dismissed L-1B Case: Computer Consulting

identifyingdata de'~
preventclearlyun; .~
invasionofpetSO pn
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE: LIN 06003 52015 Office: NEBRASKA SERVICE CENTER Date: AUG 0GZ007
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned
to the office that originally decided your case. Any further inquiry must be made to that office.
Robert P. Wiemann, ief
ir:': Appeals Office
LIN 06 003 52015
Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the petition for a nonimmigrant visa.
The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the
appeal.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of
computer consultant as an L-IB nonimmigrant intracompany transferee with specialized knowledge
pursuant to § 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L).
The petitioner claims that it is an affiliate of the beneficiary's foreign employer, Kanbay Software (India)
Pvt. Ltd., located in India. The petitioner states that it is engaged in computer consulting. The petitioner
seeks to employ the beneficiary in the position of "computer consultant" for a three-year period and
asserts that the beneficiary is among a "handful" of its employees that possess special knowledge of its
"proprietary KGM processes" and consumer lending systems. I
The director denied the petition on December 16, 2005, concluding that the petitioner failed to establish that
the position offered to the beneficiary requires someone with specialized knowledge or that the beneficiary
has such knowledge.
Counsel for the petitioner subsequently filed an appeal on January 17, 2006. On appeal, counsel cites to a
letter written by a professor that was submitted on appeal as an expert opinion as to the beneficiary's
specialized knowledge. In addition, counsel states that the petitioner has satisfied the factors utilized to
determine specialized knowledge as outlined in two legacy Immigration and Naturalization Service (INS)
memoranda. See Memorandum from James A. Puleo, Acting Exec. Assoc. Comm., INS, Interpretation of
Special Knowledge (March 9, 1991)("Puleo Memo"); Memorandum from Fujie Ohata, Assoc. Comm., INS,
Interpretation of Specialized Knowledge (December 20, 2002)("Ohata Memo"). Counsel submits a brief
and additional documentation in support of the appeal.
To establish L-l eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). Specifically, within three years
preceding the beneficiary's application for admission into the United States, a qualifying organization
must have employed the beneficiary in a qualifying managerial or executive capacity, or in a specialized
knowledge capacity, for one continuous year. In addition, the beneficiary must seek to enter the United
States temporarily to continue rendering his or her services to the same employer or a subsidiary or
affiliate thereof in a managerial, executive, or specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
I Although the petitioner asserts that the beneficiary is among a "handful" of its employees possessing
specialized knowledge, CIS records reveal that the petitioner has filed more than 1,100 L-IB petitions in
the previous six years. It is also noted that the petitioner has been approved under a Blanket L petition,
allowing the petitioner to transfer L-IB employees to a qualifying organization in the Untied States
without filing an individual petition with USCIS. See 8 CFR 214.2(1)(5). Accordingly, the number of
L-IB employees may be substantially higher than the 1,100 petitions reflected in USCIS records.
LIN 06003 52015
Page 3
(i) Evidence that the petitioner and the organization which employed or will employ
the alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this
section.
(ii) Evidence that the alien will be employed in an executive, managerial, or
specialized knowledge capacity, including a detailed description of the services
to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing
of the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that
was managerial, executive or involved specialized knowledge and that the alien's
prior education, training, and employment qualifies him/her to perform the
intended services in the United States; however, the work in the United States
need not be the same work which the alien performed abroad.
This matter presents two related, but distinct issues: (1) whether the beneficiary possesses specialized
knowledge; and (2) whether the proposed employment is in a capacity that requires specialized knowledge.
Section 214(c)(2)(B) of the Act, 8 U.S.C. § 1184(c)(2)(B), provides:
For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity
involving specialized knowledge with respect to a company if the alien has a special
knowledge of the company product and its application in international markets or has an
advanced level of knowledge of processes and procedures of the company.
Furthermore, the regulation at 8 C.F.R. § 214.2(l)(I)(ii)(D) defines "specialized knowledge" as:
[S]pecial knowledge possessed by an individual of the petitioning organization's product,
service, research, equipment, techniques, management or other interests and its application
in international markets , or an advanced level of knowledge or expertise in the
organization's processes and procedures.
The petitioner filed the instant nonimmigrant petition on October 5, 2005, indicating that the beneficiary
would be employed in the United States as a computer consultant. In a support letter dated October 4,
2005, the petitioner stated that it wishes to transfer the beneficiary to the United States to "maintain a
regular rotational program for key personnel with specialized knowledge." In the letter, the petitioner
described the specialized knowledge obtained by the beneficiary as the following:
As explained in Section III, below, [the beneficiary] has acquired specialized knowledge
acquired through:
LIN 06 003 52015
Page 4
1. Training received on the internal procedures, methods and proprietary product
lines of [the petitioner].
2. Training received through customization of such procedures, methods and
proprietary product lines for [the petitioner's] clients; and
3. Training received through working with the products, processes, tools and
methodologies related to financial products used by [the petitioner's] financial
clients.
The specialized knowledge thus acquired by [the petitioner's] key employees, over an
extended period of time, cannot be acquired within a reasonable time by a person who
may have otherwise strong academic background and general knowledge or experience
of the industry or products used by such industry.
[The beneficiary's] transfer to the United States is to assist [the petitioner's] existing
client in customization and maintenance of its financial products and related
methodologies and procedures to meet the growing requirements of its customers in the
United States and other countries; and to stay competitive in the changing global
economy. Since [the beneficiary] began his employment with [the foreign company], in
December 2003, [the beneficiary] has gained in-depth knowledge of the Company's
proprietary line of software enhancing product known as KGM processes as well as the
client's Software Development methodologies which has value added features. KGM
processes technology is proprietary to [the petitioner] and he has gained an advanced
level of expertise with respect to the implementation of the KGM processes. As the
software is proprietary, it is distinguished by its unusual quality and is not generally
known by practitioners in the field. Similarly, [the beneficiary's] advanced level of
expertise with respect to the implementation of the KGM processes and services related
to financial products sets [the beneficiary] apart from other employees with the company.
This advanced level of expertise includes development of applications using Windows
XP/2000/98/NT, Unix operating system; Web (Client/Server, N-Tier), Standalone
environment; DB2, Sybase, oracle, SQL Service database; Java, HTML, XML,
JavaScript, DHTML, XML, XSL, Servlets, EJB, JSP, JDBC, Websphere 5.0, Tomcat 3.1,
Tomcat 4.0, Weblogic 6.1, MTS internet tools; Java, C, C++, Javascript, SML, SXL
languages and IDE's: Websphere Studio Application Developer, IBM Visual Age for
Java, Jbuilder 6.0, Textpad, JCreator (Professional), Microsoft Visual InterDev,
Messaging: MQ-Series, Build Tools: Jakarta Any 1.4, Version Control: Changeman,
MKS Source Integrity, Visual Source Safe 5.0, StarTeam 5, StarTeam 5.2.
The petitioner described the duties to be performed by the beneficiary in the United States as the
following:
This position requires specialized knowledge of [the petitioner's] proprietary product line
and, in particular, specialized knowledge of the KGM processes, described below, as well
as expertise in financial products, processes and methodologies, such as those of [the
u.S. client's] consumer lending processing system. This specialized knowledge would
LIN 06 003 52015
Page 5
allow this position to support most aspects of the consumer lending process including
development of applications, testing and enhancements.
Specifically, [the petitioner] is helping the client to build internal efficiency tools for the
following projects:
1) Consumer Lending Operation Support: Full life cycle projects; Major enhancements
to the existing functionality; preventive maintenance for the applications developed
by the client team; maintenance of Household Finance (HFC USA and Canada) Web
applications; maintenance of Beneficial Inc. web applications; Maintenance of Union
Plus Loan Originations web application; HMDA Migration and testing; and, major
enhancements to Lead Portal Providers.
2) Household and Beneficial Lending Sites: Release base project approach; pro viding
the enhancements and migration to the new ES architecture; designing the additional
sites facilities and implementing the same.
3) StarWars: Full Life Cycle Project execution; Developing a single Consumer and
Mortgage originations site for U.S. based customers.
4) Sales Finance: Full Life Cycle Project execution; consumer lending seeks to create a
stand-alone, online Sales Finance Merchant Application; features contract (web
forms) that will enable the Consumer Lending Sales Finance merchants to enter
customer information; ability to receive instant notification of system generated
approvals or turndowns; enable the merchants to launch a pre-populated and
manually completed contract; print copies of the loan contract from the internally
build web site; additional features like Offline fulfillment, turndown/approval
criteria, and merchant reporting.
The petitioner's letter of support also described its proprietary KGM process as follows:
[The petitioner] transfers only some specialized knowledge employees to the U.S. under
its business model, which is called the 3-Tier delivery model.
The 3-Tier delivery model describes how [the petitioner] works with its clients - onsite,
offsite, and offshore. As the project evolves, [the petitioner's] associates from each tier
will be working at different stages of the project. The blend of tiers is dynamic and
scalable so the number of people working at each level varies, according to the client's
project's requirements. This hybrid approach provides:
• The security and responsiveness of a face-to-face, onsite team
• The flexibility of a regional team of experts when it is required
• The economic leverage of a skilled offshore team dedicated into the
client's organization.
LIN 06 003 52015
Page 6
The 3-Tier model is part of [the petitioner's] GlobalLink methodology (KGM), an
integrated set of ISO 9001 and CMM -compliant processes and provide the framework for
successful client projects regardless of geographic location. GlobalLink has proven to be
an effective way to manage business technology projects and - perhaps more importantly
- an easy method for integrating multi-state development into the client's organization.
The petitioner submitted the beneficiary's resume; educational certificates; one certificate of completion
of the petitioner's "on-the job training in Development and Enhancement of CCS eCare System for
HSBC eSolutions," from December 2003 to February 2004; and, a certificate of completion of the
petitioner's "on-the-job training in Execution Services for HSBC eSolutions," from December 10,2003 to
December 13, 2003. In addition, the petitioner submitted an organizational chart of the team structure in
the United States. The chart indicates that the onsite team in the United States will include a "deliver
manager" who supervises the KeC Project Manager, who supervises a Team Lead, who supervises three
team members, including the beneficiary.
The director issued a request for additional evidence on October 6, 2005, stating that the record does not
show that the beneficiary possesses specialized knowledge. The director requested: (1) evidence
verifying that the beneficiary's knowledge is uncommon, noteworthy, or distinguished by some unusual
quality and is not generally known by others in the beneficiary's field or in the industry, or evidence that
the beneficiary's advanced level of knowledge of the company's processes and procedures distinguishes
him from those with elementary or basic knowledge; (2) evidence to establish that the beneficiary's duties
abroad and the beneficiary's proposed duties in the United States require a person with specialized
knowledge; and, (3) an explanation as to the manner in which the beneficiary has gained his specialized
knowledge, including the total length of any classroom or on-the-job training courses completed and
details of the course content
Counsel for the petitioner responded in a letter dated December 12, 2005. Counsel asserted that the
beneficiary's knowledge of the petitioner's unique KGM processes sets the beneficiary apart from other
individuals in his field. Counsel stated that all of the petitioner's employees have obtained the knowledge
of the petitioner's KGM process which was developed by the petitioner "for its own employees and is not
readily available to everyone in the IT/Computer fields." Counsel further stated that all of the petitioner's
employees are required "to participate in the KGM process training."
Counsel contends that the current standard for the interpretation of specialized knowledge is outlined in
two legacy Immigration and Naturalization Service (INS) memoranda. See Memorandum from James A.
Puleo, Acting Exec. Assoc. Comm., INS, Interpretation of Special Knowledge (March 9, 1991)("Puleo
Memo"); Memorandum from Fujie Ohata, Assoc. Comm., INS, Interpretation of Specialized Knowledge
(December 20, 2002)("Ohata Memo"). Counsel stated that the knowledge and expertise of the KGM process
is "valuable to employer's competitiveness in the market place." Counsel also stated that the knowledge of
the KGM process "cannot be easily transferred or taught to another individual in a short time." Counsel
further stated that the beneficiary participated in the petitioner's in-house training course of the KGM process
"which is mandatory for all [of the petitioner's] employees." Counsel explained that the beneficiary has
practical experience with the petitioner and the United States client that provided him with knowledge that is
LIN 06 003 52015
Page 7
not generally known by other individuals in his field. In addition, counsel stated that the beneficiary has
extensive practical experience with the execution services framework.
The petitioner also submitted an affidavit from the beneficiary's immediate supervisor outlining the
beneficiary's practical experience and training with the petitioning company. The affidavit confirms that the
beneficiary has obtained training in the KGM process, and practical experience with the execution services
framework, and the systems applications of the United States client. The affidavit also indicated that the
beneficiary received approximately 208 hours of training in "Execution Services," "KGM," and "MQSeries
and JMS." It appears that the beneficiary received 8 hours of training in the KGM process; according to
counsel, all of the petitioner's associates receive the same training.
The director denied the petition on December 16, 2005, concluding that the petitioner failed to establish that
the position offered to the beneficiary requires someone with specialized knowledge or that the beneficiary
has such knowledge. The director noted that the beneficiary's knowledge of the petitioner's proprietary
products, without any other documentation, is not sufficient to establish that the beneficiary possesses
specialized knowledge. The director also noted that the beneficiary's duties do not appear to be significantly
different from those of any other computer consultants employed by the petitioner, or different from the
duties performed by other consultants in the computer industry. The director further stated that the
petitioner did not submit the content of the training provided to the beneficiary, and it appears that the
courses were "relatively short on-the-job professional development training" which may be offered to
several of the petitioner's employees. The director stated that the beneficiary's professional experience
with the petitioner, alone, is not sufficient to establish specialized knowledge.
On appeal, counsel cites to a letter written by a professor that was submitted on appeal as an expert
opinion as to the beneficiary's specialized knowledge. In addition, counsel states that the petitioner has
satisfied the factors utilized to determine specialized knowledge as outlined in two legacy Immigration and
Naturalization Service (INS) memoranda. See Memorandum from James A. Puleo, Acting Exec. Assoc.
Cornm., INS, Interpretation of Special Knowledge (March 9, 1991)("Puleo Memo"); Memorandum from
Fujie Ohata, Assoc. Comm., INS, Interpretation of Specialized Knowledge (December 20, 2002)("Ohata
Memo").
On review, the petitioner has not demonstrated that the beneficiary would be employed in the United
States organization in a specialized knowledge capacity.
First, the AAO notes that the two memoranda cited by counsel, the Puleo Memo and the Ohata Memo, are
not the "current standard" for the interpretation of specialized knowledge. Instead, the statute, regulation,
and CIS precedent decisions comprise the controlling law and provide the legal definition of specialized
knowledge. See section 214(c)(2)(B) of the Act; 8 C.F.R. § 2 l4.2(l)(l)(ii)(D); see also Matter ofPenner,
18 I&N Dec. 49 (Comm. 1982). CIS and legacy Immigration and Naturalization Service have issued
many memoranda with varying interpretations of specialized knowledge during the 37 year history of the
L-l visa classification. CIS memoranda merely articulate internal guidelines for INS personnel; they do
not establish judicially enforceable rights. An agency's internal personnel guidelines "neither confer upon
[plaintiffs] substantive rights nor provide procedures upon which [they] may rely ." Loa-Herrera v.
LIN 06 003 52015
Page 8
Trominski, 231 F.3d 984, 989 (5th Cir. 2000)(quoting Fano v. O'Neill, 806 F.2d 1262, 1264 (5th
Cir.1987)).
In examining the specialized knowledge capacity of the beneficiary, the AAO will look to the petitioner's
description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner must submit a detailed
description of the services to be performed sufficient to establish specialized knowledge. Id.
Although the petitioner repeatedly asserts that the beneficiary's proposed U.S. position requires specialized
knowledge, the petitioner has not adequately articulated any basis to support this claim. The petitioner has
provided a description of the beneficiary's proposed responsibilities as a computer consultant, but the
description does not mention the application of any specialized or advanced body of knowledge that would
distinguish the beneficiary's role from that of other computer consultants employed by the petitioner. Going
on record without documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Based upon the lack of supporting evidence, the AAO
cannot determine whether the U.S. position requires someone who possesses knowledge that rises to the level
of specialized knowledge as defined at 8 C.F.R. § 214.2(l)(l)(ii)(D).
In addition, contrary to the assertions of the petitioner, there is no evidence on record to suggest that the
processes and technology pertaining to computer consultancy positions within the U.S. company are
different from those applied for other companies providing computer consulting for the financial service
industry. In addition, the petitioner has not explained how the knowledge of the petitioner's computer
systems amount to specialized knowledge, particularly since the systems are built upon C, C++, Java,
XML, and several computer languages, all of which are commonly used by computer programmers and
system administrators in the industry. While individual companies will develop a computer system and
methodologies tailored to its own needs and internal quality processes, it has not been established that
there would be substantial differences such that knowledge of the petitioning company's processes and
quality standards would amount to "specialized knowledge."
The petitioner has repeatedly asserted that the beneficiary possesses knowledge of the petitioner's proprietary
KGM process and thus the beneficiary possesses specialized knowledge. However, according to the
record, it appears that the beneficiary only received 8 hours of training in the KGM process, and this
training is mandatory for all of the foreign company's employees. In addition, in reviewing the KGM
process, as discussed in the petitioner's support letter dated October 4, 2005, it appears that the KGM
process is not a proprietary software system but instead a business model for managing the petitioner's
projects. Thus, the petitioner's proprietary process appears to be a management and administrative
process rather than a proprietary software or system utilized by the beneficiary to perform the duties
required of the United States client.
Additionally, according to the beneficiary's resume, it appears that once the beneficiary commenced his
employment with the foreign company, he immediately began working as a computer consultant. The
petitioner did not indicate that the beneficiary was required to complete a specific training course for the
petitioner's processes and procedures prior to commencing his employment. This fact provides further
evidence that the petitioner does not utilize a proprietary system that greatly differs from the systems used
LIN 06 003 52015
Page 9
by computer consultants in the information technology industry since the beneficiary immediately began
working with the petitioner's products upon commencement of his employment with the petitioner. Thus,
the AAO cannot conclude that the beneficiary has an "advanced knowledge" of the petitioner's
proprietary software over and above from other employees of the petitioner or other employees in the
computer industry.
In response to the director's request for evidence, the petitioner indicated that the beneficiary possessed
extensive practical experience and specialized lmowledge in the execution services framework for the U.S.
client. However, the petitioner did not explain what the execution services framework consisted of, and did
not mention this system in the original petition. It appears that the initial description of the beneficiary's
specialized knowledge focused on his lmowledge of the KGM process, while the second iteration of the
beneficiary's specialized knowledge focuses on advanced knowledge of the KGM process and the
execution services framework.
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for
the benefit sought has been established. 8 C.F.R. § 103.2(b)(8). When responding to a request for
evidence, a petitioner cannot offer a new position to the beneficiary, or materially change the beneficiary's
specialized knowledge. If significant changes are made to the initial request for approval, the petitioner
must file a new petition rather than seek approval of a petition that is not supported by the facts in the
record. The information provided by the petitioner in its response to the director's request for further
evidence did not clarify or provide more specificity to the beneficiary's specialized knowledge, but rather
added new lmowledge obtained by the beneficiary. Therefore, the analysis of this criterion will be based
on the job description submitted with the initial petition.
In addition, there is no evidence in the record that the beneficiary has received specific in-house training
that would have imparted him with the claimed "advanced" knowledge of the company's processes,
procedures and methodologies. The petitioner submitted training certificates issued by the petitioner to
the beneficiary, however, the petitioner did not explain how many employees in the company receive this
training. Without specific information of the training courses completed by the beneficiary at the foreign
company, the AAO cannot determine if this training provided the beneficiary with an advanced
lmowledge or if it is reasonable to believe that a computer consultant with a background in related
technologies may learn the petitioning company's specific project methodologies and processes with
minimal training.
Further, the petitioner did not submit any documentation to evidence that the beneficiary received
additional training that was not provided to other computer consultants employed by the foreign
company. The petitioner did note that the beneficiary has gained "in depth knowledge and expertise in
the [petitioner's] proprietary KGM processes, and an understanding of the processes of HSBC consumer
lending systems," which "only a handful of our employees possess this knowledge." However, the
petitioner did not present any corroborating evidence to support this claim. In addition, the petitioning
company states that it has 4700 employees and it is not clear how only a "handful" of employees have the
knowledge of the KGM process when the petitioner indicated that all of the petitioner's employees must
complete a training course in the KGM process. Finally, although the beneficiary worked with the U.S.
client on the same project when he was employed by the foreign company, it does not evidence that his
LIN 06003 52015
Page 10
experience and knowledge of the client's requirements are "truly specialized." Knowledge related to a
specific clients' project cannot be considered "specialized knowledge" specific to the petitioning
company. The beneficiary's familiarity with the U.S. clients' project requirements is undoubtedly
valuable to the petitioner, but this knowledge alone is insufficient to establish employment in a
specialized knowledge capacity. If the AAO were to follow the petitioner's logic, any computer
consultant who had worked on a client project team within the petitioner's organization would be
considered to possess "specialized knowledge."
The petitioner did not submit evidence describing in detail the petitioner's proprietary products and how they
differ from other information technology products utilized by the financial services industry. In addition,
there is no evidence in the record that the beneficiary actually participated in the development of such
methodologies and processes that might lead to the conclusion that his level of knowledge is comparatively
"advanced." Although there is no requirement that the beneficiary must develop the internal methodologies
and processes, this may be evidence of an advanced knowledge of the petitioner's internal processes that will
demonstrate that the beneficiary possesses a specialized knowledge. Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft ofCalifornia, 14
I&N Dec. 190 (Reg. Comm. 1972)).
Finally, contrary to the assertions of the petitioner, there is no evidence on record to suggest that the
processes and technology pertaining to computer consultant positions within the U.S. company are
different from those applied for other companies providing software development and consulting services
to the financial services industry. Moreover, there is no evidence on record to suggest that the computer
programming processes pertaining to the financial services industry, specifically, are different from those
applied for any computer programming position. While individual companies will develop a computer
system tailored to its own needs and internal quality processes, it has not been established that there
would be substantial differences such that knowledge of the petitioning company's processes and quality
standards would amount to "specialized knowledge."
It is also appropriate for the AAO to look beyond the stated job duties and consider the importance of the
beneficiary's knowledge of the business's product or service, management operations, or decision-making
process. Matter of Colley, 18 I&N Dec. 117, 120 (Comm. 1981) (citing Matter of Raulin, 13 I&N Dec.
618 (R.C. 1970) and Matter ofLeBlanc, 13 I&N Dec. 816 (R.C. 1971)),z As stated by the Commissioner
2 Although the cited precedents pre-date the current statutory definition of "specialized knowledge," the
AAO finds them instructive. Other than deleting the former requirement that specialized knowledge had
to be "proprietary," the 1990 Act did not significantly alter the definition of "specialized knowledge"
from the prior INS interpretation of the term. The 1990 Committee Report does not reject, criticize, or
even refer to any specific INS regulation or precedent decision interpreting the term. The Committee
Report simply states that the Committee was recommending a statutory definition because of "[v]arying
(i.e., not specifically incorrect] interpretations by INS," H.R. Rep. No. 101-723(1), at 69, 1990
U.S.C.C.A.N. at 6749. Beyond that, the Committee Report simply restates the tautology that became
section 214(c)(2)(B) of the Act. Id. The AAO concludes, therefore, that the cited cases remain useful
guidance concerning the intended scope of the "specialized knowledge" L-1B classification. The AAO
LIN 06 003 52015
Page 11
in Matter of Penner , when considering whether the beneficiaries possessed specialized knowledge, "the
LeBlanc and Raulin decisions did not find that the occupations inherently qualified the beneficiaries for
the classifications sought." 18 I&N Dec. at 52. Rather , the beneficiaries were considered to have unusual
duties, skills , or knowledge beyond that of a skilled worker. Id. The Commissioner also provided the
following clarification:
A distinction can be made between a person whose skills and knowledge enable him or
her to produce a product through physical or skilled labor and the person who is employed
primarily for his ability to carry out a key process or function which is important or
essential to the business ' operation.
Id. at 53.
In Matter of Penner, the Commissioner discussed the legislative intent behind the creation of the
specialized knowledge category. 18 I&N Dec. 49 (Comm. 1982). As noted previously, although the
definition of "specialized knowledge" in effect at the time of Matter of Penner was superseded by the
1990 Act to the extent that the former definition required a showing of "proprietary" knowledge , the AAO
finds that the reasoning behind Matter of Penner remains applicable to the current matter. The decision
noted that the 1970 House Report , H.R. No. 91-851 , stated that the number of admissions under the L-1
classification "will not be large" and that "[t]he class of persons eligible for such nonimmigrant visas is
narrowly drawn and will be carefully regulated by the Immigration and Naturalization Service." Id. at 51.
The decision noted that the House Report was silent on the subject of specialized knowledge, but that
during the course of the sub-committee hearings on the bill , the Chairman specifically questioned
witnesses on the level of skill necessary to qualify under the proposed "L" category. In response to the
Chairman's questions, various witnesses responded that they understood the legislation would allow
"high-level people ," "experts," individuals with "unique" skills, and that it would not include "lower
categories" of workers or "skilled craft workers." Matter ofPenner, id. at 50 (citing H.R. Subcomm . No.
1 of the Jud . Comm., Immigration Act of 1970: Hearings on H.R. 445, 91st Congo 210, 218, 223 , 240, 248
(November 12, 1969)).
Reviewing the Congressional record, the Commissioner concluded in Matter ofPenner that an expansive
reading of the specialized knowledge provision, such that it would include skilled workers and
technicians, is not warranted. The Commissioner emphasized that the specialized knowledge worker
classification was not intended for "all employees with any level of specialized knowledge." Matter of
Penner, 18 I&N Dec. at 53. Or, as noted in Matter of Colley, "[m]ost employees today are specialists and
have been trained and given specialized knowledge. However , in view of the House Report , it can not be
concluded that all employees with specialized knowledge or performing highly technical duties are
eligible for classification as intracompany transferees." 18 I&N Dec. at 119. According to Matter of
Penner, "[s]uch a conclusion would permit extremely large numbers of persons to qualify for the 'L-l'
visa" rather than the "key personnel" that Congress specifically intended. 18 I&N Dec. at 53; see also,
supports its use of Matter of Penner, as well in offering guidance interpreting "specialized knowledge. "
Again, the Committee Report does not reject the interpretation of specialized knowledge offered in
Matter ofPenner.
LIN 06003 52015
Page 12
1756, Inc., 745 F. Supp. at 15 (concluding that Congress did not intend for the specialized knowledge
capacity to extend to all employees with specialized knowledge, but rather to "key personnel" and
"executives. ")
The beneficiary's job description does not distinguish his knowledge as more advanced or distinct among
other computer consultants employed by the foreign or U.S. entities or by other unrelated companies.
The statutory definition of specialized knowledge requires the AAO to make comparisons in order to
determine what constitutes specialized knowledge. The term "specialized knowledge" is not an absolute
concept and cannot be clearly defined. As observed in 1756, Inc. v. Attorney General, "[s]imply put,
specialized knowledge is a relative ... idea which cannot have a plain meaning." 745 F. Supp. 9, 15
(D.D.C. 1990).3 The Congressional record specifically states that the L-l category was intended for "key
personnel." See generally, H.R. REP. No. 91-851, 1970 U.S.C.C.A.N. 2750. The term "key personnel"
denotes a position within the petitioning company that is "of crucial importance." Webster's II New
College Dictionary 605 (Houghton Mifflin Co. 2001). In general, all employees can reasonably be
considered "important" to a petitioner's enterprise. If an employee did not contribute to the overall
economic success of an enterprise, there would be no rational economic reason to employ that person. An
employee of "crucial importance" or "key personnel" must rise above the level of the petitioner's average
employee. Accordingly, based on the definition of "specialized knowledge" and the congressional record
related to that term, the AAO must make comparisons not only between the claimed specialized
knowledge employee and the general labor market, but also between that employee and the remainder of
the petitioner's workforce.
Further, the Puleo memo cited by counsel allows CIS to compare the beneficiary's knowledge to the
general United States labor market and the petitioner's workforce in order to distinguish between
specialized and general knowledge. The Associate Commissioner notes in the memorandum that "officers
adjudicating petitions involving specialized knowledge must ensure that the knowledge possessed by the
beneficiary is not general knowledge held commonly throughout the industry but that it is truly
specialized." Memo, Supra. A comparison of the beneficiary's knowledge to the knowledge possessed by
others in the field is therefore necessary in order to determine the level of the beneficiary's skills and
knowledge and to ascertain whether the beneficiary's knowledge is advanced. In other words, absent an
outside group to which to compare the beneficiary's knowledge, CIS would not be able to "ensure that the
3 Again, Congress' 1990 amendments to the Act did not specifically overrule 1756, Inc. nor any other
administrative precedent decision, nor did the 1990 amendments otherwise mandate a less restrictive
interpretation of the term "specialized knowledge." The House Report, which accompanied the 1990
amendments, stated:
One area within the L visa that requires more specificity relates to the term "specialized
knowledge." Varying interpretations by INS have exacerbated the problem. The bill
therefore defines specialized knowledge as special knowledge of the company product
and its application in international markets, or an advanced level of knowledge of
processes and procedures of the company.
H.R. REp. No. 101-723(I), 1990 U.S.C.C.A.N. 6710, 6749, 1990 WL 200418.
LIN 06 003 52015
Page 13
knowledge possessed by the beneficiary is truly specialized." Id. The analysis for specialized knowledge
therefore requires a test of the knowledge possessed by the United States labor market, but does not
consider whether workers are available in the United States to perform the beneficiary's job duties.
The record does not distinguish the beneficiary's knowledge as more advanced than the knowledge
possessed by other computer consultants within the petitioning company or within the information
technology industry. As noted above, the fact that the beneficiary immediately began working on
assignments with the petitioning company utilizing its financial services products, it appears that any
individual with experience in the information technology industry may work with the petitioner's
products and learn its specific requirements fairly quickly. Thus, it appears that the petitioner's products
are based on information technology systems that are common in the industry. In addition, the petitioner
did not indicate a training program required of its computer consultants and thus it appears any individual
with an information technology background may fill the position of computer consultant. Since the
petitioner did not indicate a specific training program or the minimum requirements to fill the position of
computer consultant, the petitioner failed to demonstrate that the beneficiary's knowledge is more than
the knowledge held by a skilled worker. See Matter ofPenner, 18 I&N Dec. at 52. If the AAO were to
follow the petitioner's reasoning, then any employee who has worked with the petitioning company
possesses specialized knowledge. However, based on the intent of Congress in its creation of the L-IB
visa category, as discussed in Matter of Penner, even showing that a beneficiary possesses specialized
knowledge does not necessarily establish eligibility for the L-IB intracompany transferee status. The
petitioner should also submit evidence to show that the beneficiary is being transferred to the United
States as a crucial employee.
Counsel's reliance on the Puleo memorandum is misplaced. It is noted that the memoranda were intended
solely as a guide for employees and will not supersede the plain language of the statute or regulations.
Therefore, by itself, counsel's assertion that the beneficiary's qualifications are analogous to the examples
outlined in the memoranda is insufficient to establish the beneficiary's qualification for classification as a
specialized knowledge professional. While the factors discussed in the memorandum may be considered,
the regulations specifically require that the beneficiary possess an "advanced level of knowledge" of the
organization's processes and procedures, or a "special knowledge" of the petitioner's product, service,
research, equipment, techniques or management. 8 C.F.R. § 214.2(l)(l)(ii)(D). As discussed above, the
petitioner has not established that the beneficiary's knowledge rises to the level of specialized knowledge
contemplated by the regulations.
In sum, the beneficiary's duties and technical skills demonstrate knowledge that is common among
computer systems professional working in the beneficiary's specialty in the information technology field.
The petitioner has failed to demonstrate that the beneficiary's training, work experience, or knowledge of
the company's processes is more advanced than the knowledge possessed by others employed by the
petitioner, or that the processes and systems used by the petitioner are substantially different from those
used by other large information technology consulting companies. The AAO does not dispute the fact
that the beneficiary's knowledge has allowed him to successfully perform his job duties for the foreign
entity. However, the successful completion of one's job duties does not distinguish the beneficiary as
possessing special or advanced knowledge or as a "key personnel," nor does it establish employment in a
specialized knowledge capacity. As discussed, the petitioner has not submitted probative evidence to
LIN 06 003 52015
Page 14
establish that the beneficiary's knowledge is uncommon, noteworthy, or distinguished by some unusual
quality and not generally known in the beneficiary's field of endeavor, or that his knowledge is advanced
compared to the lmowledge held by other similarly employed workers within the petitioner and the
foreign entity.
On appeal, counsel submitted a letter from a professor regarding the beneficiary's specialized lmowledge.
Counsel did not provide sufficient evidence to establish that the author of the opinion letter should be
considered an expert. Furthermore, the petitioner did not disclose which specific documents the "expert"
reviewed in rendering his opinion. Therefore, the AAO does not have the information needed in order to
evaluate what objective evidence the expert based his opinion on. The author also stated that the
beneficiary possesses unique knowledge of the company's products and procedures "simply because [the
petitioner's] software processes are only taught and presented to company employees." As discussed
above, the petitioner failed to establish the application of any specialized or advanced body of lmowledge
which would distinguish the beneficiary's role from that of other computer consultants employed by the
petitioner. The opinion letter is not consistent with the petitioner's claim that the beneficiary possesses
specialized lmowledge of its methodologies, processes and procedures. The AAO may, in its discretion,
use as advisory opinions statements submitted as expert testimony. However, where an opinion is not in
accord with other information or is in any way questionable, the AAO is not required to accept or may
give less weight to that evidence. Matter ofCaron International, 19 I&N Dec. 791 (Comm. 1988).
The legislative history of the term "specialized knowledge" provides ample support for a restrictive
interpretation of the term. In the present matter, the petitioner has not demonstrated that the beneficiary
should be considered a member of the "narrowly drawn" class of individuals possessing specialized
lmowledge. See 1756, Inc. v. Attorney General, supra at 16. Based on the evidence presented, it is
concluded that the beneficiary has not been employed abroad and would not be employed in the United
States in a capacity involving specialized lmowledge. For this reason, the appeal will be dismissed.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with
the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not sustained that burden.
ORDER: The appeal is dismissed.