The opinion
Interim Decision #3067
MATTER OF SANDOZ CROP PROTECTION CORPORATION
In Visa Petition Proceedings
CHI-N-36181
Decided by Commissioner May 20, 1988
(1)Specialized knowledge involves proprietary knowledge and an advanced level of
expertise not readily available in the United States job market. This knowledge
and expertise must be clearly different from those held by others employed in the
same or similar occupations. Different procedures are not a proprietary right
within this context unless the entire system and philosophy behind the proce-
dures are clearly different from those of other firms, they are relatively complex,
and they are protected from disclosure to competition.
(2) A petitioner's ownership of patented products or copyrighted works, in and of
itself, does not establish that a particular employee has specialized knowledge. In
order to qualify, the beneficiary must himself or herself be a key person with
knowledge which is critical for performance of the job duties and which is protect-
ed from disclosure through patent, copyright, or company policy.
ON BEHALF OF PETITIONER: Melvyn E. Stein, Esquire
I La Salle Street
Chicago, Illinois 60602
This is an appeal from the adverse decision of the director,
Northern Regional Service Center. The appeal will be dismissed.
The petitioner manufactures and sells crop protection chemicals.
It seeks to classify the beneficiary as an "L-4" intra-company
transferee based upon its intent to employ him as a marketing
manager. The beneficiary has been employed by the foreign enter-
prise as a sales representative.
The director denied the petition on the ground that the petition-
er had failed to establish the beneficiary qualifies for "L-1" classifi-
cation as a person who has been and would continue working in a
capacity involving specialized knowledge_
On appeal, counsel asserts the beneficiary's knowledge of, and
experience in, the marketing and sale of the petitioner's patented
herbicide constitutes the necessary proprietary knowledge of a
unique product to the specialized knowledge. According to counsel,
the beneficiary's knowledge and skill are critical to the success of
the petitioner's products in the United States.
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Interim Decision #3067
"L-1" eligibility requires that a petitioner establish a beneficiary
has been employed outside the United States in a qualifying mane.- •
gerial or executive capacity, or in a capacity involving specialized
knowledge, for a qualifying firm, for the year prior to the benefi-
ciary's application for admission to the United States. The petition-
er must also demonstrate the beneficiary will be immediately em-
ployed in a qualifying capacity.
New regulations effective March 30, 1987, define "specialized
knowledge." Specialized knowledge, as now described in 8 C.F.R.
§ 214.2(1)(1)(ii)(D) (1988), involves advanced knowledge and an ad-
vanced level of expertise not readily available in the United States
job market, with the petitioner having a proprietary right to the
knowledge or its product. The petitioner's proprietary interest
must be such that the knowledge required is clearly different from
that held by others employed in the same or similar occupations.
Different procedures are not a proprietary right within this context
unless the entire system and philosophy behind the procedures are
clearly different from those of other firms, they are relatively com-
plex, and they are protected from disclosure to competition.
According to supplementary information published with the new
regulations on February 26, 1987:
It was the Service's intention to provide clearer standards for determining special-
ized knowledge. Although commenters would prefer to retain the definition in
current regulations, the Service believes that a revision is appropriate to better
articulate case law.
52 Fed. Reg. 5740-41 (1987).
Most employees today are specialists and have been trained and
given special knowledge. Nevertheless, it cannot be concluded all
employees with special knowledge or all employees performing
highly technical duties are eligible for classification as intra-compa-
ny transferees. Matter of Colley, 18 I&N Dee_ 117 (Comm. 1981);
Matter of Penner, 18 I&N Dec. 49 (Comm. 1982). "L-1" petitions for
other than managers and executives may only be approved for
"persons with specialized knowledge, not for skilled workers."
Matter of Penner, supra, at 52.
Both of the above precedent decisions cite the House of Repre-
sentatives report which accompanied Public Law 91-225 (1970)
when the "L-1" provisions were first enacted into law. H.R. Rep.
No. 851, 91st Cong., 2d Sess. 2, reprinted in 1970 U.S. Code Cong. &
Ad. News 2750. That report states the purpose of the "L-1" provi-
sions is to facilitate the admission of "key personnel" and "mana-
gerial personnel."
A petitioner's ownership of patented products and processes or
copyrighted works, in and of itself, does not establish that a par-
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Interim Decision #3067
dallier employee has specialized knowledge. In order to qualify, the
beneficiary must be a key person with materially different knowl-
edge and expertise which are critical for performance of the job
duties; which are critical to, and relate exclusively to, the petition-
er's proprietary interest; and which are protected from disclosure
through patent, copyright, or company policy.
The primary product the beneficiary has been marketing and
selling in Canada is a specialized, patented herbicide agricultural
chemical used to control broadleaf weeds. The petitioner argues the
knowledge gained by the beneficiary managing two areas in
Canada make him one of very few people able to market the herbi-
cide for application to corn and wheat and for other specialized ap-
plications to pasture lands, fallow land, industrial vegetation, grass
seed, and perennial weeds. According to the petitioner, the market-
ing of this herbicide requires a thorough knowledge of the product
and the ability to communicate its use and effectiveness.
The petitioner has not established that skills relating exclusively
to its business are necessary for the beneficiary to perform his pro-
posed duties of marketing this product. In fact, one of the benefi-
ciary's duties is to communicate to customers the use and effective-
ness of the patented product, and the petitioner has not established
the beneficiary needs proprietary knowledge of the product to do
this.
In this proceeding, the petitioner has not established the benefi-
ciary's knowledge is not related to common practices and is not
readily available in the United States labor market. On the con-
trary, the beneficiary's knowledge of the sale and marketing of her-
bicides and the Canadian market is that normally expected of an
employee in his position. It is not an advanced level of expertise
which is materially different from that of others in similar posi-
tions employed by competitors.
Matter of Brantigan, 11 I&N Dec. 493 (MA 1966), holds, in visa
petition proceedings, the burden of proof to establish eligibility for
the benefit sought rests with the petitioner. Here, that burden has
not been met.
It is noted the record, as presently constituted, does not contain
any evidence of a qualifying relationship between the United
States and foreign enterprises. As the petition is otherwise not ap-
provable, this issue does not need to be addressed further.
ORDER: The appeal is dismissed.
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