dismissed L-1B Case: Computer Software

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: EAC-04-029-50960 Office: VERMONT SERVICE CENTER Date: A@ 2 2 
IN RE: Petitioner: 
Beneficiary: 
Petition: petition for a Nonirnmigrant Worker Pursuant to Section 10 l(aX 15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $j 1 10 l(a)(15)(L) 
IN BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 hrther inquiry must be made to that office. 
obert P. Wiemann, ~irec~ 
dministrative Appeals Office 
EAC-04-029-50960 
Page 2 
DISCUSSION: The Director, Vermont 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 as an L-1B nonimmigrant 
intracompany transferee with specialized knowledge pursuant to section 10 l(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
Virginia that is engaged in computer software design and consulting. The petitioner claims that it is the 
subsidiary of, located in Enfield, England. The petitioner now seeks to e~nploy the 
beneficiary for three years as a Technical Consultant. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary possesses 
specialized knowledge or that the prospective position requires an individual with specialized knowledge. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the position of Technical 
Consultant with the petitioner requires specialized knowledge and that the beneficiary's experience with the 
foreign entity is necessary to perform his prospective duties. In support of these assertions, the petitioner 
submits a brief and documents previously entered into the record of proceeding. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act, 8 U.S.C. 4 1 101(a)(15)(L). Specifically, 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 within the three years preceding the beneficiary's 
application for admission into the United States. Xn 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) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (I)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or speciaIized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of hll 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 himher to perform the intended 
EAC-04-029-50960 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The issues in the present matter are whether the petitioner has established that the beneficiary's position in the 
United States will involve specialized knowledge, and whether the petitioner has established that the 
beneficiary's prior employment abroad was in a position that involved specialized knowledge, such that the 
beneficiary possesses specialized knowledge. See 8 C.F.R. 94 214.2(1)(3)(ii) and (iv). 
Section 2 14(c)(2)(B) of the Act, 8 U.S.C. 3 1 184(c)(2)(B), provides the following: 
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 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. Q: 2 14.2(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 or procedures. 
In a letter submitted with the initial petition on November 10, 2003, the petitioner described the beneficiary's 
experience abroad and its product as follows: 
[The beneficiary's] responsibilities in the UK include the design and implementation of 
communication software, the technical marketing of services and products, and liaison with 
clients. He has worked with a number of the company's US customers, and has developed 
complex cammunications software for [the foreign entity] . . . . 
He has been deployed full-time by [the foreign entity], initially working as a member of the 
product development teams. For the past three years he has been specializing in our DCI- 
MPLS product, initialIy as a development manager, more recently as a customer support 
manager. DC-MPLS is a software product that is integrated into data and voice switches 
produced by a large and growing number of US equipment manufacturers. 
[The beneficiav] has a unique knowledge of the complexities involved integating DC- 
MPLS with equipment manufacturers' other technology to create equipment that will support 
voice and data services across different types of networks. Due to the increasing numbers of 
US customers using DC-MPLS, we require his assignment to [the petitioner]. 
[The foreign entity's] products are 
EAC-04-029-50960 
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- Highly complex; only skilled software professionals are capable of taking on the 
technical consulting and systems analysis roles required to successfhlly market them to 
the industry 
- developed in the UK, by software professionals recruited and trained by [the forei~m 
entity] 
The petitioner described the beneficiary's prospective job duties as follows: 
While in the US, [the beneficiary] will be working with [the petitioner's] prospective and 
current customers in the network equipment manufacturers sector to identify solutions to their 
technology requirements, support their integration of DC-MPLS into their solutions, and 
develop new business opportunities and relationships for [the petitioner]. 
On December 24, 2003, the director requested additional evidence. In part, the director instr-ucted the 
petitioner as follows: 
Submit evidence relating to the unique methodologies, tools, programs, and/or 
applications that your company uses. Evidence may include your company's 
brochure or other literature describing the tools your company uses. Please describe 
in detail how these are different from the methodologies, tools, programs andlor 
applications used by other companies. 
Explain, in more detail, exactly what is the equipment, system, product, technique, or service 
of which the beneficiary of this petition has specialized knowledge, and indicate what it is 
used [flor. 
In a response dated December 29,2003, the petitioner submitted a letter that states the following: 
[The beneficiary's] responsibilities included 
creating the MPLS product architecture 
approving the designs of all components 
reviewing much of the software written 
writing some components himself 
agreeing the test plan 
management of a team of up to 6 other engineers who were designing, coding and 
testing DC-MPLS 
participating in the definition of the industry standards for MPLS at several different 
standards bodies. 
This gave [the beneficiary] unequalled knowledge in DC-MPLS and he remains our key 
expert in these technologies. DC-MPLS and its test software is close to one million lines of 
EAC-04-029-50960 
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software. An exceptional software engineer from outside [the foreign entity] would take 
years to achieve anything near [the beneficiary's] level of knowledge, and even then the 
knowledge gained from being involved in the original software development is impossible to 
emulate. 
[The beneficiary's] support responsibilities include 
working with customers in using DC-MPLS 
helping customers design their systems 
providing education and support at the customer's site 
debugging any problems which they hit 
providing additional software to satisfy specific requirements 
reacting extremely quickly to problem reports. 
This level of support can only be achieved by someone that has previously worked on the 
development of DC-MPLS, and gained years of detailed technical knowledge. This cannDt 
be done by a new hire. 
This also requires knowledge of our existing customer relationships. Such knowledge is 
proprietary and confidential; no-one outside of [the petitioner or foreign entity] could have 
this knowledge. 
The petitioner further stated that it has transferred five additional workers to the United States in L- IB status, 
including one senior personal assistant and four technical consultants. The petitioner provided that none of 
the L-1B employees are in the same business unit as the beneficiary, and they do not have the same expertise. 
The petitioner submitted a document titled DC-MPLS Technical Data Sheet that provides detail regarding the 
technical aspects and capabilities of its DC-MPLS product. The petitioner included an organizational chart 
for the foreign entity that reflects that it employs 275 workers, including 152 software professionals, as of 
December 10.2003. 
On January 8, 2004, the director denied the petition concluding that the petitioner failed to establish that the 
beneficiary possesses specialized knowledge or that the prospective position requires an individual with 
specialized knowledge. The director discussed the beneficiary's experience with the petitioner's procedures, 
and stated that "[ilt is not evident that the proffered position could be considered one requiring an itidividual 
of specialized knowledge simply because of a knowledge of [the petitioner's] practices." The director 
referenced the beneficiary's work with DC-MPLS, and indicated that "[ijt is not evident that the program the 
beneficiary would be utilizing in the [petitioner] is so advanced/specialized that the duties of the position 
could only be performed by someone with specialized knowledge from [the foreign entity]." The director 
noted that the petitioner indicated that three or four other companies worldwide provide MPLS technology, 
and thus the director found that "MPLS would evidently be found regularly within [the petitioner's] industry." 
EAC-04-029-50960 
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The director highlighted that the petitioner currently employs 12 workers in L-l status, nine of which are in 
L-I B status as employees with specialized knowledge. The director concluded that the petitioner failed to 
show that the beneficiary qualifies as key personnel, as the petitioner chose to transfer 12 other employees to 
the United States before him. The director observed that the petitioner's organizational chart reflects that 
there are five employees serving in the same position as the beneficiary who have ostensibly been 
successfully trained in the United States. The director found that this shows that prior experience with the 
foreign entity is not required for the beneficiary's position. 
On appeal, the petitioner asserts that the beneficiary's prospective position requires specialized knowledge and 
that the beneficiary's experience with the foreign entity is necessary to perform his duties in the United States. 
The petitioner discusses the beneficiary's experience abroad with DC-MPLS, and states that "[hle is one of a 
very small number of employees (approximately 10) that have such deep and broad knowledge." The 
petitioner explains the need for the beneficiary's particular knowledge, and confirms that it "is only available 
from engineers within [the foreign entity] that have worked on [DC-MPLS]." The petitioner explains that 
"[nlone of [its] existing technical staff based in the US work in the Network Protocol Group or have technical 
experience of DC-MPLS, and it would take years to develop the level of knowledge that [the beneficiary] has 
attained." 
The petitioner provides that its internal procedures are unique, and that "[blecause our customers receive and 
use the source code and development tools for DC-MPLS, they need to be trained in the associated 
procedures." The petitioner states that "[aln engineer with general experience of MPLS, ATM, Frame Relay 
or other networking protocols would not be able to handle [the beneficiary's] responsibilities because of their 
complete lack of knowledge in our DC-MPLS implementation and our systems and processes." The 
petitioner explains that, while there are other companies that work with MPLS technology, its implementation 
is specific to its own company. The petitioner states that "[tlhe vast majority of engineers in the industry that 
have experience with MPLS software will have gained that experience developing a particular networking 
device. In that case, they will have developed software that is specific to that device, not software that is 
portable to many devices." 
Upon review, the petitioner has not demonstrated that the beneficiary's prospective position requires 
"specialized knowledge" as defined in section 214(c)(2)(B) of the Act, 8 U.S.C. 8 1184(c)(2)(B), and the 
regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(D). Instead, the petitioner consistently describes the position as one 
requiring an experienced and skilled software professional, rather than someone who possesses specialized 
knowledge. 
In examining whether a position requires specialized knowledge, the AAO will look to the petitioner's 
description of the job duties. See 8 C.F.R. 3 214.2(1)(3)(ii). The petitioner must submit a detailed description 
of the services to be performed sufficient to establish that it involves specialized knowledge. Id. 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 Colle?., 18 I&N Dec. 117, 120 (Comrn. 198I)(citing Mutter- oJ'Ra~rlin, 13 I&N Dec. 618 (R.C. 1970) and 
EAC-04-029-50960 
Page 7 
Matter of LeBfanc, 13 I&N Dec. 8 16 (R.C. 197 I)).' As stated by the Commissioner in Mutter of Penner, 18 
I&N Dec. 49, 52 (Comm. 1982), 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." 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. 
It should be noted that 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, "[sJimply put, specialized knowledge is a relative . . . idea which cannot have a plain meaning." 745 
F. Supp. 9, 15 (D.D.C. 1990). The Congressional record specifically states that the L-1 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." Websterk IiNew 
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 empIoyee and the remainder of the petitioner's workforce. 
Moreover, 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). The decision noted that the 1970 House 
Report, H.R. No. 91-85 1, stated that the number of admissions under the L-1 classification "will not be large" 
and that "[tlhe class of persons eligible for such nonimmigrant visas is narrowly drawn and will be carefilly 
regulated by the Immigration and Naturalization Service." id. at 51. The decision further noted that the House 
I Although the cited precedents pre-date the current statutory definition of "speciaIized knowledge," the AAO 
finds them instructive. Other than deleting the former requirement that specialized knowledge had to be 
'6 
proprietary," the 1990 Act did not significantly alter the definition of "specialized knowledge" from the prior 
INS regulation or precedent decision interpreting the term. The Committee Report simply states that the 
Committee was recommending a statutory definition because of "[vlarying [i.e., not specifically incorrect] 
interpretations by NS," H.R. Rep. No. 101-723(I), 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, as well as Matter of Penner, remain useful guidance concerning the 
intended scope of the "specialized knowledge" L-IB classification. 
EAC-04-029-50960 
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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 legidation 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 of Penner, id. at 
50 (citing H.R. Subcomm. No. 1 of the Jud. Comrn., Immigration Act of 1970: Hearings on H.R. 445, 9lst 
Cong. 2 10,218,223,240,248 (November 12, 1969)). 
Reviewing the Congressional record, the Commissioner concluded in Mutter of Penner 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 that the specialized knowledge worker classification was 
not intended for "all employees with any level of specialized knowledge." Matter ofpennet-, 18 I&N Dec. at 
53. Or, as noted in Matter of Colley, "[mlost 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. 1 17, 1 19 (Comm. 198 1). According to Matter of Penner, "[sluch a 
conclusion would permit extremely large numbers of persons to qualify for the 'L-1' visa" rather than the "key 
personnel" that Congress specifically intended. 18 I&N Dec. at 53; see also, 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.") 
In the present matter, the petitioner has consistently described the beneficiary's proffered position as a 
technical consulting and marketing position that requires a skilled software professional with extensive 
experience in DC-MPLS. When asked by the director to describe how the beneficiary's knowledge of the 
product is "uncommon, noteworthy, or distinguished by some unusual quality," the petitioner responded by 
emphasizing the beneficiary's experience with the petitioner's overseas office. The petitioner claimed in part 
that "[olnly an employee of Data Connection with substantial experience will be able to effectively use our 
systems." Although the petitioner submitted copies of a DC-MPLS "Technical Data Sheet," the petitioner did 
not establish how this product differs in any sense from the specialized and highly technical products 
provided by other software design and consulting firms. By itself, work experience and knowledge of a firm's 
technically complex work product will not equal "special knowledge." See Matter ofPenner, 18 I&N Dec. at 
53. 
As the petitioner emphasizes the beneficiary's education and work experience, the AAO must conclude that, 
while it may be correct to say that the beneficiary is a highly skilled and experienced employee, the 
beneficiary does not rise to the level of a specialized knowledge or a "key" employee, as contemplated by the 
statute. Id. 
The petitioner's claims are also hindered by a lack of evidence. Although the petitioner implied that the 
beneficiary was involved in the original software development, no evidence was submitted in support of the 
claim. Also, while the petitioner claimed that the beneficiary is one of approximately 10 of thc: foreign 
entity's employees who have the level or depth of knowledge of DC-MPLS possessed by the beneficiary, the 
petitioner did not identify those other employees or provide evidence in support of that claim. As the foreign 
entity employs approximately 275 workers, the fact that the beneficiary is one of 10 who possess specialized 
EAC-04-029-50960 
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knowledge of DC-MPLS would be critical and probative as to whether the beneficiary possesses special 
knowledge. 
The petitioner hrther indicated that none of its technical consultants currently working in the United States, 
in L-IB status or otherwise, work on the same projects as the beneficiary or possess the same background and 
expertise. Again, the petitioner submitted no evidence of this claim. The organizational chart submitted does 
not include position titles or descriptions of the working groups. Instead, the chart represents the 
organizational hierarchy of 28 employees in three ofices (Reston, Virginia; Alameda, California; and Dallas, 
Texas). CIS records reveal that of the 24 nonimmigrant petitions tiled by Data Connection Corp., 15 were for 
L-1B specialized knowledge employees. Absent documentary evidence or a detailed description of the 
petitioner's organization, the petitioner's unsupported assertion that no other technical consultant currently 
working in the United States possesses the same expertise as the beneficiary carries little weight. 
Upon review, in every instance where the petitioner attempted to distinguish the beneficiary as having 
specialized knowledge, the petitioner failed to submit any evidence that would allow the AAO to e\,aluate the 
claim. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Mutter of Soffici, 22 I&N Dec. 1 58, 165 (Comm. 1998) 
Finally, the petitioner asserts on appeal that only the beneficiary wil suffice for this position because there are 
no other workers available that can perform the beneficiary's functions without extensive training and 
experience. It is noted that the L-1B nonimmigrant visa category was not intended to alleviate or remedy a 
shortage of workers. The H-1B "specialty occupation" temporary worker category, as described in section 
101(a)(15)(H) of the Act, provides a basis for the admission of technical workers for whom there is a 
shortage. See §$ 101 (a)( lS)(H)(i)(b) and 2 12(n)( 1) of the Act; see ulso Mutter of Penner, 18 I&N Dec. at 53- 
4. The L-IB classification is not intended to serve as a substitute for H-IB when the petitioner is not paying 
the prevailing wage or when there are no visa numbers available out of the numerical limits set by Congress. 
The petitioner may, of course, file a new visa petition on the beneficiary's behalf that is supported by 
competent evidence that the beneficiary is entitled to L-1B nonimmigrant classification or another appropriate 
nonimmigrant classification. 
Based on the foregoing, the petitioner has not demonstrated that the beneficiary's prospective position 
requires specialized' knowledge or that the beneficiary possesses specialized knowledge. See section 
2 14(c)(2)(B) of the Act, 8 U.S.C. $ 1 184(c)(2)(B), and the regulation at 8 C.F.R. 5 2 14.2(1)(l)(ii)(D). 
In visa 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. 4 136 1. Here, that burden has not been met. 
ORDER: The appeal is dismissed.