remanded L-1B Case: Business

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
u.s. Department of Homeland Securit)' 
lJ.S. Citi;:enship and lnmligration Services 
Administrative Appeals Office (AAO) 
20 Massachu~(,!lts Ave .. N.W .. MS 2090 
Washington. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
DATE: 
APR 2 8 2011 Office: CALIFORNIA SERVICE CENTER FILE: WAC 09 098 50294 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(I5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1101(a)(I5)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
WAC 09 098 50294 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will withdraw the director's decision 
and remand the matter to the director for entry of a new decision. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as a nonimmigrant 
intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. § I 10 1 (a)(l5)(L). The petitioner is a Danish partnership registered to do business in Hawaii as a 
United States branch office. The petitioner seeks to employ the beneficiary as the manager of its new branch 
office for a period of three years.' The petitioner indicated on the Form 1-129, Petition for a Nonimmigrant 
Worker, and on the L Classification Supplement to Form 1-129, that it seeks to classify the beneficiary as an 
L-I B intracompany transferee in a specialized knowledge capacity. 
The director denied the petition on May 19,2009, concluding that the petitioner failed to establish that the 
beneficiary has been or would be employed in a managerial or executive capacity. The director 
acknowledged that the petitioner indicated that it was seeking to classify the beneficiary as an L-1B 
specialized know ledge worker, but noted that, based on the petitioners designation of the position as 
"manager," the petition was adjudicated under the L-1A classification for managers and executives. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded 
the appeal to the AAO. On appeal, counsel asserts that the petition was erroneously adjudicated pursuant to the 
statutory and regulatory provisions applicable to L-IA managers and executives. Counsel requests that the 
petition be adjudicated under the requested L-IB classification and notes that the beneficiary does in fact possess 
knowledge that is essential to the expansion of the newly established U.S. branch of the business. 
I. The Law 
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)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifYing organization within the three years preceding the filing of 
the petition. 
1 Pursuant to the regulation at 8 C.F.R. § 214.2(l)(7)(i)(A)(3), if the beneficiary is coming to the United States 
to open or be employed in a new office, the petition may be approved for a period not to exceed one year. 
WAC 09 098 50294 
Page 3 
(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. 
The regulation at 8 C.F.R. § 214.2(l)(3)(vi) states that if the beneficiary is coming to the Untied States in a 
specialized knowledge capacity to open or to be employed in a new office, the petitioner shall submit 
evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The business entity in the United States is or will be a qualifying organization as 
defined in paragraph (1)(1)(ii)(G) of this section; and 
(C) The petitioner has the financial ability to remunerate the beneficiary and to 
commence doing business in the United States. 
For purposes of section 101(a)(l5)(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(l)(I)(ii)(O) defines specialized knowledge as: 
[Sjpecial 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. 
II. The Issue on Appeal 
The primary issue raised by the petitioner on appeal is whether the director erred by adjudicating the instant 
petition as one filed on behalf of a beneficiary who will be employed in a managerial or executive capacity. 
The evidentiary criteria to be applied in this matter are dependent upon which L-I classification the petitioner 
requested as of the date of filing. Upon review ofthe Form 1-129, Petition for a Nonimmigrant Worker, filed 
on February 17,2009, it is noted that at Part 2, item I, Requested Nonimmigrant Classification, the petitioner 
or its representative marked "L-IB." On the L Classification Supplement, at Section 1, item I, where asked to 
indicate the classification sought, the petitioner marked "L-I B specialized knowledge." The petitioner also 
responded to item # 13 on the L Classification Supplement, which pertains to L-I B employees. 
WAC 09 098 50294 
Page 4 
Based on the petitioner's statements on Form 1-129, the director improperly determined that the petitioner 
filed an L-IA classification petition. The director then issued a nine-page request for evidence (RFE) on 
February 26, 2009 in which he failed to acknowledge the petitioner's filing of an L-l B classification petition, 
and instead requested certain evidence that is only applicable to L-IA managers and executives and new 
office petitions involving managers and executives. The director denied the petition solely on the grounds 
that the petitioner failed to meet is burden to establish that the beneficiary has been and would be employed in 
a primarily managerial or executive capacity. 
The AAO concurs with counsel's contention that the director clearly erred by failing to adjudicate the petition 
according to the statutory and regulatory provisions applicable to the requested L- I B classification. The 
petitioner bears the burden of proof with respect to the specific visa classification that they request on the 
Form 1-129 and cannot be required to meet the burden of proof for an alternative classification. U.S. 
Citizenship and Immigration Services (USCIS) will only consider the visa classification that the petitioner 
annotates on the petition, and has no authority to consider other classifications in the alternative 2 
Here, the director failed to consider the beneficiary'S eligibility under the requested L-IB classification, and 
had no authority to adjudicate the petition under an alternate classification. The director failed to reach any 
conclusion regarding the beneficiary'S eligibility under the requested classification, and instead determined that 
the beneficiary did not qualifY under an alternative classification which is governed by different statutory and 
regulatory provisions and evidentiary requirements.' 
At this time, the AAO takes no position on whether the beneficiary qualifies for the classification sought. The 
director must make the initial determination on that issue. So far, the director has not done so. By remanding 
this matter, the AAO does not necessarily find that the beneficiary is ineligible. Rather, we remand the matter 
because the director based the decision on incorrect grounds and failed to address the beneficiary'S eligibility 
under the requested classification. 
2 The Ninth Circuit has determined that once USCIS concludes that an alien is not eligible for the 
specifically requested classification, the agency is not required to consider, sua sponte, whether the alien is 
eligible for an alternate classification. Brazil Quality Stones. Inc .. v. Chertoff, Slip Copy, 2008 WL 2743927 
(9th Cir. July 10,2008). 
3 The director's decision, on Page 6, states: "[E]ven if the petitioner would claim that the beneficiary's 
position is to that of a specialized knowledge. [sic] There's nothing in the record that the beneficiary has 
specialized knowledge. Customer service, speaking and writing in Danish language does not constitute 
specialized knowledge by regulation." The AAO cannot find that three sentences within a seven-page 
decision constitutes a proper adjudication of the petitioner's request for L-l B classification. When denying a 
petition, a director has an affirmative duty to explain the specific reasons for the denial; this duty includes 
informing a petitioner why the evidence failed to satisfY its burden of proof pursuant to section 291 of the 
Act, 8 U.S.C. § 1361. See 8 C.F.R. § 103.3(a)(1)(i). 
, . 
WAC 09 098 50294 
Page 5 
Accordingly, the AAO will withdraw the director's decision and remand the petition to the director for entry 
of a new decision. The director is instructed to review the petition pursuant to the above-cited statutory and 
regulatory provisions applicable to the L-lB nonimmigrant classification, and to request any additional 
evidence deemed necessary to adjudicate the petition. 
As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 
U.S.c. § 1361. 
ORDER: The director's decision is withdrawn. The petition is remanded to the director for 
further action in accordance with the foregoing discussion and entry of a new 
decision which, if adverse to the petitioner, shall be certified to the Administrative 
Appeals Office for review.