dismissed L-1B Case: Printing Equipment Manufacturing

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u.s.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington , DC 20529
u.S. Citizenship
and Immigration
Services
File: LIN 05 029 52072 Office: NEBRASKA SERVICE CENTER Date: fEB 0 2ZOD t
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. § IlOl(a)(15)(L)
IN BEHALF OF BENEFICIARY:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
·<· _ ·c·~ · ? ~,r
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
LIN 05 029 52072
Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of senior
field support technician as an L-IB nonimmigrant intracompany transferee with specialized knowledge
pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. §
1101(a)(l5)(L). The petitioner, a corporation organized under the laws of the State of Missouri, is engaged in
producing narrow web flexographic printing equipment. The petitioner claims that it is an affiliate of the
beneficiary's foreign employer, Dover Corporation (Canada) Limited ("DCCL"). Both the petitioner and
DCCL are allegedly subsidiaries of the Dover Corporation. The petitioner seeks to employ the beneficiary for
a period of three years.
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary was
employed abroad for one continuous year in a position that was managerial, executive, or involved
specialized knowledge. Further, the director concluded that the position offered does not require an employee
with specialized knowledge and that the beneficiary does not have such knowledge.
On appeal, counsel for the petitioner asserts that the petitioner has satisfied the criteria for establishing that
the beneficiary has specialized knowledge. Specifically, counsel asserts that the beneficiary has specialized
knowledge of the design, installation, and support of slitter/rewinder equipment, a type of equipment newly
manufactured by the petitioner which addresses the finishing phase of the manufacturing process for labels or
flexible packaging. Counsel submits a brief, a declaration signed by the petitioner's vice president describing
the beneficiary's purported specialized knowledge, and a declaration from a recruiter describing the
petitioner's failed efforts to hire an employee in the United States knowledgeable of slitter/rewinder
equipment.
To establish eligibility for the L-l 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) 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 (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.
LIN 05 029 52072
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(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.
At issue in this proceeding is whether the petitioner has established that the beneficiary has been and will be
employed in a capacity which involves specialized knowledge.
Section 214(c)(2)(B) of the Act, 8 U.S.C. § 1184(c)(2)(B), provides:
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.
In a letter dated November 1, 2004 appended to the initial petition, the petitioner described the beneficiary's
job duties abroad and in the United States as follows:
As noted, we seek to obtain L-IB status for [the beneficiary] on the basis of specialized
knowledge. [The beneficiary] has been employed by [the foreign entity] since July 2003 in
the position of Sr. Field Support Technician. As Sr. Field Support Technician, [the
beneficiary] handles field installation for [the petitioner's] presses and equipment and repairs
of all electrical, mechanical and printing related problems. He also troubleshoots all
electrical, mechanical and printing related problems of [the petitioner's] equipment. [The
beneficiary] trains customers on safe and efficient utilization of all equipment and provides
preventative maintenance on all equipment, in addition to making recommendations to
customers. He is responsible for the documentation of all work required, i.e., service reports,
expense exports, installation feed back forms and whatever else is needed. [citation omitted].
Over the last year, while employed by [the foreign entity], [the beneficiary] has developed a
unique understanding of [the petitioner's] innovative printing presses and accessories,
LIN 05 029 52072
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including our enhanced registry systems, servo controls and tension controls. [The
beneficiary] has a distinctive expertise for electrical and mechanical service and repair of
rewinder accessories. He will directly utilize his expertise of [the petitioner's] equipment in
the U.S., providing installation and service of our company's presses and special rewinding
equipment for customers in the U.S.
If [the beneficiary] is approved for L-IB status, he will be performing many of the same job
duties in the U.S. as he does now in Canada. Though employed by [the foreign entity], he
has worked extensively on, and received training regarding, [the petitioner's] products and
processes.
On or about February 4, 2005, the director denied the petition concluding that the petitioner failed to establish
that the beneficiary has been or would be employed in a specialized knowledge capacity. Given the
beneficiary began working for the foreign entity in July 2003, the director concluded that he would have
needed to acquire the alleged specialized knowledge in only four months in order to establish that he had
worked in a specialized knowledge capacity for one year prior to the filing of the petition. The director
concluded that a type of knowledge that can be acquired and mastered in four months "can hardly be
considered not easily transferable or specialized in nature."
On appeal, counsel for the petitioner asserts that the petitioner has satisfied the criteria for establishing that
the beneficiary has specialized knowledge. Specifically, counsel asserts that the beneficiary has specialized
knowledge of the design, installation, and support of slitter/rewinder equipment, a type of equipment newly
manufactured by the petitioner which addresses the finishing phase of the manufacturing process for labels or
flexible packaging. Counsel submits a brief, a declaration signed by the petitioner's vice president describing
the beneficiary's purported specialized knowledge, and a declaration from a recruiter describing the
petitioner's failed efforts to hire an employee in the United States knowledgeable of slitter/rewinder
equipment.
In the declaration signed by the petitioner's vice president dated April 29, 2005, the petitioner explained that it
is one of very few manufacturers of narrow web flexographic printing equipment and that the petitioner is the
only major manufacturer based in the United States. The petitioner also asserts that this segment of the
industry has been in decline and that it has had difficulty in finding qualified technical support personnel to
install and troubleshoot the equipment once sold to customers. Furthermore, the petitioner explained that, in
2004, it expanded its business to include the manufacture of slitter/rewinder finishing equipment, thus
becoming the only manufacturer of such equipment in the United States. However, even though it added this
equipment to its product line, the petitioner alleges that it did not employ any field service technicians
qualified to service slitter/rewinders. Therefore, the petitioner seeks to employ the beneficiary, an employee
of an affiliated company in Canada, who has experience with the design, installation, and support of
slitter/rewinder equipment. The petitioner explained that the beneficiary worked for an unaffiliated, now
defunct Canadian company, which designed and manufactured slitter/rewinders, until July 2003 when he
began working for the foreign entity. The petitioner further explained that, not only will the beneficiary assist
with the training of field support technicians on the slitter/rewinder product line and provide technical support
of this new product line, but he will also support other product lines of the petitioner in both the United States
LIN 05 029 52072
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and Canada.
Upon review, the petitioner's assertions are not persuasive in demonstrating that the beneficiary has been, or
will be, employed in a specialized knowledge capacity as defined at 8 C.F.R. § 214.2(l)(I)(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) and (iv). The petitioner must submit a detailed
job description of the services to be performed sufficient to establish specialized knowledge. In this case,
while the beneficiary's job description adequately describes his duties as a senior field support technician with
knowledge of flexographic printing equipment, the petitioner fails to establish that this position requires an
employee with specialized knowledge.
Although the petitioner repeatedly asserts that the beneficiary's proposed position in the United States
requires "specialized knowledge," the petitioner has not adequately articulated any basis to support this claim.
The petitioner has failed to identify any specialized or advanced body of knowledge which would distinguish
the beneficiary's role from that of other experienced field support technicians employed by the petitioner or in
the flexographic printing equipment industry at large. Going on record without documentary evidence is not
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SojJici, 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), cff'd, 905, F.2d 41 (2d. Cir. 1990).
In support of its assertion that the beneficiary's knowledge of flexographic printing equipment constitutes
"specialized knowledge," the petitioner relies heavily on its position that the slitter/rewinders now
manufactured by the petitioner are so unique and specialized that the beneficiary's mastery of their field
support constitutes "specialized knowledge," and that this knowledge was gained through his extensive
experience servicing these machines in Canada.
As a threshold issue, there is insufficient evidence that the beneficiary provided field support for
slitter/rewinders during this 16 months of employment with the foreign entity or, if he did, how much time
was spent servicing this equipment. According to the record, the beneficiary gained his knowledge of
slitter/rewinders during his employment with a now bankrupt Canadian company, not with the foreign entity.
While this alone is not disqualifying, the fact that his knowledge of slitter/rewinders is the crux of the
petitioner's argument that his knowledge is indeed "specialized" compels the petitioner to establish that he
was engaged in applying this purported specialized knowledge while working for the foreign entity. In this
matter, the petitioner has not provided this evidence, and the petition may not be approved for this reason.
Regardless, the petitioner has not established that the beneficiary's knowledge of slitter/rewinders, or
flexographic printing equipment generally, constitutes "specialized knowledge." The record does not reveal
the material difference from a field service perspective between slitter/rewinders manufactured by the
petitioner and other flexographic printing equipment, including slitter/rewinders, manufactured and sold by
competitors. While the petitioner asserts that it is the only manufacturer of slitter/rewinders in the United
LIN 05 029 52072
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States, and that the manufacturing of flexographic printing equipment is a very narrow field, the petitioner has
not established that its slitterlrewinders (and other equipment) are the only flexographic printing machines
available and, importantly, that the servicing of its machines differ materially from other imported
flexographic printing machines (including slitter/rewinders) available on the market. Again, simply going on
record without documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings. Matter ofSoffici, 22 I&N Dec. at 165.
Moreover, as recognized by the director, the beneficiary began his employment with the foreign entity in July
2003. The instant petition was filed on November 9, 2004, approximately 16 months after he commenced his
employment. This would have given the beneficiary only four months to acquire the specialized knowledge
that he alleged applied during the one year preceding the filing of the instant petition. While the petitioner
alleges that much of the beneficiary's specialized knowledge was acquired during his employment with an
unaffiliated company (including his knowledge of slitter/rewinders), this admission undermines the
petitioner's assertion that the beneficiary possesses truly specialized knowledge which is not general
knowledge held commonly throughout the industry.
While it is acknowledged that the petitioner has asserted that it has tried, and failed, to hire a United States
employee qualified to provide field support for its equipment (including slitter/rewinders), this does not
establish that the job requires "specialized knowledge" because the unavailability of workers to perform the
beneficiary's job duties is not relevant to these proceedings.
A 1994 Immigration and Naturalization Service (now Citizenship and Immigration Services (CIS))
memorandum written by the Acting Associate Commissioner allows CIS to compare the beneficiary's
knowledge to the general United States labor market and the petitioner's workforce in order to distinguish
between specialized and general knowledge. The Associate Commissioner notes in the memorandum that
"officers adjudicating petitions involving specialized knowledge must ensure that the knowledge possessed by
the beneficiary is not general knowledge held commonly throughout the industry but that it is truly
specialized." Memorandum from James A. Puleo, Acting Associate Commissioner, Immigration and
Naturalization Service, Interpretation of Specialized Knowledge, CO 214L-P (March 9, 1994). A comparison
of the beneficiary's knowledge to the knowledge possessed by others in the field is therefore necessary in
order to determine the level of the beneficiary's skills and knowledge and to ascertain whether the
beneficiary's knowledge is advanced. In other words, absent an outside group to which to compare the
beneficiary's knowledge, CIS would not be able to "ensure that the knowledge possessed by the beneficiary is
truly specialized." Id. The analysis for specialized knowledge therefore requires a test of the knowledge
possessed by the United States labor market, but does not consider whether workers are available in the
United States to perform the beneficiary's job duties.
In the instant matter, while the petitioner has presented evidence that it has tried, and failed, to find a qualified
field support technician for its equipment, it has not presented any evidence that the United States labor
market engaged in servicing flexographic printing equipment (including slitter/rewinders) does not possess
the same knowledge possessed by the beneficiary. Certainly, there are a limited number of skilled workers in
this field, and enticing one to leave his or her existing employer would likely be a challenge for a recruiter in
this situation. However, even though their numbers may be small when compared to other occupations and
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difficult to recruit, this does not establish that the knowledge is "specialized" as defined by the Act and the
regulations. Moreover, even if evidence of United States recruiting efforts were relevant, it is still irrelevant
with regard to whether the same position with the foreign entity abroad is specialized. Regardless, absent any
evidence that the knowledge held by the beneficiary is not commonly held throughout the industry of
servicing flexographic printing equipment, the petitioner has not established that the beneficiary possesses
specialized knowledge or that the job requires an employee who has specialized knowledge.
The AAO does not dispute the likelihood that the beneficiary is a skilled and experienced field support
technician who has been, and would be, a valuable asset to the petitioner. However, it is appropriate for the
AAO to look beyond the stated job duties and consider the importance of the beneficiary's knowledge of the
business's product or service, management operations, or decision-making process. Matter of Colley, 18 I&N
Dec. 117, 120 (Comm. 1981)(citing Matter of Raulin, 13 I&N Dec. 618(R.C. 1970) and Matter of LeBlanc,
13 I&N Dec. 816 (R.C. 1971)). As stated by the Commissioner in Matter of Penner, when considering
whether the beneficiaries possessed specialized knowledge, "the LeBlanc and Raulin decisions did not find
that the occupations inherently qualified the beneficiaries for the classifications sought." 18 I&N Dec. at 52.
Rather, the beneficiaries were considered to have unusual duties, skills, or knowledge beyond that of a skilled
worker. Id. The Commissioner also provided the following clarification:
A distinction can be made between a person whose skills and knowledge enable him or her to
produce a product through physical or skilled labor and the person who is employed primarily
for his ability to carry out a key process or function which is important or essential to the
business firm's operation.
Id. at 53.
It should be noted that the statutory definition of specialized knowledge requires the AAO to make
comparisons in order to determine what constitutes specialized knowledge. The term "specialized knowledge"
is not an absolute concept and cannot be clearly defined. As observed in 1756, Inc. v. Attorney General,
"[s]imply put, specialized knowledge is a relative ... idea which cannot have a plain meaning." 745 F. Supp.
at 15. The Congressional record specifically states that the L-l category was intended for "key personnel."
See generally, H.R. REp. No. 91-851, 1970 U.S.C.C.A.N. 2750. The term "key personnel" denotes a position
within the petitioning company that is "of crucial importance." Webster's II New College Dictionary 605
(Houghton Mifflin Co. 2001). In general, all employees can reasonably be considered "important" to a
petitioner's enterprise. If an employee did not contribute to the overall economic success of an enterprise,
there would be no rational economic reason to employ that person. An employee of "crucial importance" or
"key personnel" must rise above the level of the petitioner's average employee. Accordingly, based on the
definition of "specialized knowledge" and the congressional record related to that term, the AAO must make
comparisons not only between the claimed specialized knowledge employee and the general labor market, but
also between the employee and the remainder of the petitioner's workforce. While it may be correct to say
that the beneficiary in the instant case is a highly skilled and productive employee, this fact alone is not
enough to bring the beneficiary to the level of "key personnel."
Moreover, in Matter of Penner, the Commissioner discussed the legislative intent behind the creation of the
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specialized knowledge category. 18 I&N Dec. 49 (Comm. 1982). The decision noted that the 1970 House
Report, H.R. No. 91-851, stated that the number of admissions under the L-l classification "will not be large"
and that "[t]he class of persons eligible for such nonimmigrant visas is narrowly drawn and will be carefully
regulated by the Immigration and Naturalization Service." Id. at 51. The decision further noted that the House
Report was silent on the subject of specialized knowledge, but that during the course of the sub-committee
hearings on the bill, the Chairman specifically questioned witnesses on the level of skill necessary to qualify
under the proposed "L" category. In response to the Chairman's questions, various witnesses responded that
they understood the legislation would allow "high-level people," "experts," individuals with "unique" skills,
and that it would not include "lower categories" of workers or "skilled craft workers." Matter of Penner, id.
At 50 (citing H.R. Subcomm. No.1 of the Jud. Comm., Immigration Act of 1970: Hearings on H.R. 445, 91 st
Congo 210, 218, 223,240,248 (November 12, 1969)).
Reviewing the Congressional record, the Commissioner concluded in Matter of Penner than an expansive
reading of the specialized knowledge provision, such that it would include skilled workers and technicians, is
not warranted. The Commissioner emphasized that the specialized knowledge worker classification was not
intended for "all employees with any level of specialized knowledge." Matter ofPenner, 18 I&N Dec. at 53.
Or, as noted in Matter of Colley, "[m lost 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 ofPenner, "[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. v. Attorney General, 745 F. Supp. at
15 (concluding that Congress did not intend for the specialized knowledge capacity to extend to all employees
with specialized knowledge, but rather to "key personnel" and "executives.")
As explained above, the record does not distinguish the beneficiary's knowledge as more advanced than the
knowledge possessed by other service technicians experienced in servicing flexographic printing equipment.
The petitioner notes that the beneficiary is highly experienced in servicing its equipment, including
slitter/rewinders. However, as the petitioner has failed to document any materially unique qualities to these
machines which distinguish them from other similar machines on the market, these claims are not persuasive
in establishing that the beneficiary, while highly skilled, would be a "key" employee. There is no indication
that the beneficiary has any knowledge that exceeds that of any experienced service technician, or that he has
received special training in the company's methodologies or processes which would separate him from any
other service technician employed with the foreign entity.
The legislative history of the term "specialized knowledge" provides ample support for a restnctIve
interpretation of the term. In the present matter, the petitioner has not demonstrated that the beneficiary
should be considered a member of the "narrowly drawn" class of individuals possessing specialized
knowledge. See 1756, Inc. V. Attorney General, supra at 16. Based on the evidence presented, it is concluded
that the beneficiary has not been employed abroad, and would not be employed in the United States, in a
capacity involving specialized knowledge. For this reason, the appeal will be dismissed.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
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petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.