Interim Decision #2881

Interim Decision #2881

MATTER OF COLLEY, et al.

In Visa Petition Proceedings

PHI-N-8302-8305

Decided by Commissioner June 19, 1981

(1) Beneficiaries, employed as aerial survey pilot, survey pilot/ navigator, aerial photographer, and aerial camera operator, possessed the requisite "specialized knowledge"

within the meaning of sectiqn 101(a)(15)(L) of the Immigration and Nationality Act,

8 U.S.C. 1101(a)(15)(L), to be classified as intracompany transferees because their

skills were necessary to operate the unique and unusually sophisticated aerial photography and computerized navigational system developed by the Canadian parent company. The petitioner has also demonstrated that all four beneficiaries have been employed by the parent company in excess of one year and that their services are essential

for the successful operation of this particular equipment.

(2) In Matter of Rautin, 13 I&N Dec. 618, and Matter of LeBlanc, 13 l&N Dec. 816, the

oceupatinns did not inherently qualify the beneficiaries and the Service looked for

elements beyond general job tasks and duties for the specialized knowledge related to

the proprietary interests of the business, its management, and concerned skills or

knowledge related to the proprietary interests of the business, its management, and

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

(3) Specialized knowledge must be relevant to the business itself and directly concerned

with the expansion of commerce or it must allow a business to become competitive in

overseas markets. Matter of Michelin Tire Corporation, 17 I&N Dec. 248 (R.C. 1978).

(4) Most employees today are specialists and have been trained and given specialized knowledge; however, it can not he concluded that all employees,with specialized knowledge

or performing highly technical duties are eligible for classification as intracompany

transferees.

ON BEHALF OF PETITIONER: Howard R. Scherer

Montgomery, McCracken,

Walker, and Rhoads

Three Parkway

Philadelphia 19105

This matter is before me on certification from the Regional Commissioner in accordance with 8 CFR 103.4.

The District Director found the beneficiaries eligible as intracompany.

transferees under section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. I101(a)(15)(L), on October 21, 1980. The District

Director reopened that decision based upon his motion, approved the

visa petitions and certified the proceeding to the Regional Commissioner.

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The Regional Commissioner affirmed the District Director's decision

approving the visa petitions.

The petitioner seeks to classify the beneficiaries as intracompany

transferees based upon the claim that they possess specialized knowledge and that they have been employed by the Canadian parent firm for

at least 1 year. The petitioner seeks to employ the beneficiaries in the

following occupations: aerial survey pilot, survey pilot/navigator, aerial

photographer, and aerial camera operator. The District Director

approved the petitions based upon n broad interpretation of the term

"specialized knowledge" and the fact that the beneficiaries possessed

highly technical skills acquired and practiced over a period of years. The

District Director also relied upon the Dictionary of Occupational Titles

(U.S. Department of Labor, Employment and Training Administration,

Fourth Edition, 1970) which classified the identified occupations as

"Professional, Technical and Managerial." The District Director concluded "(t]he Service does not enhance it's responsibilities by attempting to narrowly draw terms left undefined, persumable [sic] on purpose,

by the Congress."

Section 101(a)(15)(L) of the Act, 8 U.S.C. 1101(A)(15)(L), reads as

follows:

(L) an alien who, immediately preceding the time of his admission into the United

States, 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 petitioner, Capital Air Surveys, Inc., was incorporated in the

state of Delaware on February 22, 1980. It has obtained a Certificate of

Authority from the Commonwealth of Pennsylvania authorizing the

transaction of the business of conducting aerial land surveys. The petitioner is a wholly-owned subsidiary of Capital Air Surveys Limited,

Pembroke, Ontario, Canada which was incorporated in that country in

1957. The United States subsidiary specifically seeks aerial photography and survey work in this country thus expanding its business operation into the United States. The petitioner has one aircraft registered in

the United States and has established a business office at 6241 Saltsburg

Road, Pittsburgh, Pennsylvania. The value of the aircraft and the specialized aerial survey equipment is estimated to be $1,750,000 and

$360,000, respectively. The petitioner's counsel states that the company

has previously submitted bids for performance of aerial survey contracts in the United States and while these bids were not successful, it is

the company's intention to establish'an ongoing business in the United

states.

The evidence and information furnished clearly establishes that the

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petitioner is a bona fide business entity incorporated under laws of

Delaware. The fact that the petitioner to date has not performed any

actual business or work is not material In Matter of LeBlanc, 13 I&N

Dec. 816 (R.C. 1971), the'Service determined that an alien beneficiary

may be coming to the United States to establish an affiliate or subsidiary office and the affiliate or subsidiary need not be in existence or be

operational at the time of admission. Furthermore, H.R. Rep. No_

91-851 in section 1(b) specifically- states that the provision was enacted

to address the absence of statutory provision for "international executives to be admitted for temporary assignments with parent Companies,

branches or affiliates . . ." The Report also refers to intracompany transfers for companies with "branches both in Canada and the United States"

and freely uses the term international corporations throughout. There is

no wording either in the Act or legislative history to indicate the L

nonimmigrant visa category was to be limited to American parent

corporations thus restricting the movement of foreign corporations and

their investments into the United States. As a wholly owned subsidiary

of a Canadian Company, I find that the petitioner may employ qualified

employees under section 101(a)(15)(L), 8 U.S.C. 1101(a)(15)(L).

The remaining issues are to determine whether or not the beneficiar-

ies will be employed by the petitioner in an executive or managerial

occupation or in a capacity involving specialized knowledge and that the

beneficiaries have been employed by the same employer or affiliate or

subsidiary thereof for one year prior to' their admission. The record of

proceedings establishes that the petitioner has contracted to perform

high altitude jet photography for Teledyne Geotronics of Long Beach,

California. The altitude will range from 42,000 to 48,000 feet.' The petitioner claims that the use of its equipment and process requires specialized knowledge well outside the parameters of a traditional survey pilot,

navigator, or camera operator and that the terms of contract require the

use of highly complex equipment.

The term specialized knowledge is not defined by statute. H.R. Rep.

No. 91-851 also fails to provide a precise definition of the term but the

Report does state that the purpose of the L provision is to facilitate the

admission of "key personnel" and "managerial personnel." The Report

furthermore states: "The class of persons eligible for such nonimmigrant

visas is narrowly drawn and will be carefully regulated and monitored

by the Immigration and Naturalization Service."•Thus, the intent of

Congress was not to authorize the admission of all employees.

The modern workplace requires a high proportion of technicians and

specialists. Most employees today are specialists and have been trained

and given specialized knowledge. However, in view of the House Report,

it cannot be concluded that all employees with specialized knowledge or

performing highly technical duties are eligible for classification as intra-

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company transferees. The House Report indicates the employee must

be a "key" person and associates this employee with "managerial

personnel."

In Matter of Raulin 13 I&N Dec. 618 (R.C. 1970), an L-1 nonimmigrant visa classifications was accorded to an executive secretary. In

Matter of LeBlanc, 13 I&N Dec. 816 (R.C. 1971), a sales assistant was

determined to be eligible for classification as an intracompany transferee.

In both of these decisions, the Service did not find that the occupations

inherently qualified the beneficiaries for the classification sought and

looked for elements beyond general job tasks and duties. Both decisions

reste d on a finding that the beneficiaries had essential knowledge of the

business'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 concerned skills or knowledge not readily available in the job market.

Similarly, in Matter of Michelin Tire Corporation 17 I&N Dec. 248

(R.C- 1978), the Service found that the specialized knowledge must be

relevant to the business itself and directly concerned with the expansion

of commerce or it must allow a business to become competitive in over-

seas markets. In that case, the Service denied classification to a highly

educated and experienced teacher who was to instruct the children of

French employees in order that the students not retrogress in their

studies upon their return to the French educational system.

The petitioner in this proceeding has furnished additional evidence

and information which demonstrates that it is involved in unusually

sophisticated aerial photography and that it uses a computerized navigational and camera operating system known as a dual channel digital

control system. The system was developed by the parent company and a

patent is being sought. The system is unique to the company although

perhaps two other similar systems exist in North America. The Chief,

Procurement Section, Contract Management 'Division of the U.S.

Geological Survey has confirmed that the camera operation and navigational systems used in high altitude jet photography are essentially

developed "in house" by the companies engaged in such photography

and that systems are not commercially available at this time. The petitioner has also demonstrated that all four beneficiaries have been

employed by the parent company in excess of 1 year and that their

services are essential for the successful operation of this particular

equipment.

In view of the foregoing discussion, I find the beneficiaries to be

involved in duties which are necessary in order for the company to

remain competitive, that those duties related directly to the product or

service of the company, and that the beneficiaries have specialized knowl-

edge of the equipment and particular techniques used by the petitioner

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and which are within the proprietory knowledge of the petitioner. I,

therefore, find the beneficiaries eligible for the classification sought.

ORDER: The petitions are approved.

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