U.S. Citizenship and Immigration Services

MATTER Of Y-A-. INC.

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: FEI3. 22. 2018

PETITION: FORM 1-129. PETITION FOR A NONIMMIGRANT WORKER

The Petitioner. a manufacturer of high speed stainless steel and carbide cutting tools. seeks to temporarily employ the Beneficiary as a production specialist engineer1 under the I ,-1 B nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the Act) section 101 (a)( 15 )(L ), 8 U .S.C. ~ 11 01 (a)( 15)( L). The L-1 B classification allows a corporation or other legal entity (including its atliliate or subsidiary) to transfer a qualifying foreign employee with '·specialized knowledge'' to work temporarily in the United States.

The Director of the Vermont Service Center denied the petition. concluding that the record did not establish, as required. that the Beneficiary possesses specialized knowledge. that he has been employed abroad in a position involving specialized knowledge. or that he will be employed in a specialized knowledge capacity in the United States.

On appeaL the Petitioner asserts that the Beneficiary's pos1t1on requires. and the 13eneficiary possesses. specialized knowledge of the company's products and procedures. as well as knovvledge of the Korean culture and language. that is not found in the U.S. market and could not be transferred to another employee without significant economic inconvenience.

Upon de no\'0 review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

To establish eligibility for the L-1 B nonimmigrant visa classification. a qualifying organization must have employed the beneficiary ''in a capacity that is managerial. executive. or involves specialized knowledge." 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 United States temporarily to continue rendering his or her services to the same employer or a subsidiary or atliliate thereof in a specialized kno>vledgc capacity. /d. The petitioner must also establish that the beneficiary's prior education. training. and employment qualify him or her to perform the intended services in the U nitcd States. 8 C. F .R. ~ 214.2(1 )(3 ).

1 The Petitioner also refers to the proposed U.S. position as "Supervisor of Production Engineers:·

Maller of Y-A-, Inc.

A beneficiary is considered to be serving in a capacity involving specialized knowledge with respect to a company if the beneficiary 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. Section 214(c)(2)(B) ofthe Act, 8 U.S.C. ~ 1184(c)(2)(B).

Specialized knowledge is also defined as 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. 8 C.F.R. ~ 214.2(1)(1 )(ii)(D).

II. BACKGROUND

The Petitioner is the subsidiary of a publicly traded Korean company that manufactures high speed steel and carbide cutting tools, such as end mills and drills. The Petitioner established its U.S.-based manufacturing operations in 2014. has 3 I employees. and indicates that it had nearly $35 million in sales in 2015.

The Petitioner seeks to employ the Beneficiary in the position of "Production Specialist Engineer." The Petitioner indicated that he will: manage and support equipment and associates assigned to the production department: maintain and manage cycle times to maximize productivity and equipment efficiencies: provide programming and simulations for special tools: and educate operators on skills improvement. machine setup. operation and maintenance. and product quality standards. In addition, the position would require the Beneficiary to maintain manufacturing documentation. produce. and provide reports and analytics as requested. and to communicate with the Korean headquarters· research and development and production department to assist with product manufacturing methods.

The Petitioner stated that the Beneficiary has twelve years of experience in the cutting tools industry and more than seven years of experience with its parent company, initially as a production engineer. and. since 20 I I. as a supervisor in the production department.

III. SPECIALIZED KNOWLEDGE

In the denial decision, the Director determined that the Petitioner did not provide adequate support for its claim that the Beneficiary has acquired special knowledge of the Petitioner's products. equipment. or methodologies that is truly distinct or uncommon compared to other similarly employed workers in the industry or advanced compared to other workers in the company. The Director emphasized that the Petitioner did not sut1iciently document the amount or type of training the Beneficiary received. the amount of time it would take to train another employee. or provide information that would facilitate comparisons between the Beneficiary's knowledge and that possessed by other employees in the company or in the industry.

On appeal, the Petitioner emphasizes that most of its know-how is based on the Korean parent company. with manuals. guidelines. and intracompany communications conducted in Korean. The Petitioner maintains that it requires a Korean-speaking production employee familiar with U.S.

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culture to train U.S. staff and "facilitate a transfer of know-how and procedures·· from abroad. According to the Petitioner. the company advertised the open position and found no qualified applicants. noting that ··a worker from a different industry would require unreasonably long training" in technical aspects of the job and a non-Korean speaker would face ··cultural and language burdens." Finally, the Petitioner stresses that the Director did not consider the .. severe economic inconvenience'" the company will fact if it cannot transfer the Beneficiary. and asserts that lJ .S. Citizenship and Immigration Services should consider this factor in determining whether the Beneficiary possesses specialized knowledge.

As a threshold issue. we must determine whether the Petitioner established that the Beneficiary possesses specialized knowledge. If the evidence is insufficient to establish that he possesses specialized knowledge. then we cannot conclude that he has been employed abroad in a position involving specialized knowledge or would be employed in the United States in a specialized knowledge capacity.

A petitioner may establish eligibility by submitting evidence that the beneficiary and the profTered position satisfy either prong of the statutory definition of specialized knowledge. Under the statute. a beneficiary is considered to have specialized knowledge if he or she has: (I) a .. special .. knowledge of the company product and its application in international markets: or (2) an ··advanced .. level of knowledge ofthe processes and procedures ofthe company. Section 214(c)(2)(B) ofthe Act.

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. We cannot 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 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 individual beneficiary gained such knowledge.

Here. the Petitioner claims that the Beneficiary possesses both special and advanced knowledge of its products. manufacturing equipment. processes. and procedures gained his parent company. The Petitioner claims that this knowledge. combined with the Beneficiary"s familiarity with both U.S. and Korean culture.2 are required for the U.S. position.

A. Special Knowledge

Because .. special knowledge .. concerns knowledge of the petitiOning organization's products or services and its application in international markets. a 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. Knowledge that IS

2 The Beneficiary studied in the United States and worked for an unrelated U.S. employer in the Petitioner"s industry prior to joining the foreign entity in 2009.

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Matter of" Y-A -. Inc.

commonly held throughout a petitioner's industry or that can be easily imparted from one person to another is not considered specialized.

The Petitioner states that the Beneficiary has specialized knowledge of its manufacturing operations based on his seven years of experience with the company's cutting tool products and manufacturing equipment as well as its manufacturing processes and procedures. However. the Petitioner has not provided detailed descriptions of these products, nor did it provide documentation describing either its products or the computerized numerical control (CNC) machines used to manufacture them. Specifics are clearly an important indication of whether a beneficiary's duties involve specialized knowledge. otherwise meeting the definitions would simply be a matter of reiterating the regulations. fedin Bros. Co .. Ltd. r. 5)ava. 724 F. Supp. 1103. 1108 (E.D.N.Y. 1989). {{{(d. 905 F.2d 41 (2d. Cir. 1990).

Without information to differentiate its products or equipment, the Petitioner has not shown that the knowledge needed for production work within its company is truly ditTerent from what would be found among experienced production engineers working with CNC machines in the Petitioner's industry. The record shows that the Beneticiary himself worked for a different cutting tool manufacturer in the United States prior to joining the foreign entity and the Petitioner has not indicated the amount or type of company-specific training he was required to complete prior to assuming his role as a production engineer with the Petitioner's parent.

The Petitioner mentioned one specific company product. its •· and stated that the Beneficiary .. played a pivotal role in the development'· of this product. The record contains no further explanation or documentation regarding this tool or the Beneficiary's role in its development. and this unsupported statement alone is insutlicient to establish that he actually played a significant role in product development. or how such a role. if established, would be relevant to the claimed specialized knowledge. Again. the Petitioner must, at a minimum. articulate with specificity the nature of its products, the nature of the specific industry or field involved. and the nature of the beneficiary's knowledge.

Further. the foreign entity submitted a description of the Beneficiary's duties abroad. and this description did not include product design or development responsibilities. Rather. the foreign entity stated that he manages and supports manufacturing equipment manages cycle times. programs machines for various tools, provides reports and analytics. organizes manufacturing documentation. inspects samples, provides technical support, and communicates with the R&D department.

In tact. although the Petitioner submitted a copy of the Beneficiary's resume. he describes his role with the foreign entity as a ''full-time CNC machine operator·· and does not indicate that he is involved in product development tasks or even supervisory tasks, despite the Petitioner's claim that he is employed abroad as a supervisor of production engineers. The Petitioner did not attempt to resolve this discrepancy with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582. 591-92 (BIA 1988). Therefore. the Petitioner's claim that the Beneficiary possesses specialized knowledge based on his role in the development of a proprietary product is not adequately supported in the record.

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Matter o(Y-A-. Inc.

The Petitioner has also asserted that the Beneficiary has specialized knowledge of CNC grinding machines and has worked with this type of machinery for over seven years. The Petitioner describes the grinding machines as ''the primary manufacturing equipment"' used in its U.S. manufacturing operation, and indicates that the grinding machines are produced hy its parent company. However, it did not provide evidence in support of its claim that this equipment is proprietary to the company or, more importantly, intom1ation explaining how the knowledge required to operate this particular brand of CNC grinding machinery is truly different or uncommon in comparison to what is possessed by other production engineers/operators in its industry or related industries. Knov.-Jedge that is proprietary must still be either special or advanced.

The Petitioner has claimed at times that training on the grinding machines is only available in Korea. but it also stated that it has been operating these machines with locally hired staff since it opened its U.S. facility in 2014. The Petitioner states its U.S. operators are "still in the training process" and will not be fully capable for some time. but the Petitioner appears nevertheless to be manufacturing products, with $35 million in sales in its first full year of operations in 2015. The Petitioner's organizational chart shows a "Production Main MC'' department staffed by two foreman and two shifts of MC operators. The Petitioner does not indicate that it actually sent its U.S. workers to Korea tor training. nor did not attempt to distinguish the U.S. manufacturing capabilities in comparison to the foreign entity in support of its claim that the U.S. stafl is less capable. Rather. the evidence tends to support a finding that the Petitioner employs production employees who arc capable of producing the parent entity's products in the United States using the same machinery used abroad.

In determining whether the Beneficiary's knowledge of the grinding machines constitutes specialized knowledge. we have also reviewed the record tor evidence of the nature and length of the Beneficiary's own training on this equipment. If the Petitioner had established that he completed extensive company-specific training prior to assuming a production engineer role, or additional training related to his claimed supervisory role overseas. such evidence would support the Petitioner's claim that the knowledge is different from what is generally found in the Petitioner's industry. However, the Petitioner did not provide any statement or evidence. such as personnel or training records, documenting the Beneficiary's completion of training on this equipment. Accordingly. we cannot determine if or when the Beneficiary completed any formal training on the use of the foreign entity's equipment or in the skills needed to supervise the manufacturing operation.

Although the Petitioner did not provide training information specitic to the Beneficiary. it submitted a lengthy "training schedule·· for the Beneficiary's proposed U.S. position in supp011 of its claim that it would take "two to three years .. to train a U.S. employee on all necessary CNC grinding machinery skills. as well as Korean language skills. Based on the Petitioner's statement on appeal that ··a worker from a different industry would require unreasonably long training.'' it is unclear if this training schedule is intended for an experienced CNC operator in the Petitioner's industry. an experienced CNC operator from a different industry. or a person with no CNC production experience. This lack of clarity makes it difticult to evaluate the training schedule as a measure of the actual training requirements for the position.

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Matter r?f Y-A-. Inc.

This training breakdown indicated that it would take 116 weeks to obtain intimate knowledge of the CNC machinery and that this initial training would be ''only available in Korea .. with additional

··follow-up'' available from the Petitioner's own staff. The Petitioner did not di ITerentiatc which skills would have to be taught in Korea or indicate whether any proposed employee would be expected to have industry experience as a production engineer in the cutting tool industry. Again. we cannot determine whether the Beneficiary actually completed this training or whether the Petitioner's production operators and foremen have actually been sent to Korea for any training. In fact. given that the company has been fully operational since it was established. it nppears that the Petitioner has not sent its domestic production staff for extensive training in Korea. The Petitioner has not shown that the knowledge needed to operate its CNC machinery is so different or uncommon that it would require the claimed years of company-specific technology and skills training outlined in the .. training schedule.'·

The Petitioner also indicates that the proposed position. if filled by a U.S. worker. would require such worker to complete at least eight months of intensive Korean language training. because the position-holder is required to produce written reports for the foreign entity. to be familiar with the parent company's newest technology. to maintain and organize manufacturing documents \Vritten primarily in Korean, and to communicate with the parent company regarding manufacturing and assembly processes. The Petitioner emphasizes that all of the manuals and manufacturing guidelines for its products were wTitten in Korean.

The Petitioner's claim that it requires a Korean employee to oversee and train its U.S. workforce is not adequately supported. Although the Petitioner implies that it has been operating a multimillion dollar manufacturing operation tor three years without providing any English-language guidelines or manuals to its U.S. workers. this claim does not appear to be credible. Further, although the foreign entity's management may prefer to communicate in Korean. the Petitioner has not explained how it has been communicating key operational information to its parent company to date. It is not clear why communications between the companies could not he translated. which seems like a lesser inconvenience than training an English speaker to speak. read. and write Korean fluentl y. which the Petitioner claims is its only option if it cannot hire the Beneficiary. Nevertheless. the Beneficiary 's ability to speak both Korean and English. while like ly useful to the company. does not constitute special knowledge of the Petitioner's products. services. or other interests.

The Petitioner has also made general claims regarding its need tor the Beneficiary's familiarity with both U.S. and Korean culture. but, again. did not explain how this general cultural knowledge relates to the position or how it constitutes specialized knowledge specific to the petitioning company.

On appeal, the Petitioner focuses on the severe economic inconvenience it would face if it cannot employ the Beneficiary. The Petitioner relies on Fogo de Chao (Holding') Inc. , .. DHS. 769 F.Jd 1127. 1132 (D.C. Cir. 2014) (quoting l\.1cmorandum from James i\ . Pu lcn. Acti ng L.\ceuti\(' ;\ssoci<l tc Commissio ner. L S. lnter;m•tulion o{ .\jwciu/i;:ed l\no11'/ed;.;e (Marcil 9. I <N.:t ).

"· [k ]nowledgc might be found to be special where . .. the United States lirm would experience a significant interruption of business in order to train a United States worker to assume those duties"} This claim is based primarily on the training schedule, and the purported two to three year training

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Matter ol r-A-. Inc.

program that would be required to fill the Beneficiary's proposed position. Based on the foregoing discussion however, the training program, while lengthy, raised rnore questions than it answered about the actual training requirements for the offered position, especially when viewed in context with the totality of the evidence. The training schedule \Vould have more probative value if the Petitioner had established that the Beneficiary himself had completed similar training. or that the existing U.S. production workforce had undertaken at least some portion of the training in order to perform their duties.

Based on the foregoing discussion. the Petitioner has not shown that the Beneficiary acquired special knowledge that is different or uncommon compared to \Vhat is generally I(>Und among similarly employed workers in its industry, nor has it established that the company-speci1ic knowledge would be difficult to impart to a similarly experienced worker who is familiar with production machinery used in the Petitioner· s industry.

B. Advanced Knowledge

We have also considered whether the evidence establishes that the Beneticiary possesses advanced knowledge.

Because "'advanced knowledge"' concerns knO\vledge 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. As with special knowledge. the petitioner ordinarily must demonstrate that a beneticiary's knowledge is not commonly held throughout the particular industry and cannot he easily imparted from one person to another.

The Petitioner has not clearly articulated a claim that the Beneficiary has advanced knowledge. other than noting his lengthy experience with the company and noting that his current and foreign roles involve supervisory and some higher-level duties related to operation of the CNC machines. With respect to his foreign position, we have already noted that the Beneficiary indicates in his resume that is role with the foreign entity is ""CNC operator.·· He lists his ··abilities·· as "2nd degree of operating capacity CNC machine," and indicates that he has ceJtiticates in data processing and electric welding. but he does not have a college degree. This infmmation tends to undermine the Petitioner's claim that the Beneficiary has been supervising engineers in his role with the foreign entity.

Further. the Petitioner has not submitted information that would allovv· us to compare the Beneficiary to other similarly employed workers within the foreign entity. The Petitioner provided an organizational chart for the foreign entity, but the Petitioner has not attempted to show how the Beneficiary compares to other workers in the foreign entity's plant in terms of education. knowledge. training. or experience. While it is more likely than not that the Beneficiary's knowledge is advanced relative to any recently hired CNC operators. the record docs not support the

Maller of Y-A -. Inc.

Petitioner's claim that his knowledge of the company's manufacturing processes and related equipment as a whole is advanced in comparison to other members of the company's large manufacturing department. The record is simply deficient in this regard. In fact the Petitioner singles out the Beneficiary's previous residence in the United States and his ability to speak English as specific reasons he was chosen for this transfer. but these attributes do not equate to advanced knowledge.

Although the Petitioner considers the Beneficiary to be a valuable employee who excels at his position, it has not sufficiently shown that his knowledge of company processes and procedures is advanced compared to other similarly employed workers involved in the manufacture of the company's products or that he possesses special knowledge that is significantly dillerent from what is generally held in the Petitioner's industry.

Because the Petitioner has not demonstrated that the Beneficiary possesses special or advanced knowledge. we need not address whether the Beneficiary will be employed in the United States in a specialized knowledge capacity.

IV. CONCLUSION

The appeal will be dismissed because the Petitioner has not established that the Beneficiary possesses specialized knowledge.

ORDER: The appeal is dismissed.

Cite as Matter ofY-A-. Inc .. lD# 878632 (AAO Feb. 22, 2018)

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