been employed in a
position involving specialized knowledge. The director determined that "mere experience with the petitioner
'WAC 0719354166
Page 7
even in varied capacities for an extended period does not automatically constitute specialized knowledge." In
addition, the director disagreed that the beneficiary's ability to interact with "a diverse contingent of students"
constitutes specialized knowledge, '
On appeal, counsel for the petitioner asserts that the director's standard of review was not consistent with the
standards established in the. Puleo memorandum. Counsel contends that the' beneficiary's knowledge is
specialized because she possesses a "special" understanding of the' foreign entity's processes and procedures,
which is uncommon in the educational industry. Counsel' emphasizes that the U.S. entity's "framework,
processes and procedural operations" mimic those of the foreign entity as much as possible. Counsel asserts
that "the foreign entity's service product, education, is unique and different than others within the educational
industry" and that the beneficiary's understanding of the distribution of the product' qualifies her for the
position of academic dean.
Counsel further contends that the director applied a prior, more stringent standard of requiring 'that the
beneficiary possess an advanced level of expertise and proprietary knowledge not available in the United
State~ labor market, Counsel notes that such a test ofthe U.S. labor market is clearly disallowed by the Puleo
memorandum, and therefore objects to the director's statements that the duties of the position are similar to
duties performed by other academic deans and require skills possessed by othe~s in the field. Counsel asserts
that the director relied heavily on these factors, and therefore, the denial was plainly in error.
I
With respect to the director's determination that the job description for the beneficiary's proposed position was
insufficient to establish specialized knowledge, counsel states that "it seems the job description sufficiently
depicted a specialized knowledge employee." Counsel asserts that "a coordinating and supervisory role"
demands refined knowledge of the petitioner's processes and procedures and "advanced managerial and
executive acumen," and thus the skills required would be considered "advanced" as that term is defined in the
Puleo memorandum.
Counsel also emphasizes that the knowledge the beneficiary possesses would be "tremendously difficult to .
impart toa third party," .and that locating and training another individual to fill the proffered position would
cause economic inconvenience to both the foreign and U.S. entities. Counsel essentially reiterates the
,arguments made in response to the request for evidence in this regard.
Finally, counsel argues that if the director's high standard applied in this case .were applied to all petitions
requesting L-1B status, "it would follow that no foreign intra company worker with any degree of knowledge
could ever be granted a visa due to specialized knowledge status." Counsel asserts that the petitioner provided
a comprehensive list of duti.es "which require the highest levels of knowledge of company policies,
procedures and practices," and are "very similar to those of high-level executives and or managers." Counsel
concludes that the denial of the petition will have. a "significant negative impact" on the continued operation
of the petitioning company.
On review, the petitioner has not demonstrated that the beneficiary possesses specialized knowledge or that.
the prospective position in. the United States requires "specialized knowledge" as defined in section
214(c)(2)(B) 'of the Act,'8 U.S.c. §1184(c)(2)(B), and the regulation at 8 C.F.R. § 214.2(l)(1)(ii)(D). ~
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WAC 07 .19354166
Page 8
Preliminarily, regarding the petitioner's claim of specialized knowledge,it must be noted thatin making a
determination as to whether the knowledge possessed by a beneficiary is special or advanced, the AAO relies
on the statute and regulations , legislative history and prior precedent. Although counsel suggests that United
States Citizenship and Immigration Services (USCIS) is bound to base its decision on the above-referenced
Puleo memorandum, the memorandum was issued as guidance to assist users employees in interpreting a
term that is not clearly defined in the statute , not as a replacement for the statute or the original intentions of
Congress in creating the specialized knowledge classification, or to overturn prior precedent decisions that
continue to prove instructive in adjudicating L-IB visa petitions. The AAO will weigh guidance outlined in
the policy memorandum accordingly, but not to the exclusion, of the statutory and regulatory definitions ,
legislative history or prior precedents.
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.P.R. § 214.2(l)(3)(ii). Thepetitioner must submit a detailed description of
the services to be performed sufficient to establish specialized knowledge. Id. It isalso 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 . See 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 of
LeBlanc, 13 I&N Dec. 816 (R .C. 1971)). 1 ' "
As stated by the Commissioner in Matter of Penner, i'8 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. .
ld. The Commissioner also provided the following clarification:
A distinction c,:n 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. ,
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 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 recOrhmend~ng a statutory definition because of "[vjarying [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. ld. The AAO
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concludes, therefore, the cited cases, as well as Matter ofPenner, remain useful guidance concerning the
intended scope of the "specialized knowledge" L-l B 'classification. '
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Page 9
Ed. at 53. The evidence of record demonsJtes that the beneficiary is ~ore akm to an employee whose skills
and experience enable her to provide a se+ice , rather than an employee who has unusual duties , skills , or
knowledge beyond that of a skilled worker. I ' .
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In Matter of Penner; the Commissioner discussed the legislative intent behind the creation of the specialized
knowledge category. 18 I&N Dec . 49 (Cornm. 1982). Although the definitio'n of "specialized knowledge" in
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effect at the time of Matter ofPenner was superseded by the 1990 Act to the extent that the former definition
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required a showing of "proprietary" knowledge , the reasoning behind Matter ofPenner remains applicable to
the current .matter. The decision noted that the 1970 House Report, H.R . No. 91-85'1, was silent on the
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subject of specialized knowledge, but that during the course of the sub-committee hearings on the bill, the
Chairman specifically questioned witnesses Ion the levelof 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,' j "experts ," individuals with "unique" skills : and that it would not
include "lower categories" of workers or "skilled craft workers." Matter of Penner, supra at 50 (citing H.R.
Subcomm . No.1 of the Jud. Comm ., Immiiration ,Act of 1970: Hearings on H.R .445 ,91~t Cong o210, 218,
223,240 , 248 (Novembe~ 12,1969)). , I
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Reviewing the Congressional " record , the: Commissioner concluded that an expansi ve reading of the
specialized knowledge provision , such tJiat it would include skilled workers and ' technicians , is not
warranted. The Commissioner , emphasized that the .specialized knowledge worker classification was not, I , , ' .
intended for "all employees with any level of specialized knowledge ." Matter ofPenner, 18 I&N Dec. at 53.
Or, as noted in Matter 0/Colley , "[m]ost employees today are specialists and have ' been trained and given
specialized knowledge. However , in view 9f the House Report, it can not be concluded that all employees
with specialized knowledge or performing highly tethnical duties are eligible for classification 'as '
intracompany transferees ." 18 I&N Dec. at 119. According to Matter ofPenner, "[s]uch aconclusion would
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permit extremely large numbers of persons to qualify for the 'L-l' visa" rather than the "key personnel" that
Congress specifically intended. 18 I&N Deb. at 53 ; see also, 1756, Inc" .745 F . Supp. at 15 (concluding that
Congress did not int~nd for the specialized !knowledge capacity to extei-Idto all employees with specialized
knowledge, but rather to "key personnel" anf "exefutives.")
Thus, based on .the int~ht of Congress in.its lcreation of the ~f ~he L~ in visa category , as discuss~d in Mat~er
of Penner, even showing that a beneficiary ' possesses specialized knowledge does not necessanly establish
eligibility for the L -lBintracompany transferee classification . The petitioner should also submit evidence to
show that the beneficiary is being transferreq to the United States as a crucial employee. As determined by the
director, and as discussed below , the benefic ;ary 's job description does hot distinguish her knowledge as more
advanced or distinct among Korean language instructors employed by the foreign or U .S. entities or by other
unrelated education~l ' institutions. The statutory definition of specialized knowledge ' requires the AAO to
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make comparisons in order ' to determine what constitutes specialized knowledge. The term "specialized '
knowledge" is not an absolute concept and ~ ann o t be clearly defined. As observed in 1756, Inc. v . Attorney
,General, "[slimply put, specialized knowledge is a relative . . .idea which cannot hav~ a plain meaning ." 745 '
, I .
F.Supp. 9, 15 (D .D.C. 1990). I
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WAC 07 19354166
Page 10
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 . Ifan 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 a~d the general labor market, but
, ,
also between that employee and the remainder of the petitioner's workforce. '
Although the Immigration Act of 1990 provided a statutory definition of the term "specialized knowledge ,"
Congress did not give any indication that it intended to expand the field of aliens that qualify as possessing
specialized knowledge . Although the statute omitted the term "proprietary knowledge" that was contained in
the regulations , the statutory definition still calls for "special knowledge " or an "advanced level of
knowledge, " similar to the original regulation . Neither the 1990 HouseReport nor the amendments to the
statute indicate that Congress intended to expand the visa category beyond the "key pe~sonnel " that were
originally mentioned in the 1970 House Report. Considered in light of the original 1970 statute and the 1990
amendments, it is 'clear that Congress intended for the Class of nonimmigrant L-l aliens to be narrowly drawn
and carefully regulated ,. and to this end provided a .specific statutory definition of the term "specialized
knowledge" through the Immigration Act of 1990.
On appeal, counsel relies on the 1994 Puleo memorandum, asserting that it represents current USCIS policy
of specialized knowledge criteria. Counsel also notes that the memorandum specifically disallows a test of the
U :S. labor market in making a determination as to whether the beneficiary's knowledge is specialized.
However, upon review , the 'director applied the appropriate standard in this case. The Puleo memorandum
allows USCIS to compare the beneficiary's knowledge to the general 'United States labor market and the
petitioner's workforce in order to distinguish between specialized and general knowledge. The Acting
Associate Commissioner notes in the memorandum thatvofficers adjudicating petitions involving specialized
, knowledge ,must ensure that the knowledge possessed ' by the beneficiary is 'not general knowledge held
commonly throughout the industry but that it is truly 'specialized." Puleo~emo , supra . A comparison of the
beneficiary 's knowledge to the knowledge possessed 'by others in the field is therefore necessary in order to
determine the level of the beneficiary 's skills and 'knowledge and to ascertain whether the beneficiary 's
knowledge is advanced : 'In other words , absent anoutside group to which to compare the beneficiary 's
, ,knowledge, USCIS would not be able to ensure thatthe knowledge possessed by 'the beneficiary is not general
knowledge held commonl y throughout the industry but that it is truly special ized. Id. The analy sis for
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specialized knowledge therefore requires a review of the knowledge possessed by the United States ' labor
market, but does notconsider whether workers are 'available in the United States to perform the beneficiary's
job duties. ' '
In this matter , the petitioner hasprovided only general descriptions of the beneficiary's current position of
instructor and propo sed role as academic dean that convey little understanding of the type or extent of
specialized knowledge that would be required to successfully perform the purported job duties. The job
WAC 07 19354166
Page 11
descriptions and supporting evid~nce provided do not e stablish that the beneficiary has acquired specialized
, ' knowledge of the organization 's product , service , research , equipment , techniques or other interests , that she
possesses an advanced knowledge or expertise in the company 's processes and procedures , or thatshe would
apply "specialized" or "advanced" knowledge in order to perform the duties of the position offered in the
, United States . See 8 C.F.R. § 214.2(l)(1)(ii)(D).
The director correctly observed that the descript ion of the proffered position included duties that are typical
for an academic dean position and failed to convey any understanding as to pow the beneficiary's claimed
specialized knowledge would be applied in fulfilling her proposed duties. The petitioner neglected to respond
to the director's specific request that.it explain "how the duties the alien ... will perform in the United States
are different from those of other workers employed by the petitioner or other U.S. employers in this type of
position." On appeal, counsel suggests that it could be concluded from reading the description that such a
"coordinating and supervisory role" requires "refined knowledge of the petitioner's processes and procedures'land
,"advanced managerial and executive acumen" that are "highly developed or complex," and that the position
description "sufficiently depicted a specialized knowledge employee." The AAO is not persuaded by counsel's
argument for several reasons . First, the petitioner cannot expect USCIS to speculate as 'to the ,specialized
knowledge required for the beneficiary's position ,' particularly when the petitioner was clearly instructed to
explain in detail what the requirements for the position .are and how the duties require an employee With
specialized knowledge. Failure to submit requested evidence that precludes a material line ofinquiry shall be
grounds for denying the petition . 8 C.F.R. § 103.2(b)(14).
Second, the' implication of counsel's argument is that any managerial or supervisory position with any
multinational institution would require an employee with "specialized knowledge" in that such employees would
normally require an advanced knowledge of their particular institution's policies arid procedures. Finally , even if
the AAO accepted the petitioner's claim that the position requires "the highest levels of knowledge of company
policies, procedures and practices," as discussed further below, the petitioner has ' not established that the
beneficiary in fact possesses "the highest level" of knowledge, or advanced knowledge, relative to other
employees in the international organization.
1 : '
Furthermore, the petitioner's claimfails, in part, on an evidentiary basis, as the record contains no description
of the duties performed by the beneficiary during her employment with the foreign entity. The petitioner
initially stated that the beneficiary was employed as aKorean language instructor from 1991 until the present
time, and submitted a letter from the foreign entity verifying her employment in this position ; however, the
petitioner offered no position description . When reque sted to specify any special ' or advanced duties the
beneficiary performed for the foreign entity ; the petitioner neglected to provide a description of her duties ,
a~d instead emphasized her length of service with the foreign entity as both a student and instructor. Going on
record without support ing documentary evidence is not sufficient for purposes of m~eting the burden of proof
.in these proceedings . Matter ofSoffici , 22 I&N Dec .-158, 165 (Comm. 1998) (citing Matter ofTreasure Craft
of California, 14 I&N Dec . 190 (Reg . Comm. 1972) . Again, failur~ to submit requested evidence that
precludes a material line of inquiry shall be gi-dunds for denying the petition . 8 C.F.R. § I03 .2(b)(14). ' '
In addition, the petit ioner stated for the first time in response to the request for evidence that the beneficiary
also served as "assistant to the Head of Academic affairs" ofthe foreign entity for the three years immed iately
, "
WAC 07 ,19354166
Page 12
preceding the filing of the ,petition, concurrently with her teaching \position . The petitioner offered no
explanation for the o~ission of this information at the time of filing, and theAAO will not attribute it to an
oversight without some explanation as to why the beneficiary's employment history -was revised. Regardless ,
the petitioner did not provide a description of the duties the beneficiary performed as assistant to the Head of
Academic Affairs , so it is unknown whether it was relevant to her claimed specialized knowledge.
, ,
The petitioner was also requested to explain how the beneficiary's training or experience was uncommon or
noteworthy compared to other employees in the petitioner's group. In response, the' petitioner offered no
information regarding any specific training or experience, and instead focused on the beneficiary's length of
service wit~ the foreign entity, and the fact that she was a student at the foreign university prior to becoming
an instructor and thus has had a "multifaceted relationship" with the university. The AAO is not able to
differentiate the knowledge held by the beneficiaty from that held by any other instructor employed by the
, ,
foreign entity , and therefore cannot conclude that the beneficiary's knowledge should beconsidered advanced.
The petitioner's claim that the beneficiary's knowledge is "unique and uncommon" due to "prolonged
exposure" is unpersuasive , particularly in light ofthe fact that the petitioner has opted n<?t to explain what
duties the beneficiary performed or how they involved the application of specialized knowledge . The fact that
the beneficiary attended the university 'as a student prior to becoming an instructor adds little support to the
, petitioner's claim that she possesses knowledg~ that it advanced compared to her peers. , There is nothing in
the record that would lead to a conclusion that her knowledge is uncommon compared to other similarly
employed language instructors in the foreign entity; . .
With respect to the claimed specialized knowledge , the petitioner claims that the beneficiary 's knowledge
relates to "department techriicalities ," the university's "vision and philosophy," "the research conducted within
the department ;" and the university's "language ,techniques ." The petitioner offered no further explanat ion
, regarding the foreign entity's departmental technicalities , vision , philosophy, research or language techniques,
and therefore it has failed to sufficiently describe the claimed specialized knowledge . Specifics are clearly an
important indication of whether a beneficiary's duties involve specialized knowledge, otherwise meeting the
definitions 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), affd, 905 F.2d 41 (2d . Cir. 1990). Again, the petitioner was explicitly requested
to "explain, in more detail , exactly what is the equipment , system, product; technique, or service of which the ,
beneficiary hasspecialized knowledge, and indicate whether it is used or produced by other employers in the
United States and 'abroad ." The petitioner responded by emphasizing that the foreign entity is "rich with
tradition , prestige and distinction" and is a "pillar of excellence." .
, ,
As noted in the Puleo memorandum , the mere fact that a petitioner alleges that an alien 's knowledge is
somehow different does not establish that the alien possesses specialized knowledge. The petitioner bears ,the
burden of establishing through the submission of probat ive 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. The petitioner cannot simply rely on its claims that the foreign entity is prestigious and '
well-respected in lieu of providing the evidence needed to meet its burden of proof. The petitioner's failure to
attempt to distinguish its methods and techniques from those offered by other institutions providing similar
educational services undermines its claimthat the knowledge possessed by the beneficiary and required for
the, U.S. position is truly specialized. Going on record without supporting documentary evidence is not
WAC 07 19354166
Page 13 ,
"
sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec.
158, 165 (Comm . 1998) (citing Mat~er of Treasure Craft of California, 14 I&N Dec . 190 (Reg. Comm.
1972)). '
The petit ioner also distinguished the beneficiary by noting that she "participated in the development of
curriculum and "tests," and the beneficiary's resume confirms that she served as a "Test Development
Committee Member" in June 2006. HoW-eyer,"the petitioner provided no information to elaborate the. .
beneficiary's role .within the committee or the composition of the committee , and the AAO cannot determine
that th is' assignment was special or 'advanced compared to her peers among the foreign entity's faculty.
Similarly, the beneficiary's "abundance of experience" with the "exclusive educational materials" developed
by the foreign entity has not been shown to equate to specialized knowledge, ,as all language instructors
employed by the foreign entity also utilize the same materials. Although the petitioner stated that "lesser
seasoned instructors" would not have the necessary experience with the petitioner's "special procedures and
processes" in language instruction , the petitioner off~rs no explanation as to the amount or type of experience
required to reach the beneficiary's claimed level of expertise. Again, going on 'record without supporting
documentary evidence is not sufficient for purposes ofmeeting the bUrd~n ' of proof irithese proceedings. !d.
Furthermore, as noted by the director, the fact that the beneficiary is "experienced in teaching the Korean '
language" and "sublimely skilled at interacting ~ith a diverse contingent 'of students," are factors that do riot
relate particularly to the petitioner or the foreign entity. While such skills undoubtedly make the beneficiary a
valuable employee , the ability of a Korean university instructor to teach the Korean language and interact
with students from other countries does not r ise to the level of specialized knowledge of the petitioner 's
services, techniques or other interests . According to the petitioner , "any instructor" working for the foreign
entity gains experience with a diverse student body , and this would be true .of instructors at many major
, universities worldwide . The petit ioner's blanket claim that the beneficiary is the only employee of the foreign
entity who could possibly function as academic dean for the petitioner is not corroborated by any evidence .
Based on the petitioner's statements and the minimal evidence presented, it impossible to classify the
beneficiary's knowledge of the petitioner's processes and procedures as advanced . . The AAO cannot ,
co~clude that the b eneficiary's current 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 tra ining and previous '
assignments . See Matter ofPenner, 18 I&N Dec. at 53.
Although knowledge need not be narrowly heldwithin an organization in order to be considered specialized
knowledge , the L-IB visa category was not created in order to allow the transfer of all employees with any
degree of knowledge 'of a company 's processes. The beneficiary is one of many language instructors
employed by the foreign entity and the petitioner has not distinguished her knowledge from similarly
employed workers within the company, other than emphasizing her length of service. If all employees are
deemed to possess "special" or "advanced" knowledge, the~ that knowledge would necessarily be ordinary )
and commonplace . Based on counsel 's arguments , anyone who has served for many years as a language
instructor for the foreign entity would possess "special knowledge" or an "advanced level of knowledge."
Counsel's expansive interpretation of the spec ialized knowledge provision is untenable , as it would allow
virtually any skilled or exp erienced employee to enter the U~ited States as a specialized knowledge worker .
. \
"
. WAC 07 19354166
Page 14 '
Finally , the AAO will address counsel'sclaim that ·the beneficiary qualifies for classification as a specialized
knowledge employee pursuant to characteristics outlined in the 1994 Puleo memo, specifically , that she
possesses knowledge that is valuable to the employer 's competitivene ss ,in the marketplace and possesses
knowledge of a product or process which cannot be easily transferred or taught to another individual. While
these factors may be considered, the regulations specifically require that the 'beneficiary possess an "advanced
level of knowledge" of the ,organization's processes and procedures , or a "special knowledge " of the petitioner 's
product. rservice, research, equipment, techniques, or management. 8 C.F.R. § 214.2(l)(l)(ii)(D). As discussed
above, the petitioner has not established that the beneficiary's knowledge rises to the level of speci,alized
knowledge contemplated by the regulations.
Based on the above discussion, the petitioner has failed to demonstrate that the beneficiary's training, work
experience, or knowledge of the company's methodologies and techniques is more advanced than the
knowledge possessed by others employed by the petitioner, or that knowledge of these methodologies and
techniques alone constitutes specialized knowledge . The AAO does not dispute the fact that the beneficiary 's
knowledge has allowed herto successfully perform her job duties for the foreign entity. However , the
successful completion of one's job duties does not distinguish the beneficiary as "key personnel ," nor does it
establish employment in a specialized knowledge capacity. As discussed , the petit ioner has not submitted
probative evidence to establish that the beneficiary 's knowledge is uncommon , noteworthy, or distinguished
by some unus~al quality , and not generally known . in the beneficiary 's field of endeavor , or that her '
'knowledge is 'advanced compared to the knowledge held by other similarly employed workers within the
petitioner and ~he foreign entity.
The legislative history ' for the term "specialized knowledge " provides ample support for a restrictive
interpretation ofthe 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. The record does not establish that the
beneficiary has specialized knowledge or that the position offered with the United States entity 'r equires I
specialized knowledge.
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 .
J