Matter of Penner

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

本程序依8 C.F.R. 103.4规定经认证提交本人审理。区域专员驳回了对地区主任决定的上诉，地区主任在该决定中认定受益人不符合“L”类公司内部调任人员的资格。签证申请被明确拒绝，理由是受益人并非作为申请人分支机构、关联机构或子公司的雇员调任美国，且理由是

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:

受益人不属于《移民与国籍法》第101(a)(15)(L)条、8 U.S.C. 1101(a)(15)(L)所指的具有“专门知识”的人员。 申请人为一家加拿大公司，从事为勘探和生产石油和天然气提供油气钻井承包服务的业务。该公司约有500名雇员，年总收入为$66 million（一份支持文件称超过$6 million）。申请人目前在蒙大拿州没有营业场所，尽管其显然在科罗拉多州设有商务办事处并声称已获准在该州经营。五名受益人均为加拿大公民，过去一年多在加拿大为申请人工作，在申请人的钻机机组中分别担任司钻工、井架工、钻工、助理钻工和电工。申请人声称其已签订合同（未提交记录）在蒙大拿州东部提供钻井服务，并寻求将这些受益人作为该作业钻机机组的一部分调任美国。 本案的主要焦点是认定受益人不属于具有专门知识的人员。第101(a)(15)(L)条规定，“L”身份可以给予符合以下条件的外国人：

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).

已在一家公司、企业或其他法律实体或其关联机构或子公司连续受雇一年，并寻求临时进入美国，以便以管理、行政或涉及专门知识的身份继续向同一雇主或其子公司或关联机构提供服务。 区域专员认定受益人不具备对申请人“独特重要”的技能、知识或职责。他还认定，授予“L”身份将违反国会关于“L”类别应作狭义界定的意图。 众议院第91-851号报告，第91届国会，第2会期（1970年），载有确立L-1非移民分类的第91-225号公法的立法史。该报告对专门知识问题未作论述。然而，在就该法案举行的听证会过程中，众议院司法委员会第1小组委员会主席曾试图让各证人界定符合拟议“L”类别所需的技能水平（见众议院司法委员会第1小组委员会听证会，Serial No. 91-9，第205-274页）。在回答主席的提问时，各证人答复称，他们的理解是，该立法将涉及“高层”职位、“专家”、“独特技能”，不会包括“较低类别”的工人，并且“他们谈论的不是熟练技工或那类人员”（Hearings, id. 第210、218、223、240、248页）。

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 the U.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:

McEwen众议员的其他发言表明，该法案将“缓解目前对美国和加拿大公司行政、管理和熟练人员交流所施加的限制问题，这些公司寻求将这些雇员带到设在我国的设施。”他还表示，“在1968年7月之前，一家拥有美国子公司的加拿大公司可以在合理时间内将所需的熟练生产工人和管理人员从加拿大调往美国…… 美国…… 申请人对这些言论的解释和依赖存在两个主要问题。第一，McEwen众议员不是小组委员会成员，而只是一名证人。第二，他的证词同时涉及“L”立法和一项修订“H”临时工人条款的法案。他所引述的评论可能指也可能不指“L”非移民。他的个人观点含糊不清，并非起草小组委员会的表述。因此，在确定小组委员会的意图时，这些观点不应被赋予重大权重[见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)]。 听证会记录表明，小组委员会成员本身并未对证人提供的定义和主流观点提出异议。就沉默即默许而言，证词的整体基调与申请人就国会意图所作的解读相矛盾。 随法案提交的H.R. No. 91-851摘要呼应了大多数小组委员会证人赞成的有限定义：

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

提交给委员会的证据表明，根据拟议的“L”类别临时入境的人数不会很多。有资格获得此类非移民签证的人员类别界定狭窄，并将由移民与归化局仔细规范和监督。（H.R. No. 91-851, 1970 U.S. Code Cong. and Admin. News at 2754）。 该报告还指出，L-1条款的目的是便利“关键人员”和“管理人员”的入境。未讨论包括熟练工人和技术人员在内的宽泛定义，因此现有的有限立法史表明，不应授权对“专门知识”条款作扩张性解读。 申请人主张，区域专员对“专门知识”作狭义界定的决定与移民局和移民上诉委员会此前的裁决相悖。这并不正确。大约在1970年发布的先例决定构成了“L”签证决定的主体。尽管这些决定在其含义上显得相当宽泛，但没有一项决定具体支持以下主张：

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

熟练工人是具有专业知识的人。在Matter of Vaillancourt, 13 I&N Dec. 654 (R.C. 1970)案中，为一名将担任全美国范围零件经理的男子提交了一份申请，该公司销售额超过10亿美元。该案提出的问题是，如果受益人此前未曾担任过行政或管理职务，他能否符合"L"类经理的资格。地区专员认定，受益人先前的工作经历使其符合具有专业知识的人的资格。该裁决相当清楚地表明，受益人拥有公司其他任何员工都不具备的零件运营知识，且受益人对零件分销系统的运营至关重要。 在申请人引用的第二个案件Matter of Raulin, 13 I&N Dec. 618 (R.C. 1970)中，受益人是一家跨国公司的行政秘书。该申请获得批准，因为她被认定具有专业知识。调查重点集中在她作为与"高层"政府官员和商业高管的联络人、作为客户与政府官员之间的中间人以及作为公司新任副总裁顾问的活动上。该裁决明确表明，她因其知识而受到重视。 在Matter of LeBlanc, 13 I&N Dec. 816 (R.C. 1971)案中，为一名销售经理提交的申请获得批准。尽管该裁决主要讨论美国是否存在"分支机构"的问题，但受益人仍被认定在化妆品销售人员的筛选、招聘、签约和培训方面具有专业知识。 在1981年19日Zane一案较近期的裁决中，移民和归化局局长指出，LeBlanc和Raulin两案裁决并未认定这些职业本身即使受益人符合所寻求的分类资格。该局寻找的是超出一般工作任务和职责的要素。两项裁决均基于以下认定：受益人对商业公司的产品或服务、管理运营、决策过程或类似要素拥有重要知识。换言之，专业知识涉及企业的专有利益、其管理，并涉及在就业市场上不易获得的技能或知识，Matter of Colley, et al., 18 I&N Dec. 117 (Comm. 1981)。 因此，这些先例所支持的命题是：申请可以为具有专业知识的人获批，而非为熟练工人获批。尽管Raulin是一名秘书，但其申请获批的理由并非其基本秘书技能。Vaillancourt获得签证是因为他将指导全国范围的零件运营，而非如本案申请人所主张的那样因为他是一名"仓库管理员"。LeBlanc的申请获批是因为他可以招聘和培训人员，而非

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,

因为他可以销售化妆品。当然，当代工作场所日益复杂，大多数员工都具备不同程度的由在职经验和培训课程获得的技术和专业技能的。然而，鉴于众议院报告，不能得出结论认为所有具有任何程度专业知识或履行高度技术性职责的员工都有资格作为公司内部调任人员分类。这样的结论将允许极大量的人符合"L-1"签证资格。众议院报告表明，员工必须是"关键"人员，且"人数不会很多"。 可以在以下两类人之间作出区分：其技能和知识使其能够通过体力或熟练劳动生产产品的人，以及主要因其有能力执行对商业公司运营重要或必不可少的关键流程或职能而受雇的人。因此，在上述Matter of Colley, et al.案中，局长授权对五名外籍受益人给予L-1分类，他们拥有关于申请人在地图测绘中使用的独特复杂设备和特定技术的知识，且这些知识为申请人专有。 对本程序记录的审查仅反映受益人将是将在钻井平台上从事劳动的高技能工人。这些职业具有技术性，但在整个行业中并不独特。美国劳工部估计，1978年美国有超过650,000口天然气和石油井（Occupational Outlook Handbook, 1980, Bureau of Labor Statistics, 第498页）。记录中所含统计数据显示，1981年6月，美国有超过4,000台活跃的旋转式石油和天然气钻井平台在运行。典型的旋转钻井队由四或五名工人组成。由于钻井平台每天24小时、每周7天运行，每台钻机需要多个钻井队。 申请人称，这些受益人将在"电动/柴油"动力钻井平台上工作，且目前在美国运行的钻机中仅有5%为这种动力。然而，我在记录中未看到任何内容将这些工人与行业内许多其他工人区分开来。新技术和不同设备被常规性地引入美国工作场所。在缺乏证据表明涉及重大专有知识或这些受益人持有的专有技术或知识具有独特性的情况下，我无法认定申请人已证明受益人拥有法规所设想的知识。申请人关于美国钻机工人存在短缺的主张在本程序中不重要。"L"条款并非旨在缓解或补救美国工人的短缺。该法第101(a)(15)(H)条所载的临时工人条款，

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.

为存在短缺的工人的入境提供了依据。 拒绝这些申请的第二个依据是地区专员的认定，即受益人将由一家外国公司直接在美国雇用，且受益人不会以任何方式受该外国公司位于科罗拉多州丹佛的美国办事处控制。我同意地区专员的意见，即如果受益人事实上与丹佛办事处没有任何雇佣关系，那么看来他们事实上并非公司内部调任人员。"L"条款的第二句规定，员工必须是前来向"同一雇主或其子公司或关联公司"提供服务。在本案中，申请人并不主张蒙大拿州的石油钻机是申请人的子公司或关联公司。可以说，受益人是前来为"同一雇主"即申请人工作。然而，这一结论可能导致异常结果：几乎任何外国企业都能够利用"L"签证类别将其任意数量的员工带到美国，无论美国是否存在或正在设立商业实体。例如，一家外国建筑公司可以承包建造工厂，然后派遣劳动力建造设施，从而剥夺美国工人的就业机会。这一结果不符合"L"条款的立法历史。"L-1"条款第二句中所使用的"同一雇主"一词应理解为"母公司"。后一术语用于法案的众议院报告中，措辞如"母公司、分支机构或关联公司"、"由与位于美国的母公司、子公司或分支机构有关联的公司"。 申请人已提交补充信息，称正在北达科他州威利斯顿建造一个办事处，该办事处将管理和控制申请人在美国的运营。这一进展有可能消除地区专员拒绝申请的第二个理由。尽管如此，申请人未能证明受益人有权根据《移民和国籍法》第101(a)(15)(L)条获得分类。 命令：签证申请被拒绝。