dismissed L-1B Case: Locomotive Parts Export

PUBLIC copy
U.S. Department of Homeland Security
20 Massachusetts Ave., NW, Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services h
7
File: LIN 06 084 51652 Office: NEBRASKA SERVICE CENTER Date: JUL 0 I 2001
INRE: Petitioner:
Beneficiary:
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)(l5)(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.
1~ ert P. Wiemann, ief
(rffiinistrative Appeals Office
www.uscls.gov
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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 as an L-IB 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 is a corporation organized in the State of
Idaho that claims to be engaged in the export and trade of locomotive parts. The petitioner states that it is an
affiliate of the beneficiary's previous employer, Honeydew Auto, Inc., located in Calgary, Canada. The
petitioner seeks to employ the beneficiary as its chief executive officer for a two-year period. 1
The director denied the petition, concluding that the petitioner did not establish that the beneficiary possesses
specialized knowledge or that the beneficiary would be employed in a capacity that requires specialized
knowledge. The director noted that the beneficiary's claimed specialized knowledge, including knowledge of
Spoornet, the South African railway system, South African currency, international shipping routes, and South
African customs and import regulations, is not specific to the petitioning organization.
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, the petitioner disputes the director's decision and
suggests that the decision denigrates the functions to be performed by the beneficiary and the "specialized
service skill" required to perform the duties of the offered position. The petitioner also questions the director's
observation that the position appears to call for a person with management skills when the petitioner's
previous L-l A classification petition was denied. The petitioner submits a brief in support of the appeal.
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. § 214.2(1)(3) 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.
1 The beneficiary was previously granted L-IA classification for a one-year period (from September 16,2004
to September 15, 2005) in order to open a new office in the United States. The petitioner's petition to extend
the beneficiary's L-IA status was denied (LIN 05 247 51191), and the AAO dismissed the petitioner's
subsequent appeal.
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(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 possesses specialized
knowledge; and (2) whether the beneficiary's employment abroad and proposed U.S. 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)(l5)(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)(l)(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.
The nonimmigrant petition was filed on January 26, 2006. The petitioner indicated on Form 1-129 that the
beneficiary would have "executive authority for all U.S. operations, including budgetary, operational and
personnel matters." In an appended letter dated August 10,2005, which was apparently submitted in support
of the beneficiary's previous L-1A petition, the petitioner described the beneficiary's duties as follows:
As Chief Executive Officer, [the beneficiary] has full decision-making authority over all of
the company's budgetary, personnel, and business operations matters. He establishes the
company's annual budget plus financial goals and expectations. He is authorized to sign
contracts and establish lines of credit. He exercises executive authority over which product
lines we supply, and under what terms. He represents our company in the U.S. and maintains
strong business relationships with our coroporate [sic] suppliers. He also establishes our
freight forwarding and shipping policies. When staff are hired, which we expect to occur in
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the coming year, [the beneficiary] will have full executive authority on personnel issues,
including staff hiring, management, and supervision. [The beneficiary] directly reports to [the
company president], providing regular assessments of [the petitioner's] progress and his
vision for its future. He also prepares reports and analyses regarding the company's cash
expenditures and earnings, budgetary needs, contracting arrangements, and market and
business prospects.
The petitioner noted that the U.s. company is the "sourcing, pricing and exporting" division of its South
African parent company and primarily buys and exports U.S.-manufactured locomotive, rail and railcar parts
to a foreign affiliate. The petitioner noted that during the first year of operations the U.S. company "prepared
well over 1,000 price quotes in response to tender offers" from Spoornet, a South African rail transportation
provider.
The petitioner also submitted a letter from its parent company, dated October 28, 2005, that was previously
submitted in response to a request for evidence in connection with the beneficiary's previous L-IA
classification petition, and which was intended to establish his employment in a managerial or executive
capacity. As the letter is part of the record of proceeding, its contents will not be repeated here.
In addition, the petitioner submitted an affidavit from the beneficiary in which he states that he has gained
"specialized knowledge" in the following areas during the course of his employment with the petitioner and in
more than 14 years of experience working in trade and export-related positions in South Africa and Canada:
Knowledge of [the U.S. petitioner's] products:
I am familiar with all of the types of locomotive parts that Boise Rail purchases in the U.S.
and exports to our South African parent company, Deomac, Inc. Deomac is one of only five
authorized suppliers for Spoornet, the South African railway system. I am familiar with the
technical specifications for the parts as required by Spoornet. I am familiar with the types of
locomotive parts that Deomac provides to Spoornet and the type of Spoornet tenders that
Deomac chooses to bid on. I am familiar with which of these products are obsolete in the
U.S. and must be custom manufactured to meet technical specifications. I am familiar with
the types of product warranties [the petitioner] requires from its manufacturers to enable [the
foreign entity] to meets its contractual obligations to Spoornet. I am familiar with methods for
inspecting U.S. manufacturing facilities to ensure that the products are produced in such a
way as to meet acceptable quality control standards and documentary requirements. I am
fluent in Afrikaans, an official language in South Africa, and am thus able to translate bid
requests into understandable US terminology. I have specialized knowledge of the different
units of measure and weights used by both countries and can adapt them accordingly.
Knowledge of [the U.S. petitioner's] Management, Processes and Procedures
Having served as Chief Executive Officer of [the petitioner] since October 2004, I have been
responsible for establishing all of [the petitioner's] management processes and procedures,
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including its accounting and bookkeeping practices, record keeping and ordering procedures
and shipping policies. I am familiar with the suppliers, manufacturers, and shipping
companies [the petitioner] relies on to supply and ship its locomotive parts domestically and
internationally. I am familiar with the types of financial reports and forecasts that must be
produced for our parent corporation, Deomac, and the manner in which the company's
President prefers to receive information. I am familiar with [the petitioner's] processes for
authorizing payments, obtaining credit, and other cash flow management procedures.
I am familiar with the types of contract provisions [the petitioner] requires, including specific
terms regarding quantity, quality, applicable warranties, product availability, shipping and
freight costs, etc. I recently negotiated a Small Business Administration loan on the
company's behalf, and am familiar with [the petitioner's] obligations under that loan. I am
familiar with the internal company documents required to prepare price quotations, track
orders, and oversee shipping and freight handling. I am familiar with the local vendors and
professionals that the office uses to sustain its operations and maintain compliance with local,
state, and federal laws.
Knowledge of [the U.S. petitioner's] Activities in International Markets
I have experience in monitoring fluctuating currency rates for the U.S. dollar and the South
African Rand, and for evaluating the impact of these changing rates on [the petitioner's] and
Deomac's bottom lines. I have experience selecting appropriate international and domestic
shipping companies and routes, and determining how shipping times will impact our ability
to meet our contractual obligations and our bottom line. I have experience in providing
Certificates of Manufacture, compliance certificates, customs clearance and other documents
that must be tendered before products will be allowed into South Africa under that country's
strict customs and import regulations.
With respect to the beneficiary's foreign employment, the petitioner stated on Form 1-129 that the beneficiary
was employed as the chief executive officer for the petitioner's Canadian affiliate, an automotive trading
company, from March 2003 until September 2004, where he exercised "full executive authority over all
budgetary, operational and personnel matters."
The director issued a request for additional evidence on January 31, 2006. The director noted that the
beneficiary's claimed specialized knowledge "appears to relate to other companies such as Spoornet, the
South African Railway system, South African currency, domestic and international shipping routes from
North America to South Africa, and of South African customs and import regulations." The director advised
the petitioner that it had not established that the beneficiary's knowledge in these areas is uncommon,
noteworthy, or distinguished by some unusual quality that is not generally known by similarly employed
workers in the industry. The director also advised that the evidence submitted failed to establish that the
position in the United States requires a person with "specialized knowledge" as defined in the regulations.
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Accordingly, the director instructed the petrtioner to submit evidence that the beneficiary possesses
specialized knowledge of the petitioner'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 which is unique to the industry and not routinely possessed by
peers who are similarly educated or engaged within the industry.
The director further advised that if the petitioner claims that the beneficiary possesses an advanced knowledge
of the processes and procedures of the company and its products, it must submit documentary evidence to
describe and distinguish that knowledge from the elementary or basic knowledge possessed by others who are
similarly employed within the industry.
In response, the petitioner submitted a letter from the president of the U.S. and foreign entities, who
referenced his long-time friendship and business association with the beneficiary, and noted that the
beneficiary provided financial advice to the foreign entity from 1980 until 1994 while employed by an
unrelated company. The petitioner stated that the beneficiary advised the foreign entity "regarding life
insurance, pension planning, 401K-type plans for the staff, corporate risk management, as well as asset and
liability insurances." The petitioner states that during this time, the beneficiary became familiar with the
company's needs in the areas of project finance, growth planning, loss prevention and strategic risk control, as
well as becoming aware of the company's earnings, product lines, manufacturing processes, business dealings
and customers.
The petitioner's president further stated:
[The beneficiary's] long business partnership and friendship with me and my company has
enabled him to communicate effectively with our South African corporate head office. I trust
[the beneficiary] with large sums of money, with the ability to sign contracts and assume
liability on the company's behalf. [The beneficiary] knows all about the management of
Deomac. He knows the type of financial information we require. He also knows my
preferences regarding the types of contracts we are willing to approve for the company, he
knows the product lines, the amount of risk Deomac is willing to sustain and when to take a
risk that he knows will be for the benefit of the corporation.
The petitioner also stated that the beneficiary possesses specialized knowledge of the petitioner's products,
research, procurement techniques and safety standards. The petitioner noted that the U.S. company's business
consists of purchasing products for export to its foreign parent and affiliate, which in tum supply the products
to the locomotive division of the South African Railway. The petitioner emphasized that the locomotives
operated by Spoornet were built in the 1950s and 1960s, and that the beneficiary has had to locate American
companies who are willing to custom manufacture parts needed by Spoornet, thus requiring familiarity with
Spoornet and the U.S. locomotive parts industry. The petitioner stated that it knows of "no one else who has
as much knowledge as [the beneficiary] regarding both of these entities."
The petitioner also explained that Spoornet has a complicated contracting system and only issues tenders to
five authorized suppliers. The petitioner noted that of the five suppliers, only the petitioner's group has opened
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an office in the United States to deal directly with U.S. manufacturers. The petitioner states that as a result,
the beneficiary has had to become familiar with technical drawings, read technical manuals and manufacturers
catalogs, and learn American terminology for locomotive parts. The petitioner stressed that the beneficiary
"knows all about the processes through which Deomac responds to Spoornet's tenders," and stated that the
beneficiary "knows how much risk Deomac is willing to take. He also knows what kind of contractual terms
we require to be included in the warranties, and what kind of delivery periods and testing requirements we
need." In addition, the petitioner noted that the beneficiary is able to ensure that the products are
manufactured to Spoornet's standards, and is aware of its test and safety standards, which differ in the U.S.
and South Africa.
The petitioner also stated that the beneficiary possesses special knowledge to advance its interests in
international markets, noting that he is familiar with "South Africa's customs and import regulations, South
African currency and international shipping routes." The petitioner stressed that the beneficiary completed a
Business Management Program through the University of South Africa "to stay up-to-date on current business
models used in the country."
In addition, the petitioner emphasized that the beneficiary's knowledge is unique within the industry and not
possessed by others within the company, as each individual in the company "is specialized in their own field."
The petitioner indicated that they were unable to find a suitable U.S. candidate due to the company's
requirements that the candidate possess advanced business skills, reasonable technical knowledge, the ability
to work unsupervised, trustworthiness, familiarity with older locomotive equipment, and a knowledge of the
differences between equipment terminology in the U.S. and South Africa.
The petitioner also submitted a letter from James Washburn, president of Idaho Railway Supply, Inc., who
noted that, due to the beneficiary's "specific and noteworthy knowledge," his company is able to successfully
bid and supply parts via the petitioner to Spoornet in South Africa. Mr. Washburn stated that the beneficiary
has assisted his company to understand the South African procurement process, and to ensure that its products
"meet South Africa's specific and unusual required standards." Mr. Washburn also noted that due to the age
of the equipment used by Spoornet, many of the parts are considered obsolete by U.S. standards and
"knowledge of this older system is no longer common among practitioners of this trade in the U.S."
The director denied the petition on May 8, 2006, concluding that the petitioner had failed to establish that the
beneficiary possesses specialized knowledge or that the position offered requires specialized knowledge. The
director noted that the beneficiary's claimed specialized knowledge, including knowledge of Spoornet, the
South African railway system, South African currency, international shipping routes, and South African
customs and import regulations, is not specific to the petitioning organization. The director acknowledged
that it is understandable that the petitioner would prefer to transfer personnel to the United States who are
familiar with the company's products, processes and procedures, and who possess an ability to immediately
support the company's objectives. However, the director concluded that the evidence of record did not
sufficiently establish that the beneficiary's knowledge is uncommon, noteworthy or distinguished by some
unusual quality that is not generally known by practitioners who are similarly educated and/or engaged within
the beneficiary's field of endeavor, or that the proposed position requires a person with "specialized
knowledge" as that term is defined in the regulations.
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The petitioner appealed the director's decision on June 5, 2006. On appeal, the petitioner states that the
director's decision was "unfairly and excessively critical," demonstrated an "unreasonably narrow focus on the
terminology ," and failed to consider the "macro economic value of the business to the United States economy
in general."
In an appellate brief received on July 10, 2006, the petitioner asserts that evidence was submitted to establish
that the beneficiary "did further his studies and in fact graduated from the University of South Africa during
this past period ," and "made a serious effort in upgrading his qualifications by studying for and obtaining an
Associate Degree in Business Management." The petitioner further emphasizes that the beneficiary was
"actively involved with product familiarization and spent hours every week reading technical journals and
meeting with manufacturers to be fully acquainted with the products, specifications and procedures."
The petitioner notes that it requires a skilled business person who is able to negotiate contracts and understand
export finance, that the beneficiary possesses 25 years of highly regarded business accomplishments , and that
such skills should be considered "an experienced , specialized service skill." The petitioner states that the
director appears to have ignored the testimony of Mr. Washburn , who attested to the beneficiary's exceptional
negotiation skills and "specialized ability." The petitioner also questions whether the director's denial of the
specialized knowledge petition is "fair and reasonable" in light of a previous L-1A denial in which it was
stated that the beneficiary's duties appeared to involve "special skills rather than management."
On review, the petitioner has not demonstrated that the beneficiary possesses specialized knowledge, or that
the prospective position requires "specialized knowledge" as defined in section 214(c)(2)(B) of the Act, 8
U.S.C. § 1184(c)(2)(B) , and the regulation at 8 C.F.R. § 2l4.2(l)(1)(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. § 214 .2(l)(3)(ii). The petitioner must submit a detailed description of the services to be performed
sufficient to establish specialized knowledge. Id.
The petitioner must submit a detailed description of the services to be performed sufficient to establish
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 business's product or service , management
operations, or decision-making process. See Matter of Colley, 18 I&N Dec. 117, 120 (Comm. 1981) (citing
Matter ofRaulin, 13 I&N Dec. 618 (R.C. 1970) and Matter ofLeBlanc, 13 I&N Dec. 816 (R.C. 1971)).2 As
2Although the cited precedents pre-date the current statutory definition of "specialized knowledge," the AAO
finds them instructive. Other than deleting the former requirement that specialized knowledge had to be
"proprietary, " the 1990 Act did not significantly alter the definition of "specialized knowledge" from the prior
INS interpretation of the term. The 1990 Committee Report does not reject, criticize, or even refer to any
specific INS regulation or precedent decision interpreting the term. The Committee Report simply states that
the Committee was recommending a statutory definition because of "[v]arying [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, as well as Matter of Penner, remain useful guidance concerning the
intended scope of the "specialized knowledge" L-l B classification.
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stated by the Commissioner in Matter of Penner, 18 I&N Dec. 49, 52 (Comm. 1982), 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." Rather, the
beneficiaries were considered to have unusual duties, skills, or knowledge beyond that of a skilled worker. Id.
The Commissioner also provided the following clarification:
A distinction can be made between a person whose skills and knowledge enable him or her to
produce a product through physical or skilled labor and the person who is employed primarily
for his ability to carry out a key process or function which is important or essential to the
business' operation.
Id. at 53.
Here, the beneficiary's proposed job duties do not identify services to be performed in a specialized
knowledge capacity. For example, the beneficiary's responsibilities of sourcing and purchasing locomotive
parts from U.S. manufacturers, negotiating purchasing contracts, making domestic and international shipping
arrangements, establishing processes and procedures for bookkeeping, record keeping and ordering, and
researching potential suppliers are all tasks typically performed by any individual responsible for overseeing a
start-up procurement operation in a new market. The fact that the beneficiary developed the "management
processes" of the new office and is the only person who has utilized such processes as the sole employee of
the company does not equate to "specialized knowledge" as defined in the regulations. If the AAO followed
the petitioner's argument to its logical conclusion, any person charged with establishing a start-up U.S.
subsidiary of a foreign corporation would be deemed to possess an "advanced knowledge" of that company's
processes and procedures and would qualify for the L-1B visa classification.
The record is devoid of any documentary evidence that the beneficiary's proposed position would involve the
application of special knowledge of the petitioning organization's product, service, research, equipment,
techniques, management, or other interests as required in the regulations. As noted by the director, the
knowledge required to perform the proposed duties is not specific to the petitioning organization. The
petitioner purchases locomotive parts from unrelated U.S. manufacturers that will ultimately be utilized by the
South African railway system. Familiarity with Spoornet's requirements for locomotive parts and its bidding
and tender process, while perhaps uncommon in the United States in general, cannot be considered knowledge
that is relative to the petitioner's group of companies. Similarly, the petitioner emphasizes the beneficiary's
familiarity with shipping routes and practices between North America and South Africa, his experience with
South African currency valuations, South African customs and import regulations, and his ability to speak
Afrikaans, as evidence of his specialized knowledge. Again, such knowledge is generally available outside
the petitioner's group of companies and would likely be held by any worker with a similar background in
international trade between North America and South Africa. The beneficiary's ability to speak an official
language of his home country does not rise to the level of specialized knowledge.
The AAO recognizes that the beneficiary was initially granted L-1A status in order to open a new office in the
United States, and acknowledges that it is possible for an individual employed in a managerial role to meet
the criteria for specialized knowledge capacity set forth at section 214(c)(2)(B). However, the petitioner has
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not established that the particular position offered to the beneficiary requires an individual with knowledge,
experience or characteristics beyond possession of good business negotiation skills, understanding of South
African currency valuations, shipping routes, and import and customs regulations, and some understanding of
locomotive parts and terminology used in the United States and South Africa. The petitioner does not
manufacture a product nor does it market or sell its parent company's products or services. The beneficiary is
needed to oversee the development of the business in the United States and to purchase and export products
that are designed, developed and manufactured by unrelated companies, and which will ultimately be supplied
to a customer who is unrelated to the petitioner's organization. The beneficiary apparently has sufficient
knowledge of these products to negotiate prices and request customization to meet the end-users needs.
However, knowledge of products manufactured by other, unrelated companies cannot constitute specialized
knowledge of the petitioner's interests. Again, there is no evidence that the beneficiary would rely on
"special" or "advanced" knowledge of the petitioner's products or processes in order to perform these duties.
Furthermore, the evidence of record demonstrates that the beneficiary gained much of the required general
knowledge of South African trade prior to joining the petitioner's Canadian affiliate in 2003. The beneficiary's
knowledge specific to locomotive parts was apparently gained through the study of technical journals and
manuals and meetings with U.S. manufacturers subsequent to his transfer to the United States in L-IA status,
as there is no evidence that he had any prior experience in that industry. The petitioner's claim that the
beneficiary gained knowledge of the foreign entity's product lines and manufacturing processes while
working as an external financial advisor to the South African company is not persuasive. Even if the
petitioner had established that the U.S. position requires an individual with specialized knowledge, the
petitioner has not established that the beneficiary's education, training, or experience has equipped him with
"special" or "advanced" knowledge of the petitioner's products, services, processes, or methodologies. See 8
C.F.R. § 214.2(l)(3)(iv).
The petitioner emphasizes on appeal that it requires a skilled businessperson, not a mechanical engineer or
other technical specialist, to procure and secure parts and negotiate purchase terms and conditions. There is no
evidence that the beneficiary has ever utilized specialized knowledge of the petitioner's processes in the
performance of his job duties with the foreign entity or that his knowledge extends beyond that of mere
familiarity that could easily be transferred to another individual with a similar professional background, who
could presumably also read technical manuals to familiarize himself or herself with the products to be
procured. There is no evidence that the beneficiary would rely on "special" or "advanced" knowledge of the
petitioner's products or processes in order to perform the described duties.
Counsel represents the beneficiary's knowledge and skills as a culmination of factors, which, when
considered together, constitute the claimed "specialized knowledge." The beneficiary's claimed specialized
knowledge is based on his native knowledge of Afrikaans, his business negotiation skills, his familiarity with
South African shipping and trade routes, customs and import requirements, his business and personal
relationships with managers within the petitioner's parent company, his existing relationships with the
petitioner's suppliers, their products and their capabilities gained by virtue of having worked with the
petitioner in L-IA status, his formal education in business management, and his familiarity with the
petitioner's processes, policies and procedures, again, gained by virtue of having been responsible for
establishing the U.S. subsidiary. As discussed above, the products purchased by the petitioner for sale to its
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parent company, while perhaps somewhat unusual due to their obsoleteness by U.S. standards, are
manufactured by other companies and the beneficiary's knowledge of these products appears to be limited to
the ability to negotiate the purchase and relay the specific specifications and requirements of the ultimate end­
user. Furthermore, although it may be unusual for a company to purchase parts for older locomotives
manufactured in the U.S. in the 1950s and 1960s, mere familiarity with these products and the South African
market does not constitute specialized knowledge. The beneficiary's own knowledge of the specific products
sold by the petitioner has been gained only since his transfer to the United States and establishment of the
U.S. company, and the petitioner has presented no evidence to suggest that the knowledge required to
purchase these products from U.S. manufacturers could not be relatively easily transferred to another
employee with experience in the international trade of locomotive parts. The combination of this general
knowledge with the beneficiary's language and business knowledge, education, and business contacts within
the foreign entity and with U.S. suppliers does not rise to the level of specialized knowledge contemplated by
the statutory and regulatory definitions and precedent decisions. Again, the claimed specialized knowledge
must relate specifically to the petitioning company.
Additionally, the petitioner has not submitted any evidence of the knowledge and expertise required for the
proffered position that would differentiate the beneficiary from other managers employed within the
petitioner's group or working for other international employers within the locomotive parts industry. It is
noted that the statutory definition requires the AAO to make comparisons in order to determine what
constitutes specialized knowledge. 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
term "specialized knowledge" is relative and cannot be plainly defined. 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 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.
The petitioner claims that the beneficiary possesses an advanced knowledge of the petitioner's policies and
processes and their application in international markets. Specifically, counsel asserts that the knowledge is
"advanced" because the beneficiary developed the company's policies, procedures and goals and continues to
be responsible for them. The petitioner has not defined the policies, processes and procedures developed by
the beneficiary. 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. at 165. The petitioner
attempts to differentiate the beneficiary's knowledge as special or advanced by claiming that the knowledge is
essentially unique to the beneficiary, since he is the only employee of the U.S. company and was responsible
for its establishment. However, such a statement could be made regarding any manager of any small start-up
company. Again, the petitioner's logic leads to the untenable conclusion that any manager or executive who
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failed to sufficiently develop a new office within the requisite one year may qualify for an extension of status
as a specialized knowledge employee by virtue of having established the policies, procedures and operating
plans for the new office. As discussed above, the duties performed by the beneficiary cannot be differentiated
from those performed by any other manager charged with establishing a start-up operation in a new market.
Accordingly, the AAO does not disagree with the petitioner's assertion that the beneficiary is important to the
operation of the U.S. company. 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 organization's processes and procedures. The beneficiary's
knowledge and expertise, while valuable to the petitioner, does not include the type of special or advanced
knowledge of the petitioner's products, processes or other interests as required by the regulations.
The AAO also acknowledges receipt of the testimony 0 , a railway supply entrepreneur,
who attests to the beneficiary's "specific and noteworthy knowledge" and ability to assist his company with
understanding the South African procurement process and ability to "interpret the terminology." While the
opinions expressed by 1 are certainly respected, they are not persuasive in this matter, as they do
not address the context of the beneficiary's job duties in light of the applicable regulations governing this visa
petition. While the AAO does not doubt that the beneficiary possesses the skills referenced by ~
, as discussed above, the beneficiary's knowledge and skills, however impressive, do not meet the
statutory and regulatory requirements for specialized knowledge.
Finally, the AAO recognizes the petitioner's claims that the beneficiary's skill and knowledge have contributed
and would contribute to the success of the petitioning organization. However, these factors alone do not constitute
the possession of specialized knowledge. Likewise, while the beneficiary's contribution to the economic success
of the company 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. § 2l4.2(l)(l)(ii)(D). Here, the
beneficiary's role as the founder of the U.S. subsidiary may not be easily transferred to another individual, but the
petitioner has not established that he actually possesses the claimed specialized knowledge. The fact that the
petitioner and foreign entity consider the beneficiary to be irreplaceable is not sufficient to establish his eligibility
for this visa classification.
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. v. Attorney General, 745 F. Supp. at 16. Based on the foregoing, the record does
not establish that the beneficiary would be employed by the U.S. entity in a specialized knowledge capacity.
For this reason, the appeal will be dismissed.
Beyond the decision of the director, the petitioner has not submitted evidence that the beneficiary's prior year
of employment abroad was in a position that was managerial, executive or involved specialized knowledge, as
required by 8 C.F.R. § 2l4.2(l)(3)(iv). The evidence of record indicates that the beneficiary was employed as
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the chief executive officer of a now inactive Canadian affiliate of the petitioner from March 2003 until
September 2004, where he "exercised full executive authority over all budgetary, operational, and personnel
matters." No other evidence was submitted regarding the beneficiary's role with the foreign entity or the
foreign entity's organizational structure, and it is therefore impossible to conclude that he was employed in a
qualifying managerial, executive or specialized knowledge capacity based on this limited description. Again,
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. at 165. For this additional reason, the
petition cannot be approved.
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683
(9th Cir. 2003).
The petition will be denied 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.