dismissed L-1B Case: Railroad Equipment Manufacturing

U.S. Department of Homela~~d Security 
20 Massachusetts Ave., N.W.. Rm. A3042 
Washington, DC 20529 
afehetedb 
prevent dearly mmmW 
boasion ofpemml prfvaq 
mr4rc cow 
U.S. Citizenship 
and Immigration 
File: SRC-02-123-556 19 Office: TEXAS SERVICE CENTER Date: FEB 1 8 2005 
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)(15)(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. 
. + - 
JZobert P. Wiemann, Director 
Administrative Appeals Office 
SRC-02-123-55619 
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 extend the employment of 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. 5 1101(a)(15)(L). The petitioner is a corporation - 
factures railroad equipment. The petitioner claims that it is the 
subsidiary o located in Gijon, Spain. The petitioner now seeks to extend the 
period as its Vice President of Technology and Marketing. 
The director denied the petition concluding that the petitioner did not establish that: (1) the petitioner and the 
beneficiary's foreign employer possess a qualifying relationship; and (2) the beneficiary is perfonning in a 
specialized knowledge capacity. The director further stated that the beneficiary is ineligible for an extension 
of his status as a matter of law, due to the fact that he was not present in the United States on the date that the 
petition was filed. 
Counsel for the petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion 
and forwarded it to the AAO for review. On appeal, counsel for the petitioner asserts that the evidence of 
record shows that the petitioner and the beneficiary's foreign employer possess a qualifying relationship, and 
each entity is doing business. Counsel alleges that the beneficiary is employed in a specialized knowledge 
capacity. Counsel further asserts that the director misread and misinterpreted several documents, which 
caused a material negative impact on the petitioner's case. Finally, counsel points out that the beneficiary 
was present in the United States on the date of filing the petition, contrary to the director's finding. In support 
of the appeal, counsel submits a brief, additional evidence, and previously submitted documents. 
To establish eligibility for the L-1 nonimrnigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act, 8 U.S.C. 3 1 101(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. 3 214.2(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) 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. 
SRC-02-123-55619 
Page 3 
(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 crf 
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 himher 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 regulation at 8 C.F.R. 6 214.2(l)(ii)(G)(2) reflects that, in order for an entity to be considered a qualifying 
organization, the petitioner must show that it: 
Is or will be doing business (engaging in international trade is not required) as an employer in 
the United States and at least one other country directly or through a parent, branch, affiliate, 
or subsidiary for the duration of the alien's stay in the United States as an intracompany 
transferee . . . . 
The regulation at 8 C.F.R. 5 214.2(l)(ii)(H) defines the term "doing business" as: 
[Tlhe regular, systematic, and continuous provision of goods andor services by a qualifying 
organization and does not include the mere presence of an agent or office of the qualifying 
organization in the United States and abroad. 
The first issue in the present matter is whether the petitioner and the beneficiary's foreign employer possess 
as qualifying relationship as defined in the regulation at 8 C.F.R. 3 214.2(1)(l)(ii)(G). 
In the initial petition, the petitioner stated that it is the subsidiary of the beneficiary's foreign employer. In an 
attached letter dated March 5, 2002, the petitioner stated that this relationship was created when the foreign 
entity acquired the petitioner in 1997. This letter further describes the petitioner's and the foreign entity's 
business operations as follows: 
[The petitioner] has been manufacturing equipment for the nation's railroads since 1906. Our 
principle line of products in the past has been signal railbonds and power feed leads for both 
railroads and rapid transit systems. . . . [The foreign entity] is a manufacturer of railroad 
products in Europe, specializing in Alurninothennic Welding. 
It is the intent of [the petitioner] to continue to introduce and sell new products in the United 
States that are manufactured by [the foreign entity] . . . . 
On May 30, 2002, the director requested additional evidence. In part, the director requested evidence of the 
ownership and control of the petitioner and the foreign entity, such as "stock certificates, copies of corporate 
bylaws and constitutions which clearly indicate stock ownership, or copies of published annual reports which 
SRC-02-123-55619 
Page 4 
indicate affiliates and subsidiaries and the percent of ownership held by the parent corporation." Regarding 
the petitioner's business operations, the director requested: (1) income tax returns for 1999, 2000, and 2001; 
(2) state and federal quarterly tax returns for 2001 and 2002; and (3) evidence that the petitioner is currently 
engaged in business operations, such as current financial records, tax returns, annual reports, profit and loss 
statements and other accountant reports, banking records, employee rosters, evidence of business conducted, 
invoices, bills of sale, product brochures of goods sold at or produced by the company, check registers, a 
statement of cash flows, insurance policies, and customs records. Regarding the foreign entity's business 
operations, the director requested: (I) evidence of business conducted such as invoices, bills of sale, product 
brochures of goods sold at or produced by the company, check registers, a statement of cash flows, insurance 
policies, and customs records; and (2) a current lease. 
In a response dated June 28, 2002, the petitioner submitted: (1) a stock purchase agreement between the 
foreign entity and the petitioner's prior owner; (2) an assignment document, reflecting the transfer of stock to 
the foreign entity; (3) a "Stock Power" document authorizing the transfer of shares to the foreign entity; (4) a 
stock certificate issued to the foreign entity; (5) a certificate from the foreign entity authorizing the purchase 
of the petitioner's stock; (6) the petitioner's Forms 1120, U.S. Corporation Income Tax Return, for 1999 and 
2000; (7) the petitioner's 2001 Form 7004, Application for Automatic Extension of Time to File Corporation 
Income Tax Return; (8) the petitioner's Forms 940, Quarterly Federal Tax Return, for the first, second, third, 
and fourth quarters of 2001 and the first quarter of 2002; (9) the petitioner's Annual Federal Unemployment 
(FUTA) Tax Returns for 2000 and 2001; (10) the petitioner's Florida Corporate Income/Franchise and 
Emergency Excise Tax Return for 2000 and extension of time to file for 2001; (I 1) an unaudited income 
statement for the petitioner for January through May 2002; (12) the petitioner's bank statement for May 2002; 
(13) the petitioner's 2001-2002 County and City Occupational License; (14) product brochures for the 
petitioner; (15) a foreign language document purported to be a financial statement for the foreign entity; (16) 
invoices issued by the foreign entity; and (17) foreign language brochures purported to be promotional 
materials for the foreign entity. 
On July 7, 2002, the director denied the petition. The director determined that the petitioner did not establish 
that it possesses a qualifying relationship with the beneficiary's foreign employer. Specifically, the director 
noted that the petitioner's 1999 and 2000 federal tax returns indicate that it holds 500 shares of cornnlon stock, 
and the submitted stock certificate reflects that the foreign entity owns six shares of the petitioner. The 
director found these three documents to be inconsistent regarding the number of outstanding shares of the 
petitioner. The director further asserted that the stock certificate issued to the foreign entity was invalid, due 
to the fact that the date on the certificate omitted the exact day of issuance. The director noted that the 
petitioner did not submit its 2001 Form 1120 as requested. 
The director further found that the evidence of record does not show that the petitioner and the foreign entity 
have been doing business as defined in the regulation, such that they could be qualifying organizations. In 
this regard, the director noted that the petitioner's 1999 and 2000 Forms 1120 reveal that it has been operating 
at a substantial loss. The director stated that the 2000 return reports that no salaries were paid in that year, 
and only $8,095 was paid to the beneficiary as an officer of the company. The director further stated that the 
1999 return reports that only one officer was compensated, and approximately $4,500 was paid in salaries for 
that tax year. The director pointed out that the petitioner's Forms 941 quarterly tax returns for the second, 
SRC-02-123-55619 
Page 5 
third, and fourth quarters of 2001 report that there were no employees during those periods, and copies of 
Form 940 EZ indicate that the petitioner made no unemployment insurance payments during 1999 and 2000. 
The director stated that, though the petitioner's Form 941 for the first quarter of 2001 indicates that there were 
24 employees, in light of the other documents discussed above, it does not appear that the petitioner was 
conducting regular business with a consistent staff. Regarding whether the foreign entity has been doing 
business, the director pointed out that a purported audited financial statement for the company was not 
translated. The only other evidence submitted were two invoices issued by the foreign entity in June 2002, 
which the director found unpersuasive. 
On appeal, counsel for the petitioner asserts that the evidence of record shows that the petitioner and the 
foreign entity possess a qualifying relationship, and that the director misread and misinterpreted the submitted 
documents. Specifically, counsel states that the exact day of issuance on the stock certificate was omitted due 
to a scrivener's error, and such error does not invalidate the document. Counsel highlights that the director 
misread and misunderstood the petitioner's 1999 and 2000 federal tax forms, as "[tlhe '500' referred to in the 
Decision is not shares, but the 'book value' for tax purposes . . . ." Counsel refers to Schedule K of the returns 
as evidence that the foreign entity owns 60 percent of the petitioner. Counsel points out that the petitioner did 
not provide its 2001 Form 1120, as it was granted an extension due to timely filing Form 7004, Application 
for Automatic Extension of Time to File Corporation Income Tax Return. In support of these assertions, 
counsel provided a Form 1120 Schedule K and the petitioner's Form 7004, Application for Automatic 
Extension of Time to File Corporation Income Tax Return. 
Regarding whether the petitioner and the foreign entity are doing business, counsel states: 
The petitioner is an employer who currently has over 24 employees, together with an I,- 
1 employee ([the beneficiary]), who was sent by the Spanish parent company (60% 
owner of the US company) to introduce proprietary manufacturing systems into the US. 
The Spanish parent has 100+ employees and sells its products and services throughout 
the European Union. The [petitioner], because of its technical knowledge and the 
transfer of proprietary information from the Spanish parent, sells its products 
throughout the US, Latin America, and South America. 
(Emphasis in original). 
Counsel asserts that the fact that the petitioner has operated at a loss does not indicate that it is not doing 
business. Counsel provides that the petitioner did not submit more bank statements due to a perception that 
they would "clutter the file" and sufficient evidence was already contained in the record. Counsel explains 
that the beneficiary is mostly compensated by the foreign entity, which results in small compensation to 
officers reported on the petitioner's federal filings. Counsel alleges that the director misinterpreted the 
petitioner's Forms 941 for the second, third, and fourth quarters of 2001 to reflect that the petitioner had no 
employees during those periods. Counsel points out that item number " 1" on each of the forms requests the 
number of employees "on March 12, 2001," not the number of employees in each respective quarter. Thus, as 
the petitioner had no employees on March 12, 2001, each following quarter reported this fact. Counsel 
highlights that all of these forms show wages were paid, evidencing that there were employees in the second, 
SRC-02-123-55619 
Page 6 
third, and fourth quarters of 2001. Counsel further points out that the petitioner's Form 940 EZ indicates that 
the petitioner made unemployment insurance payments during 1999 and 2000, and the director misread the 
forms. 
Regarding whether the foreign entity is doing business, counsel indicates that a translation was not submitted 
for the foreign entity's financial statement as the numbers speak for themselves. Counsel alleges that "[tlhere 
was ample information which clearly established the continuing business of the Spanish parent company." 
Upon review, counsel's assertions and the submitted documentation do not establish that the petitioner and the 
foreign entity possess a qualifying relationship. The regulation and case law confirm that ownership and 
control are the factors that must be examined in determining whether a qualifying relationship exists between 
United States and foreign entities for purposes of this visa classification. Matter of Church Scientology 
International, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 
362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Cornrn. 1982). In context of this visa petition, 
ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and 
authority to control; control means the direct or indirect legal right and authority to direct the establishment, 
management, and operations of an entity. Matter of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. at 362. Without full 
disclosure of all relevant documents, Citizenship and Immigration Service (CIS) is unable to determine the 
elements of ownership and control. 
The regulations specifically allow the director to request additional evidence in appropriate cases. See 
8 C.F.R. 5 214.2(1)(3)(viii). As ownership is a critical element of this visa classification, the director may 
reasonably inquire beyond the issuance of paper stock certificates into the means by which stock ownership 
was acquired. As requested by the director, evidence of this nature should include documentation of monies, 
property, or other consideration furnished to the entity in exchange for stock ownership. Additional 
supporting evidence would include stock purchase agreements, subscription agreements, corporate by-laws, 
minutes of relevant shareholder meetings, or other legal documents governing the acquisition of the 
ownership interest. 
In the instant matter, the petitioner submitted sufficient evidence to show that, on January 11, 1995, the 
foreign entity acquired six shares of the petitioner, representing a 60 percent ownership interest in the 
company. As listed above, such evidence includes: (1) a stock purchase agreement between the foreign 
entity and the petitioner's prior owner; (2) an assignment document, reflecting the transfer of stock to the 
foreign entity on January 11, 1995; (3) a "Stock Power" document authorizing the transfer of shares to the 
SRC-02-123-556 19 
Page 7 
foreign entity; and (4) an internal certificate from the foreign entity authorizing the purchase of the petitioner's 
stock. The petitioner also provided a stock certificate, reflecting that the foreign entity acquired six shares of 
the petitioner's stock on an unknown day in December 1994. As noted above, the director asserted that the 
stock certificate is invalid due to its failure to specify the exact date of issuance. Further, the AAO highlights 
that the date of issuance on the certificate is inconsistent with the transaction date presented in all other 
submitted documents. However, the date of transfer is consistently provided as January 11, 1995 in all other 
documents surrounding this transaction. Considering the totality of the evidence, the AAO accepts counsel's 
assertion that the date on the stock certificate contains a scrivener's error. Thus, the petitioner has established 
that the foreign entity held a 60 percent interest in it on January 11, 1995. 
However, as per the director's request, the petitioner must establish that it has a qualifying relationship with 
the foreign entity as of the date of filing the present petition, March 12, 2002. See 8 C.F.R. 3 214.2(1)(3)(i). 
Other than documents relating to the initial sale of stock described above, the only evidence the petitioner 
submitted to show a continuing qualifying relationship are the petitioner's Forms 1120, U.S. Corporation 
Income Tax Return, for 1999 and 2000. Neither of these documents are signed by a representative of the 
petitioner, which calls into question whether they were submitted to the United States government, and 
therefore greatly reduces their probative value. These documents alone do not satisfy the petitioner's burden 
to show a qualifying relationship with the foreign entity. The director provided examples of acceptable 
evidence to show a qualifying relationship, including copies of corporate bylaws and constitutions which 
clearly indicate stock ownership, and copies of published annual reports which indicate affiliates and 
subsidiaries and the percent of ownership held by the parent corporation. Yet, the petitioner elected not to 
provide such documentation. The record is missing items such as the petitioner's corporate stock certificate 
ledger, a stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings. 
See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. at 362. Such documents would allow the AAO to 
understand the history of the petitioner's stock issuance and transfer during the seven-year period after the 
foreign entity acquired an interest in the petitioner. While the petitioner has established that the foreign entity 
acquired a 60 percent interest in January 1995, it has failed to document that the foreign entity maintained its 
majority interest in the company during the relevant period prior to filing the petition. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornrn. 1972). 
The AAO notes that counsel correctly identified an error made by the director in interpreting the petitioner's 
Forms 1120, U.S. Corporation Income Tax Return. Schedule L, Line 22(b) of the petitioner's Forms 1120 
reflects a dollar value of outstanding common stock, not the number of shares issued. Contrary to the 
director's conclusion, the record lacks sufficient evidence to assess whether this dollar amount is inconsistent 
with counsel's assertion that the petitioner has issued 10 shares. The director's comment on this issue will be 
withdrawn. 
The AAO further acknowledges that the petitioner properly filed a Form 7004, Application for Automatic 
Extension of Time to File Corporation Income Tax Return, providing it an extension of time to file its 2001 
Form 1120. The director implied that the petitioner's failure to submit its 2001 Form 1120 had a negative 
bearing on whether it has a qualifying relationship with the foreign entity. As the petitioner was under no 
obligation to file its 2001 Form 1120 prior to responding to the director's request for evidence, the absence of 
SRC-02-123-55619 
Page 8 
this document is not material to this matter, and the director's comment on this issue will be withdrawn. 
Nevertheless, in visa proceedings the burden of proving eligibility for the benefit sought remains entirely with 
the petitioner. Section 291 of the Act, 8 U.S.C. 3 1361. Despite the fact that the petitioner's 2001 Form 1120 
was not available, it remains incumbent upon the petitioner to provide sufficient evidence to show a current 
qualifying relationship. 
Regarding whether the petitioner and the foreign entity are doing business, counsel's assertions are not 
persuasive. As evidence of its business activity, the petitioner submitted an income statement for January 
through May 2002. As this is an internal, unaudited statement, and it was generated after the date of filing the 
initial petition, it carries little probative weight regarding whether the petitioner was doing business as of the 
date of filing the initial petition. The petitioner submitted a bank statement and three sales invoices, dated in 
May and June 2002 respectively. Yet, as these documents reflect financial and business activity after the date 
of filing, they do not serve as evidence of whether the petitioner was doing business as of the date of filing the 
initial petition. The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A 
visa petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a 
new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Cornm. 1978). The petitioner's 
2001-2002 County and City Occupational License and product brochures do not reflect the petitioner's level 
and consistency of business regarding these products. Thus, they do not show that the petitioner is engaged in 
the regular, systematic, and continuous provision of goods or services as contemplated by 8 C.F.R. 
3 214.2(1)(1)(ii)(H). 
Counsel alleges that the director misinterpreted the petitioner's Forms 941 for the second, third, and fourth 
quarters of 2001 to reflect that the petitioner had no employees during those periods. Counsel correctly points 
out that item number " 1" on each of the forms requests the number of employees "on March 12, 2001," not 
the number of employees in each respective quarter. Counsel claims that, as the petitioner had no employees 
on March 12, 2001, each following quarter should properly report this fact. However, the petitioner's Form 
941 for the first quarter of 2001 states that the petitioner had 24 employees on March 12, 2001. If the 
petitioner had 24 employees on March 12, 2001, it should have reported this on Forms 941 for the second, 
third, and fourth quarters of 2001, rather than claiming that the petitioner had no employees on that date. 
Thus, the petitioner's Forms 941 are inconsistent and do not serve as reliable evidence of the number of staff 
the petitioner employed during that year. 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 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
As discussed above, the petitioner's Form 1120 returns are unsigned, which calls into question whether they 
were submitted to the United States government, and therefore greatly reduces their probative value. In fact, 
with the exception of the petitioner's Form 7004 request for a filing extension for 2001, none of the tax filings 
submitted were signed by a representative of the petitioner, which substantially diminishes their evidentiary 
value in these proceedings. 
Thus, the evidence of record, considered in aggregate, does not meet the petitioner's burden of showing that it 
is doing business as required by 8 C.F.R. 3 214.2(l)(ii)(G)(2). 
SRC-02-123-55619 
Page 9 
Further, there is little evidence in the record to show that the foreign entity is engaged in regular business. 
Counsel alleges that an untranslated document in the record is an audited financial statement, and that the fact 
that it is provided for numerical figures obviates the need for translation. However, because the petitioner 
failed to submit certified translations of this document, the AAO cannot determine whether the evidence 
supports the petitioner's claims. See 8 C.F.R. # 103.2(b)(3). Accordingly, this document is not probative and 
will not be accorded any weight in this proceeding. The petitioner submitted two invoices issued by the 
foreign entity as evidence that it is doing business. However, these invoices are both dated June 5,2002, after 
the date of filing the present petition. Again, the petitioner must establish eligibility at the time of filing the 
nonirnmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. at 248. 
Accordingly, these invoices do not support that the foreign entity was doing business as of the date of filing 
the petition. The only other documentation offered as evidence of the foreign entity's business operations 
consists of product brochures. However, these brochures, by themselves, do not show the foreign entity's 
level or consistency of business related to these products, such that the AAO can assess whether it is doing 
business. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972). While counsel states that "[tlhe Spanish parent has 100+ employees and sells its products and 
services throughout the European Union," the assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter Of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Thus, the petitioner has not established that the foreign 
entity is doing business as required by 8 C.F.R. 5 214.2(l)(ii)(G)(2). 
Based on the foregoing, the petitioner has not established that it has a qualifying relationship with the foreign 
entity as defined in the regulation at 8 C.F.R. # 214.2(1)(l)(ii)(G). For this reason, the appeal will be 
dismissed. 
The second issue in the present matter is whether the petitioner has established that the beneficiary will be 
employed in a position that involves specialized knowledge as required in the regulation at 8 C.F.R. 
5 214.2(1)(3)(ii). 
Section 214(c)(2)(B) of the Act, 8 U.S.C. $ 1184(c)(2)(B), provides the following: 
For purposes of section lOl(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. # 214.2(1)(l)(ii)(D) defines specialized knowledge as: 
[Slpecial knowledge possessed by an individual of the petitioning organization's product, 
service, research, equipment, techniques, management, or other interests and its application in 
SRC-02-123-55619 
Page 10 
international markets, or an advanced level of knowledge or expertise in the organization's 
processes or procedures. 
In the initial petition, the petitioner provided that the beneficiary's proposed duties are "to develop a customer 
base for exothermic welding of railroad track [and] related products imported from Spain." An attached letter 
from the foreign entity, dated March 5, 2002, describes the beneficiary's duties in the United States as 
follows: 
During the past 3 years [the beneficiary] has been training [the petitioner's] personnel in the 
use and application of the Alurninothennic Welding Technology so that it can be implanted 
& developed in the American market place, as well as developing a customer base for 
exothermic welding products. 
As a second part of his job, he is required to continue overseeing the development of this new 
technology as well as looking for [a] new line of products related with such technology. 
An attached letter from the petitioner, dated March 5, 2002, discusses its purpose for bringing the beneficiary 
to the United States as follows: 
[The beneficiary] is considered by [the petitioner] to be a technical expert in the field of 
Aluminothermic Welding. He has been advising [the petitioner] for the past three years in 
the development and manufacture of products sold by the company. 
[The petitioner] has been manufacturing equipment for the nation's railroads since 1906. Our 
principle line of products in the past has been signal railbonds and power feed leads for both 
railroads and rapid transit systems. . . . 
It is the intent of [the petitioner] to continue to introduce and sell new products in the United 
States that are manufactured by [the foreign entity], of which we at [the petitioner] have no 
prior technical knowledge. In order to provide that background of expertise, we are 
requesting that [the beneficiary] be granted an extension of his work visa. He is a graduate 
Chemical Engineer with a Master's Degree and has the technical knowledge of 
Aluminothennic Welding that [the petitioner] requires to be successful in the American 
marketplace. 
On May 30, 2002, the director requested additional evidence. In part, the director requested evidence that the 
beneficiary is to be employed in a specialized knowledge capacity1, including: (1) documentation of the 
' The AAO notes that, in the director's request for evidence, she requested that the petitioner specify whether 
it is claiming that the beneficiary is employed in a specialized knowledge capacity, or a managerial or 
executive capacity. The petitioner responded by indicating that the beneficiary's duties include specialized 
knowledge, managerial, and executive tasks. However, on Form 1-129, the petitioner indicated that it was 
requesting an extension of the beneficiary's L-1B status as a worker utilizing specialized knowledge. No 
SRC-02-123-556 19 
Page 11 
special knowledge possessed by the beneficiary of the petitioning organization's product, service, research, 
equipment, techniques, management, or other interests and its application in international markets; (2) 
documentation showing that the beneficiary has an advanced level of knowledge or expertise in the 
organization's processes and procedures; (3) documentation of classes, training, and experience where the 
beneficiary gaining his specialized knowledge; and (4) a description of how the beneficiary exercises this 
specialized knowledge in the position with the petitioner and how he exercised it with the foreign entity. 
On June 28, 2002, the petitioner submitted a response, including: (1) copies of a diploma and university 
transcripts for the beneficiary; (2) an untranslated document purported to be an employment contract between 
the beneficiary and a company called Rail Alurninothennic Welding; (3) untranslated documents purported to 
be payroll records, paychecks, and evidence of the beneficiary's training while employed with Rail 
Aluminothermic Welding; (4) a statement from counsel further describing the beneficiary's specialized 
knowledge. Counsel's statement provides: 
[The] Beneficiary's position with [the] Petitioner is as Vice President, Technology and 
Marketing. His position is of a manager, as well as specialized knowledge. His services are 
invaluable to the U.S. affiliate. [The] Beneficiary holds a college degree in chemical science 
and is a highly trained and skilled professional in the very specialized field of exothermic 
welding. This process is especially beneficial to the railroad industry because it allows the 
joining of track and related products in place at a much reduced costs [sic] over the processes 
currently used. It is important to note that this process is proprietary and therefore, the 
individuals with this type of expertise are not readily available. [The] Beneficiary was sent to 
the United States [to] introduce the product in the United States and develop a customer base 
for the product. . . . 
This position requires at least a college degree, extensive experience in the technology of 
exothermic welding and its used [sic] and processes. 
In the denial dated July 27, 2002, the director concluded that the petitioner did not establish that the 
beneficiary is performing in a specialized knowledge capacity. Specifically, the director stated that: 
[slince the petitioner has not established that any business activity is being performed, has not 
demonstrated that any service or product is being provided, and has not demonstrated that a 
service or product is being provided that requires a specialized knowledge worker, [CIS] 
cannot conclude that the beneficiary has been acting in a . . . specialized knowledge capacity 
and will continue to act in that capacity. 
indication was made that the petitioner sought to change the beneficiary's status to L-1A as a worker primarily 
engaged with managerial or executive tasks. Thus, keeping with the petitioner's representation on Form I- 
129, the AAO will adjudicate this appeal under the law governing L-1B specialized knowledge workers. 
SRC-02-123-55619 
Page 12 
With the appeal, to show that the beneficiary is acting in a specialized knowledge capacity, the petitioner 
submits previously provided documents, as well as a brief from counsel. In counsel's brief, he states: 
A simple review of the documents and the supporting information would have shown that the 
products offered by the Petitioner are highly specialized and that the Beneficiary is more than 
qualified. There are currently hundreds of millions of dollars being spent annually in the US 
on rail upgrades and it is the proprietary information that [the beneficiary] is brining [sic] to 
the US company which will allow it to compete for this business. [The beneficiary] is 
eminently qualified to impart this information. He has a college degree in Chemical 
Science (i.e. Engineering) and has extensive post graduate training in exothermic 
welding . . . . [The] Beneficiary was sent to the US to train the employees of [the] 
Petitioner in the proprietary process and to market this highly effective and successful 
process throughout the US, Latin America and South America. 
(Emphasis in original). 
On review, counsel has not demonstrated that the beneficiary possesses "specialized knowledge" as defined in 
section 214(c)(2)(B) of the Act, 8 U.S.C. 5 1184(c)(2)(B), and the regulation at 8 C.F.R. 5 214.2(1)(l)(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. 5 214.2(1)(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 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. 1 17, 120 (Cornrn. 198 l)(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, 18 I&N Dec. 49, 52 
(Cornrn. 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 
2 Although 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 regulation or precedent decision interpreting the term. The Committee Report simply states that the 
Committee was recommending a statutory definition because of "[vlarying [i.e., 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 of Penner, remain useful guidance concerning the 
intended scope of the "specialized knowledge" L-1B classification. 
SRC-02-123-55619 
Page 13 
for his ability to carry out a key process or function which is important or essential to the 
business7 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, "[slimply 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-1 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 11 
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. 
Moreover, in Matter of Penner, the Commissioner discussed the legislative intent behind the creation of the 
specialized knowledge category. 18 I&N Dec. 49 (Cornm. 1982). The decision noted that the 1970 House 
Report, H.R. No. 91-851, stated that the number of admissions under the L-1 classification "will not be large" 
and that "[tlhe 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, 91st 
Cong. 210,218,223,240,248 (November 12, 1969)). 
Reviewing the Congressional record, the Commissioner concluded in Matter of Penner 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 that the specialized knowledge worker classification was 
not intended for "all employees with any level of specialized knowledge." Matter of Penner, 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. 117, 119 (Comrn. 1981). According to Matter of Penner, "[sluch a 
conclusion would pennit extremely large numbers of persons to qualify for the 'L-1' visa" rather than the 
"key personnel" that Congress specifically intended. 18 I&N Dec. at 53; see also, 1756, Inc., 745 F'. Supp. at 
SRC-02-123-55619 
Page 14 
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.") 
In the instant matter, the petitioner has not submitted a sufficient explanation and documentation to show that 
the beneficiary's expertise constitutes specialized knowledge as defined in 8 C.F.R. 5 214.2(1)(l)(ii)(D). 
While the record suggests that the beneficiary is an experienced technician, the evidence does not show that 
his responsibilities require a greater level of knowledge of the products and processes of the petitioner and the 
foreign entity than that required of a skilled worker. Counsel asserts that the beneficiary possesses 
specialized knowledge in the area of exothermic and aluminothermic welding. Counsel states that the 
beneficiary "has a college degree in Chemical Science (i.e. Engineering) and has extensive post graduate 
training in exothermic welding." Yet, to show the beneficiary's training beyond his college degree, counsel 
submits numerous documents purported to be evidence of his "extensive post graduate training in exothermic 
welding." Although these documents are in a foreign language, the petitioner has only provided brief 
summaries of their content created by a translator. Because the petitioner failed to submit complete certified 
translations of the documents, the AAO cannot determine whether the evidence supports the petitioner's 
claims. See 8 C.F.R. 3 103.2(b)(3). Accordingly, this evidence is not probative and will not be accorded any 
weight in this proceeding. Therefore, the record contains no acceptable documentary evidence of the 
beneficiary's training in his alleged area of expertise, exothermic and aluminothermic welding. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. at 190. Further. without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. at 534; 
Matter of laureano, 19 I&N Dec. at 1; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. 
To support that the beneficiary has completed training that led to his specialized knowledge, counsel provides 
the above-referenced untranslated documents of his training and employment with a company titled Rail 
Aluminothermic Welding. The petitioner has not described Rail Aluminothermic Welding or established that 
this organization has any connection with the petitioner or the foreign entity. Thus, counsel's representations 
imply that the beneficiary gained his expertise by completing training with an outside organization, ostensibly 
in the processes and products of that outside organization. While the beneficiary's skills with Rail 
Aluminothermic Welding's processes may be valuable for the petitioner, they do not constitute specialized 
knowledge of the petitioner's product, service, research, equipment, techniques, management, or other 
interests and its application in international markets, or an advanced level of knowledge or expertise in the 
petitioner's processes or procedures. See 8 C.F.R. 5 214.2(1)(l)(ii)(D). While counsel refers to the 
beneficiary's knowledge of exothermic and aluminothermic welding as proprietary, it appears that this 
information is not the petitioner's or the foreign entity's proprietary information. Additionally, as the record 
reflects that Rail Aluminothermic Welding is a separate entity, it is assumed that its training is available to 
those not employed by the beneficiary's foreign employer or the petitioner. Thus, evidence fails to show that 
the beneficiary's knowledge of aluminothermic welding is not generally known by practitioners in the field of 
welding. 
Further, the petitioner has not provided information such that the AAO can compare the beneficiary's 
knowledge with that of other staff employed by the petitioner or the beneficiary's foreign employer. The 
SRC-02-123-55619 
Page 15 
record provides no clear account of the number of technical staff employed at either company, or the 
beneficiary's level of prominence among them. Thus, the AAO cannot determine whether the beneficiary 
qualifies as "key personnel" within the petitioner's family of companies. See Matter of Penner, 18 T&N Dec. 
at 53. 
The legislative history for the term "specialized knowledge" provides ample support for a restrictive 
interpretation of the term. In the present matter, the petitioner has not demonstrated that the beneficiary 
should be considered a member of the "narrowly drawn" class of individuals possessing specialized 
knowledge. See 1756, Inc. v. Attorney General, 745 F. Supp. at 16. The record does not establish that the 
beneficiary was employed abroad in a specialized knowledge capacity. For this additional reason, the appeal 
will be dismissed. 
The director further stated that the beneficiary is ineligible for an extension of his status as a matter of law, 
due to the fact that he was not present in the United States on the date that the petition was filed. On appeal, 
counsel correctly indicated that the petition was filed on March 12, 2002, at a time when the beneficiary was 
present in the United States. The director's statement was based on the erroneous understanding that the 
petition was filed on May 12, 2002, at a time when the beneficiary was outside the United States. 
Accordingly, the director's comment on the beneficiary's presence on the date of filing will be withdrawn. 
However, the director correctly noted that 8 C.F.R. 3 214.2(1)(15)(i) provides: 
If the alien is required to leave the United States for business or personal reasons while the 
extension requests are pending, the petitioner may request the director to cable notification of 
approval of the petition extension to the consular office abroad where the alien will apply for a 
visa. 
As the beneficiary departed the United States while the present petition was pending, and his approval for L- 
1B status expired during his absence, he would not be eligible for an extension of L-IB status. Yet, had the 
petitioner established the beneficiary's eligibility, the beneficiary would have been permitted to apply for an 
L-IB visa at a U.S. Embassy or Consulate abroad, and enter in L-1B status for the approved period. The fact 
that the beneficiary departed after the petition for an extension was filed did not render him ineligible for the 
benefit sought, and is not a basis for denying this petition. 
In visa proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.