dismissed L-1B Case: Retail Merchandise

U.S. Department of Homeland Security 
20 Massachusetts Ave. 
Rm A3042 
Washington, DC 20519 'den~~y~~~~ bad -irtisfw ib 
~mp~llt day 
FILE: WAC 04 230 51032 Office: CALIFORNIA SERVICE CENTER Date: 
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PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(lS)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: ' 
TNSTRUCTIONS: 
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. 
Administrative Appeals Ofice 
WAC 04 230 51032 
Page 2 
DISCUSSION: The Director, California 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 is engaged in retail merchandise. It seeks to temporarily employ the beneficiary as a 
product procurement manager in the United States, and filed a petition to classify the beneficiary as a 
nonimmigrant intracompany transferee with specialized knowledge. The director determined that the 
petitioner had established neither that the beneficiary possesses specialized knowledge nor that the 
intended employment required 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 submits a brief and asserts that the 
director's decision was erroneous and that the beneficiary did in fact possess specialized knowledge of the 
petitioner's processes and procedures and that her employment was vital to the petitioner's expansion 
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plans. 
To establish L-I eligibility, the petitioner must meet the criteria outlined in section 101(a)(151)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. tj 1 10 1 (a)(15)(L). Specifically, within three years 
preceding the beneficiary's application for admission into the United States, a qualifying organization 
must have employed the beneficiary in a quaIifying managerial or executive capacity, or in a specialized 
knowledge capacity, for one continuous year. In addition, the beneficiary must seek to enter the United 
States temporarily to continue rendering his or her services to the same employer or a subsidiary or 
affiliate thereof in a managerial, executive, or specialized knowledge capacity. 
The regulation at 8 C.F.R. $ 214.2(1)(3) further states that an individual petition filed on Form 1-129 shall 
be accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ thc 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. 
(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 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. 
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This matter presents two related, but distinct, issues: (1) whether the beneficiary possesses specialized 
knowledge; and, (2) whether the proposed employment is in a capacity that requires specialized 
knowledge. 
Section 214(c)(2)(B) of the Act, 8 U.S.C. 4 11 84(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 a special 
knowledge of the company product and its application in international markets or has an 
advanced level of knowledge of processes and procedures of the company. 
Furthermore, the regulation at 8 C.F.R. $214.2(1)(l)(ii)(D) defines "specialized knowledge" asc 
[Slpecial knowledge possessed by an individual of the petitioning organization's product, 
service, research, equipment, techniques, management, or other interests and its 
application in international markets, or an advanced level of knowledge or expertise in the 
organization's processes and procedures. 
In a letter submitted with the petition dated August 2, 2004, the petitioner explained that the beneficiary 
had four years of procurement experience with the petitioner's Mexican affiliate and that she possessed 
specialized knowledge of the petitioner's proprietary processes and procedures. With regard to the 
beneficiary's proposed position in the United States, the petitioner stated: 
As [plroduct [plrocurement [mlanager in the U.S., [the beneficiary] will be provided an 
opportunity to develop materials management strateges and product procurement 
programs leading to the [petitioner's] group's competitiveness in North and South 
America, and thus contribute to the expansion of the petitioner's business. [The 
beneficiary] will work closely with senior management in the development and 
implementation of the procurement programs in the U.S. for product[s] sold in the Latin 
American market. She will be setting policies, and monitoring and reviewing 
performance of the company's procurement activities. She will then modify these 
activities and develop new operations according to established corporate standards and 
policies, and make recommendations to senior management on other operations. The 
purpose of this important mission is to develop consistent material management 
procedures and policies, data access, and utilization standard throughout the group and to 
increase awareness of standards that have been devised. 
In addition, a specific list of her proposed U.S. duties included the following: 
Responsible for procurement of products necessary for [the petitioner's] stores in 
Mexico; 
Coordinate vendor network expansion; 
Verify compliance with all legal requirements; 
WAC 04 230 5 1032 
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Develop tactical and time objectives for Value I product sourcing; 
Develop direct contacts with manufacturers and reduce company's dependency on 
distributors; 
Look for logistic savings as part of an overall goal of COGS reduction; 
Research tariff classification; 
Develop and maintain updated database of necessary permits and requirements to 
move products; 
Analyze and classify all products to be exported to Mexico; 
Negotiate all necessary permits, authorizations and governmental formalities for 
export of products; 
Responsible for reviewing and approving all shipments prior to export with 
Mexican broker; 
Manage comprehensive information for decision making; and 
Daily review of official report to accommodate changes in procedures, 
requirements, rights and opportunities. 
With regard to her background, the petitioner stated that she held a Bachelor's degree in Marketing from 
El Centro de Ensenanza Tecnica y Superior (CETYS) in Mexicali, Baja California, and has been 
employed by the foreign entity since 2000. The petitioner further stated: 
As [blusiness [dlevelopment [mlanager for [the foreign entity], [the beneficiary] is 
responsible for the Home DCcor and Personal Accessories category of [the foreign 
entity's] products. Her department accounts for 10% of all of [the foreign entity's] total 
sales. {The beneficiary] is responsible for the planning, organizing, and supervision of 
the business development by proper product procurement and marketing of home decor 
and personal accessory products for over 80 stores located in Mexico. [The beneficiary] 
oversees and directs a staff of professional workers, and controls procurement and 
merchandising of 10% of all products distributed throughout [the foreign entity's] stores in 
Mexico. She is in-charge of managing the overall daily operations of the company's hame 
decor and personal accessories business activities and is responsible for managerial 
decision-malung regarding all aspects of the company's procurement and marketing 
processes as they relate to home dCcor and personal accessories for [the foreign entity's] 
stores in Mexico. This includes the development of annual strategic and tactical plans as 
well as the development of a high performance merchandising team. The Transferee has 
comprehensive knowledge in international business and border trade analysis. She is also 
comfortable working with computers and other information systems to accomplish her 
objectives. 
In a request for evidence dated August 24, 2004, the director requested additional information regarding 
the beneficiary's claimed specialized knowledge. Specifically, the director requested that the petitioner 
provide the following: (1) an explanation with regard to how the beneficiary's duties abroad and her 
intended duties in the United States were different or unique from those of other U.S. employees or 
employees of the foreign entity; (2) an explanation with regard to how the beneficiary's training is 
WAC 04 230 5 1032 
Page 5 
exclusive and significantly unique in comparison to that of others employed by the petitioner and/or other 
persons in the field; and (3) a description of the impact upon the petitioner's business if the petitioner were 
unable to obtain the beneficiary's services, and what alternative action would be taken to fill her 
responsibilities. 
The petitioner submitted a response on September 15, 2004. As the petitioner's response is part of the 
record, it will not be repeated in its entirety herein. With regard to the beneficiary's training, the 
petitioner explained that the beneficiary had not undergone formal training at the foreign entity. Instead, 
the petitioner explained that the beneficiary had acquired her specialized knowledge through "her 
performance of important job duties" since the initial establishment of the foreign entity. The petitioner 
re-emphasized her four years of experience with the foreign entity, and contended that this experience 
afforded her significant responsibility within the foreign entity and thus equipped her with an advanced 
level of howledge of the companies procedures. Furthermore, the petitioner contended that a formal 
training program in the United States would not instill the knowledge that the beneficiary has acquired 
upon other employees absent a significant interruption in the petitioner's international business bade. 
With regard to the beneficiary's impact on the petitioner, the petitioner claimed that it was faced with an 
increased product demand, and that "without [the beneficiary's] specialized knowledge, thr: company 
would not be able to sufficiently develop and implement a viable purchasing program to facilitate the 
increase in demand." The petitioner further contended that absent the beneficiary, the petitioner would 
incur significant financial losses resulting from the delayed development of additional retail ou~lets. 
The director determined that the record did not establish employment of the beneficiary in a wsition that 
requires specialized knowledge, nor did it establish that the beneficiary possesses specialized howledge. 
The director noted that the job duties outlined by the petitioner constituted "the type of activities common 
to most any responsible business position in the field of purchasing," and, therefore, the position of 
product procurement manager does not warrant the expertise of someone possessing specialized 
knowledge. Additionally, the director stated that the beneficiary's job duties did not distmguish the 
beneficiary's knowledge as superior or unique from other similarly qualified corporate employees. 
Finally, the director concluded that the beneficiary's duties were merely the standard responsibilities of 
similarly-employed persons working in the fields of purchasing, marketing, or sales. The director 
consequently denied the petition. 
Counsel submits a lengthy brief on appeal in support of the petitioner's assertions that the beneficiary 
possesses specialized knowledge and that the intended employment requires specialized knowledge. 
Counsel addresses each of the director's points individually, yet fails to provide any independent andlor 
objective evidence which would distinguish the beneficiary's knowledge from that of other similarly 
qualified persons with a marketing degree. 
Counsel further refers to the 1994 Associate Commissioner's memorandum and asserts that the 
beneficiary possesses knowledge of a product or process which cannot be easily transferred or taught to 
another individual, which is a characteristic of specialized knowledge according to the memorandum. See 
Memo. from James A. Puleo, Acting Exec. Assoc. Comrnr., Office of Operations, Immigration and 
WAC 04 230 5 1032 
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Naturalization Serv., to All Dist. Dir. et ai., Interpretation of Special Knowledge, 1-2 (March 9, 1994) 
(copy on file with Am. Immig. Law Assn.). Specifically, counsel asserts that "the Beneficiary possesses 
specialized knowledge based on her understanding and familiarity with [the petitioner's] proprietary 
operating system." In conclusion, counsel claims that the beneficiary's knowledge, coupled with her four 
years of experience, is essential to the continued financial viability of the petitioner's enterprise. 
On review, the record does not contain sufficient evidence to establish that the beneficiary possesses 
specialized knowledge or that the intended position in the United States requires specialized knowledge. 
When 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. Id. 
In the present matter, the petitioner has provided ample description of the beneficiary's intended employment 
in the U.S. entity and her responsibilities as a product procurement manager. However, the petitimer has not 
sufficiently documented how the beneficiary's performance of the proposed job duties distinguishes her 
knowledge as specialized. The petitioner repeatedly states throughout the record that the beneficiary has 
noteworthy and in-depth knowledge of the foreign entity's and the petitioner's operational procedures and 
operating structure. The petitioner further asserts that the beneficiary possesses specialized knowledge as 
a result of her four years of work experience in the foreign company, all of which was spent in 
prpcurement. Counsel for the petitioner, however, offers no explanation as to the educational or work 
qualifications necessary for a product procurement manager and merely cites to the beneficiary's 
marketing degree as an extra qualification. However, the petition fails to discuss the reasoning behind the 
claim that the beneficiary, and not another similarly educated person with four years of experience in 
procurement, must perform the duties of the proffered position. Nor does the petitioner provide 
documentation that the beneficiary received training or work assignments focused specifically on the 
petitioner's procurement policies or proprietary operating system. In fact, the petitioner contends that the 
beneficiary received no formal training and acquired her knowledge fiom her four years of on-the-job 
experience with the foreign entity. %le the petitioner and counsel assert that the beneficiary is an "expert" 
with specialized knowledge, 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 industry, 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. Matter of Obaigbena, 19 
I&N Dec. 533,534 (BZA 1988); Matter ofRamirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
It is also appropriate for the AAO to look beyond the stated job duties and consider the importatnce of the 
beneficiary's knowledge of the business's product or service, management operations, or decisi~n-making 
process. Matter of Colley, 18 I&N Dec. 117, 120 (Comm. 1981) (citing Matter ofRaulin, 13 I&N Dec. 
6 18 (R.C. 1970) and Matter ofleBlanc, 13 I&N Dec. 8 16 (R.C. 197 I)).' As stated by the Commissioner 
I 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 
WAC 04 230 51032 
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in Matter of Penner, 18 I&N Dec. 49, 52 (Comm. 1982), when considering whether the beneficiaries 
possessed specialized knowledge, "the LeBIanc 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 shlled labor and the person who is employed 
primarily for his ability to cany 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 her to perform procurement duties, 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 6756, 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 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. 
to be "proprietary," the 1990 Act did not significantly alter the definition of "specialized knowledge" ti-om 
the prior Immigration and Naturalization Service (INS) interpretation of the term. The 1990 Committee 
Report does not reject, criticize, or even refer to any specific INS regulation or precedent decision 
interpreting the term. The Committee Report simply states that the Committee was recommending a 
statutory definition because of "[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 Repart simply 
restates the tautology that became section 2 14(c)(2)(B) of the Act. Id. The AAO concludes, the~fore, the 
cited cases, as well as Matter of Penner, remain useful guidance concerning the intended scope of the 
"specialized knowledge" L-IB classification. 
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Here, the petitioner fails to make reference to the reason that it believes that the beneficiary's knowledge 
is more advanced than other procurement managers in the corporate world. Again, the petitioner has not 
provided any information pertaining to other procurement managers employed by the petitionflr. 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 
knowledge of the petitioner's alleged proprietary operating system and precludes a findiqg that the 
beneficiary's role is "of crucial importance" to the organization. Neither the petitioner nor counsel 
provided any documentation or discussion of a proprietary operating system unique only to the petitioner 
and of which the beneficiary possessed expertise. Simply going on record without supporting 
documentary evidence is not sufficient for the purpose of meeting the burden of proof in these 
proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972), While it 
may be correct to say that the beneficiary is a highly slulled 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 areation 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 knowIedge, but that during the course 
of the sub-committee hearings on the bill, the Chairman specifically questioned witnesses on the level of 
skiH 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 (Novamber 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 d~ties 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-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 15 (concluding that Congress did not intend for the specialized knowledge 
capacity to extend to all employees with specialized lcnowledge, but rather to "key personnel" and 
"executives.") 
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The petitioner also asserted that the beneficiary's knowledge is specialized because she "knbws which 
merchandise lots and opportunities will result in a profitable procurement." Additionally, in reference to the 
1994 INS memorandum, counsel claims on appeal that the beneficiary's knowledge is valuable to the 
petitioner's productivity, competitiveness, image and financial position, and is critical to maintaining the 
growth and expansion currently experienced by the petitioner. While the beneficiary's skills and knowledge 
may contribute to the successfklness of the petitioning organization, this factor, by itself, does not constitute 
the possession of specialized knowledge. The AAO notes that, 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 supersede the plain language of the statute or regulations. Although the memorandum my be usehl 
as a statement of policy and as an aid in interpreting the law, it was intended to serve as guidance and merely 
reflects the writer's analysis of the issue. Therefore, while the beneficiary's contribution to the economic 
success of the corporation may be considered, the regulations specifically require that the beneficiary possess 
an "advanced level of knowledge" of the organization's process and procedures, or a "special knowledge" of 
the petitioner's product, service, research, equipment, techniques, or management. 8 C.F.R. 
§ 2 14.2(1)(l)(ii)(D). As determined above, the beneficiary does not satisfy the requirements for possessing 
specialized knowledge. 
In the present matter, the petitioner has failed to demonstrate that the beneficiary's training, work experience, 
or knowledge in the field of procurement is more advanced than the knowledge possessed by others 
employed by the petitioner, or in the industry. It is clear that the petitioner considers the beneficiary to be an 
important employee of the organization. The AAO, likewise, does not dispute the fact that the beneficiary's 
knowledge has allowed her to competently perform her job in the foreign entity. However, the successful 
completion of one's job duties does not distinguish the beneficiary as "key personnel;" nor does it establish 
employment in a specialized knowledge capacity. 
Nor does the record establish that the proposed U.S. position requires specialized knowledge. Counsel 
contends that an increase in product demand necessitates the services of the beneficiary. Counsel also 
contends that the beneficiary's knowIedge of specific markets is essential to the petitioner's viability. 
While the position of product procurement manager may require a comprehensive knowledge of the 
relevant existing markets and opportunities, there is no documentation, other than counsel's assertion. that 
a product procurement manager must possess advanced, "specialized knowledge" as defined in the 
regulations and the Act. Again, the assertions of counsel do not constitute evidence. Matter of 
Obaigbena, supra; Matter of Ramirez-Sanchez, supra. 
Furthermore, it is noted that on appeal, counsel contends "the lcnowledge and experience possessed by 
[the beneficiary] qualifies her as a person possessing specialized knowledge, even ifthe proposed specific 
job duties in the US. are not of a specialized nature." (Emphasis added). Counsel's statement 
specifically disregards the requirement that the beneficiary be employed in the United States in a 
specialized knowledge capacity, as set forth in 8 C.F.R. 4 214.2(1)(3)(ii). The beneficiary's qualifications 
and experience fail to qualify her for the benefit sought if she will not be employed in the United States in 
a specialized knowledge capacity. Here, counsel incorrectly relies on a mistaken belief that "the only 
requirement for an alien to be classified as an intracompany transferee is the continuous employment of 
one out of the previous three years in a foreign parent, or the such, of the petitioner." Counsel 
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Page 10 
erroneously cites to "INA 9 214.2(1)(l)(ii)(A)" as the authority for this statement, which is in actuality not 
a part of the Immigration and Nationality Act but a provision of the Code of Federal Regulations. This 
provision, found at 8 C.F.R. 5 214,2(1)(l)(ii)(A), merely defines the term "intracompany transferee" and is 
not an actual regulation encompassing the requirements for obtaining a specialized knowledge visa. 
Counsel's reliance on this provision is therefore unpersuasive in this matter. 
The legislative history for the term "specialized knowledge" provides ample support for a restrictive 
interpretation of the term. In the present matter, the petitioner has not demonstrated that the beneficiary 
should be considered a member of the "narrowly drawn" class of individuals possessing specialized 
knowledge. See 1756, Inc. v. Attorney General, supra at 16. Based on the evidence preslented, 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 eligbility 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. Accordingly, 
the director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.