dismissed L-1B Case: Furniture Hardware Systems

ideatifyiDgdatadeletedto
pre~ clearly unwarranted
IDVUJOD ofpersonal privacy
PUBLICCOpy
u.s.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: SRC 05237 51248 Office: TEXAS SERVICE CENTER Date: AUG 0 1 Z007
IN RE: 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)(l5)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~
.
~'-- . ..
Robert . Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 0523751248
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of customer
support specialist as an L-I B 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, a limited partnership, is allegedly in the business of designing, marketing, and manufacturing
furniture hardware systems. 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 beneficiary will be
employed in a capacity which involves specialized knowledge or that he has specialized knowledge.
On appeal, counsel for the petitioner asserts that the petitioner has satisfied the criteria for establishing that
the beneficiary has specialized knowledge. Specifically, counsel asserts that the beneficiary has specialized
knowledge of the petitioner's office furniture systems inventory, equipment, and technology as well as the
petitioner's corporate structure and philosophies.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 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)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies him/her to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
SRC 05 23751248
Page 3
At issue in this proceeding is whether the petitioner has established that the beneficiary will be employed in a
capacity which involves specialized knowledge or that the beneficiary has 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(1)(1)(ii)(D) defines "specialized knowledge" as:
[S]pecial knowledge possessed by an individual of the petitioning organization's product,
service, research, equipment, techniques, management or other interests and its application in
international markets, or an advanced level of knowledge or expertise in the organization's
processes and procedures.
In a letter dated August 17,2005, the petitioner's business is described as follows:
[The petitioner] is an affiliate of Hettich International, a multinational operation that designs,
manufactures and markets innovative hardware and fixtures for the furniture industry
(including kitchen, bathroom, office and residential applications)[.] The world's largest
manufacturer of European furniture hardware, [the organization] is based in Kirchlengern,
Germany - the site of our parent company's founding in 1888.
[The organization] specializes in the design and development of innovative furniture
hardware solutions custom tailored to the needs of each customer. Our commitment to
quality begins with the choice of raw materials and extends to all of the production processes.
[The organization] utilizes state-of-the-art technology for computer-aided design of product
lines and invests significant time and resources in the Research and Development Division
(including environmental simulation of static and dynamic stress on fittings, finite element
analysis, etc.). [The organization] continues its commitment to quality by adhering to a
rigorous quality assurance program involving both internal and external (ISO 9001 and EN
2900 I) standards.
The petitioner also described the beneficiary's job duties and purported specialized knowledge in the letter
dated August 17, 2005 as follows:
As Customer Support Specialist, [the beneficiary] will serve as the primary contact for
customers in the United States, Latin America and Mexico in connection with the design and
development of innovative and highly sophisticated office furniture systems, custom-tailored
to the needs of each customer. These office systems are designed and developed by [the
organization] based upon advanced design principles and technology which is constantly
evolving and improving, and much of the technology comprising [the organization's] systems
SRC 05237 51248
Page 4
is patented and/or subject to protection under various trade secret laws and contractual
obligations. The ability to make competent product and system recommendations requires in­
depth knowledge of [the organization's] proprietary products and innovations. In addition,
the process for ensuring timely and accurate selection and delivery of office furniture systems
is a complex one that is critical to the ongoing operations of our customer base. The many
different pieces within our office furniture systems inventory may have differing serial
enumeration, varied shipping lead times, costing differentials due to currency fluctuation, etc.
In order to perform the core job duties of the position, the Customer Support Specialist must
be intimately familiar with not only the availability and compatibility of our furniture systems
and products but also the shipping lead times, the cost, as well as the ultimate technical
suitability of the systems for the intended customer application.
* * *
Applying his specialized knowledge of [the organization's] office furniture systems
inventory, equipment, technology, corporate structure and philosophies, [the beneficiary] will
provide both customer and technical support, respond to requests for information and identify
and resolve or arrange for resolution of design and technical problems and issues. He will
also coordinate with the Accounting and Purchasing Departments to research and resolve
customer inquiries, monitor incoming shipments to ensure quality and accuracy; order
systems and monitor the systems inventory.
In the performance of his duties, [the beneficiary] will utilize his proficiency in AutoCad,
mechanical drafting, in-depth knowledge of our manufacturing techniques, cabinet
construction, industrial design and associated technical suitability.
The petitioner also provided a copy of its product catalogue as evidence of "the technical breadth and
sophistication" of the petitioner's products.
On September 9, 2005, the director requested additional evidence. Specifically, the director requested
evidence distinguishing the beneficiary's knowledge from similar knowledge in the industry; the number of
other employees of the petitioner who currently have the same knowledge as the beneficiary; detailed training
records for the beneficiary; and the minimum amount of time required to train an employee to fill the
proffered position.
In response, the petitioner provided further evidence as well as an explanatory letter from counsel dated
November 30, 2005. Counsel summarizes the evidence regarding the beneficiary's training and experience,
and the petitioner's workforce, as follows:
As the enclosed affidavits from [the organization's] managers who have provided training to
the Beneficiary indicate, the Beneficiary has completed more than three years of training
specifically related to Petitioner's furniture systems which has enabled him to reach his
current level of expertise and knowledge of Petitioner's furniture systems. While there are
other individuals within Petitioner's organization who have knowledge of one or more
SRC 05 237 51248
Page 5
components of Petitioner's furniture systems, no one except the Beneficiary has the
combination of training and experience with all the systems which makes the Beneficiary's
training and knowledge unique within [the organization].
While counsel does not clarify in his letter the amount of time the beneficiary spent in training over a three­
year period, the appended training overview for the beneficiary reveals that he received approximately 114
days of training. The overview and affidavits do not reveal how much of this training was in a classroom
setting and how much was "on the job" training. The evidence also does not explain which aspects of the
beneficiary's training allegedly imparted specialized knowledge.
Counsel's letter and an appended affidavit also give examples of five furniture systems which are allegedly
unique and/or proprietary to the petitioner's organization and of which the beneficiary has knowledge.
On December 15, 2005, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary will be employed in a capacity which involves specialized knowledge or that he
has specialized knowledge.
On appeal, counsel for the petitioner asserts that the petitioner has satisfied the criteria for establishing that
the beneficiary has specialized knowledge. Specifically, counsel asserts that the beneficiary "possesses
specialized knowledge of Petitioner's proprietary and patented office furniture systems inventory, equipment
and technology as well as Petitioner's corporate structure and philosophies."
Upon review, counsel's assertions are not persuasive in demonstrating that the beneficiary will be employed in
a specialized knowledge capacity as defined at 8 C.F.R. § 214.2(l)(l)(ii)(D) or that he has specialized
knowledge.
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. In this case, while
the beneficiary's job description adequately describes his duties as a customer support specialist, the petitioner
fails to establish that this position requires an employee with specialized knowledge or that the beneficiary
has specialized knowledge.
Although the petitioner repeatedly asserts that the beneficiary's proposed position in the United States will
require "specialized knowledge," the petitioner has not adequately articulated any basis to support this claim.
The petitioner has failed to identify any specialized or advanced body of knowledge which would distinguish
the beneficiary's role from that of other similarly experienced employees in the industry at large. Going on
record without documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings. Matter of Sofjici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 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),
aff'd, 905, F.2d 41 (2d. Cir. 1990).
SRC 05 237 51248
Page 6
In support of its assertion that the beneficiary's knowledge of the petitioner's "office furniture systems
inventory, equipment and technology" and its "corporate structure and philosophies" constitutes "specialized
knowledge," the petitioner relies heavily on its position that the furniture systems are unique, patented, and/or
proprietary to the petitioner's organization. The petitioner further asserts that the beneficiary gained this
specialized knowledge through relevant training and experience over a three-year period.
Despite the counsel's assertions, the petitioner has not established that the beneficiary's knowledge of the
petitioner's "office furniture systems inventory, equipment and technology" and its "corporate structure and
philosophies" constitutes "specialized knowledge." While the record may establish that many of these
products, including products of which the beneficiary has knowledge, are unique or proprietary to the
petitioner's organization, the record does not reveal the material difference between the petitioner's products,
systems, corporate structure, or philosophies and other similar products, systems, structures, or philosophies
in the industry. Without producing evidence that the petitioner's product or service is different in some
material way from similar products or services offered on the market which would make the beneficiary's
knowledge economically burdensome to impart to a similarly experienced employee, the petitioner cannot
establish that the beneficiary's knowledge of the petitioner's product is noteworthy, uncommon, or
distinguished by some unusual quality that is not generally known by similarly experienced personnel
engaged within the beneficiary's field of endeavor. Simply asserting that the petitioner's product is "unique"
or "proprietary" is not sufficient to establish that knowledge of the product is indeed "specialized." Again,
going on record without documentary evidence is not sufficient for purposes of meeting the burden of proof
in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165.
Likewise, the petitioner has not established that the beneficiary's training or experience imparted "specialized
knowledge." While the petitioner did submit evidence that the beneficiary received training, this training
appears to have lasted approximately 114 days spread out over a three-year period. First, the petitioner does
not clearly connect all of this training with the petitioner's product or service and does not explain whether
this training was an official training program or whether it was "on the job" training, which might better be
characterized as work experience. In fact, much of the training appears related to administering product
shows and exhibitions, and it is unclear how of much of this training is actually related to the technical
aspects of the petitioner's products.
Second, while the regulations do not require that a beneficiary receive a certain amount of training in order
for knowledge to be deemed "specialized," specialized knowledge must nevertheless be difficult to impart to
another individual without significant economic inconvenience to the petitioner. In this matter, the
beneficiary allegedly received 114 days of training. Moreover, the petitioner admits that other employees
already have knowledge of "one or more components" of the petitioner's furniture systems. Thus, as some
employees already share some, if not most, of the beneficiary's knowledge, it must be concluded that these
employees would require even less "training" to be able to perform the duties of the proffered position.
However, the petitioner does not reveal which components of the purported specialized knowledge are unique
to the beneficiary or explain how long it would take to train another similarly experienced employee, who
may be missing knowledge of one or more components, to be as knowledgeable as the beneficiary.
Therefore, the petitioner has not established that the beneficiary's training imparted specialized knowledge or
that it would be an economic inconvenience to provide further training to similarly experienced employees in
order to lift them to the beneficiary's purported level of expertise.
SRC 05 237 51248
Page 7
The AAO does not dispute the likelihood that the beneficiary is a skilled and experienced customer support
specialist who has been, and would be, a valuable asset to the petitioner's organization. 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
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)). As stated by the Commissioner in Matter of Penner,
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." 18 I&N Dec. 49, 52 (Comm. 1982). Rather, the beneficiaries were considered to have unusual
duties, skills, or knowledge beyond that of a skilled worker. Id. The Commissioner also provided the
following clarification:
A distinction can be made between a person whose skills and knowledge enable him or her to
produce a product through physical or skilled labor and the person who is employed primarily
for his ability to carry out a key process or function which is important or essential to the
business firm's operation.
Id. at 53.
It should be noted that the statutory definition of specialized knowledge requires the AAO to make
comparisons in order to determine what constitutes specialized knowledge. The term "specialized knowledge"
is not an absolute concept and cannot be clearly defined. As observed in 1756, Inc. v. Attorney General,
"[s]imply put, specialized knowledge is a relative ... idea which cannot have a plain meaning." 745 F. Supp.
9, 15 (D.D.C. 1990). The Congressional record specifically states that the L-l category was intended for "key
personnel." See generally, H.R. REp. No. 91-851, 1970 U.S.C.C.A.N. 2750. The term "key personnel"
denotes a position within the petitioning company that is "of crucial importance." Webster's II New College
Dictionary 605 (Houghton Mifflin Co. 2001). In general, all employees can reasonably be considered
"important" to a petitioner's enterprise. If an employee did not contribute to the overall economic success of
an enterprise, there would be no rational economic reason to employ that person. An employee of "crucial
importance" or "key personnel" must rise above the level of the petitioner's average employee. Accordingly,
based on the definition of "specialized knowledge" and the congressional record related to that 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 of Penner, 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. REP. 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 knowledge, 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
SRC 05237 51248
Page 8
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
of Penner, id. at 50 (citing H.R. Subcomm. No. 1 of the Jud. Comm., Immigration Act of 1970: Hearings on
H.R. 445, 91 5t 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 lrnowledge provision, such that it would include skilled workers and technicians, is
not warranted. The Commissioner emphasized that the specialized lrnowledge worker classification was not
intended for "all employees with any level of specialized knowledge." 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 lrnowledge. However, in view of the House Report, it can not be concluded that all employees
with specialized lrnowledge 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 lrnowledge capacity to extend to all employees
with specialized knowledge, but rather to "key personnel" and "executives.")
A 1994 Immigration and Naturalization Service (now CIS) memorandum written by the then Acting
Associate Commissioner also directs CIS 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 Associate Commissioner notes in the memorandum that "officers adjudicating petitions
involving specialized lrnowledge must ensure that the lrnowledge possessed by the beneficiary is not general
knowledge held commonly throughout the industry but that it is truly specialized." Memorandum from James
A. Puleo, Acting Associate Commissioner, Immigration and Naturalization Service, Interpretation of
Specialized Knowledge, CO 214L-P (March 9, 1994). A comparison of the beneficiary's knowledge to the
lrnowledge 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 an outside group to which to compare the beneficiary's knowledge, CIS would not be able to
"ensure that the knowledge possessed by the beneficiary is truly specialized." Id. The analysis for specialized
lrnowledge therefore requires a test of the lrnowledge possessed by the United States labor market, but does
not consider whether workers are available in the United States to perform the beneficiary's job duties.
As explained above, the record does not distinguish the beneficiary's knowledge as more advanced than the
knowledge possessed by other similarly experienced persons employed by the petitioner's organization or in
the industry generally. As the petitioner has failed to document any materially unique qualities to the
petitioner's processes and procedures, the petitioner's claims are not persuasive in establishing that the
beneficiary, while highly skilled, would be a "key" employee. There is no indication that the beneficiary has
knowledge that exceeds that of any furniture systems specialist, or that he has received special training in the
company's methodologies or processes which would separate him from any other persons employed with the
petitioner, in the industry at large, or with 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
SRC 05 237 51248
Page 9
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.
Beyond the decision of the director, and for the same reasons set forth above, the petitioner has failed to
establish that the beneficiary has been employed abroad in a specialized knowledge capacity. The record is
devoid of any evidence which materially distinguishes the beneficiary's knowledge from that of other
similarly experienced employees of the petitioner's organization abroad or in the industry at large. As
explained above, without producing evidence that the petitioner's product or service is different in some
material way from similar products or services generally offered on the market, the petitioner cannot establish
that the beneficiary's knowledge of the petitioner's product is noteworthy, uncommon, or distinguished by
some unusual quality that is not generally known by similarly experienced personnel engaged within the
beneficiary's field of endeavor. Simply asserting that the petitioner's product is "unique" or "proprietary" is
not sufficient to establish that knowledge of the product is indeed "specialized."
Beyond the decision of the director, the petitioner did not establish that it has a qualifying relationship with
the foreign employer.
The regulation at 8 C.F.R. § 214.2(l)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by:
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.
8 C.F.R. § 214.2(i)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal entity
which "meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate
or subsidiary specified in paragraph (l)(1)(ii) of this section." An "affiliate" is defmed in pertinent part as "[o]ne
of two subsidiaries both of which are owned and controlled by the same parent or individual."
In this matter, the petition~ership, asserts that both it and the beneficiary's current employer
in Mexico are owned by _ However, the record is devoid of any evidence supporting this
claim. Going on record without documentary evidence is not sufficient for purposes of meeting the burden of
proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165. As the petitioner has not carried its burden
of proof, the petition may not be approved for this additional reason.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
SRC 05 237 51248
Page 10
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
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. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.