dismissed L-1B Case: Engineering

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U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: SRC 06 022 52502 Office: TEXAS SERVICE CENTER Date: MAR 2 7 ZOD1
INRE: Petitioner:
Beneficiary:
Petition: Petition for.a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(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.
~~
AObertp. Wiemann, Chief
Administrative Appeals Office
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DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the
appeal.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of senior
design engineer as an L-lB nonimmigrant intracompany transferee with specialized knowledge pursuant to
section lOl(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1l01(a)(15)(L). The
petitioner, a Delaware corporation, states that it designs, manufactures and services sophisticated machinery
and systems. The petitioner states that it is the parent company of the beneficiary's foreign employer, FMC
Tecfmologies Singapore Pte. Ltd., located in Singapore. The petitioner seeks to employ the beneficiary for a
period of three years.
The director denied the petition, concluding that the petitioner failed to establish that the position offered to
the beneficiary requires an employee with specialized knowledge, or that the beneficiary possesses such
knowledge.
On appeal, counsel for the petitioner disputes the director's decision and outlines the beneficiary's experience
and specific specialized knowledge in the petitioner's products. Counsel concludes that the beneficiary
possesses advanced knowledge of the petitioner's processes and pro<:edures and therefore qualifies for the
benefit sought. Counsel submits a brief in support of the appeal.
To establish L-l eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8
U.S.C. § 1101(aXlS)(L), the petitioner must demonstrate that the beneficiary, within three years preceding
the beneficiary's application for admission into the United States, bas been employed abroad in a qualifying
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year
by a qualifying organization and seeks to enter the United States temporarily in order to continue to render his
or her services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial,
executive, or involves specialized knowledge.
The regulation at 8 C.F.R. § 214.2(1)(3) further states that an individual petition filed on Fonn 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ
the alien are qualifying organizations as defined in paragraph (1)(1)(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 perfonned.
(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.
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(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 himlher to perform the
intended services in the United States; however, the work in the United States
need not be the same work which the alien performed abroad.
This matter presents two related, but distinct issues: (I) whether the beneficiary possesses specialized
knowledge; and (2) whether the proposed employment is in a capacity that requires specialized knowledge.
Section 2l4(c)(2){B) of the Act, 8 U.S.c. § 1184(cX2)(B), provides:
For purposes of section IOl(aX15)(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 intemational markets or has an
advanced level of knowledge ofprocesses and procedlU"esof the company.
Furthermore, the regulation at 8 C.F.R. § 214.2(l)(l)(ii)(D) defines "specialized knowledge" as:
[S]peciaJ 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 October 28,2005. In a letter dated October 25,2005, the petitioner
stated that the beneficiary has worked for the foreign company since April 2004. Initially he was employed
in the position of Senior Product Design Engineer in the Surface Division, and was transferred in 2005 to the
Subsea Division. The petitioner provided the following description of the duties the beneficiary performed
for the foreign company:
• Creates, review and approves designs, drawings, DBI's (database information),
specifications, etc. of existing or new technology or applications. Ensures that assignments
meet standards and performance requirements within area of expertise.
• Uses the CAD/CAM and database systems and facilitates to make layouts, analyze designs,
evaluate equipment systems and generate new equipment designs.
• Prepares documentation, information and communications such as ECN (Engineering
Change Notices), DB! (Data Base Information) and engineering specifications and ensures
conformance to aU policies and procedures related to engineering functions, labor reporting
and system reporting.
• Develop solutions to non recuning problem by analyzing, interpreting and evaluating
various precedence data. Anticipates potential problem and take preventive actions.
• Consult with other department on equipment design and questions. Identify root cause of
problem. Develop alternative solutions and communicate associated benefit and risk.
• Prepares technical data and papers for sales personnel, customers and publications. Makes
field trips with sales and service personnel with new products and technical applications.
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• Take ownership of engineering tests. Prepares test reports and closure reports on
engineering project assignments.
• Assists and checks the work of drafters, designers and less experienced engineers.
• Participates in planning and scheduling projects.
• Accepts ownership of conceptual design.
• Participates in product and standardization project.
• Attends proprietary industry related professional society meetings and functions in order to
stay infonned of and make good use ofnew technology, products and personal development
opportunities.
In addition, the petitioner submitted a list of projects the beneficiary completed during his tenure with the
foreign company. The list is incorporated in the record and will not be repeated herein.
The petitioner also explained that the beneficiary will continue to perform several of the duties the
beneficiary perfonned with the foreign company. In addition, the petitioner provided the following
description of the company's products and the beneficiary's proposed position as a senior design engineer in
the United States:
His main duties will be to apply expert product knowledge and seasoned experience to
broader scope and more complex problems and projects; establishing design requirements,
conceptualizing, planning and executing designs.
He will use the multiple technologies learned while completing the various Surface and
Subsea projects to supervise and execute the engineering aspects of the installation of
Enhanced Horizontal Subsea Trees. [The petitioner's] EHXT product line comes in two
pressure ratings of 10,000 and 15,000 psi, which are both rated for use in subsea wells up to
10,000 feet of water depth. The most significant enhancements of the EHXT system are the
tubing hanger and tree cap designs. The traditional pressure-containing internal tree cap has
been eliminated, and its pressure containing barriers have been moved to the tubing hangar.
This enables the tree cap to be installed by ROV off the drilling rig's critical path, after the
BOP has been disconnected from the tree. The result is the most cost-effective and reliable
horizontal completion system available in the industry today. The projects [the beneficiary]
will work on include the KMG 10K and 15K EXHT's, as well as the Anadarko, Llog and
Dominion 10K EHXT's.
In carrying out the tasks for this new position, [the beneficiary] will carry out the following
duties and responsibilities:
• All of the same duties listed above for his foreign position
• Leads one or more professionals and/or technicians on a project basis. Ensures that
project members understand business goals and creates energy and action toward
these goals.
• Develops unique solutions for complex technical problems that may include the
design of new systems or the development of solutions having few or no precedents.
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• Consults with other departments on equipment designs and questions. Anticipates
potential problems and proactively solves complex problems through creative
thinking, using internal and external resources.
• Assists with the development of new professionals.
• Participates in setting objectives for projects. Defines project schedule.
• Accepts ownership of conceptual designs and regularly sponsors projects to higher
management.
• Leads product standardization projects.
• Write and delivers technical papers for publication.
On November 9,2005, the director issued a notice requesting additional evidence in order to establish that the
beneficiary has specialized knowledge. The director stated that the petitioner must provide evidence that the
beneficiary's knowledge is uncommon, noteworthy or distinguished by some unusual quality and not
generally known by practitioners, and that the beneficiary's knowledge is different from the elementary or
basic knowledge possessed by others within the company. Specifically, the director requested: (1) evidence
relating to the unique methodologies, tools, programs, andlor application that the company utilizes, and an
explanation as to how these are different from the methodologies, tools andlor applications utilized by other
companies in the industry; (2) a record from the human resources department detailing the manner in which
the beneficiary has gained Dis specialized knowledge, which should indicate the pertinent training courses the
beneficiary completed when working with the foreign company, including the duration of the course, the
number of hours spent taking the courses each day, and certificates of completion of these courses; (3) a
description of the minimum amount of time required to train an employee to fill the proffered position; (4)
infonnation as to how many workers are similarly employed by the organization, and out of these employees
infonnation as to who received the same training received by the beneficiary; and (5) an explanation how the
beneficiary was employed by the foreign company for one continuous year in a specialized position when the
beneficiary was hired in April 2004, eighteen months prior to filing the instant petition.
In response, counsel for the petitioner submitted a letter dated December 21, 2005, responding to the
director's request. In response to the director's request for evidence relating to the unique methodologies,
tools, programs, andlor application that the company utilizes, and an explanation as to how these are different
from the methodologies, tools and/or applications utilized by other companies in the industry, counsel for the
petitioner explained the petitioner's proprietary products, including the "tree cap running tool," the "hydraulic
orientation bushing running tool," "Murphy's kikeh EHXT engineering," "Kodeco 3 in 1 riser connector
system," "SINOPEC metal sealing wellhead system," and "HP-HY actuators." The petitioner claims that
several of its products are patented and/or differ from similar products available on the market. The
petitioner submits documentation explaining the petitioner's products.
Counsel also stated that the beneficiary possesses knowledge which can be gained only through prior
experience with the petitioner. Counsel states "in order to be able to do the work at the level of Sr. Design
Engineer, the individual must have a strong background of over 8 years working in tree design and at least
one year working with [the petitioner's] systems to acquire knowledge of [the petitioner's] systems and
procedures." Counsel explained that the beneficiary possesses over 10 years in tree design and over one year
with the petitioning company.
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In response to the director's request for a record from the human resources department detailing the manner in
which the beneficiary has gained his specialized lmowledge, which should indicate the pertinent training
courses the beneficiary completed when working with the foreign company, the duration of the course, the
number of hours spent taking the courses each day, and certificates of completion of these courses, the
petitioner submitted the beneficiary's resume, a list of projects completed by him with the foreign company,
and a training record spreadsheet for the beneficiary issued by the foreign company.
According to the beneficiary's training record submitted by the petitioner, it appears that the beneficiary
completed 12 courses for the foreign company, which required a total of 18 days in order to complete. The
petitioner only indicated the days the training courses occurred but did not specify the training hours for each
specific date as requested by the director. Failure to submit requested evidence that precludes a material
line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14).
In response to the director's request for a description of the minimum amount of time required to train an
employee to fill the proffered position, counsel for the petitioner stated that the estimated amount of time is
over eight years of engineering of oilfield systems with at least one year working with the petitioner's
organization. Counsel explained that the petitioner employs approximately twenty engineers in the position
of senior design engineer. In addition, the training required of similarly employed individuals is "estimated to
be over 8 years in tree design, with one year with [the petitioner's] systems."
The director also requested an explanation of how the beneficiary was employed by the foreign company for
one continuous year in a specialized position when the beneficiary was hired in April 2004, eighteen months
prior to filing the instant petition. Counsel for the petitioner states that the beneficiary has gained specialized
lmowledge while working for the company for over eighteen months "on the design of their proprietary tree
systems." Counsel states: "As [the beneficiary] has a Mechanical Engineering Degree and 10 years
experience in the tree design field[,] his 6-7 months working with [the petitioner's] systems is adequate to
prepare him for the Tree Product Engineering Group." Counsel also states that the regulations do not require
the beneficiary to have been employed with the foreign company for one year in a position of specialized
capacity, but instead the work experience must only "involve specialized lmowledge." Thus, counsel states
that the beneficiary may gain his specialized lmowledge during the one year of employment abroad.
In the response to the director's request, cOlmsel for the petitioner stated that the petitioner has satisfied the
factors utilized to determine specialized lmowledge as outlined in a legacy hnmigration and Naturalization
Service (INS) memorandum. See Memorandum from ~cting Exec. Assoc. Comm., INS,
InterpretationofSpecialKnowledge(March 9, 1994)("Puleo memo"). Specifically, counsel asserts that the
beneficiary meets the requirements set forth in the Puleo memo in that he possesses (1) lmowledge valuable
to the competitiveness in the marketplace; (2) unusual knowledge of foreign operating conditions; (3)
experience with significant assignments abroad that were beneficial to the employer; and (4) knowledge that
can only be gained with the employer or which can not be easily transferred.
On January 6, 2006, the director denied the petition concluding that the petitioner did not establish that the
beneficiary was employed by the foreign company for one continuous year in a specialized capacity. The
director noted that the petitioner indicated it takes one year working with the organization in order to obtain
the required knowledge of the petitioner's products. Since the beneficiary has been employed for the foreign
SRC 06 02252502
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company for 18 months, the director stated that the beneficiary was obtaining the specialized knowledge in
the first year and was thus only employed in a specialized knowledge position for six months. In addition,
the director stated that it does not appear that the claimed knowledge itself is specialized or that the position
of senior design engineer requires someone with specialized knowledge, since most of the knowledge
required to work with the products may be obtained outside of the company. The director stated that the
petitioner's requirement that the beneficiary work at least one year with the company's systems is too
ambiguous to constitute specialized knowledge, as this year "could be to impart knowledge that is common
within the organization and easily acquired by somebody familiar to the field."
On appeal, counsel for the petitioner argues that the regulations do not state "that the alien must have reached
some arbitrary threshold of specialized knowledge prior to commencing the qualifying year of employment
abroad or preclude the alien from acquiring during the qualifying year of employment, the specialized
knowledge the alien ultimately comes to hold." Counsel suggests that the director's decision "arbitrarily
creates a 2-year foreign employment requirement that is not supported by appropriate statutory or regulatory
authority." Counsel also asserts that the petitioner submitted sufficient documentation to evidence that the
position offered to the beneficiary requires an employee with specialized knowledge, and that the beneficiary
possesses such knowledge.
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.
Counsel's assertions are not persuasive. The petitioner has not established that the beneficiary possesses
"specialized knowledge" as defined in section 2l4(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)(l)(ii)(D), that he was employed by the foreign entity in a position involving
specialized knowledge, or that the intended position in the United States.
The AAO acknowledges counsel's assertion that there is no statutory or regulatory requirement that the
beneficiary be employed at the specialized knowledge level for at least one full year prior to the filing of a
nonimmigrant intracompany transferee petition requesting classification as a specialized knowledge worker.
Counsel's assertion is not persuasive.
Section 101(a)(l5)(L) ofthe Act states:
...an alien who, within 3 years preceding the time of his application for admission into the
United States, has been employed continuously for one year by a finn or corporation or
other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United
States temporarily in order to continue to render his services to the same employer or a
subsidiary or affiliate thereof in a capacity that is managerial, executive or involves
specialized knowledge.
In order to "continue to" render services in a capacity that is managerial, executive, or involves, specialized
knowledge, it is necessary for the beneficiary to have been employed in one of these qualifying capacities
during his or her employment abroad. Contrary to counsel's contentions, the evidentiary requirements for the
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filing of an L-l petition, as set forth by the regulations at 8 c.P.R. § 214.2(l)(3)(iv), further confmn the
petitioner's burden to establish that the beneficiary was employed in a qualifying capacity. Specifically, the
petitioner is required to submit "evidence that the alien's prior year of employment abroad was in a position
that was managerial, executive, or involved specialized knowledge and that the alien's prior education,
training, and employment qualifies him/her to perform the intended services in the United States."
Therefore, the director's decision was not beyond the scope of the law and regulations as asserted by counsel.
The petitioner clearly and repeatedly stated that in order to fill the position of senior design engineer, the
employee must have "at least one year working with [the petitioner's] systems to acquire knowledge of [the
petitioner's] systems and procedures." Based on the petitioner's representations, the beneficiary, who joined
the foreign entity in April 2004, would have reached a minimum level of competence in his position
approximately six months before the petition was filed. Accordingly, the director reasonably concluded that
the beneficiary's previous eighteen months of employment did not involve one full year of employment
which would be considered to be at the level of a "specialized knowledge" employee. Even if the
beneficiary's period of training could be considered to "involve" specialized knowledge, as discussed further
below, the L-IB visa classification was not intended for employees who are minimally qualified to perform
their stated duties.
The AAO also acknowledges counsel's argument that the director's decision creates a requirement that the
beneficiary have been employed for more than one year. It must be noted that the regulations require
evidence that the qualifying year of employment be in a managerial or executive capacity, or in a capacity
requiring specialized knowledge. Therefore, if some portion of the beneficiary's foreign employment is not in
a qualifying capacity, an employee who has been employed with a qualifying entity for many years may not
meet this eligibility requirement. A determination as to whether a beneficiary was employed in a qualifYing
capacity for the requisite one-year period must necessarily be made on a case-by-case basis. In this case, the
petitioner's stated one-year training requirement for the type of position offered effectively made it impossible
to find that the beneficiary, after eighteen months of employment, couId have been employed in a position
involving specialized knowledge for one full year. To the extent that a requirement that the beneficiary be
employed for more than one year was imposed, the petitioner's statements regarding the minimum
requirements for the beneficiary's position imposed it.
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(l)(3)(ii). The petitioner must submit a detailed job
description of the services to be performed sufficient 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 defined at 8 C.F.R. § 214.2(l)(1)(ii)(D).
In addition, contrary to the assertions of the petitioner, there is no evidence on record to suggest that the
processes and technology pertaining to senior engineering positions within the U.S. company are different
from those applied for other companies providing tree design services. As noted above, the petitioner asserts
that that its products are unique and the petitioner submitted documentation explaining each product and how
it differs from similar products in the industry. However, the petitioner also states that the minimum
qualifications in order to fill the position of senior design engineer includes at least eight years of professional
SRC 06 022 52502
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experience with tree design and one year working with the petitioner. Thus, most of the experience required
in order to fill the position of senior design engineer may be obtained at another company in the same field.
It appears that the industry as a whole, including the petitioner, utilizes the same or at least similar machinery
and products. The petitioner has not explained how the petitioner's design process differs from the design
process of other companies in the industry. 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.
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Corom.
1972».
In addition, there is no evidence in the record that the beneficiary has received specific in-house training that
would have imparted him with the claimed "advanced" knowledge of the company's processes, procedures
and methodologies. In response to the director's request for evidence, the petitioner submitted a list of the
training courses completed by the beneficiary while employed with the petitioner. It appears that the
beneficiary completed 12 courses in the span of 18 days. Thus, the beneficiary received a total of 18 days of
training courses during his employment with the foreign company. In addition, the beneficiary's resume
indicates that he began working on projects with the petitioner's products and machinery as soon as he began
his employment with the petitioner, which undermines the claim that the beneficiary obtained a specialized
knowledge of the petitioner's products, or that such knowledge is required to perfonn the duties of a senior
design engineer.
Further, the petitioner claims to have 9000 employees worldwide, and states that only 20 are senior design
engineers. With a company of 9000 employees and a gross income of $2.76 billion, this raises questions
as to how only a few of the petitioner's employees are trained to fill the position of senior design engineer
when the company's main service is providing the products and machinery that need to be designed,
customized and maintained by a senior design engineer. Doubt cast on any aspect of the petitioner's proof
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered
in support ofthe visa petition. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988).
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 senior design engineer who understands the
petitioner's products and technology 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 ofRaulin, 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
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 recommending a statutory definition because of "[v]arying
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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.
Further, 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."
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-1 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 knowledge, but that during the course of the sub-committee
[i.e. not specifically incorrect] interpretations by INS," H.R. Rep. No. 101-123m, at 69, 1990
U.S.C.C.A.N. at 6749. Beyond that, the Committee Report simply restates the tautology that became
section 2l4(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-IB 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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hearings on the bill, the Chairmanspecifically questioned wi1nesses 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. Cornrn., Immigration Act of 1970: Hearings on H.R. 445, 91st
Cong. 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 knowledge provision, such that it would include skilled workers and technicians, is
not warranted. The Commissioner emphasized that the specialized knowledge 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-l' 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 lmowledge
possessed by other senior design engineers. 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 products created by and utilized
by the company. However, as the petitioner has failed to document any specific training other than
eighteen days of courses, 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 cannot be concluded that his lmowledge is "advanced." There is no
indication that the beneficiary has any knowledge that exceeds that of any experienced senior design
engineer, or that he has received special training in the company's methodologies or processes which
would separate him from any other similarly employer worker within the petitioner's international group.
However, notwithstanding the lack of documentation, the petitioner failed to demonstrate that the
beneficiary's lmowledge 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 his specialized knowledge by working with the foreign
company for eighteen months, and that the position he fills requires one year of experience. Ifthe AAO were
to follow the petitioner's reasoning, then any employee who had worked as a senior design engineer with the
parent company for more than one year possesses specialized knowledge. Since the beneficiary has been
employed by the foreign entity for 18 months, it is reasonable to assume that he possesses a level of
knowledge of the company's teclmologies, processes and procedures equivalent to any other senior engineer
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employed by the company in a similar position for a similar length of time, and less advanced than many
employees who have been employed by the company for a longer time. Although knowledge need not be
narrowly held within the organization in order to be specialized knowledge, the L-1B visa category was not
created in order to allow the transfer of all employees with any degree of knowledge of a company's
processes. If all senior design engineers with one year of experience in the petitioner's organization are
deemed to have "special" or "advanced" knowledge, then that knowledge could not be considered uncommon
or out of the ordinary. However, based on the intent of Congress in its creation of the L-lB visa category, as
discussed in Matter of Penner, even showing that a beneficiary possesses specialized knowledge does not
necessarily establish eligibility for the L-1B 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.
The AAO does not dispute that the petitioner's organization has its own internal systems, processes and
methodologies. However, there is no evidence in the record to establish that the beneficiary's knowledge of
these systems processes and methodologies is particularly advanced in comparison to his peers, that the
processes themselves cannot be easily transferred to its U.S. employees or to professionals who have not
previously worked with the organization, that the U.S.-based staff does not actually possess the same
knowledge, or that the U.S. position offered actually requires someone with the claimed "advanced
knowledge." The petitioner has not submitted sufficient documentary evidence in support of its assertions or
counsel's assertions that the beneficiary's skills and knowledge of the foreign entity's processes, procedures
and methodologies would differentiate him from any other similarly employed senior design engineer within
the petitioner's group or within the petitioner's industry. Simply going on record without supporting
documentary evidence is not sufficient for the purpose of meeting the burden of proof in these proceedings.
Matter ofSoffici, 22 I&N Dec. at 165.
Counsel's reliance on the Puleo memorandum is misplaced. It is noted that the memorandum was intended
solely as a guide for employees and will not supersede the plain language of the statue or the regulations.
Therefore, by itself, counsel's assertion that the beneficiary's qualifications are analogous to the examples
outlined in the memorandum is insufficient to establish the beneficiary's qualification for classification as a
specialized knowledge intracompany transferee. While the factors discussed in the memorandum 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, service,
research, equipment, techniques or management. 8 C.F.R. § 214.2(lXiiXD). As discussed above, the
petitioner has not established that the beneficiary's knowledge rises to the level of specialized knowledge
contemplated by the regulations.
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. AttorneyGeneral,supraat 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.
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ORDER: The appeal is dismissed.