PENNER

Interim Decision #2865

MATTER OF PENNER

In Visa Petition Proceedings

HEL-N-3070

Decided by Commissioner March 1, 1982

(1) Occupations do not inherently qiialify a beneficiary for classification undei section

101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(14. The

Service looks for elements beyond general job tasks and duties; in other words, the

specialized knowledge related to the proprietary intentsta of the business, its.manage-

meet, and concerned skills or knowledge not readily available in the job market.

(2) A beneficiary who possessed knowledge of the parts operation that was shared by no

other employee of the company and who was essential to the operation of the parts

distribution qualified as an "L" manager even though he had not served in an executive

or managerial capacity previously. Matter of Vaillancourt, 13 l&N Dec. 654 (R.C.

1970), interpreted.

(3) A beneficiary who was an executive secretary in a multinational company and whose

activities as a liaison with high government officials and business executive; as an

intermediary with customers and government officials and as an advisor to a new vice

president of the company was found to be a person of specialized knowledge: Matter of

Rcialin, 13 I&N Dec. 618 (R.C. 1970), interpreted.

(4) A beneficiary who was a sales manager was found to be a person of specialized

knowledge in screening, recruiting, contracting for, and training sales personnel in the

sale of cosmetics. Matter of LeBlanc, 13 I&N. Dec. 816 (R.C. 1971), interpreted.

(5) The "L" provision of section 101(a)(15) of tile Immigration and Nationality Act, 18

U.S.C. 1101(aX15), was not intended to alleviate or remedy a shortage of United States

workers. The temporary worker provisions contained in section 101(a)(15)(H) of the

Immigration and Nationality Act, 8 U.S.C. 1 101(a)(15)(11), provide a basis for admis-

sion of workers for whom there is a shortage_

ON BEHALF OF PETITIONER: Charles C. Foster, Esquire

1130 Pennzoil Place - South Tower

Houston, Texas 7'7002

This proceeding is before me under certification as provided by 8

C.F.R. 103.4. The Regional Commissioner dismissed an appeal from the

District Director's decision in which he held that the beneficiaries did

not qualify as "L" intra-company transferees. The visa petitions Were

specifically denied on the grounds that the beneficiaries were not being

transferred to the United States as employees of the petitioner's branch

office, or of an affiliate or subsidiary, and on the ground that the

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Interim Decision #2865

beneficiaries were not persons of "specialized knowledge" under section

101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)

(15)(L). .

The petitioner is a Canadian corporation engaged in the business of

providing oil and gas drilling contracting services for the exploration

and production of those natural resources. It has approximately 500

employees and gross annual revenue of $66 million (one supporting docu-

ment states in excess of $6 million). The petitioner does not now have a

place of business in Montana, although it apparently has a business

office in Colorado and claims to have qualified to do business there. The

five beneficiaries are Canadian citizens who have worked for the peti-

tioner in Canada for more than the past year as a motorman, derrickman,

driller, assistant driller, and electrician on the petitioner's drill rig crews

in Canada. The petitioner claims it has entered into a contract (which it

has not submitted for the record) to provide its drilling services in

eastern Montana and seeks to transfer these beneficiaries to the United

States as part of the rig crews for this job.

The major focus of this case is the finding that the beneficiaries are

not persons of spicialized knowledge. Section 101(a)(15)(L) provides

that "L" status may be accorded to an alien who:

has been employed continuously for one year by a firm or corporation or other legal

entity or an affiliate or subsidiary thereof and who seeks to enter the United States

temporarily in order to continue to render his services to the same employer or a

subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves

specialized knowledge..

The Regional Commissioner found that the beneficiaries did not pos-

sess skills, knowledge or responsibilities "uniquely important" to the

petitioner. He also found that to grant the "L" status would violate the

Congressional intent that the "L" category be narrowly drawn.

House of Representatives Report No. 91-851, 91st. Congress, Session

2 (1970), contains the legislative history of Public Law 91-225 which

•established the L-1 nonimmigrant classification. The Report is silent on

the subject of specialized knowledge_ There were, however, attempts

by the Chairman of the Subcommittee No. 1 of the House Judiciary

Committee during the course of the hearings on the bill to have various

witnesses define the level of skill necessary to qualify under the pro-

posed "L" category (see. Hearings before Subcommittee No. 1 of the

Committee on the Judiciary House of Representatives, Serial No. 91-9,

pages 205-274). In response to the Chairman's questions, various

witnesses respoikled that it was their understanding the legislation would

deal with "high level" positions, "experts," "unique skills," that it would

not include "lower categories" of workers, and that "they were not

talking about skilled craft workers or people of that sort" (Hearings,

id. at pages 210, 218, 223, 240, 248).

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Interim Decision #2865

The petitioner asserts that the remarks of Congressman McEwen at

the hearing on the bill are representative of the intent of Congress:

Other statements by Congressman McEwen indicated that the bill would "alleviate

that problem of restrictions now placed on the interchange of executive, managerial

and skilled personnel of American and Canadian companies who seek to bring these

employees to the facilities located in our country." He further stated, "prior to July

1968 a Canadian company with an American subsidiary could, within a reasonable time,

transfer needed skilled production workers and management personnel from Canada to

theU.S......

U.S...

There are two major problems with both the petitioner's interpreta-

tion of an(' reliance on these remarks. First, Congressman McEwen was

not a member of the Subcommittee, but only a witness. Secondly, his

testimony touched on both the "L" legislation and a bill to amend the

"H" temporary worker provisions. His comments as cited may or may

not refer to "L" nonimmigrants. His individual views are ambiguous and

not an expression of the drafting subcommittee. They are, therefore,

not entitled to great weight in determining the Subcommittee'i intent

[see United States v. Matthews, 419 F.2d 1177, 1182 (D.C. Cir. 1969);

D.C. Federation of Civil Associations, Inc. v. Volpe, 434 F.2d 436, 445

(D.C. Cir. 1970)].

The transcript of the hearings indicates that the subcommittee mem-

bers theramelves did not take exeeptinn to the definitions and prevailing

thought supplied by the witnesses. To the extent that silence is

acquiescence, the tenor of the testimony as a whole contradicts the

interpretation presented by the petitioner in regard to Congressional

intent.

The summary of the H.R. No. 91-851 which accompanied the bill

echoes the limited definition favored by most subcommittee witnesses:

Evidemne submitted to the committee established that the number of temporary admis-

sions under the proposed "L" category will not be large. The class of persons eligible for

such nonimmigrant visas is narrowly drawn and will be carefully regulated and moni-

tored by the Immigration and Naturalization Service. (H.R. No. 91 -851, 1970 U.S.

Code CiS lg. end Admin.. News at 2754).

The report also states that the purpose of the L-1 provision is to

facilitate the admission of "key personnel" and "managerial personnel."

A broad definition which would include skilled workers and technicians

was not discussed, thus the limited legislative history available there-

fore indicates that an expansive reading of the "specialized knowledge"

provision is not warranted.

The petitioner contends that the Regional Commissioner's decision

narrowly defining "specialized knowledge" is contrary to prior Service

and Board of Immigration Appeals rulings. This is not correct. Prece-

dent decisions issued around 1970 form the bulk of the decisions issued

on "L" visas. Although the decisions appear fairly broad in their

implications, none of them stand specifically for the proposition that

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Interim Decision #2865

skilled workers are persons of specialized knowledge. In Matter of

Vaillancourt, 13 I&N Dec. 654 (R.C. 1970), a petition was submitted on

behalf of a man who would serve as a parts manager for the entire

United States, for a company with sales in excess of one billion dollars.

The issue presented in that case was whether the beneficiary could

qualify as an "L" manager if he had not served in an executive or

'managerial capacity previously. The Regional Commissioner concluded

that the beneficiary's prior work history qualified him as a person of

specialized knowledge. The decision indicates quite clearly that the benefi-

ciary possessed knowledge of the parts operation that was shared by no

other employee of the compamy and that the beneficiary was essential to

the operation of the parts distribution system.

In a second ease cited by the petitioner, Matter of Raulin, 13 I&INT

Dec. 618 (IL C. 1970), the beneficiary was an executive secretary in a

multinational company. The petition was approved, as she was found to

be a person of specialized knowledge. The inquiry focused on her activi-

ties as a liaison with "high" government officials and business executives,

as an intermediary with customers and government officials and as an

advisor to a new vice president of the company. The decision made it

clear that she was valued for her knowledge.

In Matter of LeBlanc, 13 MN Dec. 816 (R.C. 1971), a petition was

approved on behalf of a sales manager. Although the decision mainly

discussed the question of whether or not a "branch office" existed in the

United States, the beneficiary was found to be a person of specialized

knowledge in screening, recruiting, contracting for, and training sales

personnel in the sale of cosmetics.

In a more recent decision of Zane 19, 1981, the Commissioner of

Immigration and Naturalization stated that the LeBlanc and Raulin

decisions did not find that the occupations inherently qualified the bene-

ficiaries for the classification sought. The Service looked for elements

beyond general job tasks and duties. Both decisions rested on a finding

that the beneficiaries had essential knowledge of the business firm's

product or service, management operations, decision making process,

or similar elements. In other words, the specialized knowledge related

to the proprietary interests of the business, its management, and con-

cerned skills or knowledge not readily available in the job market,

Matter of Colley, et al., 18 I&N Dec. 117 (Comm. 1981).

The precedents, therefore, stand for the proposition that petitions

may be approved for persons with specialized knowledge, not for skilled

workers. Although Raulin was a secretary, her petition was approved

for reasons other than her basic secretarial skills. Vaillaneourt received

a visa because he would direct the nationwide parts operation, not

because he was a "stock clerk" as the petitioner here contends. LeBlanc's

petition was approved because he could recruit and train persons, not

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Interim Decision #2865

because he could sell cosmetics. The contemporary work place is, of

course, increasingly complex and most employees possess varying lev-

els of technical and specialized skills which have been acquired by both

on-the-job experience and by training courses. However, in view of the

House Report, it cannot te concluded that all employees with any level

of specialized knoirledge or performing highly technical duties are eligi-

ble for classification as intra-company transferees. Such a conclusion

would permit extremely large numbers of persons to qualify for the

"L-1" visa. The House Report indicates that the employee must be a

"key" person and "the numbers will not be large."

A distinction can be made between the person whose skills and knowl-

edge enable him or her to produce a product through physical or skilled

labor and the person who is to be employed primarily for his ability to

carry out a key process or function which is important or essential to the

business firm's operation. Thus, in Matter of Colley, et al., supra, the

Commissioner authorized L-1 classification to five alien beneficiaries

who possessed knowledge of the uniquely complex equipment and the

particular techniques used by the petitioner in map surveys and which

were proprietary to the petitioner.

A review of the record of this proceeding reflects only that the benefi-

ciaries are highly skilled workers who will be performing labor on dril-

ling rigs. These occupations are technical, but not unique in the industry

at large. The United States Department of Labor estimated that there

were more than 650,000 gas and petroleum wells in the United States in

1978 (Occupational Outlook Handbook, 1980, Bureau of Labor Statistics,

pg. 498). Statistics contained in the record show that in June 1981, there

were over 4,000 active rotary oil and gas drilling rigs operating in the

United States. A typical rotary drilling crew consists of four or five

workers. Because drilling rigs are operated 24 hours a day, 7 days a

week, several crews are needed for each rig.

The petitioner states that these beneficiaries will work on "electrical/

diesel" powered drilling rigs and that only 5% of the rigs now operating

in the United States are so powered. However, I see nothing in the

record which distinguishes these workers from many others involved in

the industry. New technology and different equipment are routinely

introduced into the American workplace. In the absence of evidence

that there is significant proprietary knowledge involved or that the

know-how or knowledge held by these beneficiaries is unique, I am

unable to conclude that the petitioner has demonstrated that the benefi-

ciaries have the specialized knowledge contemplated under the statute.

The petitioner's contention that a shortage of U.S. rig workers exists is

not material in this proceedings. The "L" provision was not intended to

alleviate or remedy a shortage of United States workers. The tempo-

rary worker provisions contained in section 101(a)(15)(H) of the Act,

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Interim Decision #2865

provide a basis for admission of workers for whom there is a shortage.

A second basis for denying the petitions was the Regional Commis-

sioner's finding that the beneficiaries would be employed directly in the

United States by a foreign company and that the beneficiaries would not

be controlled in any way by the foreign company's United States office

-located in Denver, Colorado. I agree with the Regional Commissioner

that if the beneficiaries will not in fact have any employment relation-

ship to the Denver office, then it would appear that they are not in fact

infra-company transferees. The second clause of "L" provision provides

that the employee must be coming to render his services to the "same

employer or a subsidiary or affiliate thereof." In this instance, the peti-

tioner does not contend that the oil rig in Montana is a subsidiary or

affiliate of the petitioner. Arguably, the beneficiaries are coming to

work for the "same employer," the petitioner. This conclusion, however

could lead to an anomalous result: virtually any foreign based business

would be able to use the "L" visa category to bring to the United States

any number of its employees whether or not a business entity existed or

was being established in this country. For instance, a foreign-based

construction company could contract to build a factory, and then send a

work-force to build the facilities, thereby depriving American workers

of employment. This result would not be consistent with the legislative

history of the "L" provision. The term "same employer" as used in the

second clause of the "L-I" provision should be understood to mean "parent

company." This latter term is used in the House Report to the bill, in

phrasing such as "parent companies, branches, or affiliates," "by a com-

pany affiliated with the parent, subsidiary, or branch located in the

United States."

The petitioner has submitted additional information to the effect that

an office is being constructed in Willston, North . Dakota, which will

manage and control the petitioner's United States operations. This devel-

opment potentially could remove the Regional Commissioner's second

reason for denying the petitions. Nonetheless, the petitioner has failed

to establish that the beneficiaries are entitled to classification under

section 101(a)(15)(L) of the Immigration and Nationality Act.

ORDER The visa petitions are denied.

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