dismissed L-1B Case: Gemstones

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identifYingdatadeletedto.
preventclearly unwarranted
invasionofpereeealprivacy
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PUBUCCOpy
U.S. Department of Homeland Security
20 Massachusetts Ave. N .W., Rm. 3000
Washington, D C 2 0529
U.S. Citizenship
and Immigration
Services '
'b J
File: wAC 04 206 52734 Office: CALIFORNIA SERVICE CENTER Date: DEC t)
.;. 7 ZOOS
INRE: Petitioner:
Beneficiary : .
Petition: Petit ion for a N~nimmigrant WorkerPur~uant to Section 1'01(a)(l 5)"CL) of the Immigration
andNat ionality 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 originall y decided your case. Any further inquiry must be made to that office.
Robert P . Wiemann , Chi
} Administrati ve Appeal . Office
--
! www.uscis.gov
WAC 04 206 52734
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 appeal will be dismissed . .
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 U.S.c. § I 101(a)(15)(L). The petitioner is engaged in the import, export and sale of.
. fine gemstones and mineral specimens. It claims to operate 'a joint venture with located in
Moscow.Russia, The petitioner seeks to employ the beneficiary as its director of purchasing and sales.
The director denied the petition concluding that the petitioner 'failed to establish that the beneficiary will be
employed in a specialized knowledge capacity in the United States,
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
"ignores the evidence that the beneficiary has specialized knowledge in the pos ition offered to him." Counsel
asserts that the ditector improperly relied on case law that predates the current statutory definition of
specialized knowledge and current requirements for the L-IB nonimmigrant classification as outlined in two
legacy Immigration and Naturalization Service policy memoranda issued in 1994 and 2002, respectively.
Counsel submits a brief and additional evidence in support ofthe appeal.
To establish L-l 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)(15)(L). Specifically, within three years
preceding the beneficiary 's application for admission into the United States, a qualifying organization must
have employed the beneficiary in a qualifying managerial or executive capacity, or in a specialized
knowledge capacity, for one continuous year. In addition, the beneficiary must seek to enter the United States
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate thereof
in a managerial, executive, or specialized knowledge capacity.
The regulation at 8 c.P.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 (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 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
WAC 04 206 52734
Page 3
education, trammg, and employment qualifies him/her to perform the intended
services in the United States; however , the work in the United States need not be the
same work which the alien performed abroad.
This matter presents ' two related, but distinct , issues: (1) whether the beneficiary possesses specialized
knowledge ; and, (2) whether the proposed employment is in a capacity that requires specialized knowledge .
Section 214(c)(2)(B) of the Act, 8 U.S.C. § 1184(c)(2)(B), provides the following:
For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity
involving specialized knowledge with respect to a company if the alien has 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.K § 214.2(l)(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.
On the 1 -129 petition, the petitioner stated that the beneficiary would: "Attend trade shows , visit retailers.
Describe purchasing process , access of foreign company to gem sources. Negotiate sale contracts , purchase
price, and delivery options;" .
In a June 29, 2004 letter submitted in support of the petition, the petitioner described the beneficiary's
proposed duties as follows:
[The beneficiary] would continue his duties as principal gem purchaser, but in addition he .
would serve as the Director of Sales and Marketing in the United States . [The beneficiary]
would use his in-depth knowledge of the mining industry in Russia and specifically the
requirements of Demantoid Garnet mining , to select customers , set prices and set reasonable
delivery expectations. [The beneficiary's] knowledge of [the foreign entity's] internal pricing
procedures and gem handling protocol vis-a-vis Russian export laws and taxation are
essential to the appropriate pricing and marketing of this exciting new mineral. In addition,
[the beneficiary] has an extensive background in gem sales, which we believe will be
invaluable to creat ing and sustaining long-term success for our new joint venture. For
instance, at the June JCK Jewelry Show in Las Vegas , arranged for [the pet itioner] to sell to
"American Collectibles Network ", a -television gem sales corporation . This sale could lead to
excellent future business , but it will require [the beneficiary] to visit the mines and select
2,000 3-4mm stones to complete the sale and export them to the United States. We anticipate
that [the beneficiary] will be in the United States between four and six month each year. [The
beneficiary] will continue to travel the world looking for gem purchasing opportunities. In
WAC 04 206 52734
Page 4
addition , he w ill supervise the mining activities at the Demantoid Gamet mine in Russia and
engage in any re-negotiation or modificat ion of the existing exclusive sale contract with the
mine operators . [The beneficiary] will ha ve complete authority to negotiate on oUf behalf
and will receive only general supervision from the directors of [the petitioner] and [the
foreign entity].
The petitioner indicated that the beneficiary "has an in-depth knowledge and understanding of how gems are
purchased, graded and transported across international boundaries." The pet itioner further stated that the
beneficiary has over ten years of experience as a gem purchaser for the fore ign entity, including experience in
negotiating with supply companies and evaluating the quality of gems . The petitioner stated that the
beneficiary "understands the nature of the retail gem market and he understands the changes that occur from
time to time in the taste and fashionofthe gem market. "
The petitioner also submitted a February 23, 2004 letter from the director of the foreign entity ,who indicated
that the beneficiary had been employed by the foreign entity as its -general manager since September 1991,
with the following respons ibilities:
His duties were to .develop marketing strategy of the company as well as to establish valuable
business contacts with companies and individuals all over the world in the field of gems and
mineral specimens for collection . He was the leader of different mining projects , field trips ,
participated in various International Gem and Mineral Shows representing the company. [The
beneficiary] has become an expert in gems and [m]inerals evaluation which includes selling
and buying as well as marketing of our products . -
His valuable work 'helped to bring the company to international level. He established
excellent business and personal contacts with curators of various museums of natural history
(Japan, USA , Germany, France, etc.) helping them to obtain priceless mineral and gem
specimens for their collections.
,On July 23, 2004, the director requested additional evidence to establish that the beneficiary has specialized
knowle~ge. Specifically , the director instructed the petitioner to submit: (1) organizational charts for the
United States and foreign entities clearly depicting the beneficiary's current and proposed positions, and the
total number of employees working for each company; (2) the number of foreign nationals working at the
U.S. location where the beneficiary will be employed and the type of visa held by each ; (3) the number of
persons holding the same or similar position with the U.S. company; (4) an e xplanation of how the duties the
beneficiary perform ed abroad and those he will perform in the United States are di fferent or unique from
, those of other workers employed by the petitioner or similar U.S. employers ; (5) a detailed explanation of the
equipment , system , product technique or service of which the beneficiary has specialized knowledge and
whether it is used or produced by other employers in the United States and abroad ; (6) an explanation of the
beneficiary 's training and how it is exclusi ve and significantly unique in comparison to that of the petitioner 's
other employees or another person in the p etitioner 's field; (7) if applicable , a description of the training the
beneficiary will provide to the petitioner's other worker s; and, (8) an explanat ion regarding the impact on the
petitioner's business in the event that the petitioner is unable to obtain the beneficiary's services.
WAC 04 206 52734
.Page 5
In a response dated September 29, 2004, the petitioner emphasized the complexity of the international gem
trade and the beneficiary's many years of experience with his foreign employer , " where he has learned
exhaustively how to export gems from the former Soviet Union and Russia in particular." The petitioner
further noted that the beneficiary possesses experience in negotiating contracts with mine owners that is not
possessed by any of the petitioner 's employees, and explained that the petitioner typically has utilized
intermediaries in order to import gemstones from the former Soviet Union, at great expense to the company .
The petitioner further provided the following information regarding the knowledge possessed by the
beneficiary, specifically related to the demantoid garnet:
There is only one mine that is located in Russia that is currently producing these stones. [The .
beneficiary's] company has an exclusive contract with that mine. Only individuals who work
with Stone Flower have access to this stone. [The beneficiary ] has more experience with
demantoid garnets than any other individual currently working at Stone Flower. This
experience allows him to quickly identify and grade dernantoid garnets as well as providing
him with an in-depth knowledge of the quality and quantity of stone that the mine will
produce. This knowledge is not only specialized but unique. ,Additionally, because this stone
is unique , that [sic] export requirements for Russia are also unique. He learned the export
requirements for this 'type of garnet while working at Stone Flower. Stone Flower has
developed its own protocols for dealing with the Russian government in a smooth and timely
manner regarding the exportation of these stones. Again; [the beneficiary] learned this
protocol (in fact , he was responsible for developing most of them while working at Stone
Flower).. . . While we would be happy to see him provide training in the grading and
evaluating of demantoid garnets to our employees[,] [t]his requires an in depth knowledge of
the mine and stones it is producing, the procedures for transporting these stones to Stone
Flower, the in-house protocols to process these stones and get the necessary exit licenses
from the Russian government, international shipping charges and procedures for stones, and
importation requirements for the United States. While some of this knowledge ... is shared
by individuals at [the petitioning company], the beneficiary's knowledge of thedemantoid
garnet and the unique procedures for its exportation from Russia are unique. While there may
be other individuals working in Russia for Stone Flower that have some of this knowledge,
[the beneficiary] is the only individual to put all these pieces together. His duties in regard to
the demantoid garnetwill require him to spend time in Russia observing the mine activities as
well as spending time in the United States discussing the demantoid garnet with wholesalers ,
retailers and other potential customers.
The petitioner indicated that it does not currently employ any foreign employees in the United States , and
explained that the beneficiary 's proposed position is newly created in order to facilitate the import and sales
of the demantoid garnet. In response to the director 's request for an explanation regarding the impact upon
the petitioner 's business in the event that the visa petition is not approved, the petitioner 's president stated:
I believe it is beyond comprehension. We are making a gigantic push with the demantoid
[sic] garnet since there is a great deal of interest. There is always a great deal of interest in a
WAC 04 206 52734
Page 6
new stone.... We have already preliminary contracts to provide demantoid garnets to large­
scale distributors, A loss of[the beneficiary 's] services would mean that we would loss [sic]
approximately 50-75% of this business.
Th~' petitioner also submitted a September 25, 2004 letter from a director of the foreign entity , who provides
the following information regarding the beneficiary 's experience abroad:
[H]e has developed in an-depth lmowledge of various aspects related to the rating and
evaluation of various stones as well as in general the export /import requirements of various
countries around the world.
[The beneficiary] also has an in-depth lmowledge of the demantoid green garnet. He is our
negotiator with the mine that produces the demantoid garnet and he is the principal grader of
those stones. He has been working with the demantoidgarnet since 1993 . Although he has
trained others in their selection ,'.valuation, transportation , he remains in charge of our
demantoid garnet department. Additionally , [the beneficiary] developed and implemented the
protocols we use to transport the gems from the mines to our offices, sort and grade the gems
once they arrive[,] [a]ssign appropriate prices , complete the necessary reports to the Russian
government, arrange for the sale and international transportation of the demantoid garnet to ,
buyers .overseas, and arrange protocols with the buyers regarding importation into their
country. [The beneficiary] has over 10 years experience .in this area.
Please note that Stone Flower has an exclusive contract with the mine that produces the
demantoid garnet. [The beneficiary] has an exclusive contract with the 'mine and also has
established special business as well as personal relations with owners of the mine. [The
beneficiary] was responsible for negotiating the contract and he is intimately familiar with its
terms. We would trust no other individual to renegotiate that contract.
The'petitioner submitted a copy of an August 25, 2004 "delivery contract," with English translation, between
the:beneficiary and a supplier of dernantoid garnets , and summary translations of packing slips for shipments
of demantoidgarnets received by the beneficiary from the same supplier in August 2004.. '
On October 14 , 2004, the director denied the ,petition , concluding that the petitionerdid not establish that the
beneficiary will be employed in the United States in a specialized lmowledge capacity . Specifically, the
director determined that t he petitioner had not explained how the beneficiary 's job duties as purchasing and
sales director would distinguish the beneficiary 's lmowledge as specialized , observing that the job duties
described are "standard responsibilities 'of any purchasing and sales director working in the field. " The
director further noted that the beneficiary 's ability to "manage the petitioner 's business" fails to'demonstrate a
"speciallmowledge" of the company or ':an advanced level of lmowledge in the organization 's processes and
procedures ."
On appeal, counsel rec ites excerpts from letters previously submitted by the petitioner regarding the
beneficiary's qualifications and the petitioner 's need for his services in a specialized lmowledge capacity.
WAC 04 206 52734
Page 7
.I,
Counsel notes: "It is difficult to see how the petitioner couldmore specifically state how the beneficiary
would be used in the position offered. Clearl y the duties require someone with the beneficiary 's specialized. ' ,
knowledge. An individual unfamiliar with exporting demantoid garnets from Russia cannot advise individuals
on quality , availability , pricing or delivery expectations ." Counsel emphasiz es documentation previously
presented regarding the unique nature of Russian demantoid garnets, and attaches copies of additional art icles
regarding the demantoid garnet in support of the appeal.
Counsel further asserts that the director relied on case law that is outdated , noting that all of the cases cited in
the director's decision pre-date the Immigrat ion Act of 1990, which created the current definition of
"specialized knowledge." Counsel relies on a 1994 legacy Immigration and Naturalization Service (INS)
memorandum which provides guidance in interpreting the current statutory and regulatory definitions , and
asserts that the beneficiary meets several of the characteristics of an alien Who possesses specialized
knowledge as addressed in the 1994 memo. Counsel emphasizes that the beneficiary 's foreign employer has
an exclusive contract with the mine that produces the demantoid garnets and is the only company exporting
the~e stones from Russia . 'Counsel argues that since the beneficiary was the person who negotiated the
contract with the mine and developed protocols for exporting the garnets , he has unique knowledge that could
only be gained with the foreign company. Counsel submits a copy of the 1994 memorandum in support of the '
appeal, as well a copy of a 2002 policy memoranda regarding the interpretation of specialized knowledge . See
Memorandum from Acting Executive Assoc. Commissioner , Office of Operations ,
Immigration and Naturalization Service, Interpretation 'of Special Knowledge. CO 214L-P , (Mar. 9 ,
1994)("Puleo memorandum") ; 'Memorandum' from Assoc . Commissioner, Service Center
Operations, Immigration and Naturalization Services, Interpretation of Specializ ed Knowledge, HQSCOPS
70/~.1 (Dec. 20, 2002). ' .'
On.review, the record as presently constituted does not establish that the beneficiary possesses "specialized
knowledge" as defined in section 214(c)(2)(B) of the Act, 8U.S.C. § 1184(c)(2)(B), and the regulation at 8
C.F.R. § 214.2(l)(1)(ii)(D). '
Regarding the petitioner's claim of specialized knowledge, itmust 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 places emphasis on the above­
referenced Puleo memorandum , the memorandum was issued as guidance 'to assist CIS 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 spec ialized knowledge classification , or to overturn prior precedent
decisions that continue to prove instructive in adjudicating L-lB visa petitions . Merely establishing that the
facts of the instant petition resemble a particular example provided in the 1994 memo is insufficient ,to
establish that the beneficiary qualifies for this visa classification. The AAO will weigh guidance outlined in
policy memoranda accordingly, but not to the exclusion of the statutory and regulatory definitions , legislative
history or prior precedents.
In examining the spec ialized knowledge capacity of the beneficiary, the AAO will look to the petitioner 's,
description of the job duties and the weight of the' evidence supporting any asserted specialized knowledge.
See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner must submit a detailed description of the services to be performed
WAC 04 206 52734
Page 8
sufficient to establish that it involves specialized knowledge . Id. It is also appropriate for the AAO to look
beyond the stated job duties and consider the importance of the beneficiary 's knowledge of the bu siness '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 LeBlan c, 13
I&N Dec. 816 (R.C. 1971)).1 As stated by the Commissioner in Matt er of Penner , 18 I&N Dec . 49, 52
(Comm. 1982), when cons idering whether the beneficiaries possessed specialized knowledge, "the LeBlan c
and Raulindecisions ' 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. 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.
!d. at 53.
Preliminarily, the AAO acknowledges that the evidence submitted establishes that the beneficiary possesses
an advanced knowledge with respect to the Russian demantoid garnet and also appears to have a unique level
of access to this particular gem based on his "special business as well as personal relations with owners of the
mine" that produces the gems and his contract with the mine. Thus , based on the evidence submitted , the '
beneficiary does appear to be highly qualified for the position offered in the United States, as well ' as a
rec~gnized expert in the field with respect to this particular gemstone. However, the petitioner has not
established that the beneficiary possesses or that the U .S. position requires the type of specialized knowledge
defined by the statute and regulations, or that his knowledge, however advanced, is specifically related to the
petitioning organization .'
The petitioner indicates that the beneficiary's duties in the United States would include visiting retailers ,
identifying and selecting customers, setting prices , describing the purchasing process to customers and setting
reasonable delivery expectations utilizing knowledge of the foreign entity's internal pricing procedures and
"gem handling protocol vis-a-vis Russian export laws." However, the record as presently constituted is not
persuasive in demonstrating that the knowledge required to purchase , import , market , price and sell Russian
J Counsel objects to the director 's citation to precedent decisions which were issu ed prior to 1990 . 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 defin ition because of "[v]arying [i.e.,'not specifically incorrect]
interpretations by INS ," H.R. Rep. No. 101-723(1) , at 69 , 1990 U .S.C.C.A.N. at 6749. Beyond that, the
Committee Report simply restates the tautology that became section 214(c)(2)(B) of the Act. Id. The AAO
concludes, therefore, that the cited cases remain useful guidance concerning the intended scope of the
"specialized knowledge " L-IB classification.
WAC 04 206 52734
Page 9
demantoid garnets is significantly different or uncommon from the knowledge that would generally be held
by an experienced gem importer/exporter who is experienced with the Russian market. The foreign entity
stated that .the beneficiary "developed and implemented the protocols we use to transport the gems from the
mines to our offices, sort and grade the gems once they arrivej.] [a]ssign appropriate prices, complete the
necessary reports to the Russian government, arrange for the sale and international transportation of the
dem~ntoid garnet to buyers overseas , and arrange protocols with the buyers regarding importation into their
country."
However, the record contains no explanation of the protocols the beneficiary developed, the types of
government reports required, any peculiarities associated with international transport of this particular gem, or
the protocols developed for the importation of the gem into other countries. Additional explanation and
documentation regarding the contracts negotiated by the beneficiary with the garnet mine owners, the specific
processes and protocols he developed, the specific duties the beneficiary performs to "supervise" or "observe"
.mining activities , the foreign entity's "internal pricing procedures" and "gem handling protocols," as well as
additional information regard ing the "unique" Russian export laws applicable to the demantoid gamet , would
be required to establish that . the knowledge held by the beneficiary , while perhaps uncommon , is of sufficient .
complexity that it would be difficult to transfer to another individual who is experienced in the international
or Russian gem industry . Going on record without supporting documentary evidence is not sufficient for
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158 , 165
(Comm. 1998) (citing Matter of Treasure Craft of California , 14 I&N Dec. 190 (Reg. Comm. 1972)).
The petitioner further stated that the beneficiary "has an in-depth knowledge and understanding of how gems
are purchased, graded and transported across international boundaries ," has "experience in negotiating with
supply companies and evaluating the quality of gems," "understands the changes that occur from time to time
. in the taste and fashion of the gem market," and has "in-depth knowledge of various aspects related to the
rating and evaluation of various stones as well as in general the import/export requirements of various
countries across the world." Again, without further explanation or corroborating evidence, the AAO cannot
determine that the beneficiary's claimed knowledge is uncommon or different compared ·to other gem dealers
with international experience. Rather, these areas of expertise appear to be general knowledge that would be
held by any experienced gem trader. .
Therefore, based on the above , the petitioner-has not submitted sufficient evidence of the knowledge and
expertise required for the proffered position that would differentiate the beneficiary from other gem
purchasers employed within the petitioning company or working for other employers within the international
gemstone industry. It is noted that the statutory definition requires the AAO to make comparisons in order to
determine what con stitutes specialized knowledge . As observed in 1756, Inc. v. Attorney General, "[s]imply
put, specialized knowledge is a relative ... idea which cannot have a pla in meaning." 745 F . Supp. 9 , 15
(D.D.C. 1990). The term "specialized .knowledge" is relative and ··cannot be plainly defined. The
Congressional record spec ifically states that the L-l category was intended for "key personnel." See
gen ~rally , 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 Dictiona ry 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 ,
WAC 04 206 52734
Page "10
. there would be no rational 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 emplo yee and the general labor market , but
also between that employee and the remainder of the petitioner's workforce .
The petitioner attempts to differentiate the beneficiary's knowledge as special or advanced by claiming that
the petitioner has no other employees with the beneficiary's level of knowledge of the Russian demantoid
garnet or Russian export laws, nor his ability to negotiate terms with the mine that produces these stones. The
beneficiary's exclusive business relationship with the owners of the Russian mine and knowledge of Russian
laws impacting their trade cannot be the basis of finding that he possesses specialized knowledge for the
purposes of this visa classification. The AAO accepts the petitioner's assertion that the U.S. company does
not ::currently employ anyone with the beneficiary's specific experience and qualifications. However, the
statute and regulations require the petitioner to demonstrate that the beneficiary possesses, and that the
proposed employment requires, special knowledge of the petitioning organization 's product, service,
research, equipment, techniques, management , or other interests, or an advanced level of knowledge or
expertise in the petitioning organization 's processes and procedures. The beneficiary's knowledge and
expertise, while certainly valuable to the petitioner, has not been shown to relate specifically to the
petitioner 's products, processes or other interests as required by the regulations . As discussed further below ,
the petitioner has not established that the foreign entity is actually related to the U.S. company , and thus, any
knowledge gained by the beneficiary during his employment with the foreign entity could not be considered
knowledge related to the petitioning organization .
,
On appeal, counsel for the petitioner asserts that the beneficiary meets several pos sible characteristics of an
alien who possesses specialized knowledge, as outlined in the 1994 Puleo memorandum. Specifically, the
petitioner states that the beneficiary possesses knowledge that is valuable to the employer's competitiveness
in the marketplace; is qualified to contribute to the U.S. employer's knowledge of foreign operating
conditions; has been utilized abroad in a capacity involving significant assignments which have enhanced the
employer's productivity, competitiveness or financial position; possesses knowledge which, normally, can be
gained only through prior experience with that employer ; and possesses knowledge of a product or process
which cannot be easilytransferred 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 process and procedures , or a "special knowledge" of the petitioner's product, service, research,
equipment, techniques, or management. 8 C.F.R. § 214 .2(1)(1)(ii)(D). As discussed above, and for the additional
reasons set forth below , the petitioner has not established that the beneficiary's knowledge rises to the level of
specialized knowledge contemplated by the regulations , or that his knowledge , even if it could be c~nsidered
specialized or advanced, relates specifically to the petitioning organization . For this reason , the appeal will be
dismissed.
Beyond the decision of the director , and as noted above, the AAO finds a significant deficiency in the
petitioner 's evidence in that the petitioner has not demonstrated that the petit ioner and the benefic iary's
foreign employer are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. In addition
to being a separate essential element of eligibility for this visa classification , see 8 C.F .R. § 214.2(l)(3)(i) ,
WAC 04 206 52734
Page 11
such a determination is necessary in order to establish that the beneficiary 's claimed specialized knowledge
relates specifically to the petitioning organization.
Thepetitioner , , indicated on the L classification supplement to Form 1-129 that the
U.S: company is a "50-50 Joint venture between Stone Flower (Russian company) and
(U.S. company) ." The petitioner also indicated that the beneficiary is coming to the United States to open a
new office.
In a 'June 29, 2004 letter , the petitioner provided the following information with respect to its relationship to
the beneficiary's foreign employer:
Over the years, .we have formed joint ventures with many different companies from many
different parts of the world. We have found these joint ventures very useful ·in providing us
with "insider" access to a foreign system of marketing gems as well as hands-on expertise in
mining condit ions, purchasing options and .foreign import/export regulations. Most of these
joint ventures are for a limited period of time, usually for one to five years, for the purpose of
exploiting a particular gem find.
One .of our most valuable partners over the years has been Stone Flower , Inc., a Russian
company.. ..
Over the last several years, have had an informal cooperative
agreement for the purchase and sale ofDemantoid Garnet. . . .
Our informal agreement has become so successful that have decided
to formalize our cooperative agreement by forming a 50-50 joint venture to market the
t in North America. In the United States, the joint venture will operate
under the _ name. Each company will have veto power over the joint venture and have '
equal responsibilities and risks.
On the basis of this limited information, the director determined that the petitioner is "a joint venture" of the
beneficiary 's foreign employer. .
However, the record does not contain evidence of a joint venture or other qual ifying relationship between the
petitioner and the foreign entity , as required by 8 C.F.K § 214.2(l)(1)(3)(i). ,Accordingly, the AAO cannot
determine whether the beneficiary 's claimed specialized knowledge relates to the petitioner 's organization.
Citizenship and Immigration Services (CIS) accepts the interpretation that a 50-50 joint venture creates a
subsidiary relationship for purposes of section 101(a)(15)(L) of the Act. See 8 C.F .R. § 214.2(l)(1)(ii)(K) .
Neither the Act nor the regulations provides a definition of the term "joint venture." However, the AAO has
applied a broad definition of joint venture in prior decisions. Matter ofHughes states that a joint venture is "a .
business enterprise in which .two or more economic entities from different countries participate on a '
permanent basis." Matter of Hughes, 18 I&N Dec . 289 (Comm. 1982) (quoting a definition from Endle J .
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Kolde , International Business Enterprise (Prentice Hall, 1973)). <Matter of Siemens Medical S ystems. Inc. .
'. states: "Where each of two corporations (parents) owns and controls 50 percent of a third corporation (joint
venture), the joint venture is a subsidiary of each.of the parents. " Matter ofSiemens'Medical Systems, Inc . 19
I&N Dec. 362 , 364· (BIA 1986) . In order to meet the definition of "qualifying organization ," a joint venture
must be formed as a .corporation or other legal entity . 8 C.F.R. § 214.2(l)(l)(ii)(G) . A business created by a
contract as opposed to one created under corporation law is not be deemed a "legal entity"as used in section
101(a)(15)(L) of the Immigration and Nationality Act. Matter of Hughes , 18.I&N Dec. 289, 294 (Comm.
1982); see also Matter ofSchick, 13 I&N Dec. 647 (Reg . Comm. 1970). .
In this case, there is no evidence of a "third corporation" or other legal entity formed by the petitioner and the
beneficiary's foreign employer, and thus no evidence of a valid joint venture relationship for immigration
purposes. In addition, the limited purpose of the proposed joint venture, as described by the petitioner, also
raises the question of the petitioner's intent to enter into anything more than a temporary agreement with the
beneficiary's foreign employer to obtain the beneficiary 's services for marketing the demantoid garnet in
North America .. The petitioner did not submit any other supporting evidence, such as a joint venture
agreement , that would clarify the intent of the two parties .
Further , it is noted that, even if the petitioner and the foreign entity had formed a qualifying 50-50 joint
venture prior to the date of filing the petition, the petitioner in this case is not the joint venture itself, but
rather one of the partners or shareholders in the claimed joint venture. The partners or shareholders of a 50-50 .. . .
joint venture do not acquire a qualifying corporate relationship by virtue of forming ajoint venture ; the
.qualifying relationship formed exists only between each individual parent and the joint venture entity . .Other
than the petitioner's statement that the beneficiary would be employed by the joint venture , there is no
indication that the petitioner intended to file the petition on behalf of a-separate entity.
The ' evidence of record suggests the possibility that the petitioner and foreign entity's proposed "joint
venture" would be a temporary business enterprise that would not be established as a legal entity: At best, the
record suggests that the proposed joint venture simply had not yet been formed as a legal entity at the time of
filing. In either case, the beneficiary's foreign employer would not have enjoyed a qualifying relationship
with an entity in the United States as of the date of filing the petition, and the petition cannot be approved.
Further , absent evidence of a qualifying relationsh ip between the benefic iary 's foreign employer and the
entity that will employ the beneficiary, the AAO cannot conclude that the beneficiary possesses specialized
knowledge with r espect to a compan y, or special knowledge of the petitioning organization 's: product,
service, research , equipment , techniques , management, or other interests. See 214(c)(2)(B) -of the Act , 8
U.S.c. § 1184(c)(2)(B); 8 C.F.R. § 214.2(l)(l)(ii)(D).
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) , afj'd. 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 AAQ reviews
. appeals on ade novo basis).
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The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an
independent and alternative basis for the decision. 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.