u.s. citizenship non-precedent decision of the and ......in a supporting letter, the petitioner...

U.S. Citizenship and Immigration Services

MATTER OF K-F-J-0-S-T- LLC

APPEAL OF VERMONT SERVICE CENTER DECISION /

Non-Precedent Decision of the Administrative Appeals Office

DATE: NOV. 9, 2016

PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, an importer and retailer of fine jewelry, seeks to employ the Beneficiary as its sales and marketing manager under the L-1 B nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the Act) section 101(a)(l5)(L), 8 U.S.C. § 1101(a)(l5)(L). The L-IB classification allows a corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee with "specialized knowledge" to work temporarily in the United States.

The Director, Vermont Service Center, denied the petitiOn. The Director concluded that the evidence of record did not establish that the Beneficiary possesses specialized knowledge or that he was employed abroad and will be employed in the United States in a specialized knowledge capacity.

The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director disregarded the "unique nature" of the petitioning organization and the specialized knowledge the Beneficiary gained during his ten years of employment with the Petitioner's parent company.

Upon de novo review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must have employed the Beneficiary in a 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. Section 101(a)(l5)(L) of the Act. In addition, the Beneficiary must seek to enter the U!fited 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. ld.

I

If an individual will be serving the United States employer in a managerial or executive capacity, a qualified beneficiary may be classified as an L-IA nonimmigrant alien. If a qualified beneficiary will be rendering services in a capacity that involves "specialized knowledge," the beneficiary may be classified as an L-1 B nonimmigrant alien. I d.

Matter of K-F-J-0-S-T- LLC

Section 214(c)(2)(B) of the Act, 8 U.S.C. § 1184(c)(2)(B), provides the statutory definition of specialized knowledge:

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(l)(l)(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 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)

(ii)

(iii)

(iv)

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) ofthis section.

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.

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.

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 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.

II. SPECIALIZED KNOWLEDGE

The Director denied the petition based on a finding that the Petitioner did not establish that the Beneficiary possesses specialized knowledge or that he was employed abroad and would be employed in the United States in a specialized knowledge capacity.

2

(b)(6)


A. Evidence of Record

The Petitioner filed the Form I-129 on December 15, 2015. The Petitioner stated on the Form I-129 that it is an importer and retailer of high-end jewelry established in the in 2013, with 13 current employees. The Petitioner stated that its parent company in employed the Beneficiary from November 4, 2003, until December 31, 2013.

In a supporting letter, the Petitioner explained that its group of companies includes eight fine jewelry boutiques located in and South Carolina. The Petitioner stated that it is "unique situated" among most retail jewelry chains due to its diverse inventory. The Petitioner noted that it "markets to diverse markets including high end markets (i.e. rare and unique pieces to avid collectors) across the board to low end (i.e. impulse purchases typical to the cruise/tourism industry)."

The Petitioner stated that the Beneficiary held several positions since joining the foreign entity, including senior gemologist (November 2003 to December 2007), sales executive (January 2008 to December 2011), and sales and marketing manager for the Caribbean division (January 2012 to December 2013). The Petitioner described his duties in each position, noting that as a senior gemologist, he learned to grade, source, purchase, and design gems and jewelry in accordance with the company's standards and guidelines. The Petitioner noted that the Beneficiary had nearly three years of sales experience with another jewelry retailer prior to commencing employment with his parent company.

The Petitioner provided a lengthy description of the Beneficiary's duties as sales and marketing manager and noted that he had supervised the company's sales and marketing team, including two store managers, a product specialist, and two marketing coordinators. Some of his duties included:

• Overseeing existing and new business development including the launch of two new retail locations;

• Identifying potential new target markets and measuring the strength of existing demand as well as current and anticipated competition;

• Directing market research projects; • Executing and launching [the company's] magazine locally and internationally; • Developing and fostering relationships with and

• Coordinating advertising and publ'c relations for new businesses; • Researching the jewelry market and monitoring cruise ship carrier marketing

trends to determine upcoming demographics for targeted selling using reference books, auction, catalogs, price lists, and the internet to determine the appropriate value of jewelry;

• Identifying usefulness of various advertising mediums for delivering marketing strategies to the market place, including print and electronic media, community fairs, and on-board visits to cruise ships; [and]

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• Providing recommendations on new product lines to meet current and future customer needs.

The Petitioner provided a job description for the Beneficiary's proposed role as sales and marketing manager:

• Lead the development and execution of the North American long term Marketing strategy and align it with global strategy and set up key performance metrics.

• Analyze and present strategic marketing direction to sales management team based on current buying trends within the varying markets ....

• Review analyze and approve sales and marketing strategies aligned with the company's global buying patterns ....

• Direct, oversee and manage research on the national and international jewelry market including cruise ship carrier trends to determine upcoming demographics for targeted selling.

• Maintain and develop existing relationship with port lecturers to gain insight on buying patterns; demographics; trends etc.

• Direct the development and implementation of marketing programs including print and web based campaigns ....

• Establish and[ d] direct the management processes to track marketing activities including lead development and follow up ....

• Work in conjunction with sales, marketing and product line management in order to recommend and implement specific marketing programs and maintain a North American market focus ....

• Coordinate and track marketing activities and follow up for individual lead sources ....

• Develop and implement product specific and regional sales promotions and marketing campaigns ....

• Responsible for customer profiling programs for strategic marketing planning. • Develop product and distribution of case applications and other marketing

collateral.

The Petitioner stated that the Beneficiary has extensive knowledge ofthe group's "products, design services, techniques, management and the application of this in international markets that is uncommon in comparison to that generally found in the particular industry." In addition, the Petitioner claimed that the Beneficiary has "advanced knowledge of our company that is not commonly found in the industry," in particular due to his involvement in the expansion activities including the opening of two new locations, the addition of multiple designer lines, and the launch of the company magazine, "all of which significantly enhanced the company's image in the industry." The Petitioner emphasized that the company experienced a 10% increase in sales in 2012 followed by a 6% increase in 2013.

Finally, the Petitioner stated:

4

(b)(6)

Matter of K-F-J-0-S-T- LLC/

Specialized knowledge of our international business operations is paramount and critical to perform the duties effectively. Such knowledge is not publicly disseminated and cannot be gained outside of the [Petitioner's gnmp] of companies. Further, such knowledge cannot be duplicated _ in the general labor market. It is knowledge unique to our highly select and experienced employees who have been involved in our growing business operations.

The Petitioner provided a sample of its company magazine, a partial copy of the Beneficiary' s passport, and copies of all of his monthly pay statements for2012 and 2013 showing his position as "sales manager." In addition, it submitted a copy of the business plan for the location prepared in August 2013. The business plan describes the company's product lines and its specific marketing strategies for - ·

The Director issued a request for evidence (RFE). · The Director noted that the Petitioner's letter indicated that the Beneficiary gained knowledge about the company's operations, but did not provide sufficient detail to establish how this knowledge is special or advanced. The Director requested a more detailed explanation of how the Beneficiary' s knowledge qualifies as specialized, a comparison of the Beneficiary's knowledge to that possessed by other workers in the company and in the industry, and information regarding the minimum time required to obtain this knowledge through training and experience. The Director also requested more detailed information ~regarding the proposed U.S. position and an explanation of the specialized knowledge required to perform the stated duties.

In response, the Petitioner stated that the Beneficiary's former position as sales and marketing manager for the Caribbean division required him to utilize "specialized knowledge of the company's products, selling philosophies and marketing practices" gained in his earlier positions with its parent company. In this regard, the Petitioner explained that, as a senior gemologist, he had gained knowledge of all company products with respect to unfinished gems and their origin, value, features, quality, budget, procurement methods, and lead times, and with respect to the raw materials, design processes, production, and features of the group;s proprietary product lines. The Petitioner noted that since the Beneficiary gained his knowledge as a gemologist many years ago, the company did not maintain much of his work product.

The Petitioner further stated that the Beneficiary has specialized knowledge of the company's business development and management policies and marketing practices, as he has "worked directly with over 30,000 clients to determine and assess their needs," "developed interchangeable marketing programs to respond to the varying ships demographics," and launched several successful marketing programs targeted towards the cruise industry, including a magazine, VIP program, and onboard media launches.

The Petitioner submitted a chart outlining "specialized knowledge factors" and provided an explanation as to how the Beneficiary possesses each characteristic. First, the Petitioner stated that the Beneficiary is "uniquely aware of multiple facets of the organization including procurement, design, manufacturing, sales, marketing and business development," and that he will use this

5

(b)(6)


" knowledge of company products, processes and policies to develop the sales and marketing function or North America. The Petitioner emphasized that the Beneficiary gained eight years of specialized knowledge before assuming the sales and marketing manager position abroad and that it cannot transfer this knowledge to another individual without significant time, cost, and inconvenience to the company.

With respect to the U.S. position, the Petitioner highlighted the fact that its store is only two years old, and the company's first new launch since the Beneficiary led the opening of two stores in The Petitioner stated that it requires the Beneficiary to develop the North American marketing structure in accordance with the group's standards, and that he will use his specialized knowledge of the group's products, service, research, techniques, and management to perform his duties. It noted that the market is volatile, that it has been unsuccessful in its U.S. marketing efforts, and that its parent company's investment in the location may be in danger.

The Petitioner expanded upon the :Beneficiary's proposed U.S. duties listed above and noted that they could only be performed by an individual who has specialized knowledge gained with the company, including at least one year of experience in product design and procurement, one year in selling and marketing products to the cruise line industry, and one year of experience in the group's business development practices.

In addition, the Petitioner highlighted the nature of its industry, noting that its stores are located in major tourist destinations and that it primarily caters to the tourism industry with an emphasis on cruise lines. The Petitioner stated that "the modem cruise industry is unique" and that due to an increasing number of ports of call, has "led to multinational clientele at all socioeconomic levels from every continent." The Petitioner emphasized that "strategic and interchangeable marketing to this unique industry is critical for a company's success."

The Petitioner stated that there are no U.S. workers who possess knowledge of the group's proprietary products and standards for sourcing, design and manufacturing processes, as that knowledge can only be gained at the location. Similarly, the Petitioner claimed that only a person who has worked for the entity in key design, sales, and marketing positions would possess specialized knowledge of the company's "direct and targeted marketing strategies aimed at the niche cruise industry." The Petitioner emphasized that only four other international retail jewelry chains engage in the sale of their own proprietary lines to the "niche Caribbean cruise industry," and that each company maintains individual practices and policies for design, manufacturing, distribution, sales, and marketing.

Finally, the Petitioner stated that it is atypical for an employee in its industry to have experience in design, gemology, sales, marketing, business development, and management, especially in combination with "specialized knowledge of the cruise line industry and its multinational clientele from all socioeconomic levels."

6


The Director ultimately denied the petition, concluding that the Petitioner did not establish that the Beneficiary has specialized knowledge and that he was employed abroad and would be employed in the United States in a specialized knowledge capacity. In denying the petition, the Director determined , that the record did not establish that the Beneficiary's knowledge and skills are demonstrably different, distinct, or uncommon comparison to that generally found within the Petitioner's industry, or that he possesses knowledge which is more advanced than that generally found within the petitioning company.

On appeal, the Petitioner reiterates the claims it made in response to the RFE and asserts that the Director disregarded the "unique nature" of the Petitioner's company and the fact that the Petitioner's group is "uniquely situated" in the niche cruise industry, which presents "unique" selling situations. The Petitioner explains that due to the nature of the industry, where the company has "minutes to close a deal," it requires a sales and marketing manager with "specialized knowledge of the extensive product lines and how each line translates to the widespread demographics" found in the industry.

The Petitioner once again states that within the company, it is "atypical to find an individual who has specialized knowledge covering the company's product lines, sales techniques; marketing techniques and business development practices." In addition, the Petitioner asserts the Beneficiary possess many of the characteristics of an L-1 B specialized knowledge according to the latest USCIS policy guidance on this visa classification, 1 and claims that the Director failed t~ take into account the impact the Beneficiary's transfer would have on the Petitioner's operations.

Finally, the Petitioner emphasizes that the U.S. operation will suffer economic hardship if it is unable to transfer the Beneficiary, and highlights the fact that the Beneficiary's importance is demonstrated by his high offered salary, which is second only to that earned by the Petitioner's managing director.

In support of the appeal, the Petitioner submits a report on the cruise industry and a copy of its organizational chart depicting the Beneficiary's proposed position.

B. Analysis

Upon review of the evidence of record, including the Petitioner's submission on appeal, the record · does not establish that the Beneficiary possesses specialized knowledge or that he was employed abroad and would be employed in the United States in a specialized knowledge capacity as defined at 8 C.F.R. § 214:2(1)(1)(ii)(D).

In visa petition proceedings, the burden is on the petitioner to establish eligibility. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove by a preponderance of evidence that the beneficiary is fully qualified for the benefit sought. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). In evaluating the evidence, eligibility is to be determined not by the quantity of

1 The Petitioner cites to USCIS Policy Memorandum PM-602-0111, L-IB Adjudications Policy (Aug. 17, 2015),

https://www.uscis.gov/laws/policy-memoranda.

7


evidence alone but by its quality. !d. USCIS examines each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true.

\

In order to establish eligibility, a petitioner must show that the individual beneficiary will be employed in a specialized knowledge capacity. 8 C.F.R. § 214.2(1)(3)(ii). The statutory definition of specialized knowledge at Section 214( c )(2)(B) of the Act is comprised of two equal but distinct subparts. First, an individual is considered to be employed in a capacity involving specialized knowledge if that person "has a special knowledge of the company product and its application in international markets." Second, an individual is considered to be serving in a capacity involving specialized knowledge if that person "has an advanced level of knowledge of processes and procedures of the company." See also 8 C.F.R. § 214.2(l)(l)(ii)(D). A petitioner may establish eligibility by submitting evidence that the beneficiary and the proffered position satisfy either prong of the definition.

Once a petitioner articulates the nature of the claimed specialized knowledge, it is the weight and type of evidence which establishes whether or not the beneficiary actually possesses specialized knowledge. USCIS camiot make a factual determination regarding a given beneficiary's specialized knowledge if the petitioner does not, at a minimum, articulate with specificity the nature of the its products and services or processes and procedures, the nature of the specific industry or field involved, and the nature of the beneficiary's knowledge. The petitioner should also describe how such knowledge is typically gained within the organization, and explain how and when the beneficiary gained such knowledge.

As both "special" and "advanced" are relative terms, determining whether a given beneficiary's knowledge is "special" or "advanced" inherently requires a comparison of the beneficiary's knowledge against that of others. With respect to either special or advanced knowledge, the petitioner ordinarily must demonstrate that a beneficiary's knowledge is not commonly held throughout the particular industry and cannot be easily imparted from one person to another. The ultimate question is whether the petitioner has met its burden of demonstrating by a preponderance of the evidence that the beneficiary's knowledge or expertise is advanced or special, and that the beneficiary's position requires such knowledge.

Here, the Petitioner states that the Beneficiary has special knowledge of its group's "products, design services, techniques, management and the application of this in international markets" and emphasizes that it is one of only five jewelry retailers operating in the niche Caribbean cruise market.

Because "special knowledge" concerns knowledge qf the petitioning organization's products or services and its application in international markets, the Petitioner may meet its burden through evidence that the Beneficiary has knowledge that is distinct or uncommon in comparison to the knowledge of other similarly employed workers in the particular industry.

8


Here, the record does not support the Petitioner's claim that the Beneficiary's knowledge of its jewelry products (including their design, production, import, and distribution) or his knowledge of the company's cruise ship marketing techniques and its niche industry are distinct or uncommon in comparison to that possessed by other experienced sales and marketing professionals in the Petitioner's industry.

The Petitioner highlights the fact that the Beneficiary has served in three different types of positions - gemologist, sales executive and sales and marketing manager - which gave him a breadth of knowledge and experience that is not typically found in the industry. In fact, the Petitioner claims that only an employee who has one year of experience in product design and procurement, one year in selling and marketing products to the cruise line industry, and one year of experience in the group's business development practices could fill the sales and marketing manager position within the Petitioner's group.

However, the Petitioner offers no support for the claim that this varied experience and career progression is atypical or that it resulted in the Beneficiary possessing uncommon or distinct knowledge compared to persons working in sales and marketing management positions for other jewelry retailers. Absent evidence to support the Petitioner's claim, it is reasonable to believe that an experienced sales and marketing professional working in the industry would be expected to be knowledgeable of many aspects of the gem and jewelry products that they market, and that knowledge of their employers' products and internal operations would be required to perform the duties of such position successfully. While no two jewelers offer the same products or use the exact same operating methods, the Petitioner has not explained in any detail how the Beneficiary's company-specific product knowledge would qualify as uncommon other than stating that some of its product lines are proprietary and that its inventory is particularly diverse in terms of price range; the Petitioner has not adequately differentiated~ its products or the techniques used to sell them. Therefore, the record does not support a finding that knowledge of the Petitioner's products and operating methods is uncommon knowledge that could not be easily imparted to an experienced marketing professional who has worked in the fine jewelry industry.

The Petitioner further states that the Beneficiary possesses special knowledge not typically found in the industry because of the unique niche its group of companies fills within ~he retail jewelry industry. Specifically, the Petitioner emphasizes that it is one of only five retail jewelers catering to tourists in the Caribbean cruise industry. The record includes background information regarding this industry and the Petitioner's explanation that the industry requires a variety of marketing techniques to reach a diverse base of potential shoppers who have limited time for shopping in port. The Petitioner's marketing techniques include maintaining close relationships with on-board cruise ship marketing companies who steer customers to its stores, a VIP program and database marketing to seek out repeat customers, direct marketing through other local business such as taxi companies and restaurants, a magazine published exclusively by the petitioner's group, visual marketing (i.e., having aesthetically pleasing store front at a prime location), and website sales.

The Petitioner has not established that familiarity with these types of marketing techniques, either alone or in combination, would be uncommon among marketing professionals, regardless of whether

9

(b)(6)


they work in the Petitioner's niche industry. While the Beneficiary has experience with all of these techniques and may have even instituted some of them within the company, and while he has contacts at the company's cruise ship marketing partners, the Petitioner has not explained how this knowledge rises to the level of special knowledge, such that it could be deemed uncommon knowledge that could not be easily imparted to another marketing professional who is familiar with using marketing partners, direct marketing, website sales, and customer loyalty programs to sell products. The evidence in the record does not adequately support the Petitioner's claim that it would take an entire year for an experienced marketing professional or another company employee to become familiar with the company's cruise industry sales and marketing techniques.

Finally, while the Petitioner claims that it is "unique" even within its own niche market, the evidence of record do.es not support its claim that the knowledge needed to market its products and develop its business in a relatively new market is specialized knowledge. For example, the Petitioner's business plan indicates that its competitive advantages include its "larger than average inventory of finished jewelry," its emphasis on after-sales service, its operation of multiple stores with prime retail locations at several ports of call, its employment of trained jewelry craftsmen on premises, and its ability to offer competitive prices. The Petitioner is well-established in its industry and has clearly developed successful business practices that it has been able to replicate at multiple locations as it opens new stores. However, again, it has not supported its claim that these techniques are of such complexity that it would reasonably take an entire year for another employee or experienced marketing professional in the industry to become familiar with the company's business development practices in order to fulfill the duties of the sales and marketing manager. A petitioner's unsupported statements are of very limited weight and normally will be insufficient to carry its burden of proof. See Matter of Sofjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)); see also Matter o.fChawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter o.fChawathe, 25 I&N Dec. at 376.

For the foregoing reasons, the evidence does not establish that the Beneficiary possesses special knowledge.

The Petitioner also claims that the Beneficiary's managerial role and his long tenure with the company's parent company have equipped him with advanced knowledge of the Petitioner's processes and procedures. Because "advanced knowledge" concerns knowledge of an organization's processes and procedures, the Petitioner may meet its burden through evidence that the Beneficiary has knowledge of or expertise in the organization's processes and procedures that is greatly developed or further along in progress, complexity and understanding in comparison to other workers in the employer's operations. Such advanced knowledge must be supported by evidence setting that knowledge apart from the elementary or basic knowledge possessed by others.

Here, the Petitioner/ stated that the Beneficiary has "advanced knowledge of our company," in particular due to his involvement in the expansion activities including the opening of two new locations in the addition of multiple designer lines, and the launch of the company magazine, "all of which significantly enhanced the company's image in the industry." The

10

(b)(6)


Petitioner has not further explained the Beneficiary's role in its expansion activities, identified or documented its designer lines or the Beneficiary's role in their launch, nor has it documented his role in launching the company's magazine. The Petitioner states that the Beneficiary helped to orchestrate the company's expansion to but did not provide details or dates regarding the advanced knowledge gained or required for this role. The Petitioner provided the first issue of its magazine, which is dated "2012" and appears to have been published at the end of the year. The foreword to the magazine states that the new stores opened that year were in and in South Carolina; the magazine lists both stores as existing locations. Therefore, the record does not support the Petitioner's claim that the Beneficiary led the opening of the locations during his tenure as sales and marketing manager for the Caripbean from January 2012 through December 2013.

Further, the record does not include information regarding the other employees working for the U.S. and foreign entities, such as their job duties, training, professional background, and length of experience with the company. Again, a petitioner's unsupported statements are of very limited weight and normally will be insufficient to carry its burden of proof. See Matter of Sofjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)); see also Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter ofChawathe, 25 I&N Dec. at 376 .. The Petitioner relies, in part on the Beneficiary's long tenure with the foreign entity and progressive experience; however, we cannot determine that the Beneficiary's knowledge is advanced in relation to the other employees in the petitioning organization if we have no evidence regarding those employees' relative knowledge and experience.

We nofe that the Petitioner's support letter indicates that it seeks the Beneficiary's services and advanced knowledge of company marketing and business development processes at its

location in order to ensure that the store's performance and operations are in line with its other locations. However, the Petitioner's business plan written in August 2013 clearly stated that the new location would implement the group's existing marketing and operational strategies and processes, and by the time it filed the petition, the store had been operating in line with these strategies and processes for over two years. While the Petitioner may believe that the Beneficiary can improve the store's performance, it is unclear why it would require him to implement the company's core strategies and processes at this time or that he possesses advanced knowledge of processes or procedures that management had not already implemented.

Finally, we acknowledge the Petitioner's claim that the Beneficiary has been offered a high salary relative to its existing U.S. employees and that he possesses various characteristics of a worker with qualifying specialized knowledge as set forth in USCIS Policy Memorandum PM-601-011, supra, at 8. For the reasons discussed above, the Petitioner has not submitted sufficient evidence to establish that the Beneficiary possesses knowledge that is either special or advanced. While the Beneficiary may be filling a senior role that may be beneficial to the Petitioner's competitiveness in the marketplace, this characteristic alone is not probative of his specialized knowledge. As noted in the memorandum, the "characteristics" listed by the Petitioner are only "factors that USCIS may consider when determining whether a beneficiary's knowledge is specialized" and such factors must

11


be supported by evidence. !d. The memorandum highlights that "ultimately, it is the weight and type of evidence that establishes whether the beneficiary possesses specialized knowledge." !d. at 10.

Here, the evidence is insufficient to establish that the Beneficiary's expertise in the organization's processes and procedures is greatly developed or further along in progress, complexity, and understanding in comparison to other workers in the Petitioner's operations, either in the United States or abroad. The Petitioner's claims are not supported by evidence setting the Beneficiary's knowledge of company processes apart from the elementary or basic knowledge possessed by others.

. \ We do not doubt that the Beneficiary is a highly skilled employee who is well-qualified for the offered position. However, for the reasons discussed above, the evidence submitted does not establish that the Beneficiary possesses specialized knowledge and that he has been employed abroad and will be employed in a specialized knowledge capacity with the Petitioner in the United States. See Section 214(c)(2)(B) of the Act.

III. ONE YEAR OF FOREIGN EMPLOYMENT

Beyond the decision of the Director, the Petitioner has not established that the Beneficiary 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.

As noted, the Petitioner filed the Form 1-129 on December 15, 2015, and must establish that the Beneficiary had at least one year of employment with its parent company abroad between December 15, 2012, and the date of filing. Since the Petitioner indicates that the Beneficiary ceased employment with the foreign entity on Qecember 31, 2013, the Petitioner must established that he was employed abroad by its parent company between December 15, 2012, and December 31, 2013.

The regulation at 8 C.F.R. § 214.2(1)(1)(ii)(A) defines "intracompany transferee" as:

An alien who, within three years preceding the time of his or her application for admission into the United States, has been employed abroad continuously for one

{

year by a firm or corporation or other legal entity or parent, branch, affiliate or subsidiary thereof, and who seeks to enter the United States temporarily in order to render his or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity that is managerial, executive or involves specialized knowledge. Periods spent in the United States in lawful status, for a branch of the same employer or a parent, affiliate, or subsidiary thereof and bri~f trips to the United States for business or pleasure shall not be interruptive of the one year of continuous employment abroad but such periods shall not be counted toward fulfillment of that requirement.

Therefore, any time the Beneficiary spent in the United States between December 15, 2012, and December 31, 2013, will not count towards his one year of foreign employment. If he spent more than .

12

Matter of .((-F-J-0-S-T- LLC

17 days in the United States during this 381-day period, he cannot meet the one year of foreign employment requirement.

The Petitioner submitted a partial copy of the Beneficiary's Indian passport, including a copy of a U.S. Bl/B2 visa issued on July 20, 2012. The passport includes stamps showing his departure from a foreign airport on April 23, 2013, an admission to the United States on April 24, 2013, and an arrival in India on October 8, 2013?

Even if the Beneficiary had an intervening departure from and arrival to the United States between April 2013 and October 2013, we can conclude that the Beneficiary likely spent more than 17 days in the United States between December 15, 2012, and December 31,2013.

The Petitioner has not established that the Beneficiary had at least one year of continuous full time employment with a qualifying foreign entity in the three years preceding the filing of the petition. For this additional reason, the petition cannot be approved.

IV. CONCLUSION

The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an independent and alternative basis for the decision. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter of K-F-J-0-S-T- LLC, ID# 22913 (AAO Nov. 9, 2016)

2 We have also reviewed U.S. Customs and Border Protection's arrival and departure system to confirm the ,information in the Beneficiary's passport. These records show the Beneficiary arrived in the United States on April24, 2013, and departed on October 7, 2013, with no intervening arrivals or departures.

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u.s. citizenship non-precedent decision of the and ......in a supporting letter, the petitioner...

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