In the spirit of the holidays, wanted to share this great post by Eleanor Pelta from AILA
A client of mine is in a real quandary. The client has a major project with an urgent deliverable that requires a key employee to travel to the U.S. urgently. Because the company has a crack operations staff, they were on this issue early on, and we filed an L-1B petition months before the travel was necessary. However, current processing times being what they are, we had to upgrade the case to Premium Processing recently in order to have any chance of obtaining an approval before the start date. Notwithstanding our extensive documentation, we recently received a massive Request for Evidence and I must confess, our office has been struggling with a response. In the interest of getting something in on a timely basis, the client has authorized me to share details about the petition with the AILA membership for the purpose of tapping into the collective brilliance of the immigration bar to put together a winning response. Here are select portions of the RFE. Any comments or suggestions are most welcome.
Beneficiary: Nicholas LNU
“It has not been demonstrated that the beneficiary has knowledge of your company or the industry as a whole which can be considered “specialized.” Most individuals working in the marketplace are specialists and have been administered a certain amount of training from which they have gleaned special knowledge. It cannot be concluded, however, that all workers who hold specialized knowledge or perform highly technical duties qualify as “specialized knowledge” nonimmigrants.
The petitioner states that the beneficiary will enter the U.S. on an intermittent basis to perform similar duties in the U.S. as those performed abroad and describes them as follows:
* Continuously maintain and update “Naughtynice.net,” a proprietary system to manage database containing behavioral information for the world’s population, with an integrated input process for storing personal interests, hobbies, sleep/awake patterns and other information and inputs received, as well as a sophisticated order fulfillment program.
* Business analysis and operational planning for wide-scale international yearly order-fulfillment and distribution project
* Manage sophisticated geographical information program using satellite images of earth to determine locations where orders must be distributed. The petitioner claims that this program is akin to Google Earth, with certain added proprietary features, such as the ability to locate homes with extra-wide chimneys, homes with very small chimneys, homes with no chimney, and even homes where cookies and milk are regularly left on the fireplace mantle
* Ensure that business requirements are translated into accurate orders that can be produced and fulfilled by staff at company’s factories
* Utilize highly specialized tools to drive and care for a fleet of unique delivery vehicles with obsolete technology.
It appears that the use of the company’s proprietary tools may be incidental to the duties of the U.S. position, as it appears that the beneficiary may be coming to the United States merely to provide support for the company’s services. Moreover, there is no indication of how much time is spent performing the duties that require processes specific to benefiting your company, besides its economic viability. Please provide detailed list of each specific duty requiring specialized knowledge and a breakdown of time spent on each duty.
Specialized knowledge generally comes as a by-product of the projects and activities employees are assigned, not commonly held by significant portions of employees of a company. Identify the percentage of others within the company who hold the level of knowledge you claim that the beneficiary possesses. Identify how long it takes to train an employee to use the specific tools, procedures and/or methods utilized. Explain exactly how the beneficiary’s training differs from the core training provided to your other employees. Submit a record from your human resources department detailing the manner in which the beneficiary has gained his/her specialized knowledge.
The petitioner claims that without the services of the beneficiary, the petitioner’s business would suffer economic decline. Moreover, the petitioner claims that thousands of its customers internationally may suffer grave disappointment and even loss of faith. The value of the beneficiary’s skills to the petitioner is not in question. The petition must be examined to determine if the beneficiary’s duties involve knowledge that is significantly beyond the average in a given field or occupation. Merely limiting an employee’s knowledge to specific tools, procedures, methodologies, and or programs, proprietary or otherwise, does not necessarily create specialized knowledge.
It appears from other information provided in the petition that the beneficiary has some management duties. Specifically, the petitioner claims that the beneficiary manages all factory staff engaged in the manufacture of products for order fulfillment, mainly playthings. In addition, the petitioner states that the beneficiary oversees the care and feeding of flock of roughly 8 rare miniature “Rangifer Tarandus,” plus one with a unique nasal condition. However, without more information this would not in and of itself establish eligibility for the L-1A category as an alternative. From the promotional material submitted, it would appear that the factory staff are individuals of extremely small stature who wear uniforms including pointy hats and colorful leggings. They appear to be lesser skilled workers. Thus the duties with respect to these workers would be those of a first-line supervisor. Moreover, management of livestock does not create eligibility for L-1A purposes.
Your response must be received in this office by December 24, 2010.”
P.S. The writer does not opine on whether or not Santa is make-believe. The excerpts above showing the evolving, and ever-narrowing definition of specialized knowledge, alas, are not.