dismissed L-1B Case: Language Instruction

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PUBLICCOPY
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and ImmigratIon
Services
FILE:
INRE:
WAC 04 054 52477
Petitioner:
Beneficiary:
Office: CALIFORNIA SERVICE CENTER Date: OCT 02 ZDD1
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.c. § 1101(a)(15)(L)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~f
Administrative Appeals Office
www.uscis.gov
WAC 04 054 52477
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, a California corporation, claims to be a tax-exempt language institute which provides foreign
language services. It seeks to temporarily employ the beneficiary in the position of Korean language
instructor as a nonimmigrant intracompany transferee with specialized knowledge pursuant to section
101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner
claims to be the subsidiary of Yonsei University, located in Seoul, South Korea. On March 25, 2004, the
director denied the petition, finding that the beneficiary neither possessed specialized knowledge or that the
intended employment in the United States required specialized knowledge.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the petitioner
has in fact met the burden of proof in this matter, and that the director failed to consider important evidence
submitted. In support of the petitioner's position in this matter, additional letters of support were submitted
on appeal.
To establish L-l eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(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.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)(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
education, training, and employment qualifies him/her to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
This matter presents two related, but distinct, issues: (1) whether the beneficiary gained specialized
lrnowledge during his employment abroad and was thus employed in a specialized knowledge position; and
(2) whether the proposed employment is in a capacity that requires specialized lrnowledge.
WAC 04 054 52477
Page 3
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.R. § 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.
In a letter from the petitioner dated December 15, 2003, the petitioner advised that the beneficiary had been
employed by the foreign entity as a Korean Language Instructor since June of 1997. The petitioner explained
that her six years of experience teaching the Korean language uniquely qualified her for the proposed
position. The petitioner also submitted the beneficiary's resume, which indicated that she possessed a
Bachelor's degree in Korean Literature and Linguistics, a Master's degree in Korean Linguistics, and had
completed a Ph.D course in Korean Linguistics as of March 1998.
The director found the initial evidence submitted with the petition insufficient to warrant a finding that the
beneficiary possessed the required specialized knowledge and would be employed in the United States in a
position that required specialized knowledge. Consequently, a detailed request for evidence was issued on
February 6, 2004, which requested evidence that the beneficiary possesses specialized knowledge that was
uncommon, noteworthy or distinguished by some unusual quality and not generally known by practitioners in
the field. Specifically, the director requested documentary evidence of what exactly the beneficiary possessed
specialized knowledge, including a more detailed description of the beneficiary's technique and how such a
technique would be used as a language instructor in the United States.
Counsel for the petitioner responded on March 4, 2004. Counsel submitted sample textbooks, an institutional
approval certificate, school catalog, a handbook and brochure, and other materials. In his accompanying
letter, counsel described the beneficiary's specialized knowledge in the following manner.
[The beneficiary] has taught Korean language at [the foreign entity] since May of 1997. She
has, therefore, over six years of experience teaching the Korean language utilizing [the
petitioner's] textbooks. The beneficiary is extremely familiar with the textbooks, its contents,
updates and methods of teachings.
On March 25, 2004, the director denied the petition. The director determined that the record failed to
establish that the beneficiary possesses specialized knowledge or that the position of Korean language
instructor required an employee with specialized knowledge as defined by the regulations. The director
specifically noted that the petitioner had failed to show that the beneficiary's duties and training were
significantly different from other similarly-qualified instructors in the industry, or that the beneficiary's
knowledge gained as a result thereof was uncommon or noteworthy in comparison. On appeal, counsel for
the petitioner requests reconsideration of the beneficiary's qualifications.
On review, the record does not contain sufficient evidence to establish that the beneficiary possesses
specialized knowledge or that the proposed employment would be in a specialized knowledge capacity.
WAC 04 05452477
Page 4
When examining the specialized knowledge capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. §§ 214.2(l)(3)(ii) and (iv). As required in the
regulations, the petitioner must submit a detailed description of the services to be performed sufficient to
establish specialized knowledge. Id.
In the present matter, the petitioner provided a brief description of the beneficiary's duties, and concludes that
her knowledge of the Korean language is the basis for the specialized knowledge claim. Specifically, the
petitioner relies on the fact that teaching Korean to non-native speakers distinguishes the beneficiary as an
employee that is more than merely skilled.
Despite specific requests by the director, namely, what exactly set apart the beneficiary's knowledge from
other similarly trained instructors in the field and what training she had received from the foreign entity to set
her apart from other similarly qualified individuals in the industry, no concrete evidence was submitted. The
petitioner has not sufficiently documented how the beneficiary's performance of her daily duties distinguishes
her knowledge as specialized. Despite counsel's explanations in response to the request for evidence, which
state that one aspect of the beneficiary's specialized knowledge was to provide "up-to-date instruction," this
claim does little to distinguish the beneficiary from any other similarly-trained and educated Korean
instructor. Moreover, counsel indicated that the beneficiary is part of a rotation of the entity's language
instructors, which suggests that the beneficiary is one of many similarly-trained instructors, and it therefore
would not be burdensome to rotate or hire a different language instructor in place of the beneficiary. While
the beneficiary undoubtedly has a strong educational background and appears to be a Ph.D candidate in the
field, there is insufficient evidence to conclude that this factor alone attributes her with specialized
knowledge. The record contains no defmitive evidence supporting the contention that the beneficiary's
knowledge is uncommon and more advanced than similarly trained professionals in the field.
While mastering the Korean language certainly gives the beneficiary an advantage in the educational field,
this fact alone does not establish that the beneficiary has developed specialized knowledge under the
regulatory definitions. For example, there is no evidence in the record that the beneficiary received any
specialized training in a specific process or procedure implemented by the foreign entity and its American
subsidiary. There is no claim in the record that a unique teaching method or approach is offered by the
petitioner which would preclude other language instructors, which lack experience working for the petitioner
or the foreign entity, from teaching courses in the Korean language. The petitioner further claims that the
beneficiary's six years of experience with the foreign entity have qualified her for the proffered position, yet
the petitioner provides no evidence of any on-the-job training received by the beneficiary, and claims,
essentially, that her training was received through her education.
The petitioner, therefore, fails to show that the beneficiary possesses specialized knowledge of a
methodology, application or process of the petitioner. There is no indication in the record that a
similarly-educated person who has completed a Ph.D course in Korean linguistics as well as having six years
of general teaching experience could not perform the same duties. The petitioner provides no evidence of
specific training or instruction received by the beneficiary in special or unique teaching methodologies.
Regardless, the fact remains that the record does not demonstrate that the beneficiary possesses specialized
knowledge of any process or methodology used and implemented by the petitioner. While her impressive
credentials certainly make her a valuable asset to the university, there is nothing to suggest that the
beneficiary acquired specialized knowledge of any unique or advanced methodologies or procedures in the six
years she has worked for the petitioner.
WAC 04 054 52477
Page 5
The petitioner makes no mention or connection on why knowledge of the Korean language would distinguish
the beneficiary from other Korean language instructors in the industry. Although the beneficiary has worked
for the petitioner for six years, there is no evidence to show that this period of employment with the petitioner
has resulted in specialized knowledge of something unique or special to the petitioner which other similarly­
trained persons could not have gained from working in the education industry in general.
Moreover, there is insufficient evidence to conclude that the beneficiary was actually employed abroad in a
specialized knowledge capacity for one continuous year out of the three years immediately preceding the
filing of the petition. See 8 C.F.R § 214.2(l)(3)(iii). As discussed above, the manner in which her knowledge
was allegedly gained is unclear, since the petitioner failed to supplement the record with details regarding the
exact nature of any training the beneficiary received from the petitioner in the form of classroom instruction
or on-the-job training. As a result, the AAO is unable to determine if and at what point the beneficiary
actually acquired specialized knowledge. It is impossible, therefore, to calculate whether the beneficiary
worked abroad for one full continuous year in a specialized knowledge capacity.
The regulation at 8 C.F.R § 214.2(l)(3)(viii) states that the director may request additional evidence in
appropriate cases. Although specifically and clearly requested by the director, the petitioner failed to provide
documentary evidence to support its claims that the beneficiary obtained a specialized level of knowledge
through her instruction with the petitioner abroad, and that this knowledge was uncommon and distinctive
from the knowledge and training of her colleagues. No documentation was submitted that distinguishes the
beneficiary from other Korean speakers or instructors, and no evidence of training exclusively offered to the
beneficiary was provided, thereby rendering it unlikely that the beneficiary is one of only a few employees
capable of providing Korean language instruction for the petitioner.
The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying
the petition. See 8 C.F.R § 103.2(b)(14). In this case, the petitioner relies on the AAO to accept its
uncorroborated assertions that the beneficiary possessed specialized knowledge at the time of filing and thus
was employed for one year in a qualifying capacity abroad, both prior to adjudication and again on appeal.
However, these assertions do not constitute evidence. 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.
Comm. 1972». The petitioner's failure to provide sufficient evidence of the beneficiary's training and
experience renders it impossible to conclude that at least twelve consecutive months out of six years abroad
were in a specialized knowledge capacity.
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 business's product or service, management operations, or decision-making
process. Matter of Colley, 18 I&N Dec. 117, 120 (Comm. 1981) (citing Matter ofRaulin, 13 I&N Dec. 618
(RC. 1970) and Matter of LeBlanc, 13 I&N Dec. 816 (RC. 1971».1 As stated by the Commissioner in
1 Although the cited precedents pre-date the current statutory definition of "specialized knowledge, II and
counsel raises that very argument with regard to the director's reliance on Matter ofPenner in support of the
denial, 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 [Le., not specifically incorrect] interpretations by INS," H.R. Rep. No. 101-723(1), at 69, 1990
WAC 04 054 52477
Pa~e 6
Matter ofPenner, 18 I&N Dec. 49, 52 (Corom. 1982), 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." 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.
In the present matter, the evidence of record demonstrates that the beneficiary is more akin to an employee
whose skills and experience enable her to provide a specialized service, rather than an employee who has
unusual duties, skills, or knowledge beyond that of an educated and/or skilled worker. Moreover, the
petitioner's failure to submit a more detailed discussion of the beneficiary's day-to-day duties or the nature of
the training she received creates a presumption of ineligibility. What remains unclear is why or how the
beneficiary's knowledge is so specialized and unique, as alleged by the petitioner, despite the fact that there
are undoubtedly many Korean language speakers and instructors available in the United States. It is not
unreasonable, therefore, to conclude that other similarly trained persons in the area of foreign language
instruction, particularly Korean, have received the same training. Again, since the petitioner has failed to
demonstrate a specific methodology or process unique or special to the petitioner of which the beneficiary has
obtained specialized knowledge, it is reasonable to conclude that other similarly trained persons could achieve
the same level of knowledge as the beneficiary by attaining the same education and simply working in the
industry for six years for various universities .
. 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 isa 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 that employee and the remainder of the petitioner's workforce.
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, the cited cases, as well as Matter of Penner,
remain useful guidance concerning the intended scope of the "specialized knowledge" L-IB classification.
WAC 04 054 52477
Page 7
The claim that the beneficiary has specialized knowledge remains unsupported due to the failure to submit
any documentation that the alleged on-the-job experience she received in six years made her an expert in the
area claimed. While the beneficiary's skills and knowledge may contribute to the successfulness of the
petitioning organization, this factor, by itself, does not constitute the possession of specialized knowledge.
Therefore, while the beneficiary's contribution to the success of the university 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(l)(1)(ii)(D). Mere skill or knowledge in the sector
in general does not constitute specialized knowledge for purposes of this matter. As determined above, the
beneficiary does not satisfy the requirements for possessing specialized knowledge.
The legislative history for 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., 745 F. Supp. at 16. Based on the evidence presented, it is concluded that the
beneficiary does not possess specialized knowledge, was not employed abroad in a position involving
specialized knowledge, and would not be employed in the United States in a capacity requiring specialized
knowledge. For these reasons, the appeal will be dismissed.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 U.S.c. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.