dismissed L-1B Case: Information Technology

U.S. Department of Homeland Security
20 Massachusetts Ave'"N.W., Rm. 3000
Washington, DC 20529 '
I
U.S. Citizenship
and Immigration
Services
~COPY
FILE: EAC 02 141 54563 Office: VERMONT SERVICE CENTER Date: DEC 21 2001
INRE:' Petitioner: "
Beneficiary:
PETITION: Petiti~n for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality A-ct, 8 U.S.C. § 1101(a)(15)(L) '1
'ON BEHALF OF PETITIONER:
'v
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.
··RO~f
Administrative Appeals Office
EAC 02 141 54563
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 extend the beneficiary's employment as an L-l B
\ nonimmigrant intracompany transferee with spec ialized knowledge pursuant to § 101(a)(l5)(L) of the
Immigration and Nationality Act (the Act) , 8 U .S.C. § 1101(a)(l5)(L) . The p etitioner claims that it is a
branch of the beneficiary's foreign employer , Tata Consultancy Services , located in Mumbai , India, and is
operating in the United States as an information technology'consulting finn. The beneficiary was previously
granted L-IB classification pursuant to the petitioner's blanket Lpetition , and the petitioner now seeks t~ ,
extend the beneficiary 's employment as an applications 'software analyst/programmer for three additional
years.
The director denied the petition on August 13, 2002, concluding that the petitioner failed to establish that the
beneficiary possesses specialized knowledge, or that he has been or would be employed in a position requiring
specialized knowledge.
On appeal, counsel for the petitioner contends that the director improperly applied the applicable 'statute and
regulations to the facts of the case, and contrad icted prior legacy Immigration arid Naturalizatio~Service
(INS) guidance for interpreting the statutory definition of specialized knowledge , as provided in a 1994
memorandum. Counsel asserts ,that the beneficiary's knowledge of the petitioner's ' SEI-CMM Level 5
assessed software development and maintenance process is advanced, as it is "different from that generally
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found in the software sector in the United States and internationally." Counsel claims that such an
interpretation of specialized knowledge is consistent with the statute's implementing regulations , legislative
history, and previous INS guidance ; Counsel submits a brief and additional evidence in support of the appeal.
To establish L-Lelig ibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the ,
Immigration and Nationality Act (the Act), 8 U.S .C. § 1101(a)(l5)(L). Specifically, ,~i thi n three years
preceding the beneficiary's application for admission into the United States , a .qualifying organization must
have employed the beneficiary in a qualifying managerial or' executive capacity, or in a specialized
knowledge capacity , for one continuous year. In addition , the beneficiary must seek to enter the United States
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate thereof
in a managerial , executive, or specialized knowledge capac ity. '
'The regulation at 8 C.F .R. § ~14 .2(l)(3)states that ,an ind ividual 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 e xecutive, managerial, or specialized
knowledge capacity , including a deta iled 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.
EAC 02 141 54563
Page 3
(iv) Evidence that the alien's prior year of employment abroad was in a position that.was
managerial , executive or involved speci~lized knowledge and that the alien's prior
education , training , and employment qualifies him/her to perform the intended
services in the United States; however ; the work in the United States need not be the
_same work which the alien performed abroad.
-This matter presents _two related, but distinct issues : (1) whether the beneficiary possesses specialized knowledge ;
arid (2) whether the proposed employment is in a capacity that requires specialized knowledge.
Section 214(c)(2)(B) of the Act, 8 U.S.c. § 1184(c)(2)(B), provides:
For purposes of section 101(a)(15)(L), an alien is considered to be serving In a capacity
involving specialized knowledge with respect to a company if the alien has a special knowledge
of the company product and its application in international markets or has an advanced level of
knowledge of processes and procedures of the company.
"
Furthermore , the regulation at 8 C.F.R. § 214 .2(1)(I)(ii)(D) defines "specialized knowledge" as:
[S]pecial knowledge possessed by an individual of the petitioning organization's product,
service, research, equipment, techniques, management or other interests and its application in
international markets , or an advanced level 'of knowledge or expertise in the organization 's
processes and procedures.
The petitioner filed the instant nonimmigrant petition on March 20, 2002 , indicat ing thatthe beneficiary
would be employed in the United States as an "Applica~ions Software AnalystlProgrammer." In a letter dated ­
March 15, 2002, the petitioner stated that the foreign -organization is a worldwide information technology
consulting firm that develops a "range of software for applications in specific industries, such as banking ,
insurance, health care , telecommunications, "retail and manufacturing." The -petitioner described the
beneficiary's proposed duties as follows:
' . Utilize IPMS , pAL , BAL(web-based systems) to customize [the petitioner's] internally
developed , SEI-CMM assessed (level ?) software development and maintenance process to
meet project operational process requirements.
• Use Project Planning Guidelines , Project Plan Template, Software Development Life Cycle
Models document , Guidelines for Software Estimation , etc. (all available in IPMS , PAL ,
BAL) to establish Software Project Plan.
• Prepare monthly status reports on effort and status of planning.
-. Enter Status Report into IPMS database.
• Establish Software Project Tracking and Oversight as per outlines in [the petitioner's] Quality
Manual.
• Track and re view ~oftware accomplishments and results against documented estimates and
adjust plans based on actual accomplishments and results.
• Coordinate and implement Software Configuration Management (SCM) activities as outlined
in [the petitioner's] Quality Manual.
EAC 02 141 54563
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Ensure that changes to all configurable items are done as per [the petitioner's] Change
Control Procedure.
Conduct Final Inspect ions before releasing software work items.
Prepare Software Quality Assurance (SQA) Plan as per guidelines in TCS ' Quality Manual.
Conduct Final Inspections to ensure compliance with the project 's SQA Plan.
Use IPMS to monitor the status of SQA activities .
Interact with clients to gather and finalize requirements specifications .
Prepare specifications for offshore development.
Identify and allocate work for offshore development.
Coordinate the uploading of specifications for offshore development.
Provide 'technical guidance to offshore resources as required.
Review Defect Prevention activities fortnightly . .
Conduct Peer reviews, as per IPMS, DP ·Checklist, guidelines for software product quality,
project plan template , ~tc., of work product produced onsite and offshore
Escalate issues as may be required . .
With respect ·to 'the beneficiary's qualifications , ·the petitioner further provided that as a prerequisite to. . .
employment as an appl ications software analyst/programmer, the petitioner requires a baccalaureate degree in
computer science , computer information systems , or a relevant engineering discipline. An attached resume
iridicated .that the beneficiary possesses a Bachelor of Science in Electronics and Communication
Engineering. During the beneficiary 's employment-with the foreign company , which began in August 1998,
he was involved ,in various projects' involving programming languages and operating systems such as Unix ,
Windows NT, COBOL for MVS , VM for ShadowRPCs, Java, Javascr ipt, HTML, DB2 V6 , and
HummingBird. _ Additionally, the petitioner stated that the beneficiary participated in one of the foreign
company's in-house training programs, during which he was exposed to the Software Engineering Institute's
(SEI) Capability Maturity Model for Software (CMM) assessed software development process used by
several of the foreign company's offshore development centers.
The petitioner exp,lained that the beneficiary's position in the United States requires specialized knowledge of
the company's internally developed SEI-CMM assessed software development and maintenance process ,
which is customized to meet the requirements of individual projects. The petitioner noted that the foreign
entity has several Offshore Development Centers in India that have achieved SEI-CMMLevel 5 Assessment ,
that are among 61 organizations in the world -to have achieved such an assessment. The petitioner stated the
beneficiary is "one of 9,500 of the company's over 19,000 IT professionals to have received significant
training in the company's internally developed , 'SEI-CMM assessed (Level 5) software 'development and
maintenance process ; which... is neither commonly known or widely utilized in the international software
industry ." The petitioner further indicated that the beneficiary has been utilized "in a specialized knowledge
capacity on significant projects involving the design ana development of software applications for [the
petitioner's] clients in the international marketplace." '
The petitioner further described the beneficiary's qualifications as follows:
[The beneficiary] has worked in a specialized knowledge capacity as part of [the petitioner's] AIq
[the U.S . client] Offshore Team in India. As part of this team, he worked on the development of
AIG's Integrated Recovery System, the system that he's working on at this time here in the United
EAC 02 141 54563
Page 5
States. On this project, [the beneficiary] acquired significant knowledge of the technical and
function specifications of this particular system, as well as considerable knowledge of [the
petitioner's] SEI-CMM Level 5 software development and maintenance process as it is
specifically customized to meet the quality and operational requirements of this project. This
combination of highly specialized knowledge makes [the beneficiary] highly qualified to
contribute to [the petitioner's] U.S. operations asa result of knowledge not commonly found in
the industry. Moreover, [the beneficiary's] specialized knowledge of [the petitioner's] SEI-CMM
level 5 software development and maintenance process, which he acquired through training and
considerable experience, is not readily transferable to another individual and is indispensable to
the success of this assignment.
Finally, the petitioner indicated that the application environment for the AIG Mainframe Integrated Recovery
System project to which the beneficiary is assigned includes the following technologies: ruM Mainframe
9762-R35, SUN Solaris, ruM Operating System 9S/390, UNIX, WIN NT, COBOL for' MBS, VM for
Shadow RPCs,Java, JavaScript, HTML, DB2, Neuron Advisor, Genio, Rational rose, ERWIN,
Hummingbird, Netscape Application Server, and Netscape Directory Server.
The director issued a request for additional evidence on April 16, 2002, noting that the .record did not
sufficiently establish that the beneficiary possesses specialized knowledge. The director requested that the
petitioner submit the following: (l) evidence verifying that the beneficiary's knowledge is uncommon,. .
noteworthy, or distinguished by some unusual quality and is not generally known by others in the
beneficiary's field or in the industry; (2) evidence that the beneficiary's advanced level of knowledge of the
company's processes and procedures distinguishes him from those with elementary or basic knowledge; (3)
evidence that the beneficiary possesses knowledge that is valuable to the employer's competitiveness in the I
marketplace, and that he is qualified to contribute to the petitioner's knowledge of foreign operating
conditions; (4) confirmation that the beneficiary has been utilized abroad on significant assignments that have
enhanced the employer's productivity, competitiveness, image, or financial position, and that the knowledge
possessed by the beneficiary can only be gained through prior experience with the foreign employer; (5)
verification that the beneficiary possesses knowledge of a product or process that cannot be easily transferred
or taught to another individual; and (6) evidence that the petitioning organization would experience a
significant interruption in business in order to train a replacement employee for the beneficiary.
The petitioner responded in a letter dated May 24, 2002, stating that the beneficiary's knowledge is different
from others in his field as a result of his training in the foreign entity's processes and procedures, which are
consistent with SEI-CMM Level 5 quality assurance methodologies. The petitioner explained that a level 5
assessment of the SEI-CMM "is the highest and most sought after quality assurance standard in the
information technology industry worldwide, and [the petitioner's] Offshore Development Centers are a
handful of a select group of organizations to have achieved it." The petitioner further explained that the
beneficiary is one of approximately half of the foreign company's over 19,000 information technology .
professionals to have received training in the following "Key Process Areas" of the petitioner SEI-CMM
Level 5 software development and maintenance process:
• Defects Prevention (Software Review, Inspections, and Walkthroughs)
• Peer Reviews
• Software quality management Procedures
EAC 02 141 54563
Page ,6
• Software Project Planning and Oversight
• Requirements Management
• Software Product Engineering
• Software Metrics and Measurement
• Software Maintenance Management '
• Software Configuration Management
'. Software Testing
• Software Process Assessment and Improvement
• Software Estimation '
• Software Quality Assurance
• Inter-group coordination
• Quantitative Process Management.
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The petitioner noted that the beneficiary had also received training 'in the petitioner's software development
and maintenance tools, including IPMS, PAL and BAL ', which "facilitate customization implementation and
management of the company's SEI-CMM LevelS software development and maintenance ."
The petitioner .further explained the beneficiary's qualifications as follows:
[The beneficiary's] knowledge is different from that ordinarily encountered in the field by virtue
or'the fact that he has been specifically .trained in the processes and procedures that [the
petitioner] wishes to be employed in each of its projects, consistent with its SEI-CMM LevelS
quality assurance methodologies. In his tenure with [the petitioner] ; he has acquired well over
three and a half years of practical, advanced, highly specialized knowledge of [the petitioner's]
SEI-CMM Level 5 software development and maintenance processes as it is customized to meet
the quality and operational requirements of assignments involving the development and '
maintenance of Mainframe systems for [the petitioner's] international clientsin the international
insurance industry. Having worked on a number of significant projects involving the development
and maintenance of Mainframe applications systems for [the petitioner's] clients in ' the
international marketplace, [the beneficiary] also has significant knowledge of [the petitioner's]
onsite-offshore ' software development process, which utilizes ' a variety of dedicated
communications links' including high speed satellite data links, as well as voice and ' video
' communications that enables , the company's resources to collaborate on projects in the
international marketplace . He also has highly particularized knowledge of the programming ,
networking , batch, online transaction processing , database, operating systems, and various other
environments within which AIG's Claims Recovery System was developed. Through his
.considerable onsite and offshore project experience, [the beneficiary] has also acquired
significant knowledge and experience of [the petitioner's] . SEI-CMM Level 5, software
development and mairitenance process as it is particularly customized to meet the operational and
quality requirements of software projects involving the redevelopment and support of AIG's
Claims ,Recovery System .' [The beneficiary] also hassubstantive knowledge .of AIG's business
and processes. He also holds substantive knowledge .of the insurance application domain . This
particular combination of skills, experience, and expertise, which this beneficiary possesses,
, constitutes a body of highly specialized knowledge that is not readily transferable to another '
individual.
. EAC 02 141 54563
Page 7
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The petitioner provided a more detailed listof the beneficiary's responsibilities in the United States and stated
that the beneficiary is assigned a "high level of responsibility , which differs from that of a typical Information
Technology Analyst (Module Leader)" within the petitioner's organization.
In addition , the petitioner asserted that the.beneficiary meets the criteria for special ized knowledge set forth in a
1994 legacy INS memorandum in that he possesses (1) knowledge valuable for the employer's competitiveness ;. . . )
(2) unusual knowledge of foreign operating conditions; (3) experience with significant assignments abroad that
were beneficial to the employer; (4) knowledge that can, only be gained with the employer or which can not be
easily transferred; and (5) knowledge of a particular process or product this is not generally known in the United
States. See Memorandum from James A. Puleo, Acting Exec. Assoc. Comm. , INS, Interpretation of Special
Knowledge (March 9, 199i)("Puleo Memo"). The petitioner noted that the beneficiary has been utilized as a "key
employee" on several assigiunents and has worked on "detailed consulting projects involving data analysis,
migration, technical design , programming, testing, implementation , and documentation." The petitioner stated
that the beneficiary's general knowledge of computer systems design and development , combined With his
specialized training in the petitioner's internal quality .assurance practices and procedures , and his experience
utilizing these skills in significant project assignments make him essential to the finn .
The director denied . the ' pet ition on August 13, 2002 , concluding the record did not establish that the
beneficiary possesses specialized knowledge or that'the position offered to the beneficiary requires the
services of an individual possessing specialized knowledge, Upon reviewing the detailed description of the
beneficiary 's job responsibilities , the director determined that the job duties are not significantly different
from those of other applications software analysts in computer consulting firms, and do not "warrant the
expertise of someone possessing truly specialized knowledge. " The director noted that' the petitioner 's. . , . .
explanation of the beneficiary's duties seemed to merely paraphrase the definition .of specialized knowledge .
The director also concluded .that the petitioner had failed to document how .the processes and procedures of
the petitioning organization, specifically the SEI-CMM Level 5 quality assurance methodologies, ' are
significantly different from the methods generally .used in any technology consulting company, or .how an
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understanding of the processes constitutes specialized knowledge.
The director further determined that the petitioner had failed to document how the beneficiary's knowledge of .
the processes and procedures of the petitioning organization are advanced or substantially different from the
knowledge possessed by other applications software analysts employed by the petitioner. Finally , the d irector
.remarked that the petitioner did not sufficiently demonstrate that the beneficiary 's knowledge is complex 'and
not generally known by others. ., ~ - .
On appeal, counsel asserts that the director 's denial of the petition contradicts prior guidance for interpreting
the statutory definition of specialized knowledge . . First , ·counsel claims that legislative history clearly
indicates that the 'specialized knowledge category was not to be restricted to those rare employees with
unusual knowledge of an organization 's exclusive pr()cesses and .techniques, Rather , counsel contends that
the classification for intracompany transferees was intended to assist foreign companies that were locating to
the United States, and would exp~rience difficulty hiring personnel famil iar with the practices of the
company.
EAC 02 141 54563
Page 8
Additionally , counsel asserts 'that the beneficiary's knowledge of the petitioner's SEI-CMM Level 5 assessed
software development and maintenance process is advanced, as this knowledge is different from that
generally found in the software sector in the United States and worldwide. In support of this assertion,
counsel notes that the petitioning organization has fifteen offshore development centers that have been
assessed at SEI-CMM Level 5. Level 5 , the highest rating, represents an organization whose processes are
optimized , while a Level I ratingrepresents processes that are random . According to counsel, "the SEI-CMM
is the most sought after assessment of an organization 's software quality processes and capabilities."
Therefore, although the ' processes used by the petitioner are neither exclusive nor proprietary , counsel
contended that the Level 5 rating establishes that. the petitioner "utilizes a software development and .
maintenance process that is not commonly known or utilized in the software industry ." Counsel asserts that
the majority of U.S.-based organizations conducting and reporting CMM assessments to the SEI are only at
Level 2 of the CMM scale.
Counsel further states that since the petitioner established that it utilizes a sophisticated p~ocess virtually
unknown in the software development and maintenance sector in the United States , it is reasonable to assume .
that anyone possessing knowledge of such a process 'intrinsically possesses advanced knowledge. Counsel
. acknowledges that the computer hardware and software systems used by the beneficiary on assignments are .
comparatively common in the industry, yet another ind ividual with this .knowledge would still need
significant training in utilizing the petitioner's software process :before competently performing the duties
required for the beneficiary's position. Counsel asserts that it is the beneficiary's combination of general and
company-specific knowledge that constitutes specialized knowledge, which is not readily transferable to
another individual. '
Counsel also compares the present case to the facts of a hypothetical case outlined in the above-referenced
Puleo memorandum. CounseLcla ims that, in the present ca se, the beneficiary 's knowledge is consistent with
that of the beneficiary identified in the memorandum , as he possesses a combination of general knowledge
and knowledge of the company 's internal procedures , which renders him essential to the organization .
, .
Therefore, counsel ~ssertsthat the beneficiary should be deemed to posse~s specialized knowledge.
On review, the petitioner has not demonstrated that the beneficiary possesses specialized knowledge or that he
would be employed in the United States organization in a specialized knowledge capacity. In examining the
specialized knowledge capacity of the beneficiary, the AAO will look to the petitioner 's description of the job
duties. See 8 C.F.R. § 214.2(I)(3)(ii). The petitioner must submit a detailed description of the services to be
performed sufficient to establish specialized knowledge. Id. '
Although the petitioner adequately described the position of applications software analyst/programmer and
the tasks that this position entails, the petitioner has not documented the beneficiary's claimed specialized
knowledge. Both counsel and the petitioner repeatedly assert throughout the record that the beneficiary
participated in the foreign entity's in-house training program , which provided specialized knowledge of its
SEI-CMM Level 5 software 'development and . maintenance process . However, the record is devoid of
documentation , such as a course certification , training records, or a confirmation from a corporate director,
that the beneficiary received the claimed SEI-CMM training or that the beneficiary is familiar with the
petitioner's internally developed SEI-CMM process. Iri fact" the beneficiary's eight-page resume identifies
only a "CMM Awareness" course of unknown content and length completed some time in 1998. This ,notation
in the beneficiary's resume is insufficient to establish that the beneficiary received the claimed in-depth
EAC02 141 54563
Page 9
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training in the petitioner's SEI-CMM level 5 methodologies. Also , the descriptions of the beneficiary's current
and previous work assignments and the accompanying responsibilities do 'not reflect the application of the
foreign entity's SEI-CMM level 5 processes and procedures to each particular job. This information is
particularly relevant as counsel and the petitioner base their claims of the benefic iary's specialized knowledge
on his completion ofitraining involving the SEI-CMM Level 5 process and its application to the beneficiary 's
work both abroad 'and in the United States. Absent documentary evidence demonstrating the beneficiary's
SEI-CMM level 5 process training, the petitioner has not substantiated its claim that the beneficiary possesses
knowledge beyond the ordinary knowledge of a skilled software analyst/programmer : Going on record
without supporting documentary evidence is .not sufficient for purposes of meeting the burden of proof in
these proceedings. Matter ofSofjici, 22 I&N Dec . 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
. California, 14 I&N Dec . 190 (Reg. Comm. 1972)) . ,
It is also appropriate for the AAO to look beyond the stated job duties and ~onsiderthe 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 ofRaulin, 13 I&N Dec. 618
(R.C . 1970) and Matter of LeBlanc , 13 I&N Dec . 816 (R .C. 1971)Y.l As stated by the Commissioner in
Matter ofPenner, when considering whether the beneficiariespossessed specialized knowledge, "the Leblanc
and Raulin decisions did not find that the occupations - inherently qualified the beneficiaries for .the
classifications sought." 18 I&N Dec. at 52. Rather , the beneficiaries were considered to have unusual duties ,
skills , or knowledge beyond that of a skilled worker. ' !d. 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 abil~ty to carry out a key process or function which is important or essential to the
business ' operation.
Id. at 53.
In Matter ofPenner, the Commissioner discussed the legislative intent behind the creation of the specialized
knowledge category. 18 I&N Dec. 49 (Comm. 1982). As noted previously , although the definition of
. "specialized knowledge" in effect at the time of Matter of Penner was superseded by the 1990 Act to the
extent that the former definition required a showingof "proprietary" knowledge , the AAO finds that the.- . . .
) 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 d idnot 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 r
specific INS regulation or precedent decision interpreting the term. The Committee Report simply states that
the Committee was recommending a statutory defin ition because of "[v]arying [z.e., not specifically incorrect]
interpretations by INS ,"H .R. Rep . No. 101-723(1),--at 69, 1990 U.S .C.C.A.N. at 6749 . "Beyond that, the
Committee Report simply restates the tautology that became section 214(c)(2)(B) of the Act. Id. The AAO
concludes, therefore , that the cited cases remain useful guidance concerning the intended scope of the
' ''specialized knowledge" L-IB classification . The AAOsupports its use of Matter of Penner, as well in
offering guidance interpreting "specialized knowledge." Again, the Committee Report does 'not reject the
interpretation of specialized knowledge offered in Matter ofPenner. -. . .
EAC 02 141 54563
Page 10 '
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reasoning behind Matt er ofPenner remains applicable to the current matter. The decision noted that the 1970
House Report, H.R. No . 91~851 , stated that the number of admissions under the L-I classification "will not be
large" and that "[t]he class of persons eligible for such nonimmigrant visas is narrowly drawn and will be
carefully regulated by the Immigration and Naturalization Service." Id. at 5 L The decision noted that the
House Report was silent on the subject of specialized knowledge, but that dur ing the course of the sub­
committee hearing s 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 l~gislation would allow "high-level people ," "experts," individuals with
"unique" skills, and that it would not include "lower categories" of workers or "skilled craft workers." Matter
ofPenner, id. at 50 (citing H.R. Subcomm. No.1 of the Jud. Comm., Immigration Act of 1970: Hearings on
H.R . 445, 9lst Congo 210,218, 223, 240, 248 (November 12, 1969)).
Reviewing the Congressional record, the Commissioner concluded in Matter of Penner that an expansive
reading of the specialized ~owledge 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, "[rnjost 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 ofPenner , "[s]uch a conclusion would
permit extremely large numbers of persons to qualify for the 'L-1' visa" rather than the "key personnel " that
'Congress specificall y intended. 18 I&N Dec. at 53; see also , 1756, Inc. , 745 F. Supp. at f5(concluding that
Congress did ' ~ ot intend for the specialized knowledge capacity to extendto all employees with specialized
knowledge , but rather to "key personnel" and "executives .")
"
The beneficiary 's job description does not distinguish his knowledge as more advanced or distinct among
other applications software analysts/programmers ' employed by the foreign or U.S. entities or by other
unrelated companies. The statutory definition of specialized knowledge requires the AAO to make
comparisons in order to determine what constitutes specialized knowledge . The term "specialized
knowledge" is not an absoluteconcept and cannot be clearly defined. . As observed in 1,756, Inc. V. Attorney
General, "[s]imply put, specialized knowledge is a relative .. " idea which cannot have a plain meaning." 745
F. Supp . 9,15 (D.D.C. .1 990). 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.CCA.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 , ali employees can reasonably be
considered "important" to a petitioner's enterpri se. 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
EAC 02 141 54563
Page II
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 t~e remainder of the petitioner's workforce. ,
, Further, the Puleo memo cited by counsel allows USCIS to compare the beneficiary 's knowledge to the
,general United States labor market and -thepetitioner 's workforce in order to di stinguish between specialized
and general knowledge. The Associate Commissioner notes in the memorandum that "officers adjudicating
petitions involving specialized knowledge must ensure that the knowledge possessed by the beneficiary is not
general knowledgeheld commonly throughout the industry but that it is truly specialized ." Puleo memo,
supra. A comparison of the beneficiary's knowledge to the knowledge possessed by others in the field is
, therefore necessary in order to determine the level of the beneficiary's skills and knowledge and to ascertain
whether the beneficiary 's knowledge is advanced. In other words, absent an outside group to which to
compare the beneficiary's knowledge, CIS would not be able to "ensure that the knowledge possessed by the
beneficiary is truly specialized ." Id. The analysis for specialized knowledge therefore requires 'an analysis of
the knowledge possessed by the United States labor market, but does not consider whether workers are
available in the United States to perform the beneficiary 's job duties. J
As noted above , the record does not distinguish the beneficiary's knowledge as ~ore advanced than the
knowledge possessed by other applications support analysts/programmers within the petitioner's multinational
organization. The petitioner stated in its response to the director's request for evidence that "[the beneficiary's]
knowledge is different from that ordinarily encountered in the field by virtue of the fact that he has been
specifically trained in the processes and procedures that [the petitioner] wishes to be employed in each of its
projects, consistent with its SEI-CMM Level 5 quality assurance methods." The petitioner suggested that
other employees assigned to the same project do not have the same levei of experience WIth the organization
or are "not as specialized in their knowledge level with [the petitioner's] processes and procedures ." The. , . .
petitioner further noted thatthe beneficiary's tra ining and work experience in the foreign corporation separates
his knowledge from the general knowledge possessed by "a typical Information Technology Analyst (Module
Leader)." As the petitioner failed to document the beneficiary's SEI-CMM tra ining, these claims have little
value. However, despite the lack of documentation, the petitioner failed to demonstrate that the beneficiary's
knowledge is more than knowledge held by a skilled worker. See Matter ofPenner ; 18 I&N Dec. at 52.
Although the petitioner asserted .that the beneficiary's responsibilities differ from ,those of a "typical
, Information Technology Analyst (Module Leader) ," the petitioner offered no description of the tasks that are
"typical" of such ' an employee. More importantly, the petitioner offers no explanation as to why the
, '
beneficiary, whose job title is "applications software analyst/programmer ," is being compared to an
"information technology analyst (Module Leader) ." Given that a detailed care er profile submitted for the
beneficiary identifies his current role within the U.S. as "module leader ," the petitioner's attempts to
differentiate his position from that of a "module leader" are not persuasive. Absent some explanation of what
level of knowledge and experience is "typical' .' for this position , the petitioner cannot establish that the
beneficiary's knowledge and/or experience are comparatively "advanced." The career profile provided for the
beneficiary shows that he was employed by the foreign entity for approximately 18 months prior to his
transfer to the United States, and that during this period , his role was as a "team member," with no apparent
special or advanced duties. 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 knowledg~ 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
EAC 02 141 54563
, Page 12
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 skilled and experienced 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 . See Matter ofPenner, 18 I&N Dec. at53.
Although the petitioner indicates that only about half of its informationtechnology consultants have received
the SEI-CMM Level 5 training , the petitioner 'has .not further explained how the training received and
knowledge possessed by these 9,500 employees differs from the other half of the petitioner's workforce. The
petitioner suggests that only the employees who have completed ,the ,SEI-CMM Level 5 training are eligible
for transfer to the United States as L-IB specialized knowledge workers. However, if all employees must
undergo the same training 'and work experience prior to working in the United States as a specialized
knowledge employee; the petitioner failed to demonstrate that the beneficiary 's knowledge is more than the
knowledge held by a skilled worker: SeeMatter ofPenner, 18 I&N Dec. at 52. If the AAO were to follow
the petitioner's reasoning , then any employee who had completed the SEI-CMM training program and
worked as an applications software analyst/programmer with the parent company for at least one year
.v possesses specialized knowledge. ' However, based on the intent of Congress in its creation of the L-lB visa
'category, as discussed in Matter ofPenner, even showing that a beneficiary possesses specialized knowledge
doe~ not necessarily establish eligibility for the L-l B intracompanytransferee status. The petitioner should
also submit evidence to show that the beneficiary is being transferred to the United States as a crucial
employee. The petitioner has not met this burden .
The petitioner has also failed to establish the beneficiary's knowledge as specialized within the petitioner's
industry in general. The information technology consulting services the petitioner provides are based on
technologies , programming languages, and application environments that are common in the information
technology industry and are generally known and utilized by similarly employed workers outside the
petitioner's organization. while all information technology companies develop internal tools, methodologies,
processes and quality standards for implementing customer projects, there is insufficient evidence in the
record to distinguish the petitioner's processes and methodologies from those .of other companies
implementing similar projects based on the same ,applications and technologies. The petitioner's' claim that
the beneficiary's knowledge is different from that generally found in the industry is based on the company's
achievement of a Level 5 SEI-CMM assessment. Relying on the Puleo memorandum , counsel states that this
knowledge is "different from that generally found in the software sector not only in the United States but
internationally." " ' ,
The beneficiary 's ability to .execute .Level 5 assessed software development and maintenance processes does
not by itself establish that the beneficiary's knowledge is different from that generally found in the industry.
The Software Engineering ,Institute is a research and development center that offers, among other things;
education and training classes organized to aid companies in determining their ability to develop and maintain
software. See SEI Education and Training, Introduction ' to the : Software CMM ,
http://~vww.sei.cmu .edu!Jjroducts/courses /info/intro.cmm .html, (last updated Nov. 4, ~003) . Because SEI is a
voluntary training facility , any software company can purchase a report on how to perform software process
assessments and train its employees in order to receive a Level 5 rating . 'Although requested by the director,
counsel failed to provide evidence that the beneficiary possesses knowledge that can normally be gained only
.: through prior experience with the petitioning organization. Although it may be difficult for an organization to
, achieve Level 5 status , the knowledge to gain that status is widely available, and likewise "generally found in L)
v
EAC 02 141 54563
Page 13
the industry. " Failure to submit requested evidence that precludes a material line ofinquiry shall be grounds
for denying the petition. 8 C .F.R. § t"03.2(b)(14). . " .
Furthermore, counsel essentially asserted that the beneficiary 's knowledge is different from that generally
found in the software sector because of the beneficiary's employment within an organization that elected to
receive .training from SEI. ·· As stated previously , software companies are not obligated to attend training
. provided by SEI. Counsel has failed to provi~e evidence establishing that a company that does not participate
in software process assessment training from SEI does not employ software analysts that possess knowledge
equivalent to that of the beneficiary. There is no evidence in the record that supports a finding that the CMM '
assessment results published by SEI are indicative of the knowledge processed by all analysts in the software
industry. In fact, counsel indicated in his brief on appeal that the only organizations assessed by SEI are those
that actually participate in training and report their results: Therefore, counsel has failed to establish that the
beneficiary's claimed SEI-CMM training alone differentiates his knowledge from thatgenerally found in the
, .software sector. r-
, .
Moreover, as noted above , there 'is no evidence in the record , such as a course certification or company
affidavit , that establishes "the beneficiary actually received .the claimed 'training in SEI.:CMM Level 5
processes. The petitioner merely asserted that the beneficiary is one of 9,500 information technology
professionals ~thin the petitioner's organization to have received the SEI-CMM Level 5 training . 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 . 158, 165(Comm. 1998) (citing Matter
of Treasure Craft ofCalifornia,'14 I&N Dec. 190 (Reg. Comm . 1972)). .
Lastly, counsel claims that the legislative history of the L-lB classification indicates that Congress' intention "
"was to acknowledge the growing scope of international business and the need to allow the free transfer of
key personnel to the United States in order to the United States in order to facilitate and promote business
objectives of multinational organizations." The legislative history of the term "specialized knowledge "
provides ample support for a restrictive interpretation of the term. In the present matter, the petitioner has not
demonstrated that the beneficiary should be considered a member of the "narrowly drawn" class of
individuals possessing specialized knowledge. In 1756, Inc. v. Attorney General, 745 F. Supp. 9 (D.D.C.
1990), the court upheld the denial ' of an L-l petition for a chef, where the petitioner claimed that the chef
possessed specialized knowledge. The court noted that the legislative history demonstrated a concern that the
L-l category would become too large: "The class of persons eligible for such nonimmigrant visas is,narrowly
drawn and will be carefully regulated and monitored by the Immigration and Naturalization Service." !d. at 16
(citing H:R. REp. No. 91-851,1970 U.S.C.C.A.N . 2750, 2754, 1970 WL 5815) . The court stated, "[I]n light
of Congress' intent that the L-l category should be lim ited, it was reasonable for the INS to conclude that
specialized knowledge capacity should not extend to all employees wi'th specialized knowledge. On this
. '
score, the legislative history provides some guidance : Congress referred to ' key personnel' and executives ."
1756, Inc. , 745 F. Supp . at 16. In accordance with the statute and the legislative history , it would be
inappropriate to expand the visacategory to allow the entry of any personnel ~ho already had knowledge of a ,
petitioner's operations.' '
3 Similarly, in Matter of Penner.nue Commissioner emphasized that the specialized 'knowledge work er
classification was not intended for "all employees with any level of specialized knowledge." 18 I&N Dec. 49
(Comm. 1982). According to Matter ofPenner, "[s]uch a conclusion would permit extremely large numbers
,J
EAC 02 141 54563
Page 14
If the AAO were to follow counsel's reasoning , then any employee would qualify for aspecialized knowledge
visa if that employee had experience working for a company with special accreditation , such as SEI-CMM
Level 5 . The evidence presented indicates that thirty-se ven organizations have attained SEI-CMM Level 5
certification. To assert that any employee of these organizations should qualify for an L-1B visa would
fundamentally alter the ' nature of the visa classification . Such an expansion of the term "specialized
knowledge" would transform the visa classification from one for aliens with specialized knowledge to one for
any employee working for an enterprise at the forefront of its field. In short , counsel's interpretation of the
regulations improperly emphas izes a firm's accreditation rather than an employee's specialized knowledge .
Furthermore, it should be noted that Congress' 1990 amendments to the Act did not specifically overrule
1756, Inc. or otherwise mandate a less restrictive interpretation-of the term "speci~lized knowledge." The
House Report, which accompanied the 1990 amendments, stated:
One area within the L visa that requires more specificity relates to the term "specialized
knowledge." ; Varying interpretations by INS have exacerbated the problem. The bill therefore
defines specialized knowledge as special knowledge of the company product and its application '
'in international markets, or an adva~ced level of knowledge of processes and procedures of the
company.
H:R. REP. No. 101-723(1) , 1990 U .S.C.C.A.N . 6710 , 6749, 1990 WL 200418. As previously noted , the
statutory definition states , "[a]nalien is considered to be serving in a capacity involving specialized
knowledge with respect to a co~pany if the alien has a special knowledge of the company product and its .
application in international markets or hasa~ advanced level of knowledge of processes and procedures of the
company ." 8 U.S.c. § 1184(c)(2)(B).. ' . ,
, ,
Prior to the Immigration Act of 1990, the statute did not provide a definition for the term specialized
knowledge. Instead, the regulations defined the term as follows:
"Specialized knowledge" means knowledge possessed by an individual whose advanced level
of expertise and proprietary' knowledge of the organization's product , service, research,
equipment, techniques, management, or other interests of the employer are not readily
available in the United States labor market. This definition does not apply to persons who
have general knowledge or expertise which enables them merely to produce a product or
provide a service.
8 C.F.R. § 214.2(1)(1)(ii)(D)(1990).
The AAO does not dispute that the petitioner 's organization has its own internally-developed tools,
methodologies, processes and quality standards for .developing, implementing and managing customer projects.
However , there is no evidence in the record to establish that the beneficiary 's knowledge of these systems
processes and methodologies is particularly advanced in comparison to his peers , that the processes themselves
cannot be easily transferred to its U .S. employees or to professionals who have not previously worked with the
of persons to qualify for the 'L-l' visa" rather than the "key personnel" that Congress specifically intended.
Jd. at 53. '
,
!
EAC'02 141 54563
Page 15
, , ~
organization, that .the U.S .-based staff does not actually possess the same knowledge, or that the U.S. position
offered actually requires someone with the claimed "advanced knowledge. " The petitioner has not submitted
sufficient documentary .evidence in support of its assert ions or counsel 's assertions that the beneficiary 's skills '
and knowledge of the foreign entity 'sprocesses , procedures and methodologies would differentiate him from any
other similarly ' employed 'software analyst/programmer within the petitioner's group or within the industry.
Simply going on record without supporting documentary evidence is not sufficient for the purpose of meeting the
burden of proof in these proceedings . Matter ofSojJici~ 22 I&N Dec. at 165 .
An evaluation of the record reveals that other software companies have achieved an SEI-CMM Level 5 rating ,
that the claimed specialized knowledge itself is itself widely available, and that other organizations, although
not assessed at an SEI-CMM Level 5, may employ workers with knowledge equivalent to that of the
beneficiary. It is further noted that the petitioner claims that the beneficiary is one of approximately 9,500
information technology professionals to have received the SEI-CMM level 5 training, thereby raising doubts
that the beneficiary should be considered "key personnel" based on his purported completion of this training
and 18 months of employment with the foreign entity in the role of a "team member." Finally and most ,.-
importantly , the petitioner ~as Jailed to document that the beneficiary has actually received the petitioner's
SEI-CMM Level 5 training , the basis for the beneficiary's claim to specialized knowledge .
In sum, the beneficiary's duties and technical skills demonstrate knowledge that is common among computer
systems professionals working in the beneficiary 's ' specialty in the information technology field. The
petitioner has failed to demonstrate that the beneficiary 's training , work experience, or knowledge of the
company's processes is more advanced than the knowledge possessed by others employed by the petitioner ,
or that the 'processes and systerris used by the pet itioner are substantially different from those used by. other
large information techn~logy consulting companies . The AAO does riot dispute the fact that the beneficiary 's
knowledge has allowed him to successfully perform his job duties for the petitioner's organization. However,
the successful completion of one's job duties does not distinguish~ the beneficiary as possessing special or t
advanced knowledge or as a "key personnel," nor does it establish employment in a specialized knowledge
capacity. As discussed , the petitioner ihas 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 .
The AAO notes that counsel's reliance on the Puleo memorandum is misplaced. 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.Iegislative history and prior precedent. 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-lB visa petitions. The AAO will '
weigh guidance outlined in the, policy memoranda accordingly , but not to the exclusion of the statutory and
regulatory definitions , legislative history or prior precedents. While the factors discussed in the memorandum '
may be considered, the regulat ions 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(1)(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.
l
EAC 02 141 54563
. Page 16
) .
The legislative history of the term "specialized knowledge" provides ample support for a restnctive
interpretation of the term. In the present matter, the petitioner has not demonstrated that the beneficiary
should be considered a ~ember of the "narrowly drawn" class of individuals possessing specialized
knowledge. See 1756, Inc. v. Attorney General, supra at 16. Based on the evidence presented, it is concluded
that the beneficiary has not' been employed abroad and would not be employed in the United States in a
capacity involving specialized knowledge. For this reason, the appeal will be dismissed.
, . .
It is noted that the current petition is for an extension of a L-IB petition that was previously approved by a
U.S. consular officer pursuant to the petitioner's Blanket L petition. If the previous nonimmigrant petition
was approved based on the same unsupported assertions that are contained in the current record, the approval
would constitute clear and gross error on the part of the. officer. The AAQ is not required to approve
applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that
may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597
(Comm. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged errors as
binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987); cert denied 485
U.S. 1008 (1988).
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
. petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner hasnot sustained that burden.
ORDER: The appeal is dismissed.