dismissed L-1B Case: Laser Survey Equipment

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: LIN 05 175 5 1082 Office: NEBRASKA SERVICE CENTER Date: 
 DEC 0 1 2006 
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. fj 1 101(a)(I 5)(L) 
IN BEHALF OF BENEFICIARY: 
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. 
_----- >J- 
Robe~P.Wiemann, Chief 
Administrative Appeals Office 
LIN 05 175 51082 
Page 2 
DISCUSSION: The Director, Nebraska 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 laser 
technician as an L-1B nonimmigrant intracompany transferee with specialized knowledge pursuant to section 
10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. fj 1 10 1 (a)(15)(L). The petitioner, a 
corporation organized under the laws of the State of Indiana, is engaged in the development and sale of laser 
survey equipment and service to railroads. The petitioner claims that it is an affiliate of the beneficiary's 
foreign employe f  wede en. 
The director denied the petition, concluding that the petitioner failed to establish that the position offered 
requires an employee with specialized knowledge and that the beneficiary has such knowledge. 
On appeal, the petitioner asserts that it has satisfied the criteria for establishing that the beneficiary has 
specialized knowledge. Specifically, the petitioner asserts that the beneficiary has specialized knowledge of 
the petitioner's unique Clearance Laser System and the processing of data files for input into 
its primary customer's mainframe clearance system. 
 The beneficiary allegedly acquired his specialized 
knowledge through a combination or experience and training. 
To establish eligibility for the L-1 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. fj 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 himlher to perfonn the intended 
LIN 05 175 5 1082 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
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 possesses such knowledge. 
Section 214(c)(2)(B) of the Act, 8 U.S.C. 8 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. 8 214.2(1)(l)(ii)(D) defines "specialized knowledge" as: 
[Slpecial 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 February 23, 2005 appended to the initial petition, the petitioner describes its business as 
selling and renting its "hi-tech laser systems" to railroad companies primarily for surveying purposes. The 
petitioner employs five people in the United States while the foreign entity employs nine people in Sweden. 
According to the petitioner, it performs surveying projects on three continents and maintains the 25 laser 
systems it has worldwide. The petitioner attached technical information regarding its laser system. Finally, 
the petitioner described the beneficiary's purported specialized knowledge as follows: 
[The beneficiary] has worked for over five years for [the foreign entity], and worked on 
the systems all over the world. Recently, due to the increase in our US customer base, it 
has become necessary for him to travel more frequently to the United States, thus we are 
seeking to transfer [the beneficiary's] employment to the US based company and payroll 
following approval of this Visa Application. Due to the extremely specialized nature of 
our laser systems we require an individual with extensive knowledge of our systems and 
our US customers which [the beneficiary] possesses as well as the willingness to travel to 
our many customer sites for short term projects. 
On May 23, 2005, the director requested additional evidence. The director requested, inter alia, evidence that 
the beneficiary's knowledge is indeed specialized. 
In response, the foreign entity provided a letter dated August 4, 2005 which further describes the beneficiary's 
duties and purported specialized knowledge as follows: 
The duties to be performed by [the beneficiary] are as follows: 
LIN 05 175 51082 
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1) Administration, calibration of learance Laser Systems (60%) 
2) Communication with the software staff and the processing staff in Sweden 
- 
3) Maintenance of [sic] Clearance Laser Systems and accessories (10%) 
4) Processing of laser data files produced during field operations (30%) 
[The foreign entity] hereby [certifies] that [the 
 competent 
technician who has an extensive knowledge of the 
 Clearance Laser 
System. [The beneficiary] possesses a unique and advanced knowledge of the process, 
procedures and equipment connected to the Clearance Laser System. 
owledge is very specialized as we have only 25 units of the unique 
learance Laser System worldwide (6 in the United States). The skills 
needed are not generally known and requires [sic] a very long training to achieve. 
The Laser System uses advanced software produced by a specialised software company, 
3-COMP in Vaxjo, Sweden. It's crucial that [the beneficiary] can communicate with the 
programmers concerning U.S. customer requested changes and improvements in our 
software. It's a very helpful skill to have knowledge of the Swedish language in this 
communication. 
 As mentioned above [the beneficiary] is also responsible for the 
communication between the field crew and processing staff in Sweden. 
[The petitioner's] main account in the United States is the BNSF Railroad Company. 
BNSF uses a very special and complicated mainframe clearance system, call Enclog, to 
store and process clearance data (load simulations together with train orders). As far as 
we know this special system is used by no other railroad company in the world. 
Administering the Enclog system during the field work requires a specific education 
given by [the foreign entity and the petitioner] and also a long "hands on" experience. 
We have given [the beneficiary] that specific education and through his long practical 
experience he has gradually built up his excellent knowledge of this very special system. 
Processing data files for the input to the BNSF mainframe also requires a specialized 
education and training. [The beneficiary] has this knowledge and has over 5 years of 
successful operation behind him. We have many United States customers very pleased 
with our operation and [the beneficiary] is an essential piece of this success. 
[The beneficiary] continuously received company specific education is: 
- the BNSF Enclog system 
- 
 general date processing procedures for U.S. Railroads 
- special software training for laser programs and ClearLoad 
simulation programs. 
[The foreign entity] hereby [certifies] that [the beneficiary] has received this education 
through [the foreign entity]. As the education has been given continuously the exact 
LIN 05 175 51082 
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dates for the education [are] difficult to mention but the education can be estimated to at 
least four weeks each year from 2001 and ahead. 
The petitioner also provided copies of internet job postings which do not require employees to have the 
knowledge similar to the beneficiary's in an attempt to establish that his knowledge is indeed specialized. 
On August 18, 2006, the director denied the petition concluding that the petitioner failed to establish that the 
beneficiary would be employed in a specialized knowledge capacity or that he has specialized knowledge. 
The director concluded that "the beneficiary is more akin to an employee whose skills and experience enable 
him to provide a specialized service, rather than an employee who has unusual duties, skills or knowledge 
beyond that of a 'skilled worker."' 
On appeal, counsel for the petitioner asserts that the petitioner has satisfied the criteria for establishing that 
the beneficiary has specialized knowledge. 
Upon review, the petitioner's assertions are not persuasive in demonstrating that the beneficiary will be 
employed in a specialized knowledge capacity, or possesses specialized knowledge, as defined at 8 C.F.R. 
5 214.2(1)(l)(ii)(D). 
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. tj 214.2(1)(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 an experienced technician with knowledge 
of laser surveying equipment, the petitioner fails to establish that this position requires an employee with 
specialized knowledge. 
Although the petitioner repeatedly asserts that the beneficiary's proposed position in the United States 
requires "specialized knowledge," the petitioner has not adequately articulated any basis to support this claim. 
The petitioner has failed to identify any special or advanced body of knowledge which would distinguish the 
beneficiary's role from that of petitioner's other experienced employees or 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 Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Cornrn. 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. Suva, 724, F. Supp. 1103 (E.D.N.Y. 1989), 
aff'd, 905, F.2d 41 (2d. Cir. 1990). 
In support of its assertion that the beneficiary's knowledge of theclearance Laser System and 
the processing of data files for input into BNSF Railroad Company's mainframe clearance system constitutes 
"specialized knowledge," the petitioner relies heavily on its position that the laser system and mainframe are 
both so unique, specialized, and complicated that beneficiary's knowledge in this field constitutes "specialized 
knowledge." The petitioner further asserts that the beneficiary gained this specialized knowledge through 
years of experience working for the overseas entity and through specialized, ongoing training programs. 
LIN 05 175 51082 
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The petitioner has not established that the beneficiary's knowledge of the Clearance Laser 
System or the BNSF Railroad Company's mainframe clearance system constitutes "specialized knowledge." 
The record does not reveal the material dzjference between the petitioner's laser system and other similar 
systems on the market. Likewise, the record does not reveal the material difference between the BNSF 
Railroad Company's mainframe and similar mainframes. Without producing evidence that the petitioner's 
product or service is different in some way from similar products or services offered on the market, the 
petitioner cannot establish that the beneficiary's knowledge of the use or maintenance 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, simply 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. at 165. 
Similarly, the petitioner has not established that beneficiary has received training or has experience which 
would distinguish the beneficiary's role from that of the petitioner's other experienced employees or in the 
industry at large. While the petitioner asserts that the beneficiary continuously received training in the areas 
of his purported specialized knowledge while employed with the foreign entity, the petitioner provided no 
details regarding the duration or content of such training, other than a roughly estimated four week period, 
and failed to specify whether other employees received similar training. Again, simply going on record 
without documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Id. However, even a highly trained employee will not be deemed to have specialized 
knowledge unless, as explained above, the petitioner also establishes that this knowledge is noteworthy, 
uncommon, or distinguished by demonstrating that the knowledge of the petitioner's product or process 
differs in some material way from the knowledge possessed by other experienced personnel working in the 
beneficiary's field of endeavor.' 
Moreover, while the petitioner provides copies of internet job postings, which fail to list knowledge of the 
petitioner's product, its customer's mainfi-ame, or railroad surveying as job requirements, this does not 
establish that the beneficiary's job requires "specialized knowledge." First, there is no evidence that this 
search was exhaustive or that the petitioner attempted to recruit employees with the appropriate knowledge or 
experience base. Second, absent evidence that the petitioner's product or service is materially different from 
other products or services on the market, a job posting's failure to specifically list knowledge of the 
petitioner's product is not persuasive in establishing that such knowledge is specialized. Third, the mere fact 
that employers are not seeking employees with skills similar to those possessed by the beneficiary does not 
1 
It must be noted that, on appeal, the petitioner introduces a letter dated October 9, 2005 from the foreign 
employer providing more details regarding the beneficiary's experience and training. The petitioner was put 
on notice of required evidence and given a reasonable opportunity to provide it for the record before the visa 
petition was adjudicated. The petitioner failed to submit the requested evidence in response to the director's 
Request for Evidence and now submits it on appeal. However, the AAO will not consider this evidence for 
any purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 
(BIA 1988). The appeal will be adjudicated based on the record of proceeding before the director. 
LIN 05 175 5 1082 
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prove that these skills are uncommon. In fact, such evidence could just as easily establish the opposite, i.e., 
that there are so many potential employees possessing skill sets similar to the beneficiary's that employers 
either do not need to recruit such employees or there are currently no jobs available. Fourth, and most 
important, the unavailability of workers to perform the beneficiary's proposed job is not relevant in this 
proceeding. Rather, as explained below, the test is whether the knowledge in question is possessed in the 
United States labor market and not whether workers are available to perform the job. 
A 1994 Immigration and Naturalization Service (now Citizenship and Immigration Services (CIS)) 
memorandum written by the then Acting Associate Commissioner 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 knowledge must ensure that the knowledge possessed by 
the beneficiary is not general knowledge held commonly throughout the industry but that it is truly 
specialized." 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 knowledge possessed by others in the field is therefore necessary in 
order to determine the level of the beneficiary's skills and knowledge and to ascertain whether the 
beneficiary's knowledge is advanced. In other words, absent 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 knowledge therefore requires a test of the knowledge 
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. 
The AAO does not dispute the likelihood that the beneficiary is a slulled and experienced worker who has 
been, and would be, a valuable asset to the petitioner. 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 
(Cornrn. 198l)(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. at 52. Rather, 
the beneficiaries were considered to have unusual duties, skills, or knowledge beyond that of a skilled worker. 
Id. The Commissioner also provided the following clarification: 
A distinction can be made between a person whose skills and knowledge enable him or her to 
produce a product through physical or skilled labor and the person who is employed primarily for 
his ability to carry out a key process or function which is important or essential to the business 
firm's operation. 
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" 
LIN 05 175 5 1082 
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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-1 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 "[tlhe class of persons eligible for such nonimmigrant visas is narrowly drawn and will be 
carefully regulated by the Immigration and Naturalization Service." Id. at 5 1. 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 
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. 445,91g Cong. 210,218,223,240,248 (November 12, 1969)). 
Reviewing the Congressional record, the Commissioner concluded in Matter of Penner than an expansive 
reading of the specialized knowledge provision, such that it would include skilled workers and technicians, is 
not warranted. The Commissioner emphasized that the specialized knowledge worker classification was not 
intended for "all employees with any level of specialized knowledge." Matter of Penner, 18 I&N Dec. at 53. 
Or, as noted in Matter of Colley, "[mlost employees today are specialists and have been trained and given 
specialized knowledge. However, in view of the House Report, it can not be concluded that all employees 
with specialized knowledge or performing highly technical duties are eligible for classification as 
intracompany transferees." 18 I&N Dec. at 1 19. According to Matter of Penner, "[s]uch a conclusion would 
permit extremely large numbers of persons to qualify for the 'L-1' 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 knowledge capacity to extend to all employees 
with specialized knowledge, but rather to "key personnel" and "executives.") 
As explained above, the record does not distinguish the beneficiary's knowledge as more advanced than the 
knowledge possessed by other employees experienced in using similar equipment. The petitioner notes that 
LIN 05 175 51082 
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the beneficiary is highly experienced in using the laser system and its customer's mainframe. However, as the 
petitioner has failed to document any materially unique qualities to this equipment which distinguish it Erom 
other similar equipment on the market, these 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 any 
knowledge that exceeds that of any employee with experience, or that he has received special training in the 
company's methodologies or processes which would separate him from any other employee employed with 
the petitioner 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 
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 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, the petitioner did not establish that the beneficiary has been employed 
abroad in a position that was managerial, executive, or involved specialized knowledge as required by 8 
C.F.R. 5 2 14.2(1)(3)(iv). As explained above, the petitioner has not established that the beneficiary possesses 
specialized knowledge or that he will be employed in a position in the United States which requires 
specialized knowledge. For identical reasons, the petitioner has not established that the beneficiary has been 
employed abroad in a specialized knowledge capacity. Also, as the petitioner does not assert that the 
beneficiary has been employed abroad in a managerial or executive capacity, the record also does not 
establish that the beneficiary may be so classified. Therefore, the petitioner may also not be approved for this 
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. 200 I), aff 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 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 
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.