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August 22, 1990

1756, INC., et al., Plaintiffs,

Louis F. Oberdorfer, United States District Judge.

The opinion of the court was delivered by: OBERDORFER


 Plaintiff 1756, Inc., petitioned the Immigration and Naturalization Service (INS) on behalf of plaintiff Stanislaus Noronha for a temporary visa. 1756 hoped to transfer Noronha for one year from a restaurant in Kuwait owned by its parent corporation to a newly opened operation in Florida. The INS's Southern Regional Center ("Region") refused to issue an L-1 visa for Noronha or for his five similarly situated colleagues, and the INS Administrative Appeals Unit ("Appeals Unit") dismissed 1756's appeal on behalf of Noronha. Plaintiffs now seek to overturn the INS decision.

 Plaintiffs and defendant have filed cross-motions for summary judgment. Because this case is to be decided entirely upon the administrative record as supplemented, see Order of March 1, 1990, there are no genuine issues as to any material question of fact. This Court may therefore proceed to resolve the case based upon the pleadings and the record. See Fed. R. Civ. Proc. 56(c). For the reasons stated below, defendant's cross-motion for summary judgment should be granted, and plaintiffs' suit dismissed.


 Plaintiff 1756, Inc., is a Florida corporation owned by Lawrence D'Souza and Ghazi Yousof Al-Abdul Razzak, both restaurateurs primarily based in Kuwait. *fn1" Their primary venture is the Caesar's Group of Restaurants, parent corporation of 1756, which features Indian and oriental cuisine. See Complaint para. 6. Since 1983, the year 1756 was incorporated, D'Souza and Razzak have been preparing to establish a chain of their restaurants in the United States. The first such restaurant has recently opened in Altamonte Springs, Florida, just outside of Orlando. See id. P 14.

 1756 seeks temporary visas for the six employees of the Caesar's Group: Noronha, Kheong Chung, Laxman Poova Suvarna, Chu Fung Shong, Raveendra K. Mandal, and Phillip Jack Oswald Santhamaria. Each is a chef currently living in Kuwait and working for the Caesar's Group. All are trained in one or more of 1756's methods for preparing Mughlai, Tandoori, oriental Indian, and continental cuisine. See id. PP 7-12. D'Souza and Razzak would like to bring these chefs to the Altamonte Springs restaurant for a year to train local chefs in the Caesar's Group's culinary techniques. See id. P 15.

 In June of 1988, five years after 1756 was incorporated, 1756 petitioned the INS for visas on behalf of the six chefs under the intracompany transferee provisions of 8 U.S.C. § 1101(a)(15)(L). That section allows multinational business to petition the INS for "L-1 visas" on behalf of employees those businesses which to temporarily transfer to their American operations. See H.R. Rep. No. 91-851, 91st. Cong., Id. Sess. 3-4 [hereinafter "House Report"]. To qualify, the petitioning business must show that it has employed the beneficiary for at least a year; that the beneficiary plans to continue rendering services to the petitioner; and that the beneficiary would serve "in a capacity that is managerial, executive, or involves specialized knowledge." 8 U.S.C. § 1101 (a)(15)(L) (1988).

 On August 19, 1988, the Region denied 1756's petitions. In nearly identical opinions, it found that the beneficiaries were not employed in a capacity involving "specialized knowledge." See, e.g., Matter of Noronha, SRC-N-17663 (August 19, 1988), in Administrative Record, SRC-N-17663, at 67 (filed January 18, 1990) [hereinafter "Noronha Record"]. The Region also rejected plaintiffs' motions to reconsider. See Matter of Mandal, SRC-N-17666 (December 9, 1988), in Administrative Record, SRC-N-17666, at 1 (filed January 18, 1990) (denying motion to reconsider for all beneficiaries except Noronha); Noronha Record at 31 (denying motion to reconsider, January 17, 1989). 1756 appealed Noronha's case to the Appeals Unit. *fn2"

 The Appeals Unit agreed that the petitioner 1756 had not proven that the beneficiary Noronha would be employed in a specialized knowledge capacity. See Noronha Record at 2 (July 17, 1989). Reviewing the relevant factors, the Appeals Unit found little evidence Noronha was employed in a specialized knowledge capacity. In the opinion of the Appeals Unit, petitioner failed to establish that the beneficiary would be doing more than merely providing a product or performing a service. 1756 provided no evidence that the beneficiary was a key employee abroad. It did not prove that Noronha had gained his knowledge of cooking through access to proprietary information, nor did it present evidence that the Caesar's Group had any proprietary knowledge, such as recipes over which it had exclusive rights, to bestow. Finally, petitioner failed to provide any evidence of how Noronha's skills unusually enhanced his employer's productivity and competitiveness. In light of the petitioner's burden of proof, see 8 U.S.C. § 1361 (1988), the Appeals Unit concluded petitioner had failed to demonstrate Noronha was employed in a specialized knowledge capacity and dismissed the appeal.

 Plaintiffs claim that the INS employed an unduly restrictive interpretation of specialized knowledge. They also claim that the present regulations were improperly promulgated. Finally, plaintiffs assert that the record provides ample evidence of Noronha's and the other chefs' specialized knowledge, and the INS's refusal to recognize this proof was arbitrary and capricious. These contentions are examined in the sections below.


 Plaintiffs contend that the INS regulation defining specialized knowledge capacity, 8 C.F.R. § 214.2(1)(1)(ii)(D) was promulgated improperly. The regulation, they claim, was adopted in the face of significant criticism. Moreover, plaintiffs assert the INS rejected without explanation three cases decided contemporaneously with the passage of the 1970 amendments. See Matter of LeBlanc, 13 I. & N. Dec. 816 (R.C. 1971); Matter of Vaillancourt, 13 I. & N. Dec. 654 (R.C. 1971); Matter of Raulin, 13 I. & N. Dec. 618 (R.C. 1970). Upon analysis, both contentions must be rejected.

 The first contention is meritless. The proposed rule was criticized because it required that the petitioner's knowledge be unique and narrowly held in the organization. In the final rule, the INS responded by reinstating "the standard that knowledge which is not readily available in the United States should be considered in determining specialized knowledge." Final Rule, 52 Fed. Reg. 5738, 5741 (1987). Plaintiffs do not specify what criticisms were outstanding after this response. Absent any evidence that the INS disregarded other criticisms, the INS is entitled to a ...

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