dismissed L-1B Case: Computer Programming

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
ideritifjitg data deleted to 
prevent cler:l y u~~xw"jnred 
invasion of personal privacy 
~WBLIC copy A 
U.S. Citizenship 
and Immigration 
File: WAC 08 050 50867 Office: CALIFORNIA SERVICE CENTER Date: 
IN RE: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 1 (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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 8 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
JO~W Grissom, Acting Chief 
Administrative Appeals Office 
. WAC 08 050 50867 
Page 2 
DISCUSSION: The Director, California 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 temporarily employ the beneficiary as an L-1B 
nonimmigrant intracompany transferee with specialized knowledge pursuant to section 10 1 (a)(] 5)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner, a Delaware corporation, is 
engaged in the design and manufacture of automatic identification products and components. It states that it is the 
parent company of the beneficiary's foreign employer, -1 Electronic Technology Co. Ltd., located in 
China. The petitioner seeks to employ the beneficiary as a computer programmer for a period of three years. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary possesses 
specialized knowledge or that he will be employed in the United States in a position that requires specialized 
knowledge. In denying the petition, the director observed that the record did not distinguish the beneficiary's 
knowledge as more advanced than the knowledge possessed by other similarly experienced persons employed by 
the petitioner's organization or in the industry in general. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded it 
to the AAO for review. On appeal, the petitioner submits a letter intended to "explain the knowledge base 
difference" between a "fmware engineer" and "software engineer" position within the petitioner's company. 
The petitioner explains that the beneficiary's knowledge of Unified POS (OPOS, JavaPOS) and POS.Net 
technologies is "very special" and "critical to [the petitioner's] well-being." 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding the 
beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year by a 
qualifying organization and seeks to enter the United States temporarily in order to continue to render his or her 
services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or 
involves specialized knowledge. 
The regulation at 8 C.F.R. 9 214.2(1)(3) further states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(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. 
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Page 3 
(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 himher 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 issues: (I) whether the beneficiary possesses specialized knowledge; and (2) 
whether the beneficiary will be employed by the petitioner in a capacity that requires specialized knowledge. 
Section 214(c)(2)(B) of the Act, 8 U.S.C. !j 1 184(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. tj 214.2(1)(l)(ii)(D) defines "specialized knowledge" as: 
[Slpecial 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 nonimmigrant petition on December 6,2007. The petitioner stated on the L Classification 
Supplement to Form 1-129 that the beneficiary would serve as a computer programmer with responsibility for 
"code writing and development of communication software between hardware and user interface." 
In a letter dated September 28, 2007, the petitioner stated that the beneficiary will be in employed in the position 
of "Computer Programmer I" in its engineering department. The petitioner described the duties and requirements 
for the proffered position as follows: 
The candidate for this position will need to have at least a bachelor's degree and must be familiar 
with the necessary programming language to help design and implement programs into our 
product platform such as C and C*. This programmer must also be familiar but need no[t] be 
proficient with Pin-Pad software design, Assembly language, magnetic reader and other data 
identification applications. This programmer is needed to assist engineers in the design and 
modification of our new and existing products. This programmer's duty is to write programming 
code for our products. This programmer will also test and modifL existing codes to improve 
fknctionality. This position is necessary to assist the company [to] achieve its goals in improving 
current models and developing new designs to stay ahead of competitors. 
The petitioner noted that the beneficiary was selected for the position based on his academic qualifications, which 
include a bachelor's degree in industrial automation, and his work experience with its Chinese subsidiary, where 
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Page 4 
"[hle assisted in the development and implemented magnetic swipe reader designs using C, C-H and Java 
programming languages." The petitioner hrther stated that, based on this experience with the foreign entity, the 
beneficiary "possesses unique knowledge regarding the languages used in the development process second to 
none." 
In a letter dated September 28, 2007, the general manager of the foreign entity confirmed that the beneficiary had 
been employed with the petitioner's Chinese subsidiary since March 2005. His duties and qualifications were 
described as follows: 
[The beneficiary] was instrumental in the development and implemented magnetic swipe reader 
OPOS, JPOS and configuration software, Smart Card reader configuration software, PINPad 
JPOS software. He is familiar with C, C* and Java languages. His knowledge of the designs of 
our products and its programming is unique and not easily trained or duplicated. 
Finally, the petitioner submitted a copy of the beneficiary's graduation certificate and bachelor's degree from East 
China Jiao Tong University, and a copy of his resume, which outlined his experience with the foreign entity as 
follows: 
Software Engineer 
OPOS: 
1. MSR OPOS for MiniMag I1 (PS2, USB/HID, usB/Keyboard, RS23, USBICDC interface). 
JPOS 
1. MSR JPOS for MiniMagII (PS2, USBIHID, USBKeyboard, RS23, USBICDC interface JNI 
implemented. 
2. PINPad JPOS for Secure PIN and SmartPIN. 
The director found the initial evidence insufficient to establish that the beneficiary possesses specialized 
knowledge or that he will be employed in a capacity that requires specialized knowledge of the petitioner's 
products or processes. Accordingly, on January 2, 2008, the director issued a request for additional evidence, 
which included ten specific inquiries. The director requested that the petitioner explain how the duties the 
beneficiary performed abroad and those he will perform in the United States are different from those of other 
workers employed by the petitioner or other U.S. employers in computer programming positions. The director 
also instructed the petitioner to explain in detail exactly what is the equipment, system, product, technical or 
service of which the beneficiary has specialized knowledge, and whether it is used or produced by other 
companies in the United States or abroad. 
In addition, the director requested: an organizational chart for the foreign entity clearly showing the beneficiary's 
position; the total number of employees working at the foreign location where the beneficiary is employed; the 
number of persons holding the same or similar positions at the location where he will be employed in the United 
States and whether they perform the proposed duties. The director also requested information regarding the 
beneficiary's training and how it is significantly different in comparison to the petitioner's other employees or 
other persons working in the same field. 
, . WAC 08 050 50867 
Page 5 
In a response dated March 20,2008, the petitioner stated that its Shanghai, China subsidiary employs a total of 18 
people, and that the beneficiary serves as a software engineer in the software engineering group. The petitioner 
hrther described the beneficiary's experience with the foreign entity as follows: 
[The beneficiary] was instrumental in the development of Unified POS (including OPOS, Java 
POS and POS.NET) and it is a standard created under the auspices of the association for Retail 
standards (ARTS) to define a common architecture for describing POS (point of sale) 
peripherals. [The beneficiary] assisted in the development of OPOS, JPOS driver for our MSR 
and PinPad devices and working on POS.Net interface. No one else in our company here in the 
U.S. has knowledge and experience possessed by [the beneficiary]. As this is a very narrow and 
specific technical niche. 
The software [the beneficiary] assisted in designing are used in our products such as Magnetic 
Stripe Reader, OPOS driver and application used by HP, Dell, etc., Java POS driver and 
applications software, Windows Point of Sale System, MSR Configuration software used by HP 
and Dell and POS.NET interface. 
Furthermore, we are working on a new generation of products with our customers. Over 80% of 
[the petitioner's] customers are here in U.S. We need [the beneficiary] to visit customers here in 
the U.S. to troubleshoot programming issues on-site and coordinate with the existing 
programmers in the U.S. Headquarters to resolve technical programming issues. 
The petitioner also submitted an organizational chart for the foreign entity which depicts a "manager" who 
supervises a firmware group, a software group, a hardware group, a mechanical group, and a testing group, and an 
accountant. The beneficiary's name is handwritten on the chart and it appears that he is one of three software 
engineers employed by the Chinese subsidiary. 
Finally, in a letter dated March 20, 2008, counsel for the petitioner stated that the U.S. company currently has 
only one other position that is similar to that offered to the beneficiary. Counsel asserted that "due to the 
specialized knowledge from his role in the development of the software programming possessed by [the 
beneficiary] he is needed here at the U.S. location for technical and programming assistance for our customers." 
The director denied the petition on April 17, 2008, concluding that the petitioner had failed to establish that the 
beneficiary possesses specialized knowledge or that he would be employed in a position requiring specialized 
knowledge. In denying the petition, the director noted that the beneficiary had been employed by the petitioner's 
subsidiary for two years, but there was no information as to how the beneficiary has progressed to the point where 
he can be considered to possess special knowledge and skills related to the petitioner's products. The director 
observed that the petitioner identified no specific training or certain level of expertise that the beneficiary has 
achieved or possessed other than the fact that "he assisted in the development of and implemented magnetic 
swipe reader designs using C, C++ and Java programming languages." The director concluded that the record 
did not distinguish the beneficiary's knowledge as more advanced than the knowledge possessed by other 
similarly experienced persons employed by the petitioner's organization or in the industry in general, noting that 
. WAC 08 050 50867 
Page 6 
the petitioner had failed to document the petitioner's processes and procedures or the beneficiary's training in 
such processes or procedures. 
On appeal, the petitioner submits a one and one-half page letter intended to "explain the knowledge base 
difference between firmware engineer and software engineer [the beneficiary] and show that [the 
beneficiary's] knowledge on Unified POS (OPOS, JavaPOS) and POS.NET is very special and critical to [the 
petitioner's] well-being." 
The petitioner explains that firmware is a "set of instructions programmed on a hardware device, providing the 
necessary instructions for how the device communicates with other computer hardware." The petitioner notes that 
firmware is often programmed in Assembly, C, and C++, and that firmware engineers must know and understand 
a stand-alone embedded system and the surrounding hardware devices. The petitioner explains that computer 
software is a set of instructions programmed on a PC, often programmed in C, Ctt, Java and .Net, and notes that 
software engineers must understand different operating system (0s) families, with Microsoft development tools. 
In addition, the petitioner explains the UnifiedPOS as follows: 
The UnifiedPOS is a definition and brief description of the Unified Point-of-Service Standard. 
UnifiedPOS specification formalize and document the underlying retail device architecture, 
currently shared by both the JavaPOS and OPOS standards, in an operating system independent 
and language neutral manner. The UnifiedPOS specification has been created in such a way as to 
allow for future operating system dependent device participants. 
Both the JavaPOS and OPOS standards are established as conformant platform mappings of the 
UnifiedPOS specification. JavaPOS will be recognized as the only UnifiedPOS conformant, 
operating system neutral, Java language mapping. OPOS will be recognized as the only 
UnifiedPOS conformant language neutral COM mapping. . . . 
POS for .NET is a class library that provides an open device driver architecture that allows 
Point-of Service ("POS") hardware to be easily integrated into POS systems based on Windows 
Embedded for Point of Service (WEPOS) and other POS for .Net supported Microsoft Windows 
Operating Systems. It is an implementation of the UnifiedPOS Standard based upon the 
Microsoft Operating System Software utilizing the .NET Framework Architecture. 
The petitioner explains that its current employee, is knowledgeable in the "firmware" side of 
programming, while the beneficiary has knowledge of the software side of its products, and that each specialty 
requires "materially different sets of knowledge." 
The petitioner further explains that the beneficiary has been working on Unified POS implementation for its 
MSR, PinPad and Smart Card devices since 2005, and states that the Unified POS specification is a 2,000 page 
document. The petitioner further explains the beneficiary's specialized knowledge as follows: 
WAC 08 050 50867 
Page 7 
His knowledge and experience on Unified POS is very unique and special in that he was 
instrumental in the development of the interface software. His experience in Point-of-Service 
Software development and familiarity with Unified POS is a specialized knowledge that is just 
not available here in the United States. His presence is critical to our company being able to 
instantly address our customers' concerns and troubleshooting issues. 
Upon review and for the reasons discussed herein, the petitioner has not established that the beneficiary possesses 
specialized knowledge or that the beneficiary would be employed in the United States in a capacity requiring 
specialized knowledge. 
I. Standard for Specialized Knowledge 
As enacted by the Immigration Act of 1990, section 214(c)(2)(B) of the Act, 8 U.S.C. 5 11 84(c)(2)(B), provides 
the statutory definition of specialized knowledge: 
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. 
Looking to the plain language of the statutory definition, Congress has provided USCIS with an ambiguous 
definition of specialized knowledge. Although 1756, Inc. v. Attorney General was decided prior to enactment of 
the Immigration Act of 1990, the court's discussion of the ambiguity in the former INS definition is equally 
illuminating when applied to the definition created by Congress: 
This ambiguity is not merely the result of an unfortunate choice of dictionaries. It reflects the 
relativistic nature of the concept special. An item is special only in the sense that it is not 
ordinary; to define special one must first define what is ordinary. . . . There is no logical or 
principled way to determine which baseline of ordinary knowledge is a more appropriate reading 
of the statute, and there are countless other baselines which are equally plausible. Simply put, 
specialized knowledge is a relative and empty idea which cannot have a plain meaning. CJ: 
Westen, The Empty Idea of Equality, 95 Harv.L.Rev. 537 (1982). 
745 F.Supp. 9, 14-1 5 (D.D.C., 1990). 
In effect, Congress has charged the agency with making a comparison based on a relative idea that has no plain 
meaning. To determine what is special, USCIS must first determine the baseline of ordinary. 
While Congress did not provide explicit guidance for what should be considered ordinary knowledge, the canons 
of statutory interpretation provide some clue as to the intended scope of the L-IB specialized knowledge 
category. NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 123 (1987) (citing RVS 
v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207,94 L.Ed2d 434 (1987)). 
WAC 08 050 50867 
Page 8 
First, it is instructive to look at the common dictionary definitions of the terms "special" and "advanced." 
According to Webster's New World College Dictionary, the word "special" is commonly found to mean "of a 
kind different from others; distinctive, peculiar, or unique." Webster's New World College Dictionary, 13 76 (4th 
Ed. 2008). The dictionary defines the word "advanced" as "ahead or beyond others in progress, complexity, etc." 
Id. at 20. 
Second, looking at the term's placement within the text of section lOl(a)(15)(L), the AAO notes that specialized 
knowledge is used to describe the nature of a person's employment and that the term is listed among the higher 
levels of the employment hierarchy with "managerial" and "executive" employees. Based on the context of the 
tenn within the statute, the AAO would expect a specialized knowledge employee to be an elevated class of 
workers within a company and not an ordinary or average employee. See 1756, Inc. v. Attorney General, 745 
F.Supp. 9,14 (D.D.C., 1990). 
Third, the legislative history indicates that the original drafters intended the class of aliens eligible for the L-1 
classification would be "narrowly drawn" and "carefully regulated and monitored" by USCIS. See generally H.R. 
Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750,2754, 1970 WL 5815. The legislative history of 
the 1970 Act plainly states that "the number of temporary admissions under the proposed 'L' category will not be 
large." Id. This legislative history has been widely viewed as supporting a narrow reading of the definition of 
specialized knowledge and the L- 1 visa classification in general. See 1756, Inc. v. Attorney General, 745 F.Supp. 
at 15-16; Boi Na Braza Atlanta, LLC v. Upchurch, Not Reported in F.Supp2d, 2005 WL 2372846 at *4 
(N.D.Tex., 2005), ajfd 194 Fed.Appx. 248 (5th Cir. 2006); American Auto. Ass'n v. Attorney General, Not 
Reported in F.Supp., 1991 WL 222420 (D.D.C. 1991); Fibermaster, Ltd. v. INS., Not Reported in F.Supp., 1990 
WL 99327 (D.D.C., 1990); Delta Airlines, Inc. v. Dept. of Justice, Civ. Action 00-2977-LFO (D.D.C. April 6, 
2001)(on file with AAO). 
Although the Immigration Act of 1990 provided a statutory definition of the term "specialized knowledge," the 
definition did not expand the class of persons eligible for L-1B specialized knowledge visas. Pub.L. No. 101-649, 
$ 206(b)(2), 104 Stat. 4978, 5023 (1990). Instead, the legislative history indicates that that Congress created the 
statutory definition of specialized knowledge for the express purpose of clarifying a previously undefined term 
from the Immigration Act of 1970. H.R. Rep. 101-723(I) (1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6749, 
1990 WL 200418 ("One area within the L visa that requires more specificity relates to the term 'specialized 
knowledge.' Varying interpretations by INS have exacerbated the problem."). While the 1990 Act declined to 
extend the "proprietary knowledge" and "United States labor market" references that had existed in the existing 
agency definition, there is no indication that Congress intended to liberalize the L-1B visa classification. 
If any conclusion can be drawn from the ultimate statutory definition of specialized knowledge and the changes 
made to the legacy INS regulatory definition, the point would be based on the nature of the Congressional 
clarification itself. Prior to the 1990 Act, legacy INS pursued a bright-line test of specialized knowledge by 
including a "proprietary knowledge" element in the regulatory definition. See 8 C.F.R. $ 214.2(1)(l)(ii)(D) 
(1 988). By deleting this element in the ultimate statutory definition and further emphasizing the relativistic aspect 
of "special knowledge," Congress created a standard that requires USCIS to make a factual determination that can 
only be determined on a case-by-case basis, based on the agency's expertise and discretion. Rather than a bright- 
line standard that would support a more rigid application of the law, Congress gave legacy INS a more flexible 
, . WAC 08 050 50867 
Page 9 
standard that requires an adjudication based on the facts and circumstances of each individual case. CJ: Ponce- 
Leiva v. Ashcroft, 33 1 F.3d 369,377 (3d Cir. 2003) (quoting Baires v. INS, 856 F.2d 89,91 (9th Cir.1988)). 
Accordingly, as a baseline, the terms "special" or "advanced" must mean more than simply skilled or 
experienced. By itself, work experience and knowledge of a firm's technically complex products will not 
equal "special knowledge." Matter of Penner, 18 I&N Dec. 49, 53 (Comm. 1982). Specialized knowledge 
requires more than a short period of experience, otherwise "special" or "advanced" knowledge would include 
every employee in an organization with the exception of trainees and entry-level staff. If everyone in an 
organization is specialized, then no one can be considered truly specialized. 
Considering the definition of specialized knowledge, it is the petitioner's fundamental burden to articulate and 
prove that an alien possesses "special" or "advanced" knowledge. Section 214(c)(2)(B) of the Act, 8 U.S.C. 5 
11 84(c)(2)(B). USCIS cannot make a factual determination regarding the beneficiary's specialized 
knowledge if the petitioner does not, at a minimum, articulate with specificity the nature of the claimed 
specialized knowledge, describe how such knowledge is typically gained within the organization, and explain 
how and when the beneficiary gained such knowledge. 
After articulating the nature of the claimed specialized knowledge, it is the weight and type of evidence which 
establishes whether or not the beneficiary actually possesses specialized knowledge. A petitioner's assertion 
that the alien possesses an advanced level of knowledge of the processes and procedures of the company must 
be supported by evidence describing and setting apart that knowledge from the elementary or basic 
knowledge possessed by others. Because "special" and "advanced" are comparative terms, the petitioner 
should provide evidence that allows USCIS to assess the beneficiary's knowledge relative to others in the 
petitioner's workforce or relative to similarly employed workers in the petitioner's industry. 
Finally, if an alien will be employed offsite or delegated to another employer, USCIS must review the nature 
of the alien's ultimate employment to determine whether an alien will be employed in a specialized 
knowledge capacity. CJ: Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000)(finding that the proper focus of 
inquiry is not the employment agency's requirements for its H-1B nurse recruits, but rather what the 
contracting facility required as the alien's ultimate employer). The unsupported assertions of a "pass-through" 
petitioner will not suffice to show the actual nature of a beneficiary's employment as a contract or off-site 
employee. 
11. Analysis 
In examining the specialized knowledge capacity of the beneficiary, the AAO will look to the petitioner's 
description of the job duties and the weight of the evidence supporting any asserted specialized knowledge. See 8 
C.F.R. 5 214.2(1)(3)(ii). The petitioner must submit a detailed job description of the services to be performed 
sufficient to establish specialized knowledge. In this case, the petitioner fails to establish that the beneficiary's 
position in the United States requires an employee with specialized knowledge or that the beneficiary has 
specialized knowledge. 
The petitioner's initial description of the duties and requirements of the beneficiary's proposed position failed 
to demonstrate that the proposed position requires specialized knowledge of the petitioner's products, 
. . WAC 08 050 50867 
Page 10 
processes or other interests. Although the petitioner provided a description of the beneficiary's proposed duties, 
the description did not mention the application of any special or advanced body of knowledge specific to the 
petitioning organization which would distinguish the beneficiary's role from that of other software programmers 
or engineers employed by the petitioner or within the petitioner's segment of the information technology industry 
at large. For example, the petitioner indicated that the proffered computer programmer position requires an 
individual with a bachelor's degree, familiarity with programming languages such as C and C*, and familiarity, 
but not proficiency, with PinPad software design, Assembly language, magnetic reader and other data 
identification applications. These are skills that would reasonably be possessed by any programmer who had 
worked in the petitioner's industry. Based on the petitioner's own requirements, the proffered position does not 
even require an employee whose knowledge exceeds basic familiarity with the technologies to be used in 
performing his duties, much less an employee with specialized knowledge. 
Moreover, even if the petitioner did establish that the proffered position requires specific knowledge of the 
petitioner's products, the duties described, which include assisting engineers with product design and 
modification by writing programming code and testinglmodifying existing code, do not suggest that the computer 
programmer position is one that would require advanced knowledge. As noted above, the AAO would expect a 
specialized knowledge employee to be an elevated class of workers within a company and not an ordinary or 
average employee. See 1 756, Inc. v. Attorney General, 745 F.Supp. 9, 14 (D.D.C., 1990). 
The petitioner's initial evidence was also insufficient to establish that the beneficiary possesses specialized 
knowledge. The petitioner noted that the beneficiary had assisted in development and implementation of magnetic 
swipe reader designs using C, C++ and Java programming languages and as a result possesses "unique 
knowledge." The petitioner did not describe with any specificity what constitutes the beneficiary's alleged 
specialized knowledge, how this knowledge sets him apart from other employees working for the petitioner's 
international organization, nor did it explain how or when he acquired such knowledge. 
Overall, the petitioner's initial evidence fell significantly short of establishing that the beneficiary possesses 
specialized knowledge or that he will be employed by the U.S. entity in a capacity requiring specialized 
knowledge. It is the petitioner's fundamental burden to articulate and prove that an alien possesses "special" or 
"advanced" knowledge. Section 214(c)(2)(B) of the Act, 8 U.S.C. tj 1184(c)(2)(B). As discussed above, 
USCIS cannot make a factual determination regarding the beneficiary's specialized knowledge if the 
petitioner does not, at a minimum, articulate with specificity the nature of the claimed specialized knowledge, 
describe how such knowledge is typically gained within the organization, and explain how and when the 
beneficiary gained such knowledge. The minimal information and documentation provided by the petitioner 
in support of the petition did not meet these minimum standards. Going on record without documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 
I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of Calfornia, 14 I&N Dec. 190 (Reg. Comm. 
1972)). Based upon the lack of supporting evidence, the director could not 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. 
5 2 14.2(1)(1)(ii)(D). 
Accordingly, the director specifically requested that the petitioner describe in detail exactly what is the 
equipment, system, product or service of which the beneficiary has specialized knowledge, to explain how the 
WAC 08 050 50867 
Page 11 
beneficiary's training compares to other employees in the petitioner's organization and in the beneficiary's 
field, and to describe any special or advanced duties the beneficiary will perform, as well as other information 
that would establish how the beneficiary's knowledge is uncommon, noteworthy and not generally known by 
others in his field. 
The petitioner's response to the director's detailed request consisted of a one-page letter and a general 
organizational chart. In response to the director's request for a description of any special or advanced duties 
the beneficiary would perform, the petitioner simply stated that it needs the beneficiary to visit customers in 
the United States to troubleshoot programming issues and to "coordinate with the existing programmers in the 
U.S. headquarters." Nothing in this statement suggests that the beneficiary's duties would require him to 
utilize knowledge that is advanced compared to other programmers in the petitioner's organization. 
Furthermore, the petitioner did not identify the specific products or technologies with which the beneficiary 
will be working in the United States and therefore the information provided was not responsive to the 
director's request to establish how the U.S. position requires the utilization of specialized or advanced 
knowledge specific to the petitioning company. Failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
 103.2(b)(14). 
As noted above, the petitioner initially stated that the position offered in the United States would require the 
beneficiary to assist engineers with product development, utilize programming languages that are common in 
the petitioner's field, and required mere familiarity, rather than proficiency, with developing software for Pin 
Pad software, magnetic readers and other data identification applications. Overall the evidence of record does 
not establish that the position requires the services of an employee with knowledge that rises to the level of 
specialized knowledge. 
The petitioner also attempted to further explain what constitutes the beneficiary's specialized knowledge, 
noting that he has knowledge of Unified POS, and the related OPOS, Java POS and POS.NET standards, 
which the petitioner describes as a "very narrow and specific technical niche." However, these are retail 
industry standards "created under the auspices of the Association for Retail Standards (ARTS) to define a 
common architecture for describing POS (point of sale) peripherals." The petitioner asserts that the 
beneficiary "was instrumental in the development of Unified POS," but provided no further explanation or 
documentation to support this claim. Neither the Unified POS nor the related POS standards were developed 
by the petitioner's organization, and the beneficiary's alleged role in their development has been neither 
described nor documented. Again, going on record without documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. at 165. 
Familiarity with Unified POS may indeed be a "narrow and specific technical niche" within the software 
engineering industry at large, but the petitioner's claim that knowledge of these standards alone constitutes 
specialized knowledge is not persuasive. Any software engineer working in the petitioner's field of developing 
POS peripherals and related data technologies would reasonably be familiar with the industry standards. The 
record contains no information or documentation that would differentiate the petitioner's products from 
comparable products produced by other companies in the field, such that the beneficiary's prior experience in 
assisting in the development of OPS and JPOS drivers for the petitioner's products would result in him attaining 
specialized knowledge that is not available outside the petitioner's organization. 
, . WAC 08 050 50867 
Page 12 
The record contains no documentary evidence describing the petitioner's products, no evidence that the 
beneficiary has in fact participated in the development of such products, and no explanation as to how the 
petitioner's PinPad and magnetic reader products differ from other products developed using the same industry 
standards for POS software. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. at 165. 
The petitioner has also failed to submit any evidence that would distinguish the beneficiary's knowledge from 
that possessed by other software engineers within the petitioner's international organization. As stated above, the 
petitioner's assertion that the beneficiary possesses specialized knowledge of the petitioner's products or an 
advanced level of knowledge of the processes and procedures of the company must be supported by evidence 
describing and setting apart that knowledge from the elementary or basic knowledge possessed by others. 
The petitioner asserts that it has been engaged in the design and manufacture of automatic identification 
products and components, including Magstripe, Smart Card readers, bar code readers, CCD scanners, POS 
Keyboards and secure PIN entry products for 22 years, serving customers in the Point of Sale, hospitality 
transportation, gaming and other industries. Given the petitioner's two decades of experience in the industry, 
the petitioner's unsupported claim that the beneficiary, who has two years of experience with the petitioner's 
Chinese subsidiary, possesses "unique" or "advanced knowledge and experience not possessed by any U.S. 
employee, is not persuasive. 
Absent some further explanation as to what exactly constitutes the beneficiary's knowledge, how he gained 
that knowledge, how the knowledge is specific to the petitioner's products and interests, and how the 
beneficiary's training or experience differs significantly from other employees within the petitioner's 
organization, the petitioner has not met its burden to establish that the beneficiary's knowledge can be 
considered "advanced" compared to similarly employed workers within its international organization. On 
appeal, the petitioner attempts to distinguish the beneficiary's knowledge and experience by explaining that 
there are different knowledge requirements for software engineers and firmware engineers. While the AAO 
does not doubt the validity of this claim, it is unclear how the fact that the beneficiary has been employed as a 
software engineer establishes his eligibility for this visa classification. According to the foreign entity's 
organizational chart, the Chinese subsidiary employs firmware, software, hardware, mechanical and testing 
engineers, all of whom would reasonably possess knowledge of different aspects of the petitioner's products, 
and it is plausible to assume that a similar division of engineering personnel exists throughout the 
organization. Therefore, the petitioner should demonstrate how the beneficiary's knowledge differs fiom or is 
advanced compared to other software engineers within the company. The petitioner has not met this burden. 
Regardless, the petitioner has not offered the beneficiary a position as a software engineer. As discussed 
above, the petitioner seeks to employ the beneficiary as a "computer programmer I" and indicates that he will 
be responsible for assisting engineers with product design and modification activities. The very fact that he 
will be assisting engineers suggests that the petitioner does in fact employ engineers who would function at a 
higher level than the beneficiary with respect to the petitioner's product development efforts, and does not 
support a finding that the U.S. position requires "advanced" knowledge. 
Despite the petitioner's assertions, the petitioner has not established that the beneficiary's knowledge of 
software development for the petitioner's POS devices constitutes "specialized knowledge." The record does 
, WAC 08 050 50867 
Page 13 
not reveal the material difference between the beneficiary's knowledge of the petitioner's products and the 
knowledge possessed by similarly experienced software engineers or programmers in the petitioner's industry 
or in the petitioner's own organization. Without producing evidence that the petitioner's products are different 
in some material way from similar products offered on the market by similar companies, the petitioner cannot 
establish that the beneficiary's knowledge is noteworthy, uncommon, or distinguished by some unusual 
quality that is not generally known by similarly experienced personnel engaged within the beneficiary's field 
of endeavor. Again, going on record without documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. at 165. 
In addition, although requested by the director, the petitioner did not submit any documentation to evidence 
that the beneficiary possesses any training or experience not provided to or possessed by other software 
engineers employed within its organization. Again, failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
The AAO does not discount the likelihood that the beneficiary is a skilled and experienced software engineer 
who would be a valuable asset to the petitioner's organization. However, the record does not distinguish the 
beneficiary's knowledge as more advanced than the knowledge possessed by other software engineers 
working with industry standard technologies in the POS peripheral industry. There is no indication that the 
beneficiary has any knowledge that exceeds that of any experienced software engineer in his specialty, or that 
he has received special training in the company's products or methodologies which would separate him from 
any other software engineer employed within the petitioner's international organization. The petitioner has 
failed to demonstrate that the beneficiary's knowledge is more than the knowledge held by a skilled worker. 
See Matter of Penner, 18 I&N Dec. at 52. 
Based on the evidence presented, the petitioner has not established that the beneficiary has specialized knowledge 
or that he would be employed in the United States in a capacity involving specialized knowledge. 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 29 1 of the Act, 8 U.S.C. 9 136 1. Here, that burden has not been met. 
ORDER: The appeal is dismissed.