dismissed L-1B Case: Computer Technology

identifyingdatadeletedto
preventclearlyunwarranted
invasionof personalprivacy
PUBLIC COpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
File: SRC 0521651979 Office: TEXAS SERVICE CENTER Date: JUN 04 2001
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(l5)(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.
-.- ... _- .. /-
/~¥s-
~ b'-· hi fRo ert P. WIemann, C Ie
Administrative Appeals Office
www.uscls.gov
SRC 0521651979
Page 2
DISCUSSION: The Director, Texas 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-IB nonimmigrant
intracompany transferee with specialized knowledge pursuant to section 101(a)( 15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is engaged in the development of
computer technology solutions. The petitioner states that it is the parent company of
located in India. The petitioner seeks to employ the beneficiary as a system software
engineer for a three-year period.
The director denied the petition, concluding that the petitioner did not establish that the beneficiary possesses
specialized knowledge or that the petitioner would employ him in a position requiring specialized knowledge.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act, 8 U.S.C. § 1101(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. 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) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(1)(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 director addressed 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.
The AAO will further consider the related issue of whether the petitioner established that the beneficiary has
SRC 05 21651979
Page 3
at least one continuous year of full time employment in a position that involved specialized knowledge within
the three years preceding the filing of the petition.
Section 214(c)(2)(B) of the Act, 8 U.S.C. § 1184(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. § 214.2(l)(1)(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 or procedures.
The nonimmigrant petition was filed on August 2, 2005. In a letter dated July 21, 2005, the petitioner
described the beneficiary's current duties with its Indian subsidiary as follows:
[The beneficiary] is a Systems Software Engineer who has been employed by [the foreign
entity] from June 2004 to the present. As a System Software Engineer, [the beneficiary is
responsible for design, development and testing of the company's proprietary software
products. Specifically, he has advanced knowledge of the Intelligent Platform Management
Interface (IPMI) family of products based upon his experience in the development of IPMI
firmware and utilities. The IPMI Standard defines a hardware/software subsystem that
performs key platform monitoring and management independently from the main processor.
[The petitioner] offers a complete solution for Platform Management based on the IPMI 2.0
specification, including several building blocks: IPMI v2.0 Firmware Stack; Unified
Management Server (VMS) Software and AMIBIOS8 IPMI eModule. [The petitioner's]
firmware and hardware solutions provide system health monitoring, recovery capabilities,
logging and alerting, identification of failed hardware units and enhanced IPMI functionality.
IPMI 2.0 is a major market initiative and [the beneficiary's] specialized knowledge of this
product line is valuable to [the petitioner's] competitiveness in the market place.
[The beneficiary] possesses specialized knowledge of IPMI 2.0 which can only be gained
through prior experience with [the petitioner]. He received an intensive thirteen week training
program on IPMI 2.0 specifications and interfaces .... [The beneficiary's] experience
includes design, coding and unit testing of IPMI LDAP Proxy Service, this will run as a
service in Windows and as daemon in Linux, providing user authentication login requests for
IPMI based Baseboard Management controllers using the login credentials from a LDAP
Directory service. [The beneficiary] also has experience with ICON Interactive Configuration
for configuring the BMC using RedHat Enterprise Linux Advanced Server 4.0 32bit and
SRC 05 21651979
Page 4
64bit and SLES 9.0 32 bit and 64 bit; FWUpdate Utility and SysConfig Utility. These
projects represent significant assignments which have enhanced [the petitioner's] productivity
and competitiveness in the IT marketplace.
The petitioner further described the beneficiary's proposed duties in the United States as follows:
[The beneficiary's] proposed position of Systems Software Engineer in the United States will
entail applying his specialized knowledge of IPMI 2.0 to significant assignments critical to
the company's continued success in the international IT marketplace. He will be responsible
for complex product design and systems analysis based upon his advanced knowledge of [the
petitioner's] proprietary software, firmware and hardware products and internal procedures.
Specifically, he will continue to develop and test the IPMI family of products. [The
beneficiary's] advanced knowledge of IPMI cannot easily be taught to other individuals, as
his advanced training represents a significant investment by [the petitioner].
The petitioner submitted a copy of the beneficiary's resume, which indicated that he has "11 months
experience in developing IPMI Firmware and utilities," and provided brief descriptions of two projects to
which he has been assigned since joining the foreign entity. The resume indicated the beneficiary's experience
in C and c++ programming languages, Windows 2003 server, and the DOS, Windows and Linux operating
systems. The petitioner also submitted a letter from the foreign entity confirming the beneficiary's experience
as follows:
[The beneficiary], System Software Engineer, has undergone intensive and specialised [sic]
training in IPMI, a contemporary technology for PC management, over a period of 13 weeks.
[The beneficiary] is part of the core team trained in IPMI 2.0 standard. He has worked in key
customer projects and has acquired skilled knowledge.
The petitioner provided a copy of the beneficiary's training schedule, indicating that he completed 11 weeks
of full-time training in IPMI from June 7, 2004 through September 3,2004. The training schedule provided a
detailed list of topics covered during each week of training. Finally, the petitioner submitted information
regarding the IPMI specification and the petitioner's Platform Management solution based on the IPMI 2.0
specification.
On August 16,2005, the director issued a request for additional evidence. The director advised the petitioner
that the evidence submitted was insufficient to demonstrate that the beneficiary's duties involve knowledge or
expertise beyond what is commonly held in his field, noting that "mere familiarity with an organization's
products or services," does not constitute specialized knowledge as defined by the regulations. The director
referenced a 1994 legacy Immigration and Naturalization Service memorandum from then Acting Executive
Associate Commissioner James A. Puleo, and stated that an alien would be considered to possess specialized
knowledge if it was shown that "the knowledge is different and advanced from that generally held within the
industry," and if the knowledge is shown to be critical to the petitioner's proprietary interests, and not merely
knowledge that would enable them to produce a product or provide a service. James A. Puleo, Acting Exec.
Assoc. Comm., Office of Operations, Immigration and Naturalization Service, Interpretation of Special
SRC 05 21651979
Page 5
Knowledge (Mar. 9, 1994) ("Puleo memorandum"). Accordingly, the director instructed the petitioner as
follows:
You must provide evidence that the beneficiary's knowledge is uncommon, noteworthy or
distinguished by some unusual quality and not generally known by practitioners in the field.
The evidence must also establish that the beneficiary's knowledge of the processes and
procedures of your company is apart from the elementary or basic knowledge possessed by
others.
In a response dated September 12, 2005, counsel for the petitioner asserted that the beneficiary possesses
advanced knowledge of the petitioner's IPMI family of proprietary firmware products. Counsel asserted that
this knowledge is "not generalized knowledge but very specific, technical information about [the petitioner's]
products, process and internal procedures which constitutes private, closely-held 'trade secret' material."
Counsel further explained the beneficiary's eligibility as follows:
[The beneficiary] has acquired unique knowledge of [the petitioner's] proprietary products
which is not held by others in the industry because it relates to the internal technical
underpinnings of corporate products. The Beneficiary has undergone an extensive three
month training course of IPMI (see, Exhibit 2, training certificates, which were also included
in the initial package). Additionally, the Beneficiary received four months of hands-on task
experience, prior to being assigned to individual projects. The seven month training process
represents a significant investment by [the petitioner] and it would be difficult to transfer this
knowledge to another. This is in-house training given only to [the petitioner's] employees.
Of the approximately 108 employees of [the foreign entity], only nine engineers are currently
trained on IPM!. [The beneficiary's] hands-on experience with !PMI includes development
of a framework for configuring the BMC; development of a prototype for user authentication
login requests from the IPMI based BMC using login credentials from the LDAP Directory
Service; customization of the One-Boot Flash Update Utility so that it will update the BMC
Firmware in DOS Windows and Linux; updating the ESB2 using similar FW Commands
used by DOS FWPIAUPD Utility; updating the PIA; updating the FW with hex images that
contain Boot Block, PIA Op Code and EFS; removal of usage of LANDesk Driver in Linux
for communicating via KCS, porting the Open SSL to run in DOS and integrating this with
SysConfig so that SysConfig generates the keys and certificate and uploads them into the
ESB2; adding support for new Advanced Firmware Configurations such as Firewall, VLAN,
TPT and TLS in SysConfig utility.
Counsel further asserted that the beneficiary's proposed position in the United States "would entail applying
his advanced knowledge of IPMI to projects critical to the company's continued success in the highly
competitive global computer industry." Counsel emphasized that the petitioner "is not a contractor, Job shop,'
or placement company," but rather a software, firmware and hardware developer that creates and provides its
products to its clients.
SRC 0521651979
Page 6
Counsel concluded that the beneficiary meets the definition of an employee who possesses specialized
knowledge in accordance with the above referenced Puleo memorandum, in that he: (1) possesses knowledge
that is valuable to the employer's competitiveness in the market place; (2) possesses knowledge which,
normally, can be gained only through prior experience with that employer; and (3) possesses knowledge of a
product or process which cannot be easily transferred or taught to another individual. Counsel emphasized
that the Puleo memorandum express states that "the statute does not require that the advanced knowledge be
narrowly held throughout the company" and that "there is no requirement ... that the alien's knowledge be ...
not commonly found in the United States labor market."
In support of its response to the director's request for evidence, the petitioner re-submitted a copy of the
beneficiary's training record and a product brochure describing the petitioner's IPMI Firmware Solution.
The director denied the petition on September 27, 2005, concluding that the petitioner had failed to establish
that the beneficiary possesses specialized knowledge or that he would be employed in the United States in a
specialized knowledge capacity. The director acknowledged the position description submitted for the
beneficiary, but noted that the described duties "do not appear to be significantly different from those of any
other System Software Engineer." The director found "no evidence that the duties of the proffered position are
so specialized that they cannot be performed by someone with related skills," therefore the director
determined that the petitioner failed to establish that the proposed duties warrant the expertise of someone
possessing truly specialized knowledge.
The petitioner timely filed the instant appeal on October 19, 2005. On appeal, counsel for the petitioner
asserts that the director's conclusion was reached in a conclusory manner with no explanation as to why the
petitioner's evidence failed to establish the beneficiary's eligibility for the classification sought. Counsel
asserts that the decision does not conform to statute, regulations or existing case law. Counsel specifically
objects to the director's conclusion that the specialized knowledge requirements were not met "because the
petitioner did not supply evidence showing that another System Software Engineer, or someone with 'related
skills' in the company or in the industry, could not perform the job duties." Counsel relies on the Puleo
memorandum, and again emphasizes that it expressly states that the statute does not require that advanced
knowledge be narrowly held throughout the petitioning company, or that the alien possesses knowledge that is
not commonly found in the United States labor market.
Counsel emphasizes that the petitioner "is a large, multinational technology company which develops and
provides its proprietary copyright protected hardware, software and firmware products to its clients." Counsel
asserts that IPMI 2.0 is a "major market initiative" and the beneficiary's knowledge of the product line is
valuable to the petitioner's competitiveness in the marketplace. Counsel states that the offered position entails
performing complex product design and systems analysis based upon the beneficiary's specialized knowledge
of the company's proprietary software products. Counsel further explains:
Experience in AMI IPMI 2.0 is product specific and is available only to engineers working
with [the petitioner] on live projects. This knowledge amounts to "trade secrets." To protect
its intellectual property and in recognition of the specialized knowledge possessed by the
Beneficiary, [the petitioner] required that the Beneficiary execute a Non Disclosure
SRC 05 21651979
Page 7
Agreement and Employee Confidentiality and Invention Assignment Agreement on June 2,
2004.
This evidence further establishes that the Beneficiary has acquired unique knowledge of [the
petitioner's] proprietary products which is not held by other system software engineers or
persons with related skills in the industry because the knowledge relates to the internal
technical underpinnings of the corporate products. AMI IPMI 2.0 expertise is obtained
through internal training available only to [the petitioner's] employees and execution of
projects for [the petitioner's] customers and hence this specialized knowledge is attainable
only through prior experience directly with [the petitioner's] proprietary products and through
extensive high-level training and prior experience, and certainly is not readily available in the
marketplace. In fact this expertise is why [the petitioner's] customers hire [the petitioner] - it
is the source of these products and technical support. The Beneficiary would be coming to the
United States to execute projects using his advanced knowledge of [the petitioner's]
proprietary products, attained through his work on live [company] projects. Because this
specialized knowledge can only be acquired through prior project experience with [the
petitioner's] proprietary products and high level training by [the petitioner], the knowledge
held by the Beneficiary is expertise beyond the ordinary and beyond what is commonly held
in the field. Of the approximately 108 employees of [the foreign entity], only nine engineers
are currently trained on AMI IPMI 2.0. Thus, the Beneficiary's knowledge is beyond what is
held by other employees of the Petitioner. This advanced knowledge, which is essential to the
employer's continued competitiveness in the platform management marketplace, is not
readily available in the U.S. marketplace (or anywhere else in the world, for that matter).
* * *
The Beneficiary's advanced knowledge makes him a key employee whose services are
needed to support the petitioner's continued success in the highly competitive international IT
industry .... [The petitioner] hires and trains its Engineers in its products, processes and
procedures. Their specialized knowledge cannot be found in the marketplace.
Counsel cites Matter of Penner, 18 I&N Dec. 49 (Comm. 1982) to stand for the proposition that specialized
knowledge is found when it relates to the proprietary interests of the business and concerns skills or
knowledge not readily available. Counsel asserts that "all the Beneficiary's work is at a high level and is
solely related to [the] Petitioner's proprietary products." Counsel contends that the beneficiary's knowledge is
different and advanced from that generally held within the industry, and was acquired "through an extensive
training course, months of pre-project hands-on experience, and extensive experience with proprietary
projects."
On review, the petitioner has not established that the beneficiary possesses "specialized knowledge" as
defined in section 214(c)(2)(B) of the Act, 8 U.S.C. § 1184(c)(2)(B), and the regulation at 8 C.F.R. §
214.2(l)(l)(ii)(D), that the beneficiary has been employed by the foreign entity in a position involving
specialized knowledge for at least one year in the three years preceding the filing of the petition, or that the
SRC 0521651979
Page 8
intended position requires an employee with specialized knowledge. Instead, the petitioner consistently
describes the position as one requiring an experienced and skilled electronic engineer, rather than someone
who possesses specialized knowledge.
As a preliminary point, the AAO notes that when denying a petition, a director has an affirmative duty to
explain the specific reasons for the denial; this duty includes informing a petitioner why the evidence failed to
satisfy its burden of proof pursuant to section 291 of the Act, 8 U.S.C. § 1361. See 8 C.F.R. § 103.3(a)(1)(i).
Upon review of the director's decision, the AAO agrees that the reasons given for the denial are conclusory
with few specific references to the evidence entered into the record. As the AAO' s review is conducted on a
de novo basis the AAO will herein address the petitioner's evidence & eligibility. See Dar v. INS, 891 F.2d
997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis).
Regarding the petitioner's claim of specialized knowledge, it must be noted that in making a determination as
to whether the knowledge possessed by a beneficiary is special or advanced, the AAO relies on the statute and
regulations, legislative history and prior precedent. Although counsel suggests that U.S. Citizenship and
Immigration Services (USCIS) is bound to base its decision on the above-referenced Puleo memorandum, the
memorandum was issued as guidance to assist USCIS employees in interpreting a term that is not clearly
defined in the statute, not as a replacement for the statute or the original intentions of Congress in creating the
specialized knowledge classification, or to overturn prior precedent decisions that continue to prove
instructive in adjudicating L-IB visa petitions. The AAO will weigh guidance outlined in policy
memorandum accordingly, but not to the exclusion of the statutory and regulatory definitions, legislative
history or prior precedents.
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. § 214.2(l)(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 then 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 of LeBlanc, 13 I&N Dec.
816 (R.C. 1971)).1 As stated by the Commissioner in Matter ofPenner, 18 I&N Dec. 49, 52 (Comm. 1982),
1 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, the cited cases, including Matter of Penner, remain useful guidance concerning the
intended scope of the "specialized knowledge" L-IB classification.
SRC 0521651979
Page 9
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 firm's operation.
Id. at 53. The evidence of record demonstrates that the beneficiary is more akin to an employee whose skills
and experience enable him to provide a service, rather than an employee who has unusual duties, skills, or
knowledge beyond that of a skilled worker.
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). Although the definition of "specialized knowledge" in
effect at the time of Matter ofPenner was superseded by the 1990 Act to the extent that the former definition
required a showing of "proprietary" knowledge, the reasoning behind Matter ofPenner remains applicable to
the current matter. The decision noted that the 1970 House Report, H.R. No. 91-851, 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 of Penner, supra 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 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 ofPenner, 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, 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.")
Thus, 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-l B intracompany transferee classification. The petitioner should also submit evidence to
SRC 05 21651979
Page 10
show that the beneficiary is being transferred to the United States as a crucial employee. As discussed below,
the beneficiary's job description does not distinguish his knowledge as more advanced or distinct among
system software engineers employed by the foreign or U.S. entities.
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, "[slimply 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-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.
Counsel relies in part on the 1994 Puleo memorandum, which the AAO notes also allows USCIS to compare
the beneficiary's knowledge to the general United States labor market in order to distinguish between
specialized and general knowledge. The Acting 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." Puleo memorandum, 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, USCIS would not be able to ensure that the
knowledge possessed by the beneficiary is not general knowledge held commonly throughout the industry but
that it is truly specialized. Id. The analysis for specialized knowledge therefore requires a review of the
knowledge possessed by the United States labor market, but, as correctly noted by counsel, does not consider
whether workers are available in the United States to perform the beneficiary's job duties.
Counsel claims that the director erred by attempting to compare the beneficiary's knowledge with those of
other workers employed within the petitioner's group of companies when issuing the request for evidence.
Counsel's assertion is not persuasive. Although the Immigration Act of 1990 provided a statutory definition
of the term "specialized knowledge," Congress did not give any indication that it intended to expand the field
of aliens that qualify as possessing specialized knowledge. Although the statute omitted the term "proprietary
knowledge" that was contained in the regulations, the statutory definition still calls for "special knowledge" or
an "advanced level of knowledge," similar to the original regulation. Neither the 1990 House Report nor the
amendments to the statute indicate that Congress intended to expand the visa category beyond the "key
personnel" that were originally mentioned in the 1970 House Report. Considered in light of the original 1970
statute and the 1990 amendments, it is clear that Congress intended for the class of nonimmigrant L-l aliens
SRC 0521651979
Page 11
to be narrowly drawn and carefully regulated, and to this end provided a specific statutory definition of the
term "specialized knowledge" through the Immigration Act of 1990.
The Puleo memorandum, although issued after the 1990 amendment, does not differ significantly from
previous USCIS guidance on this issue, other than removing the requirement that a beneficiary's specialized
knowledge be proprietary or unique. For example, the memorandum indicates that one possible characteristic
of an employee who possesses specialized knowledge is that the individual "has been utilized abroad in a
capacity involving significant assignments which have enhanced the employer's productivity,
competitiveness, image or financial position." Puleo memorandum, supra. While the language differs from
previous interpretations, this criterion is another way of stating that the petitioner may establish a
beneficiary's specialized knowledge credentials by submitting evidence that the beneficiary is a "key
employee." Accordingly, counsel's argument that USCIS is prohibited from comparing the beneficiary's
knowledge to that of similarly employed workers within the petitioner's international group is not persuasive,
and the AAO will consider whether the beneficiary qualifies as "key personnel" in its analysis.
In this matter, the petitioner has provided only a general description of the beneficiary's proposed role as a
system software engineer that conveys little understanding of the type or extent of specialized knowledge that
would be required to successfully perform the purported job duties. The petitioner simply stated that the
beneficiary will apply "his specialized knowledge of IPMI 2.0 to significant assignments critical to the
company's continued success in the international IT market place," and will "continue to develop and test the
IPMI family of products." The petitioner provided no information regarding the specific "significant
assignments" or projects that the beneficiary will join or the importance of his role within these assignments.
When asked by the director to describe how the beneficiary's knowledge of the petitioner' products or other
interests is "uncommon, noteworthy, or distinguished by some unusual quality," the petitioner responded by
emphasizing the beneficiary's experience with the overseas office. However, other than implying that the
beneficiary's duties in the United States will be similar to those he performs for the foreign entity, it is unclear
what specialized knowledge the beneficiary possesses or how this knowledge would be applied in the
proffered position. 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 of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
The petitioner's evidence with respect to the beneficiary's foreign employment does not distinguish his
knowledge as more advanced or distinct among other system software specialists employed by the foreign or
U.S. entities or by other unrelated companies. The petitioner emphasizes that the beneficiary possesses
specialized knowledge of IPMI 2.0 that can only be gained through prior experience with the petitioning
organization. However, IPMI 2.0 is an industry standard specification that has been adopted by
approximately 200 companies in the personal computer industry; it was not developed by nor is it exclusive to
the petitioning organization? The petitioner has developed a "family" of products that are based on the IPMI
2 See Intel Corporation, "Intelligent Platform Management Interface: Industry Promoters, Adopters and
Contributors", available at http://www.intel.com/design/servers/ipmi/adopterlist.htm. (accessed on April 24,
2007).
SRC 05 21651979
Page 12
2.0 specification, however, the petitioner did not explain how these products differ from other IPMI 2.0
products developed by other companies and based on the same standard specifications.
Absent evidence that the IPMI 2.0 firmware developed by the petitioner is significantly different from that
developed by other companies that develop similar products, the AAO cannot conclude that the beneficiary's
knowledge of the petitioner's IPMI 2.0 product family alone constitutes specialized knowledge. The skills
used by the beneficiary in his foreign assignments include such common technologies as DOS, Windows and
Linux operating systems, and C and C++ programming languages. These would reasonably be familiar to
many software engineers working in the beneficiary's specialization.
The record does not establish the significance of the beneficiary's contributions to the development of the
company's IMPI 2.0 firmware, but overall does not suggest that he played a leading or particularly advanced
role in such product development, or that he is being transferred to the United States as "key personnel." The
petitioner claims that the beneficiary's knowledge is advanced because only nine out of 108 engineers in the
Indian entity have received specialized training in IPMI 2.0. However, the petitioner has not provided
information regarding the number of employees of the U.S. company who have the same knowledge, or the
number of employees who have completed the same training program. The petitioner has therefore not
provided a sufficient basis for comparing the beneficiary's knowledge to that generally possessed by similarly
employed workers within the petitioner's international organization. Again, 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. at 165.
Further, although the petitioner indicates that the beneficiary's knowledge is advanced compared to other
employees of the foreign organization, the record shows that the beneficiary joined the foreign entity
immediately upon graduating from college and completed seven months of classroom and hands-on training
before he was able to be assigned to individual projects. The AAO recognizes that the beneficiary completed
a I3-week training program in IPMI technologies, but it is unclear to what extent the training provided
general knowledge in the IPMI 2.0 specification, or how much of the training was truly specific to the
petitioning organization's IPMI family of products. Since there is no evidence that the beneficiary had any
experience in IPMI prior to joining the foreign entity, it is reasonable to assume that his training would
necessarily include a number of basic, general topics required to familiarize him with the industry
specification and related technologies. It is impossible to determine based on the current record whether a
system software engineer with extensive professional experience in IPMI would actually require the same
amount of full-time classroom and hands-on training in IPMI completed by the beneficiary as a recent college
graduate. It is evident that the three months of training provided to the beneficiary imparted him with the
knowledge and skills necessary to perform duties in his assigned specialty, but not necessarily knowledge that
could be considered "specialized" or "advanced." The petitioner has not adequately supported its assertion
that it would be difficult to transfer the beneficiary's knowledge to another employee.
The petitioner further indicated that the beneficiary received four months of "hands-on task experience," prior
to being assigned to individual projects." The petitioner offered no description of these "hands-on" tasks, no
indication of how they contributed to the beneficiary's claimed "advanced" knowledge, and no explanation as
to how many employees received similar "hands-on" training in IPMI 2.0. Finally, the foreign entity stated
SRC 0521651979
Page 13
that the beneficiary is "part of the core team trained in IPMI 2.0 standard," but failed to describe the size of
this team or the beneficiary's specific role within it, or how the India-based team fits into the overall product
development function. Again, going on record without supporting documentary evidence is not sufficient for
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. The
petitioner has not adequately substantiated its claim that the beneficiary's possesses "advanced" knowledge of
the company's processes, procedures and tools. Rather, as discussed further below, the record shows that the
beneficiary possesses only limited project experience that would not appear to establish his knowledge as
"advanced. "
The record shows that the beneficiary spent seven months in trammg, and had only been assigned to
individual projects as a system software engineer for approximately seven months at the time the petition was
filed in July 2005. Overall, the record establishes that the beneficiary possesses some level of knowledge of
the petitioner's products that is perhaps not commonly found in the industry. However, if USCIS were to
follow counsel's reasoning, any employee who had been involved in the development of a proprietary product
for any company in any capacity, regardless of the extent of their contribution, and regardless of the similarity
of the product to those developed by other companies, would be deemed to possesses "advanced" knowledge
and would qualify for this visa classification. While the beneficiary may possess some knowledge not
possessed by other software engineers working with similar products outside of the petitioner's group, work
experience and knowledge of a firm's technically complex products by themselves will not equal "special
knowledge." See Matter ofPenner, 18 I&N Dec. at 53.
Although knowledge need not be narrowly held within an organization in order to be specialized knowledge,
the L-I B visa category was not created in order to allow the transfer of employees with any degree of
knowledge of a company's products and processes. The lack of evidence in the record makes it impossible to
classify the beneficiary's knowledge of the petitioner's products or procedures as advanced, and precludes a
finding that the beneficiary's role is "of crucial importance" to the organization. While it may be correct to say
that the beneficiary is a highly skilled employee, the petitioner has not established that the beneficiary rises to
the level of a specialized knowledge or "key" employee, as contemplated by the statute. Id.
Finally, although not addressed by the director, the record does not establish that the beneficiary has been
employed by the foreign entity in a position involving specialized knowledge for the requisite time period.
Section 101(a)(l5)(L) of the Act states:
... an alien who, within 3 years preceding the time of his application for admission into the
United States, has been employed continuously for one year by a firm or corporation or other
legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States
temporarily in order to continue to render his services to the same employer or a subsidiary or
affiliate thereof in a capacity that is managerial, executive or involves specialized knowledge.
In order to "continue to" render services in a capacity that it managerial, executive, or involves, specialized
knowledge, it is necessary for the beneficiary to have been employed in one of these qualifying capacities
during his or her employment abroad. The evidentiary requirements for the filing of an L-I petition, as set
forth by the regulations at 8 C.F.R. § 214.2(l)(3)(iv), further confirm the petitioner's burden to establish that
SRC 0521651979
Page 14
the beneficiary was employed abroad in a qualifying capacity. Specifically, the petitioner is required to submit
"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
himlher to perform the intended services in the United States."
The petitioner clearly and repeatedly stated that the beneficiary was required to complete seven months of
classroom and hands-on "task experience" prior to being assigned to an individual project. The beneficiary
was employed by the foreign entity for approximately 14 months at the time the petition was filed. Therefore,
based on the evidence submitted, he had been fully performing his duties as a system software engineer for
only seven months prior to the filing of the petition. Accordingly, it must be concluded that the beneficiary's
fourteen months of employment with the foreign entity did not involve one full year of employment which
could be considered to be at the level of a "specialized knowledge" employee. Even if the beneficiary's period
of training could be considered to "involve" specialized knowledge, as discussed above, the L-1B visa
classification was not intended for employees who are minimally qualified to perform their stated duties.
It must be noted that the regulations require evidence that the qualifying year of employment be in a
managerial or executive capacity, or in a capacity requiring specialized knowledge. Therefore, if some
portion of the foreign employment is not in a qualifying capacity, an employee who has been employed with a
qualifying entity for many years may not meet this eligibility requirement. A determination as to whether a
beneficiary was employed in a qualifying capacity for the requisite one-year period must necessarily be made
on a case-by-case basis. In this case, the petitioner's stated seven-month training requirement for the type of
position offered effectively makes it impossible to find that the beneficiary, after fourteen months of
employment, could have been employed in a position involving specialized knowledge for one full year.
An application or petition that fails to comply with the technical requirements of the law may be denied by the
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on a de novo basis).
In sum, the beneficiary's duties and technical skills demonstrate knowledge that is common among system
software engineers working in the petitioner's industry. 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 petitioner's products or processes are
substantially different from those used by other companies developing products that support the IPMI 2.0
specification. 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
employee," nor does it establish employment in a specialized knowledge capacity. As discussed, the
petitioner has not submitted probative evidence to 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 knowledge held by other similarly employed
workers within the petitioner and the foreign entity.
SRC 05 21651979
Page 15
Furthermore, the petitioner has failed to establish that the beneficiary was actually employed for one
continuous year after completing the training required to perform the claimed specialized duties competently
and independently, much less established that the beneficiary's training and experience have resulted in
advanced knowledge of such procedures which would elevate him to the level of key personnel. If an
employee with 14 months of experience could be deemed to possess specialized knowledge, then all
employees who had completed the minimum training with the foreign entity would possess specialized
knowledge under the petitioner's proposed rubric. Indeed, the beneficiary in this matter would appear to be
typical of an employee with 14 months of experience in the petitioner's organization. Thus, as the petitioner
has not established that the beneficiary possesses a special knowledge of the petitioner's product or an
advanced level of knowledge of the company's processes or procedures, the director reasonably determined
that the beneficiary does not qualify as a specialized knowledge worker.
Finally, the AAO will address counsel's claim that the beneficiary qualifies for classification as a specialized
knowledge employee pursuant to characteristics outlined in the 1994 Puleo memorandum, specifically, that he
possesses knowledge which normally can only be gained through prior experience with the foreign employer,
and knowledge that cannot easily be taught or passed on to other individuals. While the factors discussed in
the Puleo 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)(1)(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.
The legislative history for 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
knowledge. See 1756, Inc. v. Attorney General, 745 F. Supp. at 16. The petitioner has not established that
the beneficiary was employed by the foreign entity in a position involving specialized knowledge or that the
position offered with the United States entity requires specialized knowledge. For these reasons, the appeal
must be dismissed.
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an
independent and alternative basis for the decision. 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.
Here, that burden has not been met.
ORDER: The appeal is dismissed.