dismissed L-1B Case: Publishing Software

identifyingdatadeletedto
prev~nt clearly unWarranted
lDvaslOnofpersonalprivacy
PUBLICCOpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: SRC 04 05351118 Office: TEXAS SERVICE CENTER Date: err 242006
INRE: 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. § 1101(a)(l5)(L)
. ,IN 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.
~ . '-
RObe~c~
Administrative Appeals Office
www.uscis.gov
SRC 04 05351118
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 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a company formed under the laws of the
State of Georgia, .~(:lls an.<i .rovides support for publishing software and claims to be an affiliate of_
urope AlS, located in Hoejbjerg, Denmark. .
The director denied the petition concluding that the petitioner had not established that the beneficiary
possessed specialized knowledge.
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
failed to consider important evidence establishing specialized knowledge. In support of this assertion, the
petitioner submitted a brief and additional sales documentation.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 10l(a)(15)(L) of the Act, 8 U.S.C. § 1101(a)(15)(L). 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 the three years preceding the beneficiary's
application for admission into the United States. In addition, the beneficiary must seek to enter the United
States temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate
thereof in a managerial, executive, or specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) ofthis 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 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.
SRC 04 05351118
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The primary issue to be discussed in the present matter is whether the petitioner has established that the
beneficiary's position in the United States will involve specialized knowledge as required by the regulation at
8 c'F.R. § 214.2(l)(3)(ii).
Section 2l4(c)(2)(B) ofthe Act, 8 U.S.C. § 1184(c)(2)(B), provides the following:
For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity
involving specialized knowledge with respect to a company if the alien has 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. § 2l4.2(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 or procedures.
In the initial petition, the petitioner described the beneficiary's job duties and specialized knowledge as
follows:
As [c]ustomer [s]ervice [m]anager, [the.beneficiary] utilizes his proprietary knowledge of the
[petitioner's entire] product suite and his experience with the company's proj ect management
to coordinate customer service activities and provide technical expertise to our customers.
Specifically, he analyzes the needs and requirements of the individual customers to determine
the most appropriate product configuration for their company and serves as the primary
contact for discussing the use and improvement of the systems with the customers. He also
coordinates and manages the company's efforts to grow its customer base and maintain the
best possible relationship with its customers, working toward a strategic alliance from which
both [the petitioner] and the customers can benefit.
On December 24,2003, the director requested additional evidence.
In response, counsel submitted a brief and additional documents. As part of this response, the petitioner
submitted a letter dated January 13, 2004, which provided the following description of the training required
for the proffered position:
The training required to become a [company] [c]ustomer [s]ervice [m]anager is extensive. In
short, the training program consists of an initial three-month (eight-hours per day) program
where expert knowledge about the proprietary components and setup of components within
our solutions is taught. Specific subjects covered include training in the individual proprietary
applications[,i.e., NewsDesk and AdDesk], the applied unique project/implementation model
SRC 04 053 51118
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and the [petitioner] customer relationship philosophy. In learning how to use and implement
these applications , the trainee also gains extensi ve .training in [the petitioner's] unique
integrations of third party products. After the initial three-month training program, the
trainee undergoes an approximate six month on-the-job training program as a junior
[c]ustomer [s]ervice [m]anager, closely guided and coached by an experienced [c]ustomer
[s]ervice [m]anager. The trainee is gett ing progressively more advanced , customer-specific
assignments and is building knowledge about the customers that will be in his or her portfolio
when the full program is completed . During this second phase , training in specific
knowledge areas continues to take place in .[petitioner] applications , project models and
technical topics.
On January 29, 2004, the director denied the petition. The director determined that the beneficiary did not
possess specialized knowledge and that the position did not require a person with specialized knowledge.
Petitioner subsequently appealed . On appeal counsel for the petitioner asserts that the director was erroneous
in her determination .
As a threshold matter 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 , legislat ~ve history and prior precedent. Although both counsel and
the director place special emphasis on the 1994 memorandum written by James A. Puleo, prior Acting
Associate Commissioner for the legacy Immigration and Naturalization Service (INS) , the memorandum was
issued as guidance to assist Citizenship and Immigration Services (CIS) emplo yees in interpreting a term that
is not clearly defmed 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-1B visa petitions. Memorandum from James A. Puleo, Acting Associate
Commissioner, Immigration and Naturalization Service, Interpretation of Special Knowledge, CO 214L-P
(March 9, 1994)("Puleo memorandum"). Merely claiming that the facts of the instant petition resemble a
particular example provided in the 1994 memo is insufficient to establish that the beneficiary qualifies for this
visa classification. The AAO will weigh guidance outlined in policy memoranda 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 first 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 specialized knowledge . Id. It is also appropriate for the AAO to then look
beyond the stated job dut~es and consider the importance of the beneficiary 's knowledge of the business 's
product or service, management operations, or decision-making process. A specific occupation will not
inherently qualify a beneficiary as possessing specialized knowledge. Matter of Colley ,18 I&N Dec. 117; 120
(Corom. 1981)(citing Matter ofRaulin, 13 I&N Dec . 618 (R .C. 1970) and Matter ofLeBlanc, 13 I&N Dec .
SRC 04 05351118
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816 (R.C. 1971)). 1As 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 inherentl y 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 firm's operation.
Id. at 53.
In Matter ofPenner, 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. Rep. No . 91-851, 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 ofPenner, supra at 50 (citing H .R.
Subcomm. No.1 of the Jud. Comm., Immigration Act of 1970: Hearings on HR. 445, 9lst Cong. vz l O, 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 classificat ion 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]ost employees today are specialists and have been tra ined 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
I Although the cited precedents pre-date the current statutory definition of "specialized knowledge," the AAO
finds them instructi ve. 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 regulation or precedent decisions interpreting the term . The Committee Report simply states that the
Committee was recommending a statutory definition because of "[v]arying [Le .,' not specifically incorrect]
interpretations by INS ," H.R. Rep . No. 101-723(i), at 69, 1990 U.S.C .C.A.N. at 6749 . Beyond that, the
Committee Report simply restates the tautology that became section 214(c)(2)(B) of the Act. Id. The AAO
concludes, therefore , that the cited cases, as well as Matter ofPenner, remain useful guidance concerning the
intended scope of the "specialized knowledge" L-1B classification.
SRC 04 05351118
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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 to 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-IB 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. As discussed below ,
the beneficiary's job description does not distinguish his knowledge as -more advanced or distinct among
customer service managers employed by the foreign or U .S. entities.
The statutory defin ition 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 personnel."
See generally, H.R. Rep. No. 91-851, 1970 u.S.C.C.A.N. 2750. Thetenn "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 enterpri se. 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.
Counsel relies in part on the 1994 Puleo memo, which the AAO notes also allows CIS to compare the
beneficiary's knowledge to the general United States labor market in order to distinguish between specialized
and general knowledge. The Acting Associate Commissioner notes in the memorandum that "officers
adjudicating petitions involving specialized knowledge must ensure that the knowledge possessed by the
2 On appeal, counsel takes specific issue with the director's statement that not "all employees who hold special
knowledge qualify as 'specialized knowledge' workers." Although the director used the phrase "special
knowledge" instead of "specialized knowledge ," it appears that she was referring to Matter of Penner, in
which the Board of Immigration Appeals (BIA) explained that it was not the intent of Congress to qualify any
worker with any amount of specialized knowledge for L-1B nonimmigrant classification. 18 I&N Dec . at 53.
Moreover, even if the director meant to use the phrase "special kriowledge," it is not incorrect to state that not
all employees who hold special knowledge qualify as "specialized knowledge" workers. According to the
regulations, it is only tho se employs who are proven to have "special knowledge of the petitioning
organization's product, service, research, equipment, techniques, management , or other interests and its .
application in international markets" who qualify. 8 C.F.R. § 214.2(l)(l)(ii)(D).
SRC 04 05351118
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beneficiary is not general knowledge held commonly throughout the industry but that it is truly specialized ."
Puleo memo, supra. A comparison of the beneficiary 's knowledge to the knowledge possessed by others in
I 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 theknowledge possessed by the
beneficiary is not general knowledge held commonly throughout the industry but that it is truly specialized .
[d. The analysis for specialized knowledge therefore requires a review 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.
Counsel claims that the director erred by attempting to compare the beneficiary's knowledge with those of
other workers employed within the petitioner's group of companies. Counsel's assertion is not persuasive.
While the decisions cited above pre-date the 1990 amendment to the definition of "specialized knowledge ," it
has been noted above that Congress's 1990 amendments to the Act did not specifically overrule 1756, Inc.,
nor any administrative precedent decision, nor did the 1990 amendments otherwise mandate a less restrictive
interpretation of the tern). "specialized knowledge ." The House Report, which accompanied the 1990
amendments, stated:
One area within the L visa that requires more specificity relates to the term "specialized
knowledge." Varying interpretations by INS have exacerbated the problem. The bill therefore
defmes specialized knowledge as special knowledge of the company product and its
application in international markets, or an advanced level of knowledge of processes and
procedures of the company.
H.R. Rep. No. 101-123m, 1990 u.S.C.C.A.N. 6710, 6749, 1990 WL 200418. As previously noted, the
statutory definition states, "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 knowledge of processes and procedures of the company." 8 U.S.C.
§ 1184(c)(2)(B) .
. Prior to the Immigration Act of 1990, the statute did not provide a definition for the term specialized
knowledge. Instead, the regulations defined the term as follows:
"Specialized knowledge" means knowledge possessed by an individual whose advanced level
of expertise and proprietary knowledge of the organizations' product, service, research,
equipment, techniques, management or other interests of the employer are not readily
available in the United States labor market. This definition does not apply to persons who
have general knowledge or expertise which enables them merely to produce a product or
provide a service . . .
8 C.F.R. § 21~ .2(l)(1)(ii)(D)(l990) .
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Although the Immigration Act of 1990 provided a statutory definition of the term "specialized knowledge,"
Congress did not give any indication that it intended to expand the field of aliens that qualify as possessing
specialized knowledge. Although the statute omitted the term "proprietary knowledge" that was contained in
the regulations, the statutory definition still calls for "special knowledge ' or an "ad vanced level of
. knowledge," similar to the original regulation . Neither the 1990 . House Report nor the amendments to the
statute indicate that Congress intended to expand the visa category beyond the "key personnel" that were
originally mentioned in the 1970 House Report. Considered in light of the original 1970 statute and the 1990
amendments, it is clear that Congress intended for the class of nonimmigrant L-l aliens to be narrowly drawn
and carefully regulated , and to this end provided a specific statutory definition of the term "specialized
knowledge" through the Immigration Act of 1990.
The Puleo memorandum , although issued after the 1990 amendment, does not differ significantly from
previous CIS guidance on this issue, other than removing the requirement that a beneficiary's specialized
knowledge be proprietary or unique . For example, the memorandum indicates that one possible characteristic
of an employee who possesses specialized knowledge is that the individual "has been utilized abroad in a
capacity involving significant assignments which have enhanced the employer 's productivity,
competitiveness, image or financial position." Puleo memo, supra. While the language differs from previous
interpretations, this criterion is another wa y of stating that the petitioner may establish a beneficiary 's
specialized knowledge credentials by submitting evidence that the beneficiary is a "key employee ."
Accordingly, counsel 's argument that CIS is prohibited from comparing the beneficiary 's knowledge to that
of similarly employed workers within the petitioner 's international group is not persuasi ve, and the AAO will
consider whether the beneficiary qualifies as "key personnel" in its analysis.
In this case, the record does not contain evidence that the beneficiary is regarded as a crucial or key employee .
For instance, the beneficiary is not distinguished from other customer service employees trained by the
petitioner. The beneficiary has been through a training program of nine months and has been employed by
the petitioner for Just over a year. Without evidence indicating that the beneficiary is regarded as a key or
crucial employee, it is not clear that the beneficiary meets the narrowly tailored class of individuals intended
to receive L classification . In addition, although counsel refers to the beneficiary as an expert by virtue of the. .
standard training received in the petitioner's business procedures, the record fails to establish that the
beneficiary is anything more than a normal, trained employee. In order to receive this classification the
specialized knowledge has to be in the context of those in the particular industry and within the petitioning
entity itself to such a degree that the employee would qualify as key or cruc ial personnel with uncommon or
noteworthy knowledge. Again , the beneficiary's training is not distinguishable from other employees within
the company, and the petitioner has not articulated how the beneficiary's knowledge is distinct from other
similarly situated employees within the industry. As such , the beneficiary 's routine training, which appears to
be common to all similarly employed persons within the company , does not qualify him as a key or crucial
employee, and without further distinction or evidence in the record regarding the beneficiary as a key or
crucial employee it cannot be concluded otherwise .
In addition , the beneficiary is atrained employee who fills a position that the petitioner considers important ,
but the evidence does not show that the position is dependent on that particular employee filling it. .The
knowledge possessed by the beneficiary has not been demonstrated to be specialized, such that the u.S.
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position could not be filled by other similarly trained employees of the petitioner. In other words, the record
does not distinguish this knowledge from the basic knowledge of other customer support specialists with the
petitioner and in fact claims that it does not have to. In addition, the petitioner has not distinguished the
beneficiary's training and experience from that of other publishing software/support companies in the
industry. The AAO acknowledges that the petitioner has repeatedly submitted sales material on its business
topology and has extensively quoted the same sales material in its letters to CIS . However, these materials
are not probative as they are not specific to the beneficiary and do not explain or support distinctions of the
petitioner's product/service or its processes and procedures within the industry. Without an articulated basis
of distinction within the particular industry or within the petitioner itself, CIS cannot determine ' that the
beneficiary's knowledge surpasses the usual, is peculiar to the beneficiary, or is uncommon and noteworthy .
Moreover, the beneficiary is not alleged to have developed the product, or even to be involved in the
maintenance of the code. Thus, it is not clear from .the record that this beneficiary has knowledge that is
particularly valuable to the petitioner's competitiveness in the market place beyond that of any other important
employee within the organization . It has not been asserted or established that the beneficiary has knowledge
, of foreign operating conditions. The record does not support that the beneficiary has been utilized abroad in a
capacity that involves significant assignments , and instead suggests that the beneficiary has been undergoing
standard training to provide the software support services of the petitioner .
Accordingly, the petitioner's claim fails on an evidentiary matter. Contrary to counsel 's assertions, it was
reasonable for the director to request information regarding the petitioner's proprietary technologies, other
similarly employed workers within the U.S . and foreign entities, and other evidence that would set the
beneficiary's knowledge of the products/services and processes and procedures of the company apart from the
knowledge possessed by others within the petitioner's family of companies.
The regulation states that the petitioner shall submit additional evidence as the director, in his or her
discretion, may deem necessary. 8 C.F.R. § 214.2(l)(3)(viii). The purpose of the request for evidence is to
elicit further information that clarifies whether eligibility for the benefit sought has been established, as of the
time the petition is filed. See 8 C.F.R. §§ 103.2(b)(8) and (12). The failure to submit requested evidence that
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § l03.2(b)(14).
In this matter, the petitioner asserts that the beneficiary's knowledge of the customer base distinguishes the
beneficiary among other employees. There is no corroborating evidence of this in the record however. The
petitioner did not provideany probative evidence of this advanced knowledge , nor did it clearly articulate
exactly how the beneficiary acquired this knowledge given the short period of employment, supposedly in a
specialized knowledge capacity, following a period of standard, indistinguishable training. The petitioner
also failed to make clear the nexus between the beneficiary's knowledge of a particular customer base and any
specialized knowledge duties that will be performed in the United States. 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. Similarly. vas discussed above, the petitioner failed to provide any detailed information
regarding the beneficiary's assignments with the foreign entity, which would establish that his duties were
advanced or different from those performed by other customer services managers. The lack of evidence in the
SRC 04 053 51118
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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" tothe 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 ojPenner, 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 , specifically, that the
knowledge he possesses is required to "sell, manufacture, or service the product is different from the other
products to the extent that the United States or foreign firm would experience a significan[t] interruption of
business in order to train a new worker to assume those duties." Puleo memo , supra. While the factors
discussed in the Puleo memorandum may be considered, the regulations specifically require that the beneficiary
possess an "advanced level of knowledge" of the organization's processes and procedures, or a "special
knowledge" of the petitioner's product, service, research , equipment, techniques, or management. 8 C.F .R.
§ 214.2(1)(l)(ii)(D). As dis cussed above, the petitioner has not established that the beneficiary's knowledge rises
to the level of specialized knowledge contemplated by the regulations.
Regardless, the petitioner's and counsel 's claims regarding the beneficiary 's qualifications for this visa
classification, in general , are not supported by evidence . As stated in the 1994 Puleo memorandum:
[Tjhemere 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 ojprobativ e evidence that th e alien 's
knowledge is uncommon .noteworthy, or dist inguished by som e 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 support ed by evidence describing and setting apart that
knowledge from the elementary ojbasic knowledge possessed by others . It is the weight and
type of evidence which establishes whether or not the beneficiary possesses specialized
knowledge.
Puleo memo , supra (emphasis added) .
Based on the minimal e vidence submitted to establish the beneficiary 's claimed specialized knowledge , and
the failure to differentiate through the submission of evidence the beneficiary 's knowledge from that of other
similarly employed customer service personnel within the company , the petitioner has not established that the
beneficiary's knowledge can be considered truly "special." Nor has the petitioner established that the
.beneficiary's knowledge is "ad vanced" such that it can be distinguished from the knowledge possessed by
others within the petitioner 's organization. Accordingly the beneficiary may not be considered "key
personnel. "
The legislative history for 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
· . , .
SRC 04 05351118
Page 11
should be considered a member of the "narrowly drawn" class of individuals possessing -specialized
knowledge. See 1756, Inc. v, Attorney Gen eral, supra at 16. The record does not establish that the
beneficiary posses ses specialized knowledge or that the position offered with the United States entity requires
specialized knowledge. '
In v isa 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.