dismissed L-1B Case: Wellness

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identifying data aeieted to
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U.S. Department of Homeland security"'" , -.;
20 Massachusetts Ave., N.W., Rm. 3000 '\
Washington, DC 20529
u.S.Citizenship
and Immigration
Services'
PUBUC--COPy
File:
INRE:
EAC 05 027 53667
Petitioner:
Beneficiary:
Office: VERMONT SERVICE CENTER Date: NOV'272006
Petition: Petition for a Nonimmigrant Worker Pursuant to Section lOl (a)(15)(L} of the
Immigration and Nationality Act, 8 U.S.C. § llOl(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.
JObert P. Wieman, hief
(Ud~inistrative Appeals Office
www.uscis.gov
EAc 05 02753667
Page.2
DISCUSSION: .. The Director, Vermont 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 an L-lB 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)(15)(L). The petitioner operates and manages fitness .centers.
providing training in the methodologies and practiceofDahnhak and Brain Respiration. It claims to be subsidiary
of Dahn World Co., Ltd. located in Seoul , Korea. The petitioner seeks to employ the beneficiary as a Brain
Respiration Instructor for a periodof three years.
The director denied the petition concluding that the petitioner failed to establish that the beneficiary possesses
specialized knowledge or that the prospective position in the United States requires an individual with
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 for the petitioner asserts that the director
based his decision on an inaccurate or incomplete review of the evidence submitted and did not correctly
apply the statute and regulation. 'Counsel asserts that the petitioner submitted sufficient evidence to establish
that the beneficiary has an advanced level of knowledge of the petitioner's techniques and methodologies and
therefore qualifies for the visa classification sought. Counsel submits a brief in support of the appeal.
To establish L-l eligibility, the petitioner must meet the criteria outlined in section 101(a)(l5)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.c. § I 10I(a)(l5)(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 qualifying 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 Of 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 the
alien are qualifying organizations as defined in paragraph (l)(I)(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.
EAC 05 027 53667
Page 3
(iv.) Evidence that the alien 's prior year of employment abroad was in a position that was
managerial , executive or invol ved 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.
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. § 1184(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 ofknowledge of processes and procedures of the company .
Furthermore , the regulation at 8 C.F.R. § 214.2(l)(1)(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 nonimmigrant petition was filed on November 8, 2004 . In a letter dated October 27,2004, the petitioner
explained its Brain Respiration methodology and requirements for the pos ition of Brain Respiration
Instructor:
Brain Respiration is an educational method that optimizes the brain 's functions through
integrated exercises for the body and mind.
The Brain Respiration program combines breathing techniques, brain exercises , and fun
developmental activities . ...
Brain Re spiration is a modular program that can be customized to meet any of the particular
needs of individuals or classes.
Brain Respiration views the brain in a holistic manner. It recognizes that the brain is not
simply an organ , but is the center of the whole human body energy system. BR explores
everything from the basic physiological functions of the body to the highest executive
functions of the mind. This holistic perspective is incorporated into the BR 5 Steps that begin
with awakening and enhancing our fi ve senses to ultimately developing the brain 's full
potential. . ..
..
EAC 05 027 53667
Page 4
The Brain Respiration Instructor position requires practical and experiential knowledge in order
to teach the methods and theories of Brain Respiration. The Instructor must also have expertise in
the administration of the the Power Brain device and the Aura Imaging machine .
The BR-Q system is the world's first scientific brain innovation system that combines the Brain ,
Respiration program with brain wave synchronizing technology . '. .. The Power Brain is a
portable brain energizer. . . . The Aura Imaging machine is used to diagnose an individual's
energy patterns and blockages.
The position of Brain Respiration Instructor requires a certificate ofcompletion of [the foreign
entity's] two-year instructor training program, and certificates of completion of [the foreign
entity's] Brain Respiration training programs.
The petitioner noted that the foreign entity employs approximately 900 instructors teaching at more than 360
meditation centers in Korea, and noted "the only school where Dahnhak instructor training certification can
be obtained is located in Korea ."
The petitioner further provided the following description for the beneficiary 's proposed position as a Brain
Respiration Instructor :
[The beneficiary] will perform in a specialized knowledge capacity teaching the techniques of
Brain Respiration according to the methods developed by [the foreign entity] The position of
Brain Respiration Instructor involves provision , utilization , and application of specialized
knowledge of the company's product , services and techniques . [The beneficiary] will be
responsible to develop, execute and coordinate training and programs in Brain Respiration.
She will discuss and demonstrate the practicality of the Brain Respirat ion practice with
participants and monitor and evaluate each participants progress for admission to the next
level of training on an individual basis .... [The beneficiary's] presence in the United States is
indispensable since she possesses an advanced level of expertise of [the foreign entity's]
methodologies and teaching techniques.
In an attached statement, the petitioner provided the following additional information regarding the proposed
duties :
Brain Respiration Instructor in the methodology of meditation and exercise .
1.
2.
3.
4.
5.
6.
Teach the principals and techniques of Brain Respiration
Prepare Brain Respiration Assignments
Develop , execute and coordinate training and programs in Brain Respiration
Discuss and demonstrate the practicality of the Brain Respiration practice with
partic ipants
Monitor and evaluateeach participant's progress
Evaluate individual student progress and determine when techniques have been
mastered to allow "graduation" into the next level.
EAC 05 027 53667
Page 5
Finally, the petitioner described the beneficiary 's employment, training and prior experience:
[The beneficiary] attended the attached to [the foreign entity] from
March 2000 to February 2002, and completed the [foreign entity 's] courses required to
perform in the specialized lrnowledge position of Dahnhak Instructor. In February 2002, [the
beneficiary] received her Instructor Certification from the Korean Dahn Hak Do Association ·
to teach Dahnhak, Taorobics, and Dahn Yoga. In December 2003, [the beneficiary] received
additional Dahn Cert ification as a Brain Respiration Instructor, qualified to teach the Brain
Respiration Method, Steps 1,2, and 3.
[The beneficiary] has worked for [the foreign entity] for two years progressing from an
Assistant Dahhak Instructor to a•••••••••• 1r
[The beneficiary] possesses the required level of unique and specialized knowledge and
expertise not readily available in the United States to teach the organization 's unique
processes and procedures of Brain Respiration.
In support of the petition , the petitioner provided a certificate of employment from the foreign entity ; a letter
from the 6kihiIIkk66 Association confirming the beneficiary's completion of a two-year training course for
and identifying the 39 courses completed in connection with the program; a letter from
' .Dahnllak Do. Association confirming the beneficiary's completion of six courses required for Brain
Respiration Instructors for 1st, 2nd and 3 rd Stage BR tra ining; and copies of certificate of completion for the
above-referenced training courses. .
The petitioner also provided an organizational chart and employee list for the U ,S. company. Based on the
employee list, more than 50 of the company's 92 employees are employed as Brain Respiration Instructors or
Senior Brain Respiration Instructors. In addition, the petitioner provided additional information regarding its
Dahnhak and Brain Respiration programs, excerpted from the company's web site, and submitted evidence
that the company has obtained service marks or trademarks from the United States Patent and Trademark
Office for terminology utilized in its programs of instruction .
The director denied the petition on December 8, 2004, concluding that the petitioner had failed to establish
that the beneficiary possesses specialized lrnowledge or that the she would be employed in the United States
ina position requiring specialized lrnowledge. The director summarized the beneficiary 's position description
noting that the duties of a brain respiration instructor are "typical for that job." The 'director found that it
"does not appear that within a very short period of time any qualified person could not assume the position ."
The director noted that although thepetitioner 's organization may utilize procedures , policies and training that
are specific to the company , "the same would be true of any business."
The director further determ ined that the petitioner had failed to support its assertion that the beneficiary
"holds an advanced level of expertise of [the foreign entity's] methodologies and teaching techniques ," noting
that based on the petitioner 's representations, she is one of 900 instructors performing similar duties at the
foreign entity 's 360 meditation centers. The director observed that mere familiarity with an organization 's '
EAC 05 027 53667
Page 6
product or service, such as lmowledge of' :its operational procedures , does not constitute specialized
. lmowledge. The director concluded that the petitioner had not submitted sufficient evidence to demon strate
that the beneficiary 's duties involve lmowledge or expertise beyond what is commonly held in her field.
The petitioner filed an appeal on January 5 , 2005. In her appellate brief, counsel for the petitioner objects to
the director's conclusions that the beneficiary 's duties as a b.rain respiration instructor are "typical " or that any
qualified person could assume the position "with in a very short period of time." Counsel further asserts that
"the fact that there ~re 900 instructors outside the United States does not in any way demonstrate that the
lmowledge is not 'specialized. '" Counsel emphasizes that each of the foreign entity's instructors has
undergone at least two years of "specific, unique training, not currently available in the United States."
Counsel further describes the petitioner's methodologies and the need for the beneficiary's services in the
United States:
Dahnhak and Brain Respiration are comparatively new methodologies for mindlbody training in
. the United States. At this t ime, they are unfamiliar and hot well lmown but [the petitioner 's]
Dahnhak fitness centers are an expanding business, with locations in twelve states. Clearly the
unfamiliarity and the superficial similarity to yoga or other less demanding and less complex
disciplines is not helpful in explaining why Dahnhak and Brain Respiration instructors must have
the specialized lmowledge required by the . Training in Dahnhak and Brain
Respiration is demanding, complex , and includes principles of oriental and holistic natural health
disciplines, as well as a unique and complex physical interface.
[The petitioner] requires [the beneficiary 's] unusual, distinct and advanced lmowledge of [the
petitioner's] products, techniques, processes and procedures. [The beneficiary] has been selected
to work in the U.S . centers because lmowledge at the Dahnhak instructor level is not currently
available in the U.S, . labor market, and that absence hampers the ability of [the petitioner] to
conduct business in the United States ....
[The beneficiary] has extensive training in the Dahnhak methodologies of movement (similar to
. yoga) and breathing and breath control, referred to in Dahnhak as "brain respiration." It is not ...
something that could be learned 'within a very short period of time.'
Counsel also objects to the director 's observation that all businesses require their employees to be familiar
with company policie s and procedures and undergo train ing particular to the company. Counsel emphasizes
that the beneficiary 's lmowledge "is not merely 'particular,' but is unique and proprietary to [the foreign and
U.S. entities]. " Counsel as ~erts that the "statutory purpose of the L-l category is to allow person s with
advanced and special knowledge of the petitioning company's policies , procedures, services and products to
be transferred to the United States so that essentiallmowledge will be available to the company in the Un ited
States, to enhance its ability to compete successfully. " Counsel contends that the beneficiary 's level of
lmowledge "exactly fits that description " and emphasizes that the beneficiary is trained in unique
services/products which are "critical to the company's success in the United States." .
/
EAC 05 027 53667
Page 7
Counsel refers to a 1994 legacy Immigration and Naturalization Service memorandum from James A. Puleo
which provides guidance in the interpretation of specialized knowledge . See Memorandum of James A. Puleo ;
Acting Executive Associate Commissioner , USINS , Interpr etation ofSpecial Knowledge, CO 2l4L-P (March
9, 2004)(Puleo · memorandum). Counsel notes that the Puleo memorandum requires the beneficiary 's
knowledge to be different from that generally held within the industry and "uncommon," but not proprietary
or unique, as well as "advanced" but not necessa rily narrowly held within the company. Counsel states that
the Puleo memorandum outlines possible characteristics of employees possessing specialized knowledge , and
specifically asserted that the beneficiary : (1) possesses knowledge that is valuable to the employer 's
competitiveness in the marketplace; (2) possesses knowledge which normally can be gained only through
prior experience with the employer; and, (3) possesses knowledge of a product or process which cannot be
easily transferred or taught to another individual.
Counsel once again emphasizes that the training required for the offered position is only available through the
petitioner's group in Korea, and asserts that the beneficiary , based on her two and one half years of training ,
has "an advanced level of knowledge of the key component of the petitioner's business , the techniques and
methodologies of Dahnhak and Brain Respiration ." Counsel concludes by stating that the knowledge required
for the position is not available in the United States , it is "advanced " because it requires at least two years of
instructor training , and it is "specialized" in that it is "unique and specific to [the petitioner] and available
only from the parent company in Korea .
On review , the petitioner has not demonstrated that the beneficiary possesses specialized knowledge or that
the prospective position in the United States requ ires "specialized knowledge " as defined in sect ion
2l4(c)(2)(B) of the Act , 8 U.S.c. § 1184(c)(2)(B) , and the regulation at 8 C.P .R § 214.2(l)(1)(ii)(D).
In examining the specialized knowledge capacity of the beneficiary, the AAO will look to the petitioner's
description ofthe job duties. See 8 C.P.R § 214.2(l)(3)(ii). The petitioner must submit a detailed description of
the services to be performed sufficient to establish specialized knowledge. Id. It is also appropriate for the
AAO to look beyond the stated job duties and consider the importance of the beneficiary's knowledge of the
business's product or service, management operations , or decision-making process . See Matter of Colley, 18
I&N Dec. 117, 120 (Comm. 1981) (citing Matter of Raulin , 13 I&N Dec. 618 (RC . 1970) and Matter of
· 1 · .
LeBlanc, 13 I&N Dec . 816 (R.C. 1971)).
I Although the cited precedents pre-date the curr ent statutory definition of "specialized knowledge," the AAO
finds them instructive . . Other than delet ing the former requirement that special ized knowledge had to be
"proprietary," the 1990 Act d id not significantly alter the definition of "spec ialized knowledge" from the prior
INS interpretation of the term. The 1'990 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 "[vjarying [i.e., not specifically incorrect] .
interpretations by -INS," H.R. Rep. No. 101-723(1) , at 69, 1990 U.S.C.C.A .N. at 6749. Beyond that, the
Committee Report simply restates the tautology that became section 214(c)(2)(B) of the Act. Id. The AAO
concludes , therefore , the cited cases, as well as-Matter of Penner, remain useful gu idance concerning the
intended scope of the "specialized knowledge " L-1B classification.
EAC 05 027 53667
Page 8
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.
!d. 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. The evidence of record demonstrates that the beneficiary is more akin to an employee whose skills
and experience enable her to provide a service, rather than an employee who has unusual duties, skills , or
knowledge beyond that of a skilled worker.
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). Although the definition of "specialized knowledge" in
effect at the time of Matter ofPenner was superseded by the 1990 Act to the extent that the former definition
required a showing of "proprietary" knowledge, the reasoning behind Matter ofPenner remains applicable to
the current matter. The decision noted that the 1970 House Report, H.R. No. 91-851, was silent on the
subject of specialized knowledge , but that during the course of the sub-committee hearings on the bill, the
Chairman specifically questioned witnesses .on the level of skill necessary to qualify under the proposed "L"
category. In response to the Chairman's questions, various witnesses responded that they understood the
legislation would allow "high-level people," "experts," individuals with "unique" skills , and that it would not
include "lower categories" of workers or "skilled craft workers ." Matter of Penner, supra at 50 (citing H.R.
Subcomm. No .1 of the Jud. Comm., Immigration Act of 1970: Hearings on H.R . 445, 91st Congo 210, 218,
223,240,248 (November 12, 1969)).
Reviewing the Congressional record, the Commissioner concluded 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
. with specialized knowledge or performing 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., 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 .")
Thus, based on the intent of Congress in its creation of the L-IB visa category, as discussed in Matter of
Penner, even showing that a.beneficiary possesses specialized knowledge ·does not necessarily establish
EAC 05 027 53667
Page 9
eligibility for the L-1B intracompany transferee classification. The petitioner should also submit evidence to
show that the beneficiary is being transferred to the United States as a crucial employee . As determined by the
director, and as discussed below , the beneficiary's job description does not distinguish her knowledge as more
advanced or distinct among brain respiration instructors employed by the foreign or U .S. entities or by other
unrelated companies who have developed similar meditation and exercise programs based on similar
principles. The statutory definition of specialized knowledge requires the AAO to make comparisons in order
to determine what con stitutes specialized .knowledge. The term "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 isa relative .. .idea which cannot have a plain meaning." 745 F .Supp.9, 15 (D.D.C.
1990).
The Congressional record specifically states that the L-1 category was intended for "key personnel. " See
generally, H.R. Rep. No. 91-851 , 1970 U .S.C.C.A.N. 2750. The term "key personnel" denotes a position
within the petitioning company that is "of crucial importance." Webster's 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 ,
therewould 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 . .
Although the Immigration Act of 1990 provided a statutory definition of the term "specialized knowledge,"
Congress did not give any indication that it intended to expand the field of aliens that qualify as possessing
specialized knowledge. Although the statute omitted the term "proprietary knowledge" that was contained in
the :regulations , the statutory definition still calls for "special knowledge " or an "advanced level of
knowledge," similar to the original regulation . Neither the 1990 House Report nor the amendments to the
statute .indicate that Congress intended to expand the visa category beyond the "key personnel" that were
originally mentioned in the 1970 House Report. Considered in light of the original 1970 statute and the 1990
amendments, it is clear that Congress intended for the class of nonimmigrant L-1 aliens to be narrowly drawn
and carefully regulated, and to this end provided a specific statutory definition of the term "specialized
knowledge" through the Immigration Act of 1990.
On appeal, counsel relies on the 1994 Puleo memorandum , asserting that it represents current CIS pol icy of
specialized knowledge cr iteria. It must be noted that in making a determination as to whether the knowledge
possessed by a beneficiary is special or advanced, the AAO relies on the statute and regulations, legislative
history and prior precedent. Although counsel suggests that CIS is bound to base its decision on the above­
referenced memorandum, the memorandum was issued as guidance to assist CIS employees in interpreting a
term that is not clearly defined in the statute , not as a replacement for the statute or the original intentions of
Congress in creating the specialized knowledge classification , or to overturn prior precedent decisions that
continue to prove instructive in adjudicating L-1B visa petitions. The AAO will weigh guidance outlined in
the policy memorandum accordingly, but not to the exclusion of the statutory and regulatory definitions,
legislative history or prior precedents. .
-.
EAC 05 027 53667
Page 10
Furthermore, the ' Puleo memorandum allows 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 Acting 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 istruly specialized."
Puleo memo, supra. A comparison of the beneficiary 's knowledge to the knowledge possessed by othersin
the field is therefore necessary in order to determine 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, Cl'Swould not be able to ensurethat the knowledge possessed by the
beneficiary is not general knowledge held commonly throughout the industry but that it is truly specialized.
Id. The analysis for specialized knowledge therefore requires a test for 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.
In this matter, the petitioner has provided only general descriptions of the beneficiary's current and proposed
roles as a Brain Respiration Instructor that convey little understanding of the type or extent of specialized
. knowledge that would be required to successfully perform the purported job duties. The job descriptions and
supporting evidence provided do not establish that the beneficiary has acquired specialized knowledge of the
organization's product, service, research, equipment, techniques or other interests, that she possesses an
advanced knowledge or expertise in the company's processes and procedures, or that she would apply
"specialized" or "advanced knowledge" in order to perform the duties of the position offered in the United
States. See 8 C.F .R. §-214.2(l)(l)(ii)(D). The petitioner indicates that the beneficiary has been and would be
providing instruction in principles and techniques of Brain Respiration , preparing assignments, developing
and coordinating training and programs, discussing and demonstrating the practicality of Brain Respiration
with participants , monitoring and evaluating participants ' progress, and evaluating individual students: These
duties are .general and could describe any instructor in virtually any type of "mind-body" fitness training
program .
Accordingly, the ,petitioner must differentiate the knowledge required to instruct students in its "Brain
Respiration" techniques as different or uncommon from that generally found in the petitioner 's industry in
order to establish that the beneficiary's knowledge is "specialized." As noted in the Puleo memorandum, the
mere fact that a petitioner alleges that an alien 's knowledge is somehow different does not , in and of itself,
establish that the alien possesses specialized knowledge . The petitioner bears the burden of establishing
through the submission of probative evidence that the alien 's knowledge is uncommon , noteworthy , or
distinguished by some unusual quality and not generally known by practitioners in the alien 's field of
endeavor.
Counsel attempts to differentiate the beneficiary's knowledge by asserting that "training in Dahnhak and. .
Brain Respiration is demanding, complex , and includes principles of oriental and holistic natural health
disciplines, as well as a unique and complex physical interface." Counsel further states that "the unfamiliarity
and the superficial similarity to yoga or other less demanding and less complex disciplines is not helpful in
explaining why Dahnhak and Brain Respiration instructors must have the specialized 'knowledge required by
[the petitioner.]" The unsupported statements of counsel on appeal or in a motion are not evidence and thus
EAC 05 027 53667
Page 11
are not entitled to any ev identiary weight. See INS v. Phinpathya, 464 U.S. 183 , 188-89 n.6 (1984) ; Matter of
Ramirez-Sanchez , 17 I&N Dec. 503 (BIA 1980 ). The petitioner cannot satisfy its burden of proof by merely
stating that the company 's practices are "complex" and claiming that no "useful " comparison can be made to
other disciplines which would appear to be related. As noted above, CIS must make comparisons in order to
determine whether the beneficiary 's claimed knowledge is different from that commonly found in the
industry. Notwithstanding counsel 's assertion that the petitioner 's programs cannot be compared to yogathe
AAO notes evidence in the record that indicates that the petitioner is doing business in the United States as
Further, a review ' of the beneficiary's transcript from the DahnHak Do Association, described as an "attached
association" of the foreign entity, indicates that her coursework included general training in oriental
philosophy and herbs, reflexology, anatomy and physiology, Yoga, chiropractics , acupuncture, Taekwondo
and other martial arts, medical science, meditation, exercise , pathology, psychology and other areas that
. cannot be considered uncommon in her field. The beneficiary's specific training in Brain Respiration
consisted of only six courses completed while she was employed full-time as a DahnHak instructor : The
actual number of hours of training required to complete the Brain Resp iration coursework has not been
provided. By itself, work experience and knowledge of a finn 's technically complex products or
methodologies will not equal "special knowledge ." See Matt er ofPenn er, 18 I&N Dec. at 53.
The petitioner's failure .to attempt to distinguish its methods and techniques from those offered by other
employers providing s imilar services undermines its claim that the knowledge possessed by the beneficiary
and required for the U.S. posit ion is truly specialized . Going on record without supporting documentary
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici,
22 I&N Dec. 158, 165 (Comm. 1998}(citing Matter of Treasure Craft of California , 14 I&N Dec. 190 (Reg.
Comm . 1972)).
The AAO recognizes that the petitioner has registered service marks with the United States Patent and
Trademark Office for the terms "Brain Respiration" and "Dahnhak," . but this evidence alone does not
. establish that these practices are significantly different from comparable techniques used by other employers
in the petitioner's industry. For example, the "Brain Respiration" service mark was registered as "educational
and instructiomil services , namely, a program to enhance mental, emotional and physical capabilities through
visualization , mediation, relaxation and exercise." "Dahnhak "(translated as "energy learn ing") was registered
for "educational services, namely conducting seminars and classes in the field of holistic health ." The fact that
the petitioner has registered names for the services it pro vides, without additional evidence , does not support
the petitioner's claim that familiarity with the petitioner's methods and services alone constitutes specialized
knowledge .
On appeal , counsel specifically objects to the director's observation that the beneficiary's knowledge could not
be considered advanced , in light of the petitioner's representation that she is one of 900 instructors performing
similar duties for the foreign entity . Counsel asserts that the fact that .the petitioner's group employs 900
instructors outside the United States does not in any way demonstrate that the knowledge is not
' specialized ." Counsel emphasizes that each of the foreign entity's instructors has undergone at least two
years of "specific, unique training, not currently ava ilable in the United States ." Counsel further contends that
EAC 05 027 53667
Page 12
the knowledge must be considered "advanced" because the instructing training requires two years to
complete:
Again, counsel's assertions are not persuasive . If all 900 similarly employed workers within the foreign
organization received the same training in the petitioner's techniques and methodologies , then mere
possession of knowledge of these processes and methodologies does not rise to the level of specialized
knowledge. Although counsel correctly observes that knowledge need not be narrowly held within an
organization in.order to be specialized knowledge , the L-IB visa category was not created in order toallow
the transfer of all employees with any degree of knowledge of a company's processes. If all employees are
deemed to possess "special" or "advanced" knowledge, then that knowledge would necessarily be ordinary
a~d commonplace. Based on counsel's arguments, anyone who has completed the same training programs as
the beneficiary would possess "special knowledge" or an "advanced level of knowledge ." Counsel's expansive
interpretation of the specialized knowledge provision is untenable , as it would allow virtually any skilled or
experienced employee to enter the United States as a specialized knowledge worker.
Further, the petitioner has submitted no evidence in support of its claim that the beneficiary posse sses
"advanced " knowledge of the company 's processes and procedures , such that it can be set apart from the
knowledge possessed by others who have completed the same training courses. The petitioner did not
distinguish the beneficiary's knowledge, work experience , or training from those of the other employees
within the organization. The beneficiary had worked as a Brain Respiration Instructor for only four months
prior to her admission to the United States asa visitor in May 2004, and based on the evidence submitted , is
certified to 'teach only the first three ' steps of the five-step "Brain Respiration Method." Based on the
petitioner's statements and the evidence presented, it impossible to classify the beneficiary's knowledge of the
petitioner 's techniques and methods as advanced. The AAO cannot conclude that the beneficiary's role is "of
crucial importance" to the organization or that she qualifies as "key personnel" within the petitioner 's family
of companies based on her training and previous assignments . See Matter of Penner, 18 I&N Dec . at 53. It
may' be correct to say that the beneficiary is a highly skilled employee , but this IS not enough to .bring the
beneficiary to the level of "key personne1."
Finally, the AAO notes that the record does not persuasively establish that the pos ition offered in the United
States actually requires two and one half years of specialized training in Korea as claimed by the petitioner.
As noted above , the petitioner submitted an employee list for the U .S. company dated August 2004, and 51
out of the company's 92 employees are identified as holding the position of Senior Brain Respiration
Instructor and Brain Respiration Instructor , with duties defined as "teach the principals and techniques of
BR." It is implausible that all .of these employees were trained by the_ in Korea
prior to joining the United States company. According to the career ~sweb site
(http://www.dahncenter.com). the petitioner hires full-time instructors regardless of their "previous education,
career or professional experience" and provides a three-month introductory training period to all new
employees. As the petitioner has not ide~tified any distinction between the duties to be performed by the
beneficiary, and the duties performed by the U.S . company's existing brain respiration instructors , it is
reasonable to conclude that the beneficiary's training with the foreign entity , while valuable to the petitioner,
is not a prerequisite for the position she has been offered.
EAC 05 027 53667
Page 13
Finally, the AAO will address counsel's claim that the beneficiary qualifies for classification as a specialized
knowledge employee pursuant to characteristics outlined in the 1994 .Puleo memo , specifically, that she:
possesses knowledge that is valuable to the employer's competitiveness in the marketplace; possesses
knowledge which normally can be gained only through prior experience with the employer; and, possesses
knowledge of a product or process which cannot be easily transferred or taught to another individual. While
these factors may be considered , the regulations specifically require that the beneficiary possess an "advanced
level of knowledge" of the organization 's processes and procedures , or a "special knowledge" of the petitioner 's
product , service, research, equipment, techniques , or management. 8 C.F .R. § 214.2(l)(1)(ii)(D). As discussed
above, the petitioner has not established that the beneficiary's knowledge rises to the level of specialized
knowledge contemplated by the regulations.
Based on the above discussion , the petitioner has failed to demonstrate that the beneficiary's training , work
experience , or ,knowledge of the company 's methodologies and techniques is more advanced than the
knowledge possessed by others employed by the petitioner , or that knowledge of these methodologies and
techniques alone constitutes specialized knowledge. · The AA9 does not dispute the fact that the beneficiary 's
knowledge has allowed her -ro successfully perform her job duties for 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. 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 beneficiary 's field of endeavor, or that her
knowledge is advanced compared to the knowledge held by other similarly employed workers within the
petitioner and the foreign entity .
The legislati ve 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. The record does not establish that the
beneficiary has specialized knowledge or that , the position offered with the United States entity requires
specialized knowledge.
In visa petition proceed ings, the burden of proving eligibility 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.
ORDER: The appeal is dismissed.