dismissed L-1B Case: Restaurant Business

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC 02 288 52341 Office: VERMONT SERVICE CENTER 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section lOl(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been 
returned to the office that originally decided your case. Any further inquiry must be made to that 
office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC 02 288 52341 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
tates that it is an affiliate of - 
d in the restaurant business. The U.S. entity was 
incorporated in Puerto Rico on October 10, 2000. In September 2002, the U.S. entity petitioned 
Citizenship and Immigration Services (CIS) to classify the beneficiary as a nonimrnigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 1 101(a)(15)(L), as a specialized knowledge worker (L-IB). The petitioner 
seeks to employ the beneficiary's services as a new employee and as the U.S. entity's ethnic chef 
instructor at a weekly salary of $400. 
On January 8, 2003, the director denied the petition because the petitioner failed to establish that 
the beneficiary has been or will be employed in a specialized knowledge capacity in the United 
States. 
On appeal, counsel submits a brief refuting the director's findings and asserts that the beneficiary 
"exceeds the requirements imposed by the pertinent regulations." 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 8 1101(a)(15)&), the petitioner must meet certain criteria. Specifically, within three 
years preceding the beneficiary's application for admission into the United States, a qualifying 
organization must have employed the beneficiary in a qualifying managerial or executive capacity, or 
in a specialized knowledge capacity, for one continuous year. Furthennore, 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. 
Further, the regulation at 8 C.F.R. 5 214.2(1)(3) requires 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. 
(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 
EAC 02 288 52341 
Page 3 
alien's prior education, training, and employment qualifies himiher 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 issue in this proceeding is whether the beneficiary has been and will be employed in a 
specialized knowledge capacity. "Specialized knowledge" is defined in section 214(c)(2)(B) of 
the Act, 8 U.S.C. 3 1184(c)(2)(B) as: 
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 a 
special knowledge of the company product and its application in international 
markets or an advanced level of knowledge or expertise in the organization's 
processes and procedures. 
The regulation at 8 C.F.R. 9 214.2(1)(l)(ii)(D) and (E) interprets the statute as: 
(D) Specialized knowledge means special 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. 
(E) "Specialized knowledge professional" means an individual who has specialized 
knowledge as defined in paragraph (l)(l)(ii)(D) of this section and is a member of the 
professions as defined in section 101(a)(32) of the Immigration and Nationality Act. 
On the Form 1-129, the petitioner described the beneficiary's duties for the past three years as: 
"CHEF, ETHNICAL AND INSTRUCTOR FOR FOOD HANDLERS & PREPARERS." In 
addition, the beneficiary's proposed U.S. duties are described as: "CHEF & INSTRUCTOR TO 
LOCAL EMPLOYEES DEALING WITH CHINESES FOOD PREPARATION." 
The petitioner further described the beneficiary's proposed U.S. job duties as: 
1. The preparation, confection and cooking of gourmet ethnical culinary dishes of 
oriental taste; 
2. The evaluation and training of present and future local personnel in the food 
preparation and cooking of gourmet Chinese food, as well as the training in 
proper training of food presentation; 
3. Preparation of new dishes, as well as recommendations for the improvement of 
existing menu items; 
4. Integration of local culinary favorites with our ethnical foods. 
The petitioner also asserted, "Other responsibilities and tasks will be added as employee becomes 
knowledgeable of the culinary aspects and customs of the local people . . . ." 
EAC 02 288 52341 
Page 4 
On October 2, 2002, the director requested additional evidence. In particular, the director 
requested evidence to show that the beneficiary was employed in a position of specialized 
knowledge including a complete description of the beneficiary's foreign duties. Additionally, the 
director requested evidence that the beneficiary's knowledge is uncommon, noteworthy, or 
distinguished by some unusual quality and not generally known by practitioners in the 
beneficiary's field. 
In response, counsel claimed that: 
[The beneficiary] will continue to apply his extensive experience as an ethnic 
food chef that made the foreign company one of the premier ethnic Chinese 
cuisine restaurants of Colombia. The addition of the beneficiary allows the 
domestic company to benefit from the cross-fertilization of ideas and techniques 
that derived from the beneficiary's advanced level of expertise to the petitioner's 
business. This level of knowledge is directly related to the proprietary interest of 
the petitioner. His skills, knowledge and abilities as an instructor and kitchen 
manager will enhance the petitioner's position in the competitive Puerto Rican 
restaurant industry. The beneficiary will be training kitchen personnel, assistant 
chefs, and other kitchen helpers. 
In addition, counsel claimed that the beneficiary "has been instrumental in the progress of the 
company abroad. They want to utilize his experience, background and skills to produce the same 
results in Puerto Rico." 
On January 8,2003, the director denied the petition because the petitioner had not established that 
the beneficiary has been or will be employed in a specialized knowledge capacity in the United 
States. The director found that the petitioner failed to establish that the knowledge possessed by 
the beneficiary was specialized or that the position required someone with specialized knowledge. 
On appeal, counsel submits a brief refuting the director's findings and asserts that the beneficiary 
"exceeds the requirements imposed by the pertinent regulations." Specifically, counsel refers to a 
1994 INS memorandum as a guide for interpreting the statutory definition of specialized 
knowledge. Memorandum from James A. Puleo, Acting Associate Commissioner, Interpretation 
of Specialized Knowledge, CO 214L-P (March 9, 1994). In the memorandum, the Commissioner 
noted that specialized knowledge is not limited to knowledge that is proprietary, exclusive or 
unique, but also includes knowledge that is "different from that generally found in [a] particular 
industry." Counsel asserts that the "skills in the processing and preparation of the company's 
dishes are an integral part of the business operations. The ideas and methods, which distinguish 
the [pletitioner's restaurant, would be enhanced by the temporary addition of [the beneficiary]." 
In examining the specialized knowledge capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). As required in the 
regulations, the petitioner must submit a detailed description of the services to be performed 
sufficient to establish specialized knowledge. See id. On review, the record does not contain 
sufficient evidence to establish that the beneficiary possesses specialized knowledge. The 
petitioner has provided a vague description of the beneficiary's duties and qualifications and fails 
EAC 02 288 52341 
Page 5 
to articulate exactly how it is special. The petitioner has provided no evidence to establish that the 
beneficiary's duties are so exceptional and out of the ordinary that their implementation requires 
specialized knowledge. For example, the petitioner could have explained what specialized 
knowledge in particular is needed to prepare gourmet Chinese Food adapted to a Latin culture. 
Moreover, the petitioner should have demonstrated how the beneficiary's knowledge compares to 
other ethnic chef instructors within and outside the business. For instance, the additional evidence 
might establish that the beneficiary possesses knowledge valuable to the petitioner's 
competitiveness in the restaurant business industry or the petitioner has been utilized abroad in a 
capacity that has enhanced the petitioner's business, profits, or reputation. Additionally, the 
evidence may demonstrate that the beneficiary has knowledge of Chinese culinary expertise to 
the extent that the petitioning entity would experience a significant interruption of business in 
order to train a U.S. worker to assume the beneficiary's proposed duties. Although counsel claims 
on appeal that "[tlraining a new employee to fill this position to the exacting demands of the 
[pletitioner is onerous and unduly burdensome," counsel has failed to demonstrate that the 
business would experience a significant interruption of business in order to train a U.S. worker to 
assume the beneficiary's proposed duties. 
Further, the petitioner offers no explanation as to the educational or work qualifications necessary 
for an ethnic chef instructor. Nor does the petitioner provide documentation that the beneficiary 
received specialized training or international assignments focused specifically on Chinese 
gourmet cooking. While counsel, on appeal, asserts that the beneficiary "exceeds the requirements 
imposed by the pertinent regulations," the lack of specificity pertaining to the beneficiary's work 
experience and training, particularly in comparison to others employed by the petitioner and in this 
business, fails to distinguish the beneficiary's knowledge as specialized. 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. 
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). 
In addition, the requirements for the position of ethnic chef instructor include "[tlhe preparation, 
confection and cooking of gourmet ethnical culinary dishes of oriental taste" and the beneficiary 
will "apply his extensive experience as an ethnic food chef that made the foreign company one of 
the premier ethnic Chinese cuisine restaurants of Colombia." This description is ambiguous. The 
petitioner failed to explain how the beneficiary acquired specialized knowledge of gourmet ethnic 
culinary dishes or how such extensive experience applies to the petitioner's business. The petitioner 
further claimed that the beneficiary will be involved in the "evaluation and training of present and 
future local personnel in the food preparation and cooking of gourmet Chinese food, as well as 
the training in proper training of food presentation." However, it is unclear how this knowledge 
appears to be uncommon within the petitioner's operations and the knowledge to gain the status 
of a gourmet chef appears to be widely available. Therefore, the director correctly concluded that 
the beneficiary failed to qualify as a specialized knowledge worker. 
Further, when examining whether a beneficiary is eligible for L-IB classification, one of the 
factors the AAO will examine is whether the beneficiary is "key" personnel. In Matter of Penner, 
the Commissioner emphasized that the specialized knowledge worker classification was not 
intended for "all employees with any level of specialized knowledge." 18 I&N Dec. 49 (Comrn. 
EAC 02 288 52341 
Page 6 
1982). According to Matter of Penner, "[s]uch a conclusion would permit extremely large 
numbers of persons to qualify for the 'L-1' visa" rather than just the "key" personnel that 
Congress specifically intended. The skills and knowledge necessary to function as an office 
manager for the petitioning entity appear to be those that any worker could be trained to perform 
as adequately as the beneficiary, thereby; the beneficiary does not appear to be a "key" personnel. 
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, I8 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. 8 16 
(R.C. 1971)). 
As stated by the Commissioner in Matter of Penner, '18 I&N Dec. 49, 52 (Comm. 1982), when 
considering whether the beneficiaries possessed specialized knowledge, "the LeBlanc and Raulin 
decisions did not find that the occupations inherently qualified the beneficiaries for the 
classifications sought." Rather, the beneficiaries were considered to have unusual duties, skills, 
or knowledge beyond that of a skilled worker. Id. The Commissioner also provided the 
following clarification: 
A distinction can be made between a person whose skills and knowledge enable 
him or her to produce a product through physical or skilled labor and the person 
who is employed primarily for his ability to carry out a key process or function 
which is important or essential to the business' operation. 
Id. at 53. In the present matter, the evidence of record demonstrates that the beneficiary is more 
akin to an employee whose skills and experience enable him to produce a specialized gourmet 
meal, rather than an employee who has unusual duties, skills, or knowledge beyond that of a 
skilled worker. 
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., "[slimply 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-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 II New College Dictionary 605 (Houghton Mifflin Co. 
2001). In general, all employees can reasonably be considered "important" to a petitioner's 
enterprise. If an employee did not contribute to the overall economic success of an enterprise, 
there would be no rational economic reason to employ that person. An employee of "crucial 
importance" or "key personnel" must rise above the level of the petitioner's average employee. 
Accordingly, based on the definition of "specialized knowledge" and the congressional record 
related to that term, the AAO must make comparisons not only between the claimed specialized 
knowledge employee and the general labor market, but also between that employee and the 
remainder of the petitioner's workforce. 
EAC 02 288 52341 
Page 7 
Here, the petitioner has provided no documentation to establish that the beneficiary's knowledge 
is more advanced than other employees at the restaurant. Again, the petitioner has not provided 
any information pertaining to the other twelve workers employed by the petitioner. Nor did the 
petitioner distinguish the beneficiary's knowledge, work experience, or training from the other 
employees. The lack of evidence in the record makes it impossible to classify the beneficiary's 
culinary knowledge as advanced, and precludes a finding that the beneficiary's role is "of crucial 
importance" to the business. Going on record without supporting documentary evidence is not 
sufficient for the purpose of meeting the burden of proof in these proceedings. Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). While it may be correct to 
say that the beneficiary is a skilled chef 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 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-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 5 1. 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 "unique7' 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 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 CoZley, 
"[mlost employees today are specialists and have been trained and given specialized knowledge. 
However, in view of the House Report, it can not be concluded that all employees with 
specialized knowledge or performing highly technical duties are eligible for classification as 
intracompany transferees." 18 I&N Dec. at 119. According to Matter of Penner, "[sluch a 
conclusion would permit extremely large numbers of persons to qualify for the 'L-I' visa" rather 
than the "key personnel" that Congress specifically intended. 18 I&N Dec. at 53; see also, 1756, 
Inc., 745 F. Supp. at 15 (concluding that Congress did not intend for the specialized knowledge 
capacity to extend all employees with specialized knowledge, but rather to "key personnel" and 
"executives.") 
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. 
EAC 02 288 52341 
Page 8 
Finally, with regard to counsel's reliance on the 1994 Associate Commissioner's memorandum, the 
memorandum was intended solely as a guide for employees and will not supercede the plain 
language of the statute or the regulations. Although memoranda may be useful as a statement of 
policy and as an aid in interpreting the law, such documents are not binding on any CIS officer as 
they merely indicate the writer's analysis of an issue. The regulation at 8 C.F.R. § 103.3(c) provides 
that only "designated [CIS] decisions are to serve as precedents" and "are binding on all [CIS] 
employees in the administration of the Act." Therefore, by itself, counsel's assertion that the 
beneficiary's qualifications are analogous to the examples outlined in the memorandum is insufficient 
to establish the beneficiary's qualification for classification as a specialized knowledge professional. 
As discussed, the petitioner has not submitted probative evidence to establish that the beneficiary's 
knowledge is uncommon, noteworthy, or distinguished by some unusual quality and not generally 
known in the alien's field of endeavor. 
After careful consideration of the evidence, it is concluded that the beneficiary does not possess 
specialized knowledge; nor would the beneficiary be employed in a capacity requiring 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 petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. Here, that burden has not 
been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.