dismissed L-1B Case: Travel

u.s.Citizenship
and Immigration
Services
u.s.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
PUBLICCOPY
IN RE: Petitioner:
Beneficiary:
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 110l(aX15XL)
Petition:
CALIFORNIA SERVICE CENTER Date: cx:T 02 2.001Office:WAC 05 237 52912File:
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.
R~f
Administrative Appeals Office
www.uscis.gov
WAC OS 237 52912
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 filed this nonimmigrant petition seeking to employ the beneficiary as its "product development
specialist" as an L-IB nonimmigrant intracompany transferee with specialized knowledge pursuant to section
101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15XL). The petitioner, a
corporation organized under the laws of the State of California, claims to be a specialty tour operator.
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be
employed in a capacity which involves specialized knowledge.
On appeal, counsel for the petitioner asserts that the petitioner has satisfied the criteria for establishing that
the beneficiary has specialized knowledge. Specifically, counsel asserts that the beneficiary has specialized
knowledge of the petitioner's product, i.e., creating unique, once-in-a-lifetime travel opportunities for clients.
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. 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 three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (l)(1)(ii)(G) ofthis section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full-time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies himlher 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.
At issue in this proceeding is whether the petitioner has established that the beneficiary will be employed in a
WAC 05 237 52912
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capacity which involves specialized knowledge or that the beneficiary has specialized knowledge.
Section 214(cX2)(B) of the Act, 8 U.S.c. § I 184(c)(2)(B), provides:
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)(I)(ii)(D) defines "specialized knowledge" as:
[S]pecial knowledge possessed by an individual of the petitioning organization's product,
service, research, equipment, techniques, management or other interests and its application in
international markets, or an advanced level of knowledge or expertise in the organization's
processes and procedures.
The petitioner described the beneficiary's duties and purported specialized knowledge in a letter dated August
26, 2005 as follows:
As Product Development Specialist, [the beneficiary] is required to establish exclusive
contacts in Australia and New Zealand so that she may create programs that are consistent
with the standard of our existing company products. As part of expansion efforts, [the
beneficiary] has already established many contacts in those countries who will help make our
product unique. As this time, we are seeking [the beneficiary's] help in not only creating new
itineraries and programs for our clients, but also to train our staff in marketing these new
products. In venturing into this new market, we will require [the beneficiary's] expertise in
travel to meet with travel agents all over the U.S. and other key persons to establish the needs
of our clientele. In order to successfully accomplish this, we require someone with in-depth
knowledge of our client-base, such as their demographics, budgets, and travel habits. Her
specific duties will include:
• Participate in strategic meetings with retail travel agencies [sic] clients to identify
market needs;
• Create strategic sales plan for company tailored to our clientele, including
methodology to increase sales by maintaining top sales offerings in the marketplace
and introducing new products;
• Implement those strategic sales and marketing plans;
• Work with vendors to identifY and achieve travel guidelines, including negotiating
rates, services, cooperative marketing campaigns, product revisions, and contracts;
• Identify markets and areas that need further development through analysis of staff
sales and marketing reports;
• Review sales production analysis reports;
• Analyze, assess, and take appropriate measures on Agency Plans, which provide
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updates on products with poor performance, as well as highlights on training
deficiencies;
• Continually evaluate existing and potential products opportunities through sales and
competitive analysis to ensure continued growth and maximum competitive
advantage;
• Develop and maintain superior competitive position through supplier relationships;
and
• Evaluate the effectiveness of marketing plans through analysis of results based on
projected goals and objectives.
On January 26, 2006, the director requested additional evidence. The director requested, inter alia, evidence
establishing that the beneficiary's knowledge is specialized and that she will be employed in a specialized
knowledge capacity.
In response, the petitioner submitted a letter dated February 24, 2006 which describes the petitioner's business
and the beneficiary's purported specialized knowledge. The petitioner explained as follows:
[The beneficiary's] duties performed abroad and those she will perform in the U.S. are unique
in nature as they rely on her extensive knowledge of the travel industry, existing industry
connections in Europe, and excellent negotiating skills. We cannot compare her duties and
responsibilities to other employees within the company, either in the United Kingdom or in
the U.S. as we have no other employees in the same type of position as the [b]eneficiary.
Simply, while other employees sell our product, it is [the beneficiary] who creates the
product.
* * *
Our company is a specialized.travel agency working with travel agents around the U.S. to
provide one-of-a-kind experiences for their clients. As such, it is imperative that we have
someone with extensive knowledge in the European market to facilitate our creation of
unique experiences for our clients. Though there are many travel agents in the industry who
specialize in a particular region, each person's expertise is based upon their own connections
and experiences, and therefore, each person's ability to arrange specialized travel is different.
[The beneficiary] has been this person for us in the European region, and we now seek her
expertise for the Australian and New Zealand market.
* * *
We are a specialty company within the travel industry, similar to companies such as
Abercrombie & Kent, specializing in tailor-made vacations where almost everything can be
possible. The [b]eneficiary's experience in the travel industry, coupled with her ability to
arrange engagements in a variety of venues covering various interests have allowed us to
provide our clients with a reliable resource for their extraordinary travel needs.
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On March 15, 2006, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary will be employed in a capacity which involves specialized knowledge.
On appeal, counsel for the petitioner asserts that the petitioner has satisfied the criteria for establishing that
the beneficiary has specialized knowledge. Specifically, counsel asserts that the beneficiary has specialized
knowledge of the petitioner's product, i.e., creating unique, once-in-a-lifetime travel opportunities for clients.
Counsel further argues that the regulations do not require the petitioner to establish that the beneficiary's
duties will be "different or uncommon" and that the petitioner is only obligated to establish that the
beneficiary possesses specialized knowledge of the company's product or service.
Upon review, counsel's assertions are not persuasive in demonstrating that the beneficiary will be employed in
a specialized knowledge capacity as defined at 8 C.F.R. § 214.2(l)(1)(ii)(D) or that she has specialized
knowledge.
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. § 214.2(JX3)(ii). The petitioner must submit a detailed job
description of the services to be performed sufficient to establish specialized knowledge. In this case, while
the beneficiary's job description describes her duties as a product development specialist, the petitioner fails to
establish that this position requires an employee with specialized knowledge or that the beneficiary has
specialized knowledge.
As a threshold matter, it must be noted that counsel's assertion that only the beneficiary's knowledge, and not
her duties, need to be "specialized" for her to be eligible under this visa classification is without merit. The
regulation at 8 C.F.R. § 214.2(1X3)(ii) clearly requires the petitioner to establish that the beneficiary will be
employed in a "specialized knowledge capacity." Therefore, the beneficiary must not only have specialized
knowledge but must also be employed in a capacity which utilizes this specialized knowledge. The AAO
must look to the proposed job duties to determine whether the beneficiary will be so employed.
Although the petitioner asserts that the beneficiary's proposed position in the United States will require
"specialized knowledge," the petitioner has not adequately articulated any basis to support this claim. The
petitioner has failed to identify any special or advanced body of knowledge which would distinguish the
beneficiary's role from that of other similarly experienced employees in the travel industry at large. Going on
record without documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Specifics are clearly an important indication of whether a
beneficiary's duties involve specialized knowledge; otherwise meeting the definitions would simply be a
matter of reiterating the regulations. See Fedin Bros. Co., Ltd. v. Sava, 724, F. Supp. 1103 (E.D.N.Y. 1989),
aff'd, 905, F.2d 41 (2d. Cir. 1990).
In support of its assertion that the beneficiary's "extensive knowledge of the travel industry, existing industry
connections in Europe, and excellent negotiating skills," as well as knowledge of the petitioner's travel
products, constitute "specialized knowledge," the petitioner relies heavily on its position that its travel
products are unique, one-of-a-kind experiences which require knowledge of the travel industry, client
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preferences, and personal contacts to arrange. The petitioner further asserts that the beneficiary gained this
specialized knowledge through work experience abroad. However, despite counsel's assertions, the petitioner
has not established that the beneficiary's knowledge of the petitioner's travel products or the travel industry
constitutes "specialized knowledge." The record does not distinguish the petitioner's products, or the
beneficiary's knowledge of these products, from similar travel products in the industry. To the contrary, the
petitioner admits that its products are similar to those of other companies such as Abercrombie & Kent.
Without producing evidence that the petitioner's product or service is different in some material way from
similar products or services offered on the market which would make the beneficiary's knowledge
economically burdensome to impart to a similarly experienced employee, the petitioner cannot establish that
the beneficiary's knowledge of the petitioner's products, the travel industry, or negotiating skills is
noteworthy, uncommon, or distinguished by some unusual quality that is not generally known by similarly
experienced personnel engaged within the beneficiary's field of endeavor. Simply asserting that the
petitioner's travel products are "unique" or "one-of-a-kind" is not sufficient to establish that knowledge of the
products is indeed "specialized." Moreover, other than work experience, the petitioner did not identify any
training or other formal education which imparted the purported specialized knowledge to the beneficiary.
Again, going on record without documentary evidence is not sufficient for purposes of meeting the burden of
proof in these proceedings. Matter ojSoffici, 22 I&N Dec. at 165.
Likewise, even assuming that the described knowledge possessed by the beneficiary was sufficiently
"specialized" for purposes of this visa classification, the petitioner failed to establish that the beneficiary will
be employed in the United States in a specialized knowledge capacity. The petitioner described the
beneficiary's purported specialized knowledge as "extensive knowledge of the travel industry, existing
industry connections in Europe, and excellent negotiating skills" and as knowledge of the petitioner's travel
products in general. The petitioner also provided a detailed list of travel experiences related to the
beneficiary's efforts, all of which appear to be related to European travel. However, the duties ascribed to the
beneficiary do not appear to require this purported specialized knowledge. The petitioner stated that the
beneficiary will "establish exclusive contacts in Australia and New Zealand so that she may create programs
that are consistent with the standard of our existing company." The beneficiary does not appear to have any
experience with organizing travel experiences in Australia and New Zealand, and the petitioner has not
established how this position would involve the beneficiary's purported specialized knowledge of "the travel
industry" or "negotiating skills."
The AAO does not discount the likelihood that the beneficiary is a skilled and experienced product
development specialist in the tourism industry who has been, and would be, a valuable asset to the petitioner's
organization. However, it is 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 ofColley, 18 I&N Dec. 117, 120 (Comm. 1981)(citingMatter oJRaulin, 13
I&N Dec. 618(R.C. 1970) and Matter oj LeBlanc, 13 I&N Dec. 816 (R.C. 1971)). As stated by the
Commissioner in Matter of Penner, 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." 18 I&N Dec. 49, 52 (Comm. 1982). 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:
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A distinction can be made between a person whose skills and knowledge enable him or her to
produce a product through physical or skilled labor and the person who is employed primarily
for his ability. to carry out a key process or function which is important or essential to the
business firm's operation.
Id. at 53.
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 tenn "specialized knowledge"
is not an absolute concept and cannot be clearly defined. As observed in 1756, Inc. v. Attorney General,
"[s]imply put, specialized knowledge is a relative ... idea which cannot have a plain meaning." 745 F. Supp.
9, 15 (D.D.C. 1990). The Congressional record specifically states that the L-l category was intended for "key
personnel." See generally, H.R. REp. No. 91-851, 1970 U.S.C.C.A.N. 2750. The tenn "key personnel"
denotes a position within the petitioning company that is "of crucial importance." Webster's II New College
Dictionary 605 general, all employees can reasonably be considered
"important" to a petitIoner s enterpnse. 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 tenn, the AAO
must make comparisons not only between the claimed specialized knowledge employee and the general labor
market, but also between the employee and the remainder of the petitioner's workforce. While it may be
correct to say that the beneficiary in the instant case is a highly skilled 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. REp. No. 91-851, stated that the number of admissions under the L-l classification "will not be
large" and that "[t]he 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 dwing 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 Chainnan's questions, various witnesses
responded that they understood the legislation would allow "high-level people," "experts," individuals with
"unique" skills, and that it would not include "lower categories" of workers or "skilled craft workers." Matter
ofPenner, id. at 50 (citing H.R. Subcomm. No. 1 of the Jud. Comm., Immigration Act of 1970: Hearings on
H.R. 445, 9151 Congo 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 ofPenner, 18 I&N Dec. at 53.
Or, as noted in Matter of Colley, "[m]ost 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
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with specialized knowledge or perfonning highly technical duties are eligible for classification as
intracompany transferees." 18 I&N Dec. at 119. According to Matter ofPenner, "[s]uch a conclusion would
permit extremely large numbers of persons to qualify for the' L-l' visa" rather than the "key personnel" that
Congress specifically intended. 18 I&N Dec. at 53; see also, 1756, Inc. v. Attorney General, 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.")
A 1994 Immigration and Naturalization Service (now Citizenship and Immigration Services [CIS])
memorandum written by the then Acting Associate Commissioner also directs CIS to compare the
beneficiary's knowledge to the general United States labor market and the petitioner's workforce in order to
distinguish between specialized and general knowledge. The Associate Commissioner notes in the
memorandum that "officers adjudicating petitions involving specialized knowledge must ensure that the
knowledge possessed by the beneficiary is not general knowledge held commonly throughout the industry but
that it is truly specialized." Memorandum from Acting Associate Commissioner,
Immigration and Naturalization Service, Interpretation of Specialized Knowledge, CO 214L-P (March 9,
1994). A comparison of the beneficiary's knowledge to the knowledge possessed by others in the field is
therefore necessary in order to detennine the level of the beneficiary's skills and knowledge and to ascertain
whether the beneficiary's knowledge is advanced. In other words, absent an outside group to which to
compare the beneficiary's knowledge, CIS would not be able to "ensure that the knowledge possessed by the
beneficiary is truly specialized." /d. The analysis for specialized knowledge therefore requires a test of the
knowledge possessed by the United States labor market, but does not consider whether workers are available
in the United States to perform the beneficiary's job duties.
As explained above, the record does not distinguish the beneficiary's knowledge as more advanced than the
knowledge possessed by other similarly experienced persons employed in the industry generally. As the
petitioner has failed to document any materially unique qualities to the petitiorier's travel products, the
petitioner's claims are not persuasive in establishing that the beneficiary, while highly skilled, would be a
"key" employee. There is no indication that the beneficiary has knowledge that exceeds that of any other
experienced travel product developer, or that she has received special training in the company's
methodologies or processes which would separate her from any other similarly employed persons.
The legislative history of the term "specialized knowledge" provides ample support for a restrictive
interpretation of the tenn. 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 presented, it is concluded
that the beneficiary has not been employed abroad, and would not be employed in the United States, in a
capacity involving specialized knowledge. For this reason, the appeal will be dismissed.
Beyond the decision of the director, and for the same reasons set forth above, the petitioner has failed to
establish that the beneficiary. has been employed abroad in a specialized knowledge capacity. The record is
devoid of any evidence which materially distinguishes the beneficiary's knowledge from that of other
similarly experienced employees in the industry at large. As explained above, without producing evidence
that the petitioner's products or services are different in some material way from similar products or services
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offered on the market, the petitioner cannot establish that the beneficiary's knowledge of the petitioner's
products is noteworthy, uncommon, or distinguished by some unusual quality that is not generally known by
similarly experienced personnel engaged within the beneficiary's field of endeavor. Simply asserting that the
petitioner's product is "unique" is not sufficient to establish that knowledge of the product is indeed
"specialized." For this additional reason, the petition must be denied.
Beyond the decision of the director, a related matter is whether the petitioner established that it has a
qualifying relationship with the foreign entity, In Quest of the Classics -- London.
The regulation at 8 C.F.R. § 21"4.2(1)(3)states in part 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 defmed in paragraph (l)(l)(ii)(G) of this
section.
8 C.F.R. § 214.2(iXIXiiXG) defines a "qualifying organization" as a firm, corporation, or other legal entity
which "meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate
or subsidiary specified in paragraph (l)(lXii) of this section.". A "subsidiary" is defmed, in part, as a legal entity
"of which a parent owns, directly or indirectly, more than half of the entity and controls the entity." A "branch"
is defined as "an operating division or office of the same organization housed in a different location."
In the initial Form 1-129 petition, the petitioner asserts that the petitioner owns 100% of the foreign entity as a
"parent." In support of this assertion, the petitioner provided a letter dated July 15, 2005 stating that the
petitioner owns 100% of the foreign entity. However, the petitioner did not provide a copy of a stock
certificate or articles of incorporation for the foreign entity and did not offer any explanation as to why these
could not be provided.
The regulations 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 ofChurch Scientology International, 19 I&N Dec. 593 (BIA 1988); see also
Matter ofSiemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 18 I&N Dec. 289
(Comm. 1982). In the 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 and/or stock certificate registry and the articles of incorporation 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
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direction of the subsidiary, and any other factor affecting actual control of the entity. See Matter ofSiemens
Medical Systems, Inc., supra. Without full disclosure of all relevant documents, CIS is unable to determine
the elements of ownership and control.
In this case, the petitioner has failed to supply any evidence of ownership and control of the foreign entity.
The petitioner did not even provide a copy of a stock certificate evidencing ownership of the foreign entity's
issued shares. Without full disclosure, CIS is unable to determine the current ownership and control of the
foreign entity.
Accordingly, the petitioner has not established that the petitioner and the foreign entity are qualifying
organizations as required by 8 C.F.R. § 2l4.2(l)(3)(i), and the petition may also not be approved for this
reason.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 V.S.c. § 1361. Here, that burden has not been met. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.