dismissed L-1B Case: Logistics And Consulting

PIrnLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Avc., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: EAC 02 160 52207 Office: VERMONT SERVICE CENTER Date: 0 1 
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 I IOl(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. 
oben P. ~iemitnn, Director 
Appeals Office 
SRC 02 167 5 1931 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Vermont Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
According to the evidence contained in the record, the petitioner claims to have been established in 1994 as a 
mail order logistics and consulting firm. The petitioner claims to be a subsidiary of- 
located throughout Europe. The petitioner seeks to extend its authorization to employ the beneficiary 
temporarily in the United States as operations manager for a period of two years, at a yearly salary of 
$60,000.00. The director denied the petition concluding that the petitioner had not submitted sufficient 
evidence to establish that the position being offered to the beneficiary requires the services of an individual 
possessing specialized knowledge or that the beneficiary possesses specialized knowledge. 
On appeat. counsel for the petitioner asserts that the director improperly applied the relevant statute to the 
evidence previously submitted in support of the beneficiary's specialized knowledge capacity claim. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section IOl(a)(lS)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). Specifically. within three years 
preceding the beneficiary's application for admission into the United States, a qualifying organization must 
have ernployed 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. 5 214.2(1)(3) further states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(1) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (I)(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 hirnlher 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. 
Section 214(~)(2)(B) of the Act, 8 U.S.C. 5 1184(c)(2)(B), provides the following: 
For purposes of section lOl(a)(lS)(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 
SRC 02 167 5 1931 
Page 3 
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. 
The regulation at 8 C.F.R. fi 214.2(l)(l)(ii)(D) defines "specialized knowledge" as: 
[Sjpecial 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 January 24,2002, the petitioner described the beneficiary's duties as: 
. . . [The beneficiary] will continue his employment in the position of Operations Manager in 
the United States. In this position, [the beneficiary] will continue to utilize his proprietary 
knowledge of the foreign entity's policies and procedures to fulfill all responsibilities and 
oversee the development of the joint venture operations between [the foreign entity] and [the 
U.S. entity). This includes managing and directing promotional activities related to the 
acquisition of US logistics outsourcing expertise. He will continue to be responsible for the 
development of company operations to enable [the foreign entityl to acquire a maximum 
level of knowledge of United States business practices. which will facilitate the promotion 
and acquisition of business contracts and clientele from United States companies seeking to 
establish an operations base in Europe. Among his duties will be establishing and 
coordinating the analysis of database applications for mail order statistics. This entails 
utilizing his knowledge of [the foreign entity's1 operating procedures to coordinate and 
organize computer equipment and networks, as well as to create tools to improve and control 
mail order processes . . . . He will also continue to coordinate the establishment of operations 
budgets for the joint venture operations. including monitoring performances, budgets, and 
operations forecasts. 
In response to the director's request for evidence on the subject, the petitioner stated that the beneficiary 
possessed an advanced level of knowledge of the company's products, processes, and procedures in that he 
has primarily been responsible for the creation, implementation and management of the U.S. entity's software 
product, OrderMotion. The petitioner also asserted that the beneficiary possessed knowledge that is valuable 
to the U.S. entity in that he has and will continue to be responsible for managing and directing activities 
related to the acquisition of the company's logistics outsourcing expertise. The petitioner stated that the 
beneficiary has established and coordinated the analysis of database applications for mail order statistics, and 
that he has utilized his knowledge of the foreign entity's operating procedures to coordinate and organize 
computer equipment and networks. The petitioner further stated that the beneficiary has created tools to 
improve and control mail order processes; has documented standard operating processes; monitored mail 
order software databases; and implemented database-marketing techniques. The petitioner stated that the 
beneficiary has also coordinated and established operation budgets including: monitoring performances. 
budgets. and operations forecasts. The petitioner also stated that the beneficiary's specialized knowledge of 
the petitioner's product and processes and services could not be easily transferred or taught to another 
individual. The petitioner contended that it would take a minimum of 12 to 18 months to train another person 
to assume the beneficiary's position. 
SRC 02 167 51931 
Page 4 
The director determined that the beneficiary's job duties as described were not significantly different from 
those of other operations managers in similarly situated consulting firms, and that the job at the U.S. entity 
did not require someone possessing specialized knowledge. The director also stated that the petitioner had 
not demonstrated that the company's software (OrderMotion) is significantly different from software 
generally used in similar companies. The director further stated that the petitioner had failed to demonstrate 
how an understanding of OrderMotion constitutes specialized knowledge. The director stated that an in-depth 
knowledge of the functions and systems of the organization does not appear to be unusual for an individual 
employed as operations manager to possess, and is not considered to be indicative of the beneficiary's 
claimed advanced expertise. The director concluded by stating that the petitioner had failed to document how 
the beneticiary's knowledge of the processes and procedures of the petitioning organization are advanced or 
substan~ially different from the knowledge possessed by other individuals similarly employed, or that such 
knowledge would be difficult to impart to another individual without significant economic inconvenience to 
the U.S. or foreign entities. 
On appeal, counsel argues that the beneficiary possesses specialized knowledge of the petitioner's 
OrderMotion software application processes and procedures in that he has been given assignments that have 
enhanced the company's productivity, competitiveness. image, and financial position. Counsel further argues 
that the beneficiary is uniquely qualified to contribute to the U.S. entity's knowledge of foreign operations, 
and that he possesses knowledge that can only be gained through extensive prior experience with the 
company. Counsel contends that the beneficiary's knowledge of the petitioner's OrderMotion software 
application processes and procedures would be difficult to impart to another individual without inconvenience 
to the petitioner. Counsel also contends that the knowledge possessed by the beneficiary is not commonly 
known throughout the software industry. 
On review of the record, the petitioner has not established that the beneficiary possesses specialized 
knowledge or that he will be employed in a specialized knowledge capacity as required by 
8 C.F.R. $ 214.2(1)(3)(ii). Counsel infers that the specialized knowledge issue was not contested when the 
initial L-IB petition was approved, and therefore, all things being the same, the current petition should also be 
approved. Contrary to counsel's contentions, each petition filing is a separate proceeding with a separate 
record. See 8 C.F.R. 9 103.8(d). In making a determination of statutory eligibility, Citizenship and 
Immigration Services (CIS) is limited to the information contained in the record of proceeding. See 
8 C.F.R. $ 103.2(b)(16)(ii). In addition, the record of proceeding does not contain detailed copies of the visa 
petition claimed to have been previously approved. If, however, the previous nonimmigrant petition was 
approved based on the same unsupported and contradictory assertions that are contained in the current record. 
the approval would constitute clear and gross error on the part of CIS. As established in numerous decisions. 
CIS is not required to approve applications or petitions where eligibility has not been demonstrated merely 
because of prior approvals which may have been erroneous. See Siia.sex Engg. Ltd. V. Montgomery. 825 F.2d 
1084, 1090 (6Ih Cir. 1987); cer?. rlenierl, 485 U.S. 1008 (1988); Mutter of Church Scienrvlu~y lnt'l., 19 I&N 
Dec. 593, 597 (BIA 1988). The Administrative Appeals Office is not bound to follow the contradictory 
decision of a service center. Louisiana Philitnmtotzic Orrhesrrcr v. INS. 44 F.Supp. 2d 800,803 (E.D. La. 
2000), czffil 248 F.3d 1139 (5th Cir. 2001), cert. rlmitd, 122 S.Ct. 51 (2001). In addition, while 8 C.F.R. 5 
103.3(c) provides that CIS precedent decisions are binding on all CIS employees in the administration of the Act, 
unpublished decisions are not similarly binding. 
On appeal. the petitioner submitted copies of its executive summary; and copies of OrderMotion marketing 
documents, flow charts, service agreements. operations manual, and user reports. This evidence is insufficient 
to demonstrate that the beneficiary possesses specialized knowledge or that the job in the United States requires 
SRC 02 167 51931 
Page 5 
specialized knowledge. It appears from the record of proceedings that the data pertaining to the OrderMotion 
software applications and techniques is readily available and can be easily learned by other operations 
managers in the field. The evidence submitted on appeal is insufficient to substantiate the petitioner's claim 
that the beneficiary possesses an advanced Level of knowledge of processes and procedures unique to its 
company. The petitioner has failed to submit sufficient evidence to establish that the knowledge possessed by 
the beneficiary of its organization's product, service, research, equipment, techniques, management, or other 
interests and its application in international markets constitutes special knowledge. 
Counsel argues that the beneficiary possesses specialized knowledge of the organization's products, processes, 
and procedures. Counsel also argues that the beneficiary acquired the specialized knowledge through the 
beneficiary's experience being employed by the foreign entity. Although there may be evidence to show that 
the beneficiary has acquired experience while working for a foreign entity, this experience does not constitute 
specialized knowledge. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Mnrter o$ Treasure Craft of Californicz, 14 
I&N Dec. 190 (Reg. Comrn. 1972). 
While the petitioner claims that the beneficiary's experience with the organization includes intimate 
familiarity with the U.S. entity's mail order logistics and OrderMotion software platform procedures and 
proprietary products and intimate familiarity with the foreign entity's development projects, mere familiarity 
with an organization's product, process or service does not constitute special knowledge under section 
214(c)(2)(B) of the Act. In addition, although the petitioner contends that the beneficiary will be integral as a 
chief technology officer. application designer, lead programmer and developer, this claim is insufficient to 
establish that the beneficiary possesses specialized knowledge or will be performing tasks that require 
specialized knowledge. The record does not demonstrate that the tasks described are not common to all 
operations managers in the computer software application and development field. Further, the petitioner 
contends that the beneficiary's duties will consist of managing and directing promotional activities, 
developing company operations, establishing and coordinating the analysis of database applications for mail 
order statistics, and coordinating the establishment of operations budgets. There has been no evidence 
submitted to establish that the tasks described require specialized knowledge. It appears that the description 
given is common to all computer firms in the software development business and does not differentiate the 
beneficiary from that of any other person employed as an operations manager. 
The petitioner has demonstrated that the beneficiary is skilled and familiar with OrderMotion's software 
applications and techniques that are undoubtedly beneficial to the organization. However, the plain meaning 
of the term "special" knowledge is knowledge or expertise beyond the ordinary in a particular field, process, 
or function. See section ?14(c)(2)(B) of the Act. The petitioner hits not furnished evidence sufficient to 
demonstrate that the beneficiary's duties involve knowledge or expertise beyond what is commonly held in 
his field. In addition, the record does not establish that the beneficiary has advanced or special knowledge of the 
petitioning organization's product, procedures, or its application in U.S. and international markets. Although the 
petitioner's software application product may be unique and proprietary in name, there has been no evidence 
submitted to establish that its interface processes and functional capabilities are exclusive to the U.S. and foreign 
entities. Counsel contends that the beneficiary's knowledge of "OrderMotion" qualifies as "specialized 
knowledge." Contrary to counsel's contention, any operations manager would necessarily possess knowledge 
of its company's proprietary products in order to function efficiently. While the beneficiary's employment 
experience with the foreign organization may have given him knowledge that is useful in performing his duties as 
an operations manager, it cannot be the case that any useful skill is to be considered to constitute special or 
advanced knowledge. Without supporting documentation, the assertions of counsel do not constitute evidence. 
SRC 02 167 5 193 1 
Page 6 
Matter of Obaigbentl, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Rnmirez-Sanchez. 17 1&N Dec. 503, 506 
(BIA 1980). 
In accordance with the statutory definition of specialized knowledge, a beneficiary must possess "special" 
knowledge of the petitioner's product and its application in international markets, or an "advanced level" of 
knowledge of the petitioner's processes and procedures. See section 214(c)(Z)(B) of the Act. Here, the 
evidence demonstrates that the beneficiary possesses the skill required to work as an operations manager 
dealing with various software interface applications, not a special knowledge of the petitioner's processes and 
procedures. 
Counsel infers that similar extension of new office petitions have been granted by the AAO, and cites to 
unpublished decisions in support of his contentions. However, while 8 C.F.R. 9 103.3(c) provides that CIS 
precedent decisions are binding on all CIS employees in the administration of the Act, unpublished decisions are 
not similarly binding. An unpublished decision carries no precedential weight. See Ctinn v. Reno, 113 F.2d 
1068, 1073 (9'h Cir. 1997) (citing 8 C.F.R. $ 3.l(g)). As the Ninth Circuit says. "unpublished precedent is a 
dubious basis for demonstrating the type of inconsistency which would warrant rejection of deference." id. 
(citing De Osorio v. INS, 10 F.3d 1034, 1042 (41h Cir. 1993)). 
Counsel refers to an unpublished AAO decision in which it was held that the beneficiary met the requirements 
of serving in a managerial and executive capacity even though he was the sole employee of the petitioning 
organization. Counsel has furnished no evidence to establish that the facts of the instant petition are in any 
way anillogous to those in the cited case. Simply going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. See Matter of Treasure 
Craft of Calqornia, supra. 
On appeal, counsel aiso refers to a 1994 INS memorandum as a guide for interpreting the statutory definition 
of specialized knowledge. However, based upon the evidence of record, the beneficiary's ability to execute 
software development and maintenance processes does not by itself establish that his knowledge is different 
from that generally found in the industry. In Matter Penner, the Commissioner emphasized that the 
specialized knowledge worker classification was not intended for "all employees with any level of specialized 
knowledge." I8 I&N Dec. 49 (Comm. 1982). According to Matter og Penner, "[sJuch a conclusion would 
permit extremely large numbers of persons to qualify for the 'L-I' visa" rather than just the "key" personnel 
that Congress specifically intended. With regard to counsel's reliance on the 1888 Associate Commissioner's 
memorandum. the memorandum was intended as a guide for employees and will not supercede the plain 
language of the statute or the regulations. Therefore, counsel's assertion is insufficient to establish that the 
beneficiary's knowledge is uncommon. noteworthy. or distinguished by some unusual quality and not 
generally known in his field of endeavor. 
While the AAO acknowledges that the specialized knowledge classification is not solely for those "relatively 
rare employees with unusual knowledge," the legislative history for the term "specialized knowledge" 
provides ample suppon for a restrictive interpretation of the term. In 17-76, hzc. v. Attornev General, 
745 F. Supp. 9 (D.D.C. 1990), the court upheld the denial of an L-1 petition for a chef, where the petitioner 
claimed that the chef possessed specialized knowledge. The court noted that the legislative history 
demonstrated a concern that the L-1 category would become too large: "The class of persons eligible for such 
nonimrnigrant visas is narrowly drawn and will be carefully regulated and monitored by the Immigration and 
Naturalization Service." Id. at 16 (citing H.R. REP. No. 91-851, 1970 [J.S.C.C.A.N. 2750, 2754, 1970 WL 
5815). The court stated, "in light of Congress' intent that the L-I category should be limited, it was 
SRC 02 167 51931 
Page 7 
reasonable for the INS to conclude that specialized knowledge capacity should not extend to all employees 
with specialized knowledge. On this score, the legislative history provides some guidance: Congress referred 
to 'key personnel' and executives." 1756, Inc., 745 F. Supp. at 16. 
Beyond the decision of the director, the remaining issue in this proceeding is whether the petitioner has 
established that a qualifying relationship exists between the petitioning entity and a foreign entity pursuant to 
8 C.F.R. 5 214,2(1)(l)(ii)(G). According to the evidence submitted, the petitioner was incorporated in 1994 as - 
a mail order logistics and consulting firm. and claims to be a subsidiary-of. Europe. The 
petitioner claims that the beneficiary's former employer abroad was , Austria. The 
petitioner further claims that the U.S. entity and formed a joint venture in the United 
States in 1999 to promot~acsuisition of U.S. logistics outsourcing expertise through the management 
of Transaction Smartware's operations. There has been no evidence submitted to show that -2 
ever employed the beneficiary or that that company has any type of business relationship with . 
Austria. In addition, there has been no evidence submitted to substantiate the petitioner's 
joint venture claim. The record of proceedings does not contain a joint venture agreement, the terms and 
obligations of such agreement, or the rights and duties under such agreement. The petitioner has not 
demonstrated that a qualifying relationship exists with a foreign entity. For this additional reason, the petition 
may not be approved. 
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. 6 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed