dismissed L-1B Case: Information Technology

MAT_TER OF V-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 21, 2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting aJJd engineering company, seeks to temporarily 
employ the Beneficiary as a senior software engineer under the L-1 B nonimmigrant classification for 
intracompany transferees. Immigration and Nationality Act (the Act) section 10 I (a)(l S)(L), 
8 U.S.C. § 1 lOI (a)(l S)(L). The L-1 B classification allows a corporation or other legal entity 
(including its affiliate or subsidiary) to transfer a qualifying foreign employee with "specialized 
knowledge" to work temporarily in the United States. 
The Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish, a.s required, that: (1) the Beneficiary's foreign employer is doing business; (2) the 
Beneficiary has at least one year of continuous full-time employment abroad in the three years 
preceding the filing of the petition; (3) the Beneficiary possesses specialized knowledge, that he has 
been employed abroad in a position involving specialized knowledge, and that he will be employed 
in a specialized knowledge capacity in the United States; and (4) the Beneficiary's proposed off-site 
employment at an unaffiliated employer's worksite is in compliance with the requirements of the L-1 
Visa Reform Act. 
On appeal, the Petitioner submits additional evidence and asserts that it established by a 
preponderance of the evidence that the Beneficiary possesses specialized knowledge as defined in 
the statute and regulations. The Petitioner does not address the remaining grounds for denial. 
Upon de nova review, we will dismiss the appeal. However, we find that the record contains 
sufficient evidence to establish that the foreign entity is doing business and we· will withdraw the 
Director's adverse finding with respect to that single issue. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 B nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 10l(a)(I5)(L) of the Act. 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 atliliate thereof in a specialized knowledge capacity. Id. The petitioner 
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must also establish that the beneficiary's prior education, training, and employment qualify him or 
her to perform the intended services in the United States . 8 C.F.R. § 214 .2(1)(3). 
Under the statute, a beneficiary is considered to have specialized knowledge if he or she has: (1) a 
"special" knowledge of the company product and its application in international markets; or (2) an 
"advanced" level of knowledge of the processes and procedures of the company. Section 
214(c)(2)(B) of the Act, 8 U.S.C. § 1184(c)(2)(B) . A petitioner may establish eligibility by submitting 
evidence that the beneficiary and the proffered position satisfy either prong of the statutory 
definition of specialized knowledge . 
Specialized knowledge is also defined as ·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 process~s and procedures. -8 C.F.R. § 214 .2(1)(1 )(ii)(D) . 
II. BACKGROUND 
The Petitioner is an IT consulting and engineering company with one U..S.-based employee. It 
explains that it outsources most of its U.S. clients' software development and quality assurance 
activities to its Ukrainian affiliate. 
The Petitioner states that its foreign affiliate has employed the Beneficiary as a software engineer 
and team lead since October 2014 . The Petitioner now seeks to transfer him to the United States to 
serve in the position of senior sotlware engineer at an annual salary of $56,000, and indicates that he 
will work ~t the Massachusetts location of its client, . The Beneficiary has a 
bachelor's degree in information systems management and technologies and had approximately two 
years of software development experience when he joined the foreign entity . 
Ill. SPECIALIZED KNOWLEDGE 
The sole ground for denial addressed by the Petitioner on appeal is whether the Beneficiary possesses 
specialized knowledge, that he has been employed abroad in a position involving specialized 
knowledge, and that he will be employed in a specialized knowledge capacity in the United States . 
In the dei:tial decision, the Director found that the Beneficiary 's duties abroad and proposed duties in 
the United States require him to use his software development skills to develop , enhance , and 
customize a third-party product - - owned 
by the Petitioner's client , The Director emphasized that the Petitioner 
did not establish that the Beneficiary possesses special or advanced specific to the Petitioner or foreign 
entity . · 
On appeal, the Petitioner asserts that the Beneficiary has been and will be "utilizing the firm's own 
proprietary intellectual property of which the beneficiary himself was the lead developer." 
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As a threshold issue, we must dete1mine whether the Petitioner established that the Beneficiary 
possesses specialized knowledge .. If the evidence is insullicient to establish that he possesses 
specialized knowledge, then we cannot conclude that he has been employed abroad in a position 
involving specialized knowledge or would be employed in the United States in a specialized 
knowledge capacity . Here, the Petitioner claims that the Beneficiary has both special and advanced 
knowledge . 
Once a petitioner articulates the nature of the claimed specialized knowledge , it is the weight and 
type of evidence which establishes whether or not the beneficiary actually possesses specialized 
knowledge . We cannot make a factual determination regarding a given beneficiary's specialized 
knowledge if the petitioner does not, at a minimum, articulate with specificity the nature of its 
products and services or processes . and procedures , the nature of the specific industry or field 
involved, and the nature of the beneficiary's knowledge . The petitioner should also describe how 
such knowledge is typically gained within the organization, and. explain how and when the 
individual beneficiary gained such knowledge. r 
A. Special Knowledge 
Determining whether a beneficiary has "special knowledge" requires review of a given beneficiary's 
knowledge of how the petitioning organization manufactures , produces, or develops its products, 
services , research , equipment , techniques , management, or other interests . Because "special 
knowledge" concerns knowledge of the petitioning organization's products or services and its 
application in international markets, a petitioner may meet its burden through evidence that the 
beneficiary has knowledge that is distinct or ·uncommon in comparison to the knowledge of other 
similarly employed workers in the particular industry. Knowledge that is commonly held throughout 
a petitioner ' s industry or that can be easily imparted from one person to another is not considered 
special knowledge . 
Here, the Petitioner asserts that the Beneficiary's U.S. assignment would require him to use Java 7, 
Apache Tomcat , MS SQL , MySQL, Apache Struts , Apache OJB , git, VersionOne , and jQuery to 
perform development and in silu testing of new . features, enhancements , and customization of 
a product of The Beneficiary 's responsibilities would also include 
developnient of business logic , web-based user interface, RESTful web-services , system integration 
with third-party applications , and school-specific customizations and reports. The Petitioner further 
noted that it has a business necessity to place the Beneficiary at 
location . in Massachusetts. 
The Petitioner _ stated that the position involves "utilization of proprietary knowledge developed both at 
[the foreign affiliate] and [the Petitioner] in relation to addressing client's needs ." The Petitioner 
.indicated that the Beneficiary had performed similar duties related to the system as a "Java 
developer" abroad, and has been providing services for since joining the foreign entity in 2014. 
The Petitioner did not further elaborate on what aspect of the Beneficiary ' s claimed knowledge is 
special or proprietary . The initial description indicated that he is a Java developer , familiar with 
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common Java and other third-party technologies, and that he has been and would be involved in the 
enhancement of a third-pai1y product owned by the Petitioner's client. As noted, we cannot make a 
factual determination regarding a beneficiary's specialized knowledge if the petitioner does not, at a 
minimum, articulate with specificity the nature of that knowledge. 
Further, while the Petitioner has at times implied that its foreign affiliate , under the Beneficiary's 
leadership; actually created the system itself~ the Petitioner submitted a press release 
issued by which indicates that 
in 2010. According to the press release, this acquisition included the 
a popular Web-based solution that simplifies school district data management." 
The .press release indicated that was developed by 
Even if the Petitioner had not submitted the press release, we note that the record does not contain 
evidence that the petitioner's software development team developed the system and neither 
the. Master Service Agreement nor the submitted statements of work support the Petitioner's claim 
that the software developed for the client is the Petitioner's proprietary product or intellectual 
_property. In fact, the Master Services Agreement between the two companies indicates that the 
Petitioner, as a contractor, has assigned any and all right, title and interest in any software code 
· developed, and all corresponding intellectual property rights, to Therefore, while has 
contracted with the Petitioner and its foreign affiliate to assist with developments and enhancements 
to own proprietary systems, the record does not support a finding the Beneficiary's 
knowledge and experience with the system can be deemed proprietary to or specific to the 
petitioner's organization . 
Nevertheless, despite the evidence to the contrary, the Petitioner repeatedly emphasized that the 
software package has been "created, custom-tailored and maintained" by the Petitioner 
and its foreign affiliate since July 2014. The Petitioner stated that in accordance with the services 
agreement, "the complex process of advanced specialized knowledge transfer involves intensive 
hands-on training of employees," and noted that " has requested the transfer of the 
leading developer of the system" at its premises . 
The Petitioner also stated in response to the Director's request for evidence (RFE) that the 
Beneficiary would be spending 70% of his time training staff onsite ; however, this claim was 
not consistent with the job duties described previously, and the record does not contain a statement 
of work documenting this training assignment. The latest statement of work submitted (dated in 
November 2017) indicates that required one tech/team lead, three senior developers, three 
junior developers , and one to two senior quality assurance engineers to perform onsite and offsite 
consulting services on the project, and the submitted invoices show that the Beneficiary's 
services have been billed to at the "senior developer" rate. The evidence does not support the 
Petitioner's claim that the Beneficiary personally led the development of the system or that 
the client specifically requested his services in the United States based on his special knowledge of 
the Petitioner's products or services . 
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In response to the Director's request for further information and evidence regardi~g any company­
specific training completed by the Beneficiary, · the Petitioner stated that "all new employees 
undertake some training, which includes orientation in the COIJlpany's approach to the software 
rdevelopment and ideology ." The Petitioner stated that "the main 'training' and specialized 
knowledge is developed during the software development for a specific project." The Petitioner 
further noted that "each team of developers develops and possesses highly advanced specialized 
knowledge relative to the specific client project," and that such knowledge "is unique and requires 
years of work." However, the Petitioner has not identified any specialized training or internal 
systems, tools, products or processes, specific to the petitioning company itselt: that have resulted in 
the Beneficiary acquiring specialized knowledge. 
Further, the Petitioner does not identify any particular software consulting services it provides that 
could be considered different or uncommon in the industry, nor has it shown how the software 
development work performed to enhance or maintain a client's own software product using Java and 
related technologies would be considered proprietary to the petitioning organization. The Petitioner 
repeatedly refers to the Beneficiary's knowledge as proprietary but has neither articulated this claim 
in sufficient detail nor submitted supporting evidence of his knowledge of or contribution to a 
proprietary product of the petitioning company .. 
The Beneficiary's familiarity with a client's projects, software, systems, and requirements, while 
valuable to the Petitioner, cannot be considered knowledge specific to the petitioning organization 
and cannot form the basis of a determination that he possesses specialized knowledge. All software 
consultants employed within the petitioning organization would reasonably be familiar with the 
company's internal processes and methodologies for carrying out client projects. Similarly, most 
employees would also possess project-specific knowledge relative to one or more clients. However, 
this type of client or project-specific knowledge does not equate to "specialized knowledge" as 
defined in the statute and regulations . 
· Even if the Beneficiary's knowledge . of software and systems could be considered 
knowledge that is specific to the petitioning company, the Petitioner would still need to distinguish 
how knowledge of this system itself requires software development knowledge or skills that are not 
commonly found among similar trained and experienced software professionals. It has not 
attempted to demonstrate why the knowledge required to enhance and maintain software 
could not be readily learned by an experienced Java developer with a similar educational and 
professional background. The Petitioner suggests that it took the Beneficiary years to develop his 
knowledge, but, according to his resume , the project is only one of three assignments he has 
worked on since joining the foreign entity and the ~xact length of his assignment to this project is not 
established in the record . · 
Overall, the Petitioner did not adequately support a claim that a combination of a .bachelor's degree, 
· knowledge of .lava and related technologies, and experience with projects in general and the 
project in particular have resulted in the Beneficiary's possession of special knowledge that is 
truly distinct or uncommon compared to knowledge generally possessed among similarly trained IT 
consultants in the Petitioner's industry . The Petitioner's claim~ that the Beneficiary possesses _ 
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"specialized proprietary knowledge ," are overly broad and not s~pported by sufficient evidence to 
meets its burden of proof. · 
B. Advanced Knowledge 
The Petitioner has not established , m the alternative , that· the Beneficiary possesses advanced 
knowledge . 
Determinations concerning "advanced knowledge " require review of a beneficiary's knowledge of 
the petitioning organization ' s processes and procedures . A petitioner may meet its burden through 
evidence that a given beneficiary has knowledge of or expertise in the organization's processes and 
procedures that is greatly developed or further along in progress , complexity , and understanding in 
comparison to other workers in the employer's operations. Such advanced knowledge must be 
supported by evidence setting that knowledge apart from the elementary or basic knowledge 
possessed by others . Also , as with special knowledge , the petitioner ordinarily must demonstrate 
that a beneficiary's knowledge is not commonly held throughout the particular industry and cannot 
be easily imparted from one person to another. 
Here, the Petitioner's general claim that the Beneficiary's knowledge is advanced appears to . be based 
on its claim that he is the "leading developer" on the project ; however, it has not identified any 
company-specific products or processes of which he is claimed to have advanced knowledge . 
The Petitioner submitted an organizational chart for the foreign entity which shows the Beneficiary as 
"Foxtrot Team Lead" with six developers and two quality assurance employees under him. However, 
the Petitioner cannot be deemed to have "advanced knowledge" based on his placement on the foreign 
entity's organizational chart. The Petitioner did not provide infrmnation regarding the backgrounds or 
duties of other st_aff on the same team. The Petitioner provided copies of invoices issued to 
which show that the Beneficiary was one of three employees whose services were billed at the "senior 
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de".eloper" hourly rate, but this evidence does not confirm his team lead position, nor does it establish 
how his knowledge is advanced in comparison to other members of his team. 
Even if the Petitioner had established that the Beneficiary's knowledge is relatively advanced 
compared to other developers within the foreign entity , the Petitioner mList still establish that the 
knowledge itself is of a type that cannot be readily transferred to another employee with a similar 
background and skill set. The Petitioner did not provide the information needed to allow us to make 
such a determination and simply made a blanket claim that his knowledge is "advanced ." 
Overall, the evidence is insufficient to establish that the Beneficiary ' s expertise in the organization's 
processes and procedures after less than three years of employment abroad is greatly developed or 
further along in progress , complexity, and understanding in comparison to other workers in the 
organization. Here, the Petitioner 's claims are not supported by evidence setting the Beneficiary's 
knowledge of company' processes apart from the elementary or basic knowledge possessed by others . 
The Petitioner correctly notes that a petitioning employer's own statements may be persuasive 
evidence of a beneficiary's eligibility, and notes that, in some circumstances, a petitioner's statement 
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may be the only available evidence of an employee's specialized knowledge . The Petitioner further 
states that "this is particularly the case where, as here the employer's statement is detailed, credible 
and un-contradicted ," and reiterates that "this specialized employee is uniquely qualified having 
developed the subject proprietary material himself." 
However, the Petitioner's statements in support of this petition are not detailed , as it has not 
identified with any specificity what proprietary material, specific to the petitioning company, the 
Beneficiary has developed . If it is referring once again to the system, there is evidence in the 
record which does in fact contradict the Petitioner's claim that he developed the system . As noted, 
this evidence indicates that the Petitioner's client acquired the company that developed the 
system four years before the Beneficiary joined the petitioning organization . 
For the reasons discussed above, the Petitioner has not sufficiently articulated or documented its 
claim tha! the Beneficiary possesses special or advanced knowledge. Although the Petitioner 
considers the Beneficiary to be a valuable employee, it has not sufliciently shown that his knowledge 
of company products, services, processes or procedures is special or advanced compared to other 
similarly employed workers. 
Because the Petitioner has not demonstrated that the Beneficiary possesses advanced or special 
knowledge, we need not address whether the Beneficiary will be employed in the United States in a 
specialized knowledge capacity or whether his employment .at the worksite of the unaffiliated 
employer requires specialized knowledge . 
lV. EMPLOYMENT ABROAD 
The Director further found that the Petitioner did not establish that the Beneficiary has at least one 
year of continuous full-time employment abroad with a qualifying ~ntity in the three years preceding 
the filing of the petition . See 8 C.F .R. § 214 .2(1)(3)(iii) . 
The Director acknowledged that the Petitioner submitted a "software designing service agreement" 
executed by the foreign entity and the Beneficiary, as well as a summary of payments the foreign 
entity made to the Beneficiary since October 2014 . The Director emphasized that the submitted 
agreement identifies the foreign entity as the "customer" and the Beneficiary as a contracted 
"developer ," and found the evidence as a whole insufficient to establish that the Beneficiary has 
been treated as the foreign entity's full-time employee . 
The Petitioner has neither addressed this issue in its briet: nor submitted additional evidence relevant 
to its claim that the Beneficiary is a full-time employee of the-foreign entity. 
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The law requires the Beneficiary to have been an "employee" who was "employed" abroad 
continuously for one year by the Petitioner's affiliate. Section 101 (a)(l 5)(L) of the Act. While 
neither the former Immigration and Naturalization S_ervice nor U.S. Citizenship and Immigration 
Services has defined the terms "employee," "employer,'' or "employed" by regulation for purposes 
of the intracompany transferee nonimmigrant classification , the Supreme Court has_ determined _ that 
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where the applicable federal law does not define "employee," the term should be construed as 
"intend[ing] to describe the conventional master-~ervant relationship as understood by common-law 
agency doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (Darden) 
(quoting Comfy.for Creative Non-Violence v. Reid, 490-U.S. 730, 739-40 (1989) (CC.NV.)). The 
Court stated: 
In determining whether a hired party is an employee' under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the-instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in "hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party. 
Id. at 323-324 (quoting C.C.N. V., 490 U.S. at 751-52); see also Clackamas Gastroenterology Assoc.~·­
P.C. v. Wells, 538 U.S. 440,445,447 & n.5 (2003) (Clackamas). 
A reference to a worker being a "contractor" shall not, on iis own, result in a conclusion that the 
worker is not an employee. C.'f' Clackamas, 538 U.S. at 450. As the common-law test contains "no 
shorthand formula or magic phrase that can be applied to find the answer, ... all<~[ the incidents of 
the relationship must be assessed and ·weighed with no one.factor being decisive." Darden, 503 U.S. 
at 324 (quoting NLRB v. Uniled Ins. Co. of Am., 390 U.S. 254,258 (1968)) (emphasis added). 
At the time of filing, the Petitioner submitted a letter from the foreign entity indicating that the 
Beneficiary's employment with its affiliate was "at will" and that he "was responsible for his own 
insurance and tax withholding, denominated as an independent contractor under his employer's sole 
control." However, it did not submit sutlicient evidence to establish the claimed "sole control," nor 
did it provide sufficient explanation of the foreign entity's contractual arrangement with the 
Beneficiary to enable us to consider all relevant factors cited above. Accordingly, \'v'e agree with the 
Director that the Petitioner did not meet its burden to establish whether the Beneficiary was the 
foreign entity's full-time employee for at least one continuous year in the three years preceding the 
filing of the petition. As noted, the Petitioner did not address this issue on appeal, and we will not 
disturb the Director's determination. · · 
V. CONCLUSION 
The appeal will be dismissed because the Petitioner has not established that the Beneficiary 
possesses specialized knowledge or that he had at least one year of continuous full-time employment 
abroad with a qualifying entity in the three year preceding the filing of the petition. 
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ORDER: The appeal is dismissed. 
'\ I 
Cite as Matter of V-, Inc., ID# 194 7871 (AAO Dec. 21, 2018) 
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