dismissed L-1B Case: Maritime Transportation

pUBLIC copy
identifyingdatadeletedto
preventclearly unwarr~ted
invasionofpersonalprivacy
U.S. Department of Homeland Security
20 Massachusetts Ave. N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: SRC 06 036 52870 Office: TEXAS SERVICE CENTER Date: APR 0 52007
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)(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.
~. '-"'-~~-:::-?--:L
'------ ,,-----
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
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Page 2
DISCUSSION: The Director, Texas 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 10I(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 110I(a)(l5)(L). The petitioner is engaged in the provision of maritime
transportation services. It claims to be an affiliate of the beneficiary's foreign employer, Clipper Elite Carriers,
located in Cophenhagen, Denmark. The petitioner seeks to employ the beneficiary as its general manager for
a three-year period.
The director denied the petition concluding that the petitioner failed to establish that the beneficiary possesses
specialized knowledge or that he has been employed by the foreign entity in a position involving specialized
knowledge for one year within the three years preceding the filing of the instant petition.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion, and
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director
misinterpreted the requirements for the L-IB nonimmigrant classification as outlined in a legacy Immigration
and Naturalization Service policy memorandum issued in 1994. Counsel asserts that the beneficiary's
knowledge of the petitioner's proprietary software platform, "Glomaris," can be considered both "special" and
"advanced," and that he has possessed such knowledge for more than one year. Counsel submits a brief and
additional evidence in support of the appeal.
To establish L-l eligibility, the petitioner must meet the criteria outlined in section 10I(a)(l5)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 110I(a)(l5)(L). Specifically, within three years
preceding the beneficiary's application for admission into the United States, a qualifying organization must
have employed the beneficiary in a qualifying managerial or executive capacity, or in a specialized
knowledge capacity, for one continuous year. In addition, the beneficiary must seek to enter the United States
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate thereof
in a managerial, executive, or specialized knowledge capacity.
The regulation at 8 C.P.R. § 214.2(1)(3) further states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(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.
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(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.
The issues addressed by the director are: (l) whether the beneficiary possesses specialized knowledge; and,
(2) whether the beneficiary has been employed in a position requiring specialized knowledge for one year
within the three years preceding the filing of the petition. The AAO will also consider the related issue of
whether the proposed employment in the United States requires the claimed 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 November 15,2005. In a letter dated October 27,2005, the petitioner
asserted that the beneficiary has been continuously employed with its Danish affiliate as a chartering broker
since August 2003. The petitioner described the beneficiary's current responsibilities as follows:
In this capacity, the beneficiary is responsible for conducting business within commercial
shipping on an international level. He is in charge of trading 12 [vessels operated by the
foreign entity] ranging in size of 9,000 to 17,000 tons in European, Arabian and Indian
Markets. He negotiates freight rates, terms, and conditions of any employment related to
these vessels. He makes the commercial decisions of which cargoes, contracts, and future
positions are to be agreed upon regarding these vessels and market segments. In addition, [the
beneficiary] ensures that the vessels are performing on an economically satisfying level are
[sic] within management's budget and forecasts. He analyzes market and freight rates and
from these decides as to which business will secure the best economical returns, keeping in
mind future employment that best suits the vessels in the current given market. He determines
freight levels are [sic] most suitable in order to keep vessels employed for as much of the year
as possible. He researches and implements new strategies aimed at trading the ships within
specific lanes such as North Europe to the Mediterranean. Further, he is responsible for
reporting vessels [sic] economical performance to shareholders. [The beneficiary] utilizes his
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specialized knowledge of [the foreign entity's] operations, vessels, and chartering processes
and procedures to perform these duties.
The petitioner further stated that the beneficiary's proposed role in the United States is as general manager of
the South American market. The petitioner stated that the beneficiary would perform the following duties:
[The beneficiary] will be responsible for managing the commercial and development aspects
of the liner and tramp operations for all vessels between North and South America. He will be
responsible for developing the South American market in the break bulk business. He will
also be responsible [for] establishing a monthly service between the US Gulf and Brazil and
Argentina. He will monitor the coordination of newly appointed agents who will be
responsible for the booking of freight. Additionally, he will make all the commercial
decisions that will affect the South American region. He will be responsible for scheduling
vessels and for the development and communication of present and future clients in trade.
Furthermore, he will be accountable to the owning companies to ensure that the vessels are
performing at optimal levels and that the returns on investments are satisfactory to the
principals and in line with budgets and forecasts which have been presented to the owners of
the ships. [The beneficiary] will continue to utilize his advanced knowledge of [the
company's] cargo operations, chartering, and vessels to perform these duties.
The petitioner stated that the beneficiary has an International Business Baccalaureate awarded in 2002, more
than two years of charter brokering experience with the foreign entity, and "extensive experience" with the
company's policies, procedures, and processes regarding vessels chartering, operations, and commercial
shipping.
In support of the petition, the petitioner provided a copy of the beneficiary's resume, which indicates that from
2003 to 2005, he completed a "2 years Traineeship for [the foreign entity] in order to gain the skills to
conduct business within commercial shipping." According to the beneficiary's resume, he assumed the role of
chartering broker for the foreign entity in 2005.
As evidence of the beneficiary's qualifications, the petitioner submitted: (1) a certificate for completion of a
course in Maritime Law at Copenhagen University from October 2004 through April 2005; (2) a declaration
from the Danish "trade committee for education and training in the clerical trade," dated July 31, 2005,
indicating that the beneficiary "has obtained skilled competence as a clerical worker specializing in
Forwarding and shipping," and has completed an apprenticeship in compliance with Ministry of Education
requirements; and (3) a certificate stating that the beneficiary passed a course of study called "The Shipping
Education," at the Maritime University in Denmark as of June 2004.
On November 29, 2005, the director advised the petitioner that the evidence of record was insufficient to
establish that the knowledge possessed by the beneficiary is specialized, noting that the plain meaning of the
term "specialized knowledge," is knowledge or expertise beyond the ordinary in a particular field, process, or
function. The director informed the petitioner that it had not furnished evidence sufficient to demonstrate that
the beneficiary's duties involve knowledge or expertise beyond what is commonly held in the field. The
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director, referencing a 1994 legacy Immigration and Naturalization Service (INS) memorandum signed by
then Acting Executive Associate Commissioner, James A. Puleo, noting that the memorandum states that an
alien would possess specialized knowledge if it were shown that the knowledge is different and advanced
from that generally held within the industry. See Memorandum from James A. Puleo, Acting Exec. Assoc.
Comm., Immigration and Naturalization Service, Interpretation ofSpecial Knowledge (Mar. 9, 1994) ("Puleo
memorandum"). Accordingly, the director instructed the petitioner as follows:
• Submit evidence relating to the unique methodologies, tools, programs, and/or
applications that your company uses. Evidence may include your company's brochure or
other literature describing the tools your company uses. Please describe in detail how
these are different from the methodologies, tools, programs and/or applications used by
other companies.
• Please submit a record - as opposed to merely a letter - from your human resources
department detailing the manner in which the beneficiary has gained his/her specialized
knowledge. Documentation should indicate the pertinent training courses in which the
beneficiary has been enrolled while working for your company, as well as the duration
of the courses, the number of hours spent taking the courses each day, and certificates of
completion of these courses.
• Indicate the minimum amount of time required to train an employee to fill the proffered
position. Specify how many workers are similarly employed by your organization. Of
these employees, please indicate how many have received training comparable to the
training administered to the beneficiary.
• If the specialized knowledge was attained through the course of regular on-the-job
experience, please clarify exactly what knowledge was attained through the beneficiary's
past employment with the company. For each facet of specialized knowledge, please
explain how the particular knowledge attained at that particular time was different from
knowledge attained by individuals in the identical or similar position for the company.
In a response dated December 21, 2005, the petitioner indicated that its group of companies developed a fully
integrated data platform called "Glomaris" in the late 1990s which is "fully modular with applications for
record keeping and processing of data in operations, claim management, voyage monitoring, lay-time
calculation and finance." The petitioner stated that its group also markets the software and makes it available
to other shipping companies worldwide. The petitioner indicated that Glomaris is the only platform available
that is specifically designed to provide data processing and storage for ocean transportation, and thus it "is not
possible to define how it differs from other packages as no other complete package exists." The petitioner
further indicated that since the program is proprietary "there is no technical support to be found outside the
group."
In response to the director's request that the petitioner document the beneficiary's training, the petitioner
stated:
[The beneficiary] has received on the job training regarding [the foreign entity's] vessels,
chartering, operations, international markets, freight rates, terms and conditions, and
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analyzing economic conditions as they related to freight shipping. The use of the program,
Glomaris is integral to his daily work. During his employment in the Copenhagen office, [the
beneficiary] has been trained in the use of Glomaris. The training is on going and is not being
documented as such but is an integral part of the daily activities of all staff within the Group.
[The beneficiary's] training in Glomaris has primarily been geared towards Chartering and
Operation packages which are the departments he has been working in and he is classified as
"super-user" regarding these packages. There is approximately one "super-user" per
department who is trained in depth in order to assist, guide, and train other and new staff in
the general use of applications.
In response to the director's request that the petitioner specify the minimum amount of training required for
the proffered position of general manager, the petitioner stated that the position requires an employee who
"can exercise considerable independence from the outset," and implied that a new employee would require an
"extensive training period." The petitioner stated that the beneficiary's knowledge of the petitioner's
chartering procedures, operations, controlled vessels and proprietary software was gained "throughout his
entire two year tenure with our company in Denmark," and noted that it would take "approximately this same
time to train an employee to fill the proffered position." The petitioner stated that the company would
"experience significant business loss due to sensitive business opportunity timing issues, as well as training
related losses, if it was required to accept someone else for this position."
Finally, the petitioner emphasized that Glomaris is an evolving program, with changes and new modules
issued on a regular basis. The petitioner stated: "It is intended that one of [the beneficiary's] tasks in the U.S.
will be to further train the current staff in Houston in such changes and new additions." In support of its
response, the petitioner submitted an overview of Glomaris from the company website, and additional general
company information from the petitioner's group's web site.
The director denied the petition on January 4, 2006, concluding that the petitioner had not established that the
beneficiary has specialized knowledge. The petitioner further determined that even if the beneficiary had
acquired specialized knowledge, "there is no indication that such knowledge has been held for a year prior to
filing the current petition." The director noted that the petitioner's claimed specialized knowledge of
Glomaris, as well as his knowledge of the petitioner's procedures and operations, "is never clarified beyond
generalities." The director also emphasized that the petitioner had failed to provide documentary evidence to
establish the extent of the beneficiary's claimed specialized knowledge, referencing the petitioner's statement
that training in the Glomaris program "is on going and is not being documented." The director determined
that, due to the lack of specificity regarding the claimed specialized knowledge, and based on the lack of
supporting documentary evidence, the petitioner had failed to establish that the beneficiary's knowledge is
uncommon or advanced, or that it extends beyond mere familiarity with the organizational procedures of the
petitioner's group.
On appeal, counsel for the petitioner disputes the director's decision and asserts that the beneficiary's
knowledge of the petitioner's products qualifies as "special" and "advanced" as those terms are defined in the
above-referenced Puleo memorandum. Specifically, counsel states that the beneficiary's knowledge is
uncommon and noteworthy, and therefore "special," because Glomaris is a unique, proprietary program
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developed by the petitioning company, and because the beneficiary has been designated a "super-user" for the
"Chartering and Operations packages" of the Glomaris program. Counsel further states:
As a "super-user," [the beneficiary] has undergone additional software training, beyond the
normal amount of training other employees receive, in order to be able to provide technical
support, guidance, and instruction to other users. Thus [the beneficiary's] knowledge of the
Glomaris program is clearly uncommon. Out of the 210 employees in the Copenhagen office,
only 15 are "super-users." Out of the 15 "super-users," [the beneficiary] is the only person in
the Chartering and Operations packages. This establishes that [the beneficiary] is clearly a
key employee and that his unique knowledge of the company's product is apart from the
elementary or basic knowledge possessed by others within the company.
Furthermore, there is currently only one "super-user" in [the petitioner's] Houston office. The
lone "super user" in Houston only has expertise regarding the accounting package of the
Glomaris program. [The beneficiary's] services are needed to train the Houston staff on the
Chartering and Operations packages, which are essential to successfully continuing vessel
operations between North and South America.
Counsel further references the Puleo memorandum, noting that it provides several examples of situations in
which a beneficiary may be found to possess specialized knowledge. Counsel cites one such example in
which "the foreign company manufactures a product, which no other firm manufactures. The alien is familiar
with the various procedures involved in the manufacture, use, or service of the product." Counsel asserts that
the beneficiary's situation is similar, because, as "one of the few 'super-users,' [the beneficiary] is intimately
familiar with the programming language of the software, its daily use, and the servicing of such product."
Finally, the petitioner states that due to the beneficiary's information technology background "he was
designated as a 'super-user' upon his hiring in August 2003." The petitioner states that it is thus "clear that the
beneficiary has held such specialized knowledge for more than a year prior to the filing of the current
petition." Counsel concludes that the beneficiary's specialized knowledge of the Chartering and Operations
packages of the Glomaris program is "fundamental to his proposed position of General Manager of the South
American market."
On review, the petitioner has not demonstrated that the beneficiary possesses specialized knowledge, that the
beneficiary has been employed in a position involving specialized knowledge for at least one year within the
three years preceding the filing of the instant petition, 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. § 214.2(l)(1)(ii)(D).
Regarding the petitioner's claim of specialized knowledge, it must be noted that in making a determination as
to whether the knowledge possessed by a beneficiary is special or advanced, the AAO relies on the statute and
regulations, legislative history and prior precedent. Although counsel suggests that U.S. Citizenship and
Immigration Services (USCIS) is bound to base its decision on the above-referenced Puleo memorandum, the
memorandum was issued as guidance to assist USCIS employees in interpreting a term that is not clearly
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defined in the statute, not as a replacement for the statute or the original intentions of Congress in creating the
specialized knowledge classification, or to overturn prior precedent decisions that continue to prove
instructive in adjudicating L-IB visa petitions. The AAO will weigh guidance outlined in the policy
memorandum accordingly, but not to the exclusion of the statutory and regulatory definitions, legislative
history or prior precedents.
In examining the specialized knowledge capacity of the beneficiary, the AAO will look to the petitioner's
description of the job duties and the weight of the evidence supporting any asserted specialized knowledge.
See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner must submit a detailed description of the services to be performed
sufficient to establish that it involves specialized knowledge. Id. It is also appropriate for the AAO to then look
beyond the stated job duties and consider the importance of the beneficiary's knowledge of the business's product
or service, management operations, or decision-making process. Matter of Colley, 18 I&N Dec. 117, 120
(Comm. 1981) (citing Matter of Raulin, 13 I&N Dec. 618 (R.C. 1970) and Matter ofLeBlanc, 13 I&N Dec.
816 (R.C. 1971»).1 As stated by the Commissioner in Matter ofPenner, 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.
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). Although the definition of "specialized knowledge" in
effect at the time of Matter ofPenner was superseded by the 1990 Act to the extent that the former definition
required a showing of "proprietary" knowledge, the reasoning behind Matter ofPenner remains applicable to
the current matter. The decision noted that the 1970 House Report, H.R. No. 91-851, was silent on the
1Although 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, the cited cases, including Matter of Penner, remain useful guidance concerning the
intended scope of the "specialized knowledge" L-IB classification.
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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, supra at 50 (citing H.R.
Subcomm. No. 1 of the Jud. Comm. , Immigration Act of 1970: Hearings on H .R. 445, 91st Congo 210, 218,
223, 240, 248 (November 12, 1969» .
Reviewing the Congressional record, the Commissioner concluded that 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 ofPenner, 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 119. According to Matter of Penner, "[s]uch a conclusion would permit
extremely large numbers of persons to qualify for the 'L-l' visa" rather than the "key personnel" that
Congress specifically intended. 18 I&N Dec. at 53; see also, 1756, Inc., 745 F. Supp. at 15 (concluding that
Congress did not intend for the specialized knowledge capacity to extend all employees with specialized
knowledge, but rather to "key personnel" and "executives.")
Thus, based on the intent of Congress in its creation of the of the L-l B visa category, as discussed in Matter
of Penner, even showing that a beneficiary possesses specialized knowledge does not necessarily establish
eligibility for the L-l B intracompany transferee classification. The petitioner should also submit evidence to
show that the beneficiary is being transferred to the United States as a crucial employee. The statutory
definition of specialized knowledge requires the AAO to make comparisons in order to determine what
constitutes specialized knowledge. The term "specialized knowledge" is not an absolute concept and cannot
be clearly defined. As observed in 1756, Inc. v. Attorney General, "[s]imply put, specialized knowledge 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-l category was intended for "key personne1." See generally, H.R. Rep.
No. 91-851, 1970 U.S.C.C.A.N. 2750. The term "key personnel" denotes a position within the petitioning
company that is "of crucial importance." Webster's II New College Dictionary 605 (Houghton Mifflin Co.
2001). In general, all employees can reasonably be considered "important" to a petitioner's enterprise. If an
employee did not contribute to the overall economic success of an enterprise , there would be no rational
economic reason to employ that person. An employee of "crucial importance" or "key personnel" must rise
above the level of the petitioner's average employee. Accordingly, based on the definition of "specialized
'knowledge" and the congressional record related to that term, the AAO must make comparisons not only
between the claimed specialized knowledge employee and the general labor market, but also between that
employee and the remainder of the petitioner's workforce.
In this matter , the petitioner initially provided only general descriptions of the beneficiary's current role as a
chartering broker and proposed role as general manager for South American operations that convey little
understanding of the type or extent of specialized knowledge that would be required to successfully perform
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the purported job duties. For example, the beneficiary's responsibilities for negotiating freight rates and
conditions, making commercial decisions regarding cargos and contracts, determining freight levels, and
monitoring the economic performance of vessels would appear to be typical of any chartering broker working
in the international shipping industry. At the time of filing, the petitioner simply stated that the beneficiary
utilizes "specialized knowledge" and "advanced knowledge," of the company's cargo operations, vessels, and
chartering processes and procedures, without providing evidence that would establish how the company's
operations, processes and procedures are different from those of other companies in the industry, or any
explanation as to why the beneficiary's knowledge should be considered "advanced" compared to the
knowledge possessed by other similarly employed workers in the petitioner's group of companies.
Although the petitioner asserts that the beneficiary's position requires specialized knowledge, the petitioner
did not initially articulate any basis to the claim that the beneficiary is employed in a capacity requiring
specialized knowledge. Other than submitting a general description of the beneficiary's current and proposed
job duties, the petitioner did not identify any aspect of the beneficiary's position which involves special
knowledge of the petitioning organization's product, service, research, equipment, techniques, management,
or other interests. Simply going on record without supporting documentary evidence is not sufficient for the
purpose of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165
(Comm. 1998)(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972).
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. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990).
Furthermore, the AAO observes that the petitioner's initial descriptions of the beneficiary's current and
proposed duties, and its initial assertions regarding the beneficiary's specialized knowledge, made no mention
of the "Glomaris" program upon which the petitioner rested its subsequent claims. Yet, in response to the
director's request for evidence, the petitioner focused its claims regarding the beneficiary's specialized
knowledge almost entirely on the beneficiary's claimed classification as a "super-user" of the Glomaris
charting and operations package, and stated for the first time that he would be responsible for training
Houston-based staff regarding these packages upon his transfer to the United States. The petitioner even went
so far as to suggest that he was being transferred to the United States primarily to "ensure a successful
technology transfer and dissemination in the United States." If the beneficiary's knowledge of "Glomaris" is
actually the primary reason for his transfer to the United States, it is unclear why the petitioner would not
mention such knowledge as an integral part of the duties to be performed in the United States at the time it
filed the petition. It is incumbent upon the petitioner to resolve any inconsistencies in the record by
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice
unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter ofHo, 19
I&N Dec. 582, 591-92 (BIA 1988).
Nevertheless, the AAO will consider the petitioner's claims that the beneficiary's knowledge of the Glomaris
program represents "specialized knowledge," and that his knowledge can be considered "advanced" based on
his purported classification as a "super-user" of the program. On appeal, counsel emphasizes that the
petitioner's group developed the Glomaris program internally, thereby establishing its proprietary status, and
notes that it is the only software platform in existence designed specifically for the operational management
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of ocean transportation companies. However, the record does not support the petitioner's claim that
knowledge of the Glomaris program alone should be considered uncommon or noteworthy, such that it could
be considered "special." Although the petitioner's group of companies developed Glomaris, the petitioner has
provided evidence that the program is marketed and sold to other international ocean transportation
companies, and thus the ability to use the Glomaris software, by itself, cannot be considered unusual or
uncommon within the industry. A chartering broker working for another international shipping company
utilizing Glomaris could reasonably be expected to be familiar with the chartering and operations components
of the program.
The petitioner also attempts to distinguish the beneficiary's knowledge of Glomaris as "advanced," but has
failed to submit evidence to substantiate this claim. The petitioner indicates that Glomaris is "an integral part
of the daily activities of all staff within the Group," a statement which suggests that all employees in the
petitioner's group of companies receive training in and possess a working knowledge of the software package.
If all employees within the group are trained in and utilize the program, the petitioner has not established that
knowledge of Glomaris alone is "special." The petitioner suggested that the beneficiary's knowledge is
"advanced" compared to his colleagues, as he has been designated as a "super-user" within his department,
and received "in-depth" training "in order to assist, guide and train other and new staff in the general use of
applications." As noted by the director, the petitioner was specifically instructed to submit a record detailing
the manner in which the beneficiary gained his claimed specialized knowledge, including detailed information
regarding its training program. If the beneficiary's knowledge was not gained through formal training, the
petitioner was requested to clarify exactly when and how the knowledge was claimed during the course of the
beneficiary's past employment, and how that knowledge was different from knowledge attained by other
individuals in similar positions.
In response to this very specific request, counsel merely stated that training in Glomaris "is on going and is
not being documented as such but is an integral part of the daily activities of all staff." Counsel went on to
say that the beneficiary is a "super user," but offered no explanation from the petitioner or documentation
from the company that would explain the distinction between a "super user" and a regular user, evidence that
would indicate that the beneficiary has been formally given this distinction, or information regarding the
specific training received by a "super-user" of Glomaris within the petitioner's group of companies. The
petitioner has offered no supporting documentary evidence whatsoever to corroborate its claim that the
beneficiary has received additional training in Glomaris that would qualify his knowledge as "advanced"
compared to the knowledge that is possessed by every other employee of the company. 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 non-existence or other unavailability of
required evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i).
On appeal, the claim that the beneficiary possesses advanced knowledge of Glomaris is based solely upon
counsel's unsupported assertion that the beneficiary is the only employee of the foreign entity who is
designated as a "super user" of the Glomaris chartering and operations packages. Again, while it appears
based on the petitioner's and counsel's representations that the petitioner has some formal method of
distinguishing "super users" from the company's average employee, the petitioner has opted not to provide an
explanation and has not supported its claim that the beneficiary's knowledge of the program is advanced.
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Without documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's
burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter ofObaigbena, 19
I&N Dec. 533, 534 (BIA 1988); Matter ofLaureano, 19 I&N Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez,
17 I&N Dec. 503, 506 (BIA 1980).
Finally, as discussed above, the petitioner's initial claims regarding the beneficiary's specialized knowledge
made no mention of his knowledge of Glomaris, or of any responsibilities for providing training in the
Glomaris program to the company's U.S.-based staff. On appeal, counsel references the beneficiary's
"intimate" familiarity with the programming language and servicing of the software, yet the record contains
no evidence that the beneficiary, in his role as a chartering broker, or in his proposed role as general manager,
would be regularly involved in programming or servicing the software. While it appears that the beneficiary,
like all employees of the company, is required to utilize Glomaris to perform his job responsibilities, the
petitioner's claims that his knowledge rises to the ability to program and service the software, or that his job
requires this ability or regularly involves the training of other employees, is not supported by any evidence.
The petitioner has not established that the beneficiary's knowledge of the Glomaris program is "fundamental
to his proposed position," as claimed by counsel on appeal.
Finally, as noted by the director, even if the petitioner had established that the beneficiary possesses
knowledge that could be considered "specialized knowledge" in accordance with the statutory and regulatory
definitions, the record does not establish that the beneficiary was employed in a position involving specialized
knowledge for at least one year within the three years preceding the filing of the instant petition, as required
by 8 C.F.R. §§ 214.2(l)(3)(iii) and (iv). The petitioner indicated that the beneficiary has been employed in his
current position of chartering broker since August 2003, and stated that he was designated as a "super user" of
Glomaris immediately upon being hired by the company. However, the beneficiary's resume, and the
evidence submitted in support of the petition, indicates that the beneficiary spent his first two years with the
foreign company as a trainee or apprentice which resulted his certification as a skilled "clerical worker
specializing in forwarding and shipping," in accordance with Danish educational and training guidelines. It
appears that the beneficiary assumed his current position as a chartering broker in August 2005, only three
months prior to the filing of the instant petition. It is incumbent upon the petitioner to resolve any
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where
the truth lies. Matter ofHo, 19 I&N Dec. at 591-92.
The petitioner failed to mention that the beneficiary was a participant in its apprenticeship program, much less
provide a description of the program, which appears to have involved a significant amount of formal
classroom training outside of the petitioner's organization. Since the record does not contain a description of
the beneficiary's duties for the year preceding the filing of the petition, it cannot be concluded that he was
employed in a qualifying capacity for the requisite time period. Again, going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter ofSojJici, 22 I&N Dec. at 165.
As discussed above, beneficiaries of L-IB petitions should be more than merely skilled, but rather must be
shown to carry out key processes or functions. In addition, the petitioner should establish that the
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beneficiary's knowledge meets the plain meaning of "special." See 8 C.F.R. § 214.2(l)(1)(ii)(D) (defining
"specialized knowledge" as "special knowledge possessed by an individual of the petitioning organization's
product, service, research, equipment, techniques, management, or other interests"). "Special" is defined as
"surpassing the usual; distinct among others of a kind; peculiar to a specific person or thing." Webster's II
New College Dictionary 2001, Houghton Mifflin. See also Webster's Third New International Dictionary,
2001 (defining special as "distinguished by some unusual quality; uncommon; noteworthy.") In this case, the
petitioner has only established that the beneficiary is a trained employee who fills a position the petitioner
considers important. However, the beneficiary was employed as an apprentice or trainee for the majority of
the time he was employed by the foreign entity. While it is the beneficiary's actual job duties and not his job
title that determine whether he possesses specialized knowledge, it is evident that as an apprentice or trainee,
the beneficiary has not played an advanced or critical role within the foreign entity's operations. Rather, it is
likely that the beneficiary spent the majority of his time abroad working under the guidance and direction of
more experienced employees, and learning the procedures and functional knowledge required to perform the
duties of a chartering broker within the international ocean transportation industry. The petitioner has not
established that the beneficiary has performed unusual duties or that he is employed primarily to carry out a
key process or function. See Matter ofPenner, 18 I&N Dec. at 52.
The record does not distinguish the beneficiary's knowledge as different or more advanced than the
knowledge possessed by other similarly employed chartering and operations specialists within the petitioner's
industry. By itself, work experience and knowledge of a firm's technically complex products will not equal
"special knowledge." See Matter ofPenner, 18 I&N Dec. at 53.
Considering that the beneficiary completed a two-year vocational program with the foreign entity, it appears
that the foreign entity offers a formal post-secondary school apprenticeship program in the beneficiary's
specialty, and that the training the beneficiary completed was no different from that completed by many other
similarly employed by the foreign entity who completed the same program. The petitioner offered no
information regarding other employees working for the foreign company, such that the director or the AAO
could make a meaningful comparison between the beneficiary's claimed "advanced knowledge" and the
knowledge possessed by other workers within the petitioner's organization. Although knowledge need not be
narrowly held within an organization in order to be specialized knowledge, the L-IB visa category was not
created in order to allow the transfer of employees with any degree of knowledge of a company's products
and processes. The lack of evidence in the record makes it impossible to classify the beneficiary's knowledge
of the petitioner's products or procedures as advanced, and precludes a finding that the beneficiary's role is "of
crucial importance" to the organization. While it may be correct to say that the beneficiary is a highly skilled
and experienced employee, the petitioner has not established that the beneficiary rises to the level of a
specialized knowledge or "key" employee, as contemplated by the statute. See Matter ofPenner, 18 I&N Dec.
at 53.
Finally, the AAO will address counsel's claim that the beneficiary qualifies for classification as a specialized
knowledge employee pursuant to characteristics outlined in the 1994 Puleo memo. While factors outlined in
the Puleo memorandum may be considered, the regulations specifically require that the beneficiary possess an
"advanced level of knowledge" of the organization's process and procedures, or a "special knowledge" of the
petitioner's product, service, research, equipment, techniques, or management. 8 C.F.R. § 214.2(l)(1)(ii)(D). As
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discussed above, the petitioner has not established that the beneficiary's knowledge nses to the level of
specialized knowledge contemplated by the regulations.
Regardless, counsel's claims regarding the beneficiary's qualifications under the Puleo memo were not
supported by evidence. As stated in the 1994 Puleo memorandum:
[T]he mere fact that a petitioner alleges that an alien's knowledge is somehow different does
not, in and of itself, establish that the alien possesses specialized knowledge. The petitioner
bears the burden of establishing through the submission ofprobative evidence that the alien's
knowledge is uncommon noteworthy, or distinguished by some unusual quality and not
generally known by practitioners in the alien's field of endeavor. Likewise, a petitioner's
assertion that the alien possesses an advanced level of knowledge of the processes and
procedures of the company must be supported by evidence describing and setting apart that
knowledge from the elementary of basic knowledge possessed by others. It is the weight and
type of evidence which establishes whether or not the beneficiary possesses specialized
knowledge.
(Emphasis added.) Puleo memorandum, supra.
The AAO notes that the only supporting documentary evidence submitted in support of this petition was
general information from the petitioner's corporate web site. Upon review, in every instance where the
petitioner attempted to distinguish the beneficiary as having specialized knowledge, the petitioner failed to
submit any evidence that would allow the AAO to evaluate the claim.
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, supra at 16. The record does not establish that the
beneficiary possesses specialized knowledge or that the position offered with the United States entity requires
specialized knowledge.
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an
independent and alternative basis for the decision. In visa petition proceedings, the burden of proving
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361.
Here, that burden has not been met.
ORDER: The appeal is dismissed.