dismissed L-1B Case: Semiconductor Manufacturing

PUBLIC COPY 
U.S. Dcpartmcnt of Warneland Security 
20 Massachusetts Ave.. N.W., Rm. A3042 
Washington, DC' 20529 
U. S. Citizenship 
and Immigration 
File: LlN-04-042-5 1 737 Office: NEBRASKA SERVICE CENTER D~~~: JUN 2 9 2005 
Petition: Petition for a Nonirnmigrant Worker Pursuant to Section IOI(a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(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. 
i 
obert P. Wiemann, Director 
Administrative Appeals Office 
LlN -04-042-5 1 737 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-I B nonimmigrant 
intracompany transferee with specialized knowledge pursuant to section IOl(a)(l5)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 3 1 lOl(a)(lS)(L). The petitioner is a corporation organized in the State of 
Delaware that provides laser micro-machining solutions for manufacturing processes in the semiconductor 
industry. The petitioner claims that it is the subsidiary o located in Dublin, Ireland. The petitioner 
now seeks to employ the beneficiary for three years as an Applications Engineer. 
The director denied the petition concluding that the petitioner failed to show that the beneficiary was 
employed abroad in a capacity that required specialized knowledge for one year out of the three years 
preceding the filing date of the petition. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director 
applied an erroneous legal standard, and that the beneficiary's entire 17 months of employment abroad 
involved specialized knowledge as required by 8 C.F.R. 5 2 14.2(1)(3). In support of these assertions, counsel 
submits a brief. 
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act, 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. Cj 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 (I)(l)(ii)(G) of this section. 
(ii) Evidence that the atien 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 fill1 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 
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education, training, and employment qualifies him/her to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The issue in the present matter is whether the petitioner has established that the beneficiary was employed 
abroad in a capacity that required specialized knowledge for one year out of the three years preceding the 
filing date of the petition as required in the regulation at 8 C.F.R. $5 214.2(1)(3)(iii) and (iv). 
Section 2 14(c)(2)(B) of the Act, 8 U.S.C. 5 1 184(c)(2)(B), provides the following: 
For purposes of section IOI(a)(lS)(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. 5 214,2(1)(1)(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 
international markets, or an advanced level of knowledge or expertise in the organization's 
processes or procedures. 
In the initial petition filed on December 2, 2003, the petitioner described the beneficiary's past experience 
with the company's operations. Specifically, in an attached letter the petitioner stated the following: 
Since June 2002, [the beneficiary] has been continuously employed in the specialized 
knowledge position of Applications Engineer by the Petitioner's Irish parent company . . . . 
Reporting directly to the Customer Support Manager, [the beneficiary] plays a key role in 
[the foreign entity's] overall customer service and customer relations activities as the primary 
customer contact and liaison for all technical needs. 
As an Applications Engineer, [the beneficiary] provides on-site technical support and 
expertise to the customers of [the foreign entity's] proprietary laser micro-machining systems 
for high-volume manufacturing in the semiconductor industry. Specifically, he serves as a 
technical expert to customers on the installation, set-up, and configuration of [the foreign 
entity's] cutting-edge laser micro-machining equipment. He works closely with customers to 
analyze their product appiication needs and requirements so he may make specific technical 
recommendations to [the foreign entity's] research and development engineers on the design 
of customized solutions. He provides specialized technical guidance, assistance, and training 
to customers, and must ensure that all technical documentation is complete in accordance 
with company policies and procedures. He must also ensure that installation, set-up, and 
configuration activities are conducted according to health and safety regulations. He 
conducts product testing including electrical testing, debugging, and faultfinding, 
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downloading firmware, robot teaching, and set-up and calibration of on-board and laser 
systems. He determines all necessary equipment modifications and upgrades, and schedules 
such work. At all times in the execution of his duties, [the beneficiary] must protect [the 
foreign entity's] highly sensitive and proprietary product information. 
On December 1 1, 2003, the director requested additional evidence. Specifically, the director requested more 
information and documentation to establish that the beneficiary was employed abroad for 12 months in a 
specialized knowledge capacity. The director further stated the following: 
To be eligible for Ll B classification, the beneficiary must have been employed for 12 months 
in the past three years in a specialized knowledge capacity. The evidence clearly shows that 
the beneficiary's work with the petitioning entity began on June 3, 2002. As this petition was 
filed on December 2, 2003, the beneficiary must have obtained his speciaiized knowledge 
prior to December I, 2002. 
In a response dated December 19, 2003, the petitioner submitted a statement addressing the director's 
concerns. As this statement is part of the record of proceeding, it will not be repeated entirely herein. 
However, in part the petitioner stated the following: 
Based on his training, education, and experience, the Beneficiary was hired by the foreign 
employer in June 2002 as an Applications Engineer. As with all other newly-hired 
Applications Engineers of similar backgrounds, the Beneficiary underwent an intensive 12- 
month "training" program on the [foreign entity's] unique . . . methodologies and techniques 
used to install, set-up, and contigure the foreign employer's proprietary laser micro- 
machining for high-volume manufacturing in the semiconductor industry, including Laser 
Dicing@, Via Drilling@, XlSE 300d8, XcamB, and Low-k Scribing@ . . . . This long-term 
training went well beyond teaching basic familiarity with [the foreign entity's] nomenclature 
and procedures, and instead was designed to develop the Beneficiary's more basic technical 
knowledge to an advanced level of "specialized knowledge" of [the foreign entity's] unique 
products, services, research, equipment and techniques. In fact, the Beneficiary was 
specifically hired to be trained as a lead technical expert to provide on-site expertise of [the 
foreign entity's] unique products, services, equipment and techniques to the customers of [the 
foreign entity's] proprietary products. 
During the first 12-months of employment with the foreign employer (June 2002 to June 
2003), the Beneficiary worked at all times under the direct and close supervision of senior 
engineers to perform his assigned duties . . . . 
After one full year [ofj work closely monitored and supervised by senior engineers, the 
Beneficiary began to perform his job duties on a completely independent basis, including the 
exercise of independent decision-making authority. 
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During his entire 17-months of employment with the foreign employer, the Beneficiary 
developed an advanced level of knowledge and expertise in the use of [the foreign entity's] 
proprietary products, and in their application in international markets. The expertise now 
held by the Beneficiary is so specialized that it cannot be transferred to an individual without 
at least one full year of the same on-the-job "training" provided by [the foreign entity] to the 
Beneficiary. 
[Olnly by an intensive one-year assignment with the foreign employer in Ireland can an 
individual acquire the advanced level of specialized knowledge of [the foreign entity's] 
products, services, research, equipment, and techniques, and their applications in international 
markets, to perform the Applications Engineer job duties. 
On January 5, 2004, the director denied the petition. The director determined that the petitioner failed to 
show that the beneficiary was employed abroad in a capacity that required specialized knowledge for one year 
out of the three years preceding the filing date of the petition. Specifically, the director stated that: 
By the petitioner's own statement, the entire 12 month initial training period is required to 
obtain the level of specialized knowledge held by the beneficiary. Therefore, given that the 
beneficiary has only been employed by the petitioning entity for 17 months, the beneficiary 
clearly falls short of the I2 months of employment in a specialized knowledge capacity. 
On appeal, counsel asserts that the director applied an erroneous legal standard, and that the beneficiary's 
entire 17 months of employment abroad involved specialized knowledge as required by 8 C.F.R. 
$ 2 14.2(1)(3). In an attached brief, counsel states the following: 
The denial is based upon the CIS Officer's belief that the Beneficiary's 17 months of work 
abroad in the parent company "falls short of the 12 months of employment in a specialized 
knowledge capacity." 
The 17 months abroad most certainly did include at least 12 months of employment in a 
specialized knowledge capacity . . . . The regulations require evidence that the one year 
abroad "involved specialized knowledge", which is not the standard used by the Officer in the 
decision. The CIS Officer required a much higher standard that would not include any 
training, even [ifl it clearly "involved specialized knowledge." It is here that I believe the 
CIS Officer has used the wrong interpretation of the law . . . . 
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The "training program" which is the source of concern to the CIS Officer was NOT a 
situation where the Beneficiary sat in a classroom all day in order to then become a person 
with specialized knowledge. Rather, the evidence presented shows it was an on-the-job 
mentoring program designed specifically to utilize "Advanced specialized knowledge" and to 
ultimately make the Beneficiary the "lead" technical expert. This does not in any way mean 
he was not a person of specialized knowledge for the full 17 months. The viewpoint that the 
CIS Officer is taking truly takes the entire description of the training program out of context. 
[The] Beneficiary's duties throughout the 17 month period he worked at the parent company 
were consistent with a [sic] the definitions of specialized knowledge as stated in the 
Regulations and the "Puleo" and "Ohata" Memoranda: 
The knowledge of the Beneficiary from his first day at [the foreign entity] was dflerent and 
advanced from that generally found in the industry and even more advanced than that found 
in other workers at [the foreign entity] who did not participate in the Advanced Training 
program. The evidence showed that he started on the very first day [and] "at all times" the 
Beneficiary was doing work that is just cleaerly [sic] different and advanced from his peers: 
Conferring with customers to analyze their [needs] with respect to [the foreign 
entity's] proprietary software, and then conferring with [the foreign entity's] R&D 
teams to design the customer solution using [the foreign entity's] proprietary . . . 
products; 
Following [the foreign entity's] unique procedures to conduct testing, calibration, and 
downloading; 
Applying his advanced understanding of [the foreign entity's] equipment and 
products to determine all necessary modifications. . . 
The Beneficiary's knowledge throughout the 17 months was uncommon not just because he 
worked strictly with [the foreign entity's] proprietary products, but because he was under the 
special training to become a Lead expert. 
The proprietary nature of the products and the advanced training received by the Beneficiary 
make his skills not eusily tran~femhle to m individuul wilh o similar degree und experience 
in the field. 
(Emphasis in original). Counsel further asserts that the Act and relevant regulations do not require the 
beneficiary to have been employed for one year out of the preceding three in a specialized knowledge 
capacity. Counsel notes that 8 C.F.R. 5 214.2(1)(3) requires a petitioner to submit evidence that the 
beneficiary's prior one year of employment abroad was in a position that involved specialized knowledge. 
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Counsel asserts that, "[bly its plain meaning, 'involved' is not the same thing as being 'fully and completely' a 
person of specialized knowledge, but this is the standard that the CIS Officer demanded." 
Upon review, the petitioner has not demonstrated that the beneficiary was employed abroad in a specialized 
knowledge capacity for at least one year out of the preceding three. See section 214(c)(2)(B) of the Act, 
8 U.S.C. 5 1184(c)(2)(B); 8 C.F.R. $ 214.2(1)(l)(ii)(D). 
In examining whether the beneficiary was employed abroad in a specialized knowledge capacity, the AAO 
will look to the petitioner's description of the foreign job duties. See 8 C.F.R. 214.2(1)(3)(iv). The petitioner 
must submit a detailed description of the services 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. Mutrer of C'olley, 18 I&N Dec. 1 17, 120 (Comm. 198l)(citing Mutter uf Ruulin, 13 I&N Dec. 61 8 
(R.C. 1970) and Matter of LeBlunc, 13 l&N Dec. 816 (R.C. 197 I)).' As stated by the Commissioner in 
Matter o$Penner, 18 I&N Dec. 49, 52 (Comm. 1982), when considering whether the beneficiaries possessed 
specialized knowledge, "the LeBlmc and Ruulin 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. 
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 
Generul, "[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 generully, H.R. Rep. No. 91-851, 1970 U.S.C.C.A.N. 2750. The term "key 
' 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 21 4(c)(2)(B) of the Act. Id. The AAO 
concludes, therefore, that the cited cases, as well as Mutter nfPrnnrr, remain useful guidance concerning the 
intended scope of the "specialized knowledge" L- I B classification. 
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personnel" denotes a position within the petitioning company that is "of crucial importance." Webster's II New 
College Diclionury 605 (Houghton Mifflin Co. 2001). In general, all einployees 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-l 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." Mutter 
ojPenner, id. at 50 (citing H.R. Subcomm. No. 1 of the Jud. Comm., Immigration Act of 1970: Hearings on 
H.R. 445,9 1 st Cong. 2 10,2 18,223,240,248 (November 12,1969)). 
Reviewing the Congressional record, the Commissioner concluded in Mutter 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 Clolley, "[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 
intracornpany transferees." I8 I&N Dec. 1 17, 1 19 (Comm. 198 1). According to Mutter 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 knowledge, but rather to "key personnel" and --executives.") 
In the instant matter, counsel makes conflicting assertions regarding whether the petitioner is required to show 
that the beneficiary was employed abroad in a specialized knowledge capacity. Counsel interprets section 
101(a)(15)(L) of the Act and the regulations at 8 C.F.R. $6 2[4.2(1)(l)(ii)(A), (D), and (E) to mean that the 
petitioner has no obligation to show that the beneficiary's employment abroad was in a specialized knowledge 
capacity. Counsel then states that the regulation at 8 C.F.R. 4 214.2(1)(3) merely requires the petitioner to 
show that the beneficiary's employment abroad "involved" specialized knowledge, which counsel asserts is a 
lesser standard than showing that the beneficiary was "'fully and completely' a person of specialized 
knowledge." In assessing the requirements for classifying a beneficiary as an L-I B intracompany transferee 
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with specialized knowledge. the AAO looks to all applicable law and precedent as discussed above, to include 
the Act, the regulations, the Congressional record, and binding precedent decisions from federal courts, the 
Board of Immigration Appeals, and the AAO. When one source fails to reference a particular requirement, 
the AAO will not interpret that omission as a contradiction or indication that such a requirement does not 
exist. Thus, counsel's suggestion that section 101(a)(15)(L) of the Act and the regulations at 8 C.F.R. 
$9 214,2(I)(l)(ii)(A), (D), and (E) undermine a determination that the beneficiary must have worked in a 
specialized knowledge capacity abroad is not persuasive. By counsel's own admission, this requirement 
appears in other sources, such as the regulation at 8 C.F.R. 3 2 14.2(1)(3). As discussed above, it is incumbent 
upon the petitioner to establish that the beneficiary was employed abroad in a capacity that involved 
specialized knowledge for one year out of the three years preceding the filing of the petition. 
Counsel further claims that the director applied an unduly strict interpretation of what constitutes employment 
involving specialized knowledge. Specifically, counsel takes issue with the fact that the director excluded the 
beneficiary's time in training from qualifying as employlnent involving specialized knowledge. However, the 
petitioner stated that "only by an intensive one-year assignment with the foreign employer in Ireland can an 
individual acquire the advanced level of specialized knowledge of [the foreign entity's] products, services, 
research, equipment, and techniques, and their applications in international markets, to perform the 
Applications Engineer job duties." The petitioner further asserted that "[tlhe expertise now held by the 
Beneficiary is so specialized that it cannot be transferred to an individual without at least one full year of the 
same on-the-job 'training' provided by [the foreign entity] to the Beneficiary." Thus, the petitioner explicitly 
states that the beneficiary could not have obtained specialized knowledge until he had completed one year of 
on-the-job training with the foreign entity. Accordingly, the director appropriately excluded the beneficiary's 
first year of employment with the foreign entity in determining the length of time that the beneficiary was 
employed abroad in a capacity involving specialized knowledge. 
As the beneficiary was employed for a total of 17 months with the foreign entity as of the date the petition 
was filed, the director correctly concluded that the beneficiary was employed in a specialized knowledge 
capacity for five months. This falls short of the required 12 months of employment involving specialized 
knowledge. See 8 C.F.R. 5 2 14.2(1)(3)(iv). 
Counsel claims that "[tlhe knowledge of the Beneficiary from his first day at [the foreign entity] was diferent 
and advanced from that generally found in the industry . . . ." (Emphasis in original). However, the 
beneficiary's resume reflects that he graduated from Dublin City University with a bachelor's degree the same 
month he began his etnployment with the foreign entity. The petitioner has failed to explain how his 
knowledge and expertise distinguished him from similar recent college graduates. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of SoJfici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treusure Crafi of 
California, 14 I&N Dec. 190 (Reg. Comm. 1 972)). It is further noted that knowledge and experience that the 
benetjciary gained while studying or working outside of the petitioner's family of companies cannot be 
deemed specialized knowledge, as such knowledge is not specific to the petitioner's or foreign entity's 
products, processes, or procedures. 
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Additionally, the petitioner has failed to distinguish the beneficiary's knowledge from that held by other 
employees within its family of companies, such to establish that he qualifies as key personnel. The petitioner 
stated that, "[als with all other newly-hired Applications Engineers of similar backgrounds, the Beneficiary 
underwent an intensive 12-month 'training' program on the [foreign entity's] unique . . . methodologies and 
techniques . . . ." The petitioner has not indicated the number or percentage of the foreign entity's employees 
that received the same training, yet it appears that the beneficiary completed routine training that is afforded 
to many of the foreign entity's new staff metnbers. While the petitioner indicated that the beneficiary was 
selected to be trained as a lead technical expert, it has failed to adequately describe how such designation has 
impacted the beneficiary's training or the level of knowledge he possesses. The petitioner has failed to 
identify who the beneficiary leads. Additionally, the petitioner has not indicated the number or percentage of 
its staff members who are targeted to become lead technical experts. The petitioner does specify that "nearly 
70% of the company [is] intently focused on technology and process development . . . ." This statement 
suggests that there are numerous employees in the foreign entity that received the same training and perfonn 
similar work as the beneficiary. Thus, the petitioner has failed to show that the beneficiary is truly 
distinguished among the foreign entity's employees such that he qualifies as key personnel with specialized 
knowledge. 
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 demonstrated that the beneficiary should be 
considered a member of a "narrowly drawn" class of individuals possessing specialized knowledge. See 
1756, Inc. v. Attorney Gmrrul, supra at 16. Based on the foregoing, the AAO concludes that the petitioner 
has not established that the beneficiary was employed abroad in a capacity that involved specialized 
knowledge for one year out of the three years preceding the filing date of the petition. 8 C.F.R. 
$214,2(1)(3)(iv). For this reason, the appeal will be dismissed. 
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 appeal will be dismissed. 
ORDER: The appeal is dismissed.