dismissed L-1B Case: Information Technology

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ideatifyiea"del.tld tG'
'~clearly unwarranted
~otpersOllalprivacy
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V.S. Department of Homeland Security
20 Massachusetts Ave., N.W" Rm, 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: ' EAC02l9650429 Office: VERMONT SERVICE CENTER pate: DEC 2 1 2007
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.c. § 1iOl(a)(15)(L)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
, the office that originally decided your case. Any further inquiry must be made to that office.
RO~~f
Administrative Appeals Office
J
EAC 02 196 50429
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-I B
nonimmigrant intracompany: transferee W:ith specialized knowledge pursuant to§ ~0I(a)(15)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.c. § 1101(a)(15)(L). The petitioner 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 firm. The beneficiary was previously
granted L-lB classification under'the petitioner's blanket t. petition, and the petitioner now seeks to extend
thebeneficiary's employment as a systems administrator for three additional years,
The director denied the petition on September 11, 2002,con,cluding that the petitioner failed to establish that the
beneficiary possesses specialized knowledge, or thathe 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 contradicted prior legacy Immigration and Naturalization 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 SEt-;CMM Level 5
assessed software development and maintenance process is advanced , as it is "different from that generally
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 impleinenting regulations , legislative
history and previous INS guidance. Counsel submits a brief and additional evidence in support of the appeal.
To establish L-l , eligibility, 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)(15)(L). Specifically, within 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 capacity .
The regulation at' 8 C.F .R. .§ 2.14.2(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 (l)(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 on~ continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition .
\..
EAC02 196 50429
Page 3
, (iv) Evidence that the alien 's prior year of employment abroad was in a position that was
managerial , executive or involved specialized knowledge and that the alien's prior
education , training, and employment qualifies him /her to perform the intended
servi~es in the United States; however, the work in the United States need not be the '
same work which the alien performedabroad.
This matter presents 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.
Section 214(c)(2)(B) of the Act, 8 U.S.c. § 1184(c)(2)(B), provides:
For purposes of section 1OI(a)(l5)(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(l)(l)(ii)(D) defines "specialized knowledge" as:
[Sjpecial 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, ~r an advanced level of knowledge ' or expertise in , the organization 's
processes and procedures.
The petitioner filed nonimmigrant visa petition on May 20 , 2002. In a letter dated May 9 , 2002, the petitioner
outlined the beneficiary's responsibilities as a "systems administrator with specialized knowledge of the SEI­
CMM Level 5 Assessed software development and maintenance processes employed by.Ithe petitioner] for
Target projects." The petitioner described the beneficiary 's duties as including the following:
, . I ,
[I]nstalling, configuring, and maintaining ' UNIX servers and related software; evaluating
system specifications , I/O processes, and working parameters for hardware/software
compatibility; performing systems programmer activities for operating systems and , other
network control programs; troubleshooting network and operating systems problems;
\ . monitoring and managing the network; uploading specifications for offshore development ;
testing ODC deliverables to ensure they meet [the petitioner's] Quality Assurance standards,
specifications requirements, and coding standards ; collaborating with onsite and ODC
resources to provide 24/7 production support; and providing technical guidance to offshore
, resources. '· "
_, In addition, the petitionerindicated that the beneficiary would perform the following duties:
• Utilize [the petitioner's] internally designed Quality Knowledge Management Systems, .
such as IPMS , PAL, and BAL to customize the company 's internally developed SEI­
CMM Level 5, Assessed software deveiopment and maintenance processes to meet
,project quality and operational process requirements;
EAC 02 196 50429 ,
Page 4
•
•
•
• Utilize ,[the petitioner's] internally created Project Planning Guidelines, Project Plan
, Template , Software Development Life Cycle Models , and ,Guidelines for Software
Estimation to develop a Software Project Plan that meets Target's needs on this project;
Establ'ish Software Project Tracking and ' Oversight as dictated in [the petitioner's]
• I "I, •
.internally created Quality Manual ;' ,. '
Ensure that changes to all configurable items are done accordingto [the petitioner's]
Change Control Procedure;
Implement and coordinate [the petitioner 's] Software Quality Assurance (SQA) Planas ,
directed by the [the petitioner's] Quality Manual Guidelines; _.
Conduct final inspections to ensure compliance with the projects (SQ~) Plan;
Prepare specifications for future offshore maintenance; .
ReviewDefect Prevention activities biweekly; I
Review and monitor Defect Prevention activities, including, but not 'limited to; peer
reviews, code walkthroughs, casual 'analyses sessions, and inspections of the work
product produced onsite and at the Target ODC; .
• . Ensure that the software work product is delivered_!o the client within the established
[company] parameters ; and ,
Work with the onsite and Target ODC team s to implement changes in technology and
, I .
processes in order to enhance the SEI-CMM Level 5'Assessed software development and
maintenance processe~ employed by [the petit ioner] for Target projects.
•
•
•
•
..
With respect to the beneficiary 's qualifications , (the petitioner further provided that as 'a prerequisite to
employment as an systems 'administrator , the company requires abaccalaureate degree in an engineering or
computer science discipline. An attached resume, diploma, and educational evaluation indicate that ' the
beneficiary has the equivalent 'of such degree . During the beneficiary's employment with the foreign
company, which began in May '1998, hewas involved in projects involving various applications including the
installation and administration of HP UNIX (HPUX-10.20), D,igital Unix Ver. 4 .0D, IBM AIX 'Unix Ver.
4.3.3, SUN Solaris Ver. 2.6 and 2.S, M/C Service Guard on HP9000/S00, TruCluster Available Server ,
Environment on Digital Unix 4.0D for applications SAP, SmallWorld GIS and ORACLE, sca UNIX, and
troubleshooting a wide range of PC hardware, software and peripheral problems, among other duties.
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) Capabil ity
Maturity Model for Software (CMM) assessed software development process used by several of the foreign
company 's 'offshore development centers . The petitioner stated that fewer ,than half of the foreign entity's
information technology consultants had received such training , and that the process is "neither commonly
known or generally practiced in the international software development and maintenance sector."
The petitioner further described the beneficiary's qualifications as follows: .
Since May 1998 , [the beneficiary] has gained advanced, highly specialized practical knowledge
of [the petitioner's] internally created ~EI-CMM Level 5 Assessed software development and
maintenance process; as well as its customization to meet the quality -and operational'
requirements . for considerable assignments involving the development, .enhancement,
maintenance , and support of UNIX-based software and hardwa re systems across a variety of
business applications and technology domains for [the petitioner's] clients in the international
marketplace. As previously explained, these skills, experience, and knowledge constitute a body
EAC 02 196 50429
Page 5
of highly specialized knowledge that is nor readily . transferable to another individual nor
generally found in the information technology services and consulting sector .worldwide. [The
benefi~iary' s ] combination of training and over four years of experience utilizing our quality
assurance framework make him a critical specialized knowledge professional on this project , and
his specialized knowledge of{the petitioner's] quality assurance processes and procedures is .still
required for the successful completion of ongoing assignments for Target. ' ..-
The director issued a request for additional evidence ,on June 21, 2002, not ing that the record did not
sufficiently establish that the beneficiary possesses 'specialized knowledge. The director requested that the
petitioner submit the following: (1) 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 basi~ knowledge; (3) ,
evidence that the beneficiary possesses knowledge that is valuable to the employer's competitiveness in the
marketplace, and that he is .qualified to contribute to the petitiorier's knowledge of foreign operating
conditions; (4) confirmation that the beneficiary has been utilized abroad on significantassignments 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 bus iness in order to train a replacement employee for the beneficiary . ..' ,
The petitioner responded in a letter dated July 31 , ,2002, stating that the beneficiary has an ,advanced level of
knowledge of the company's .processes and procedures relating to quality assurance standards. The petitioner '
stated 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 benefici ary is one of approximately half ofthe foreign company's
over 119,000 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 Reviews , Software Inspections , and Walkthroughs, Peer Reviews ,
Root Cause Analysis , Statistical Process Control , etc.)
,J ,
• Software Qual ity Management Procedures ,
• Software Project Planning and Oversight.'
• Requirements Management '
• Software Product Engineering
• Software Metrics and Measurement
• Software Ma intenance Management
• Softwa~c Configuration Management
• ' Software Testing
• Software Process Assessment and Improvement
• Software Estimation
• Software Quality Assurance
EAC 02 196 50429"
Page 6
. '
• Inter-group coordination
• Quantitative Process Management
• Technology Chang~ Management
• Process Change Management
The' petitioner noted that the beneficiary had also received training in the petitioner's s~ft~~re development
and maintenance tools , including 'WMS, PAL and BAL , which "facilitate customization implementation and
management of the company's SEI-CMM Level 5 .software development and maintenance."
.The petitioner further explained the beneficiary's qualificat ions as follows':
[The beneficiary's1knowledge 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 methodologies. Moreover ; in his tenure with [the petitioning organization] , he
has more than four years of advanced, highly specialized practical knowledge of [the petitioner's]
SEI-CMM Level 5 softw~re development and .maintenance processes as It is,customized to met
the quality and operational requirements of UNIX Systems Administration assignments . [The
beneficiary] has also acquired considerable knowledge of [the petitioner's] on site-offshore project
software development process, which utilizes high speed satellite data links , voice and video
communications, sophisticated process flows, quality and knowledge management systems,
softwar~ developmenttools , and project management processes and.procedures , that aliow onsite
a~d offshore project teams to work together to provide .clients su~h as Target with timely , cost­
effective, and highly qualitative software services . [The beneficiary] also has extensive
knowledge of [the petitioner's] SEI-CMMLev~1 5 software . development and maintenance
process, andonsite-offshore software development processes as they are specifically tailored to
meet the quality and operational requirements of Systems Administration . Projects for [the
, petitioner] . He also has considerable knowledge of the hardware and software environments
, involved in the current Systems Administration project for Target , [the petitioner's] client. This
combination of skills, knowledge, and experience, which [the beneficiary] possesses, constitutes a
. body of advanced, highly specialized knowledge ·that is not readily transferable to another
individuals . It is our position that [the beneficiary's] combination of knowledge, experience, and
skill is advanced in relation to the vastmajority of our project staff, particularly with regard to his
training in our internal quality assurance framework. It 'is at this level that [the petitioner] believes
it is entitled to transfer [the beneficiary] to the U.S . asa specialized .knowledge employee.
,The petitioner stated that "there are certainly individuals also assigned to the project who do not have [the
beneficiary's] level of experience with [the petitioning company], and who are not as specialized in their
, knowledge level with [the petitioner's] processes andprocedures," The petitioner stat~d that the beneficiary is
assigned "a high level of responsibility, wh ich differs from that of a typical Systems Administrator." The
petitioner identified the beneficiary as "senior level personnel" whose tra ining, experience andresponsibilities
"demonstrate that he does indeed possess advanced and specialized knowledge."
, In addition, the petitioner asserted that the beneficiary meets the criteria for specialized knowledge set forth in a
1994 legacy INS memorandum in that he possessest l) knowledge valuable.for the employer's competitiveness;
• • I )
(2) unusual knowledge of foreign operating conditions; (3) experience with significant assignments abroad that
EAC 02 196 50429 ~
Page 7 ,
were beneficial to th~ 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 J10t generally known in the United
States. See Memorandum from James .A. Puleo, Acting Exec. Assoc. Comm., INS , Interpretation of Special
Knowledge (March 9, 1991)("Puleo Memo"). The petitioner noted that the beneficiary has been utilized as a "key
employee" on several assignments and has worked on "detailed consulting projects involving data arialysis,
migration, ,technical" design, programming, testing , implementation, and documentation." , The petitioner stat~d
that the beneficiary's general knowledge of computer systems design and deveiopment, 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 which make him essential to the firm.
Th~ director- denied the petition on September 11, 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 i~ 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
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 is advanced or substantially different from the '.
knowledge possessed by other applications software analysts employed by the petitioner. Finally, the director
remarked that the petitioner didnot sufficiently demoil~trate Jha~ the beneficiary's knowledge is co~plex and
not generally known by others. :
r . . . .
On appeal, counsel asserts that the director's deniai of the petition contradicts prior guidance forinterpreting
the statutory definition of specialized knowledge. First, counsel claims that the 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 processes and techniques. Rather, counsel contends that
the intracompany transferee' visa classification was intended to assist foreign companies that were locating to
the United States, ' and .wo~ld ' experience difficulty hiring personnel familiar 'with th~ . practices of the
company.
Additionally, ~ounsel asserts thatthe beneficiary 's knowledge of the petitioner's SEI-CMM L~vel 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 had fifte~n' offshore development centers that have been
assessed at SEI-CMM Level 5. Level 5, the highest rating, represents ail organization whose processes are
optimized, while a Levell rating represents 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 processesused bypetitioner are neither exclusive nor proprietary, counsel contends
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." Coun~el asserts that the majority of
· EAt 02 196 50429
Page 8
U.S.-based organizations conducting and reporting CMM assessments to the .SEl are only atLevel 2 of the
CMM scale.
J
Counsel further states that since the petitioner has established that it utilizes a sophisticated process virtually
unknown in the software development and maintenance sector in the UnitedStates , 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 claims that another individual with th is 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 itis the beneficiary's combination of
general and company-specific knowledge that constitutes specialized knowledge, which IS not readily
transferable to another individual.
. I
· Counsel also compares the present case to the facts of a hypothetical case outlined in the above-referenced
Puleo memorandum. Counsel claims that, in the present case , 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 asserts that the beneficiary shou~d be deemed to possess 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 organizat ion 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(1)(3)(ii). The petitioner must submit a detailed description of the services to be
performed sufficient to establish specialized knowledge. Id. .
Although the petitioner adequatelydescribed the position of systems administrator 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 aconfirmation 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. This evidence is particularly relevant as counsel andthe petitioner base their claims of the
beneficiary's specialized knowledge on his completion of training involving the SEI-CMM Lev~l 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 cla imthat the beneficiary possesses knowledge beyond 'the ordinary knowledge of a skilled
UNIX Systems Administrator. Going on record without supporting docuII?-entaryevidence is not sufficient
for purposes of meeting the burden of proof in these proceedings. Matter 'o f Soffici, 22 I&N Dec. '158,165 '
(Comm. 1998) (citing Matter ofTreasure Craft ofCalifornia , 14 I&N Dec. 190 (Re~. Comm. 1972)).
It is also appropriate for theAAO to look 1Jeyond 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. ~ 17,120 (Comm. 1981) (citing Matter of Raulin,13 I&N Dec. 618- .
EAC 02 196 50429
'Page 9
--- ,
. ' ,
(R.C. 1970) and Matter ' of LeBlanc , 13 I&N Dec . 816 (R.C. 1971)).1 As stated by the Commiss ioner in
Matt er ofPenner, when considering whether the benefic iaries possessed 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. Id. The Commissioner also pro:vided the following
clarification:
A distinction can be made between a person whose skills and knowledge enable him or her to
produce a product through physical or skilled labor and the person who is employed primarily ,
for his ability to carry out a key process or function which is important or essential to the .
business' operation.
Id. at 53.
In Matter oj Penner , the Commissioner discussed thelegislative 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 requ ired a showing of "proprietary" knowledge, the AAO finds that the
reasoning behind Matter 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-l 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 51 . The decision noted that the
House Report was silent on the subject of specialized knowledge, but that during the 'course of the sub- ,
committee hearings on the bill , the Chairman specifically questioned witnesses on the level of skill necessary
to qualify under the proposed "L" category. , In response to the Chairman's questions, various witnesses
responded that they understood the legislation would allow"high-Ievel people, " "experts," individuals with ,
"unique" skills , and that it would not include "lower categories" of workers or "skilled craft workers.'" Matt er '
ofPenner, id. at 50 (citing H.R. Subcomm. No.1 of the Jud. Comm., Immigration Act of 1970: Hearings on
H.R. 445, 91st Cong o210, 218, 223, 240, 248 (November 12, 1969)).
Reviewing the Congressional record, the Comm issioner concluded in Matter oj Penner that an expansive
reading of the specialized knowledge 'provision , such that it would include skilled workers and technicians , is
not warranted. The Commiss ioner emphasized thatthe specialized knowledge worker classification was not
I Although the cited precedents pre-date the current statutory definition of "specialized knowledge ," the AAO
finds them instructi ve.' Other than deleting the former requirement that specialized knowledge had to be, ,
"proprietary," the 1 ~90Act didnot significantly alter the definition of "specialized knowledge" from the prior
INS interpretation of the term. The 1990 Comm itteeReport 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 [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 2l4(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 AAO ,supports its use of Matt er of Penner, as well in
'. offering guidance interpreting "specialized knowledge .l' <Again, the Committee Report does not reject the
interpretation of specialized knowledge offered in Matter ofPenner.
)
EAC 02 196 50429
Page 10
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 arid given
specialized knowledge. However, in view of the House Report , it can not be concludedthat 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-l ' visa" rather than the "key personnel " that
Congress specifically intended . 18I&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.") -
The beneficiary's job description does not distinguish his knowledge as more advanced or distinct among
other systems administrators employed by the foreign or U.S. entities or by other unrelated companies in the
petitioner's industry. The statutory definition of specialized knowledge requires the AAO to make
comparisons in order to determine ~hat constitutes specialized .knowledge . .The term "specialized
knowledge" is not an absolute concept and cannot be clea~ly defined. As observed in 1756, Inc. v. Attorney
General , "[s]implyput , specialized knowledge is a relati ve ... idea which cannot have a plain meaning." 745
F. Supp. 9, 15 (D .D.C. 1990). The Congressional record specifically states that the L-1 category was intended
for "key .personnel. '" See generally , H.R.· Iq<:P.·..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. 2901) . In general , all employees can reasonably be .
considered "important" to a petitioner 's enterprise . If a~ 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 special ized knowledge employee and
the general labor market , but also between that employee and the remainder of the pet itioner'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 the petitioner's workforce in order to distinguish 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 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 determ ine 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 benefic iary 's knowledge , USCIS 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 noted . by counsel , does not
consider whether workers are available in the Un ited States to perform the 'beneficiary ' s job duties. Here, the
record does not ' distinguish the beneficiary's knowledge as more advanced than the knowledge 'possessed by
2 Similarly , in Matt er of Penner , the Commissioner emphasized that the specialized knowledge worker
.classification was not intended for "all employees with any level of specialized knowledge." 18 I&N Dec . 49
(Comm. 1982). Accordingto Matter ofPenner, ';[s]uc'h 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 .
!d. at 53.
EAC 02 196 50429
Page 11
other systems administrators. 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 level of
experience w ith the organization or are "not as specialized in their knowledge level with [the petitioner's]
processes and procedures ;" The petitioner further noted that the beneficiary's training and work experience in
the foreign corporation separates his knowledge from the general knowledge possessed by a "typical systems
administrator." As the petitioner failed to document the beneficiary's SEI-CMM training, 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 systems
administrator," the petitioner offered no description of the tasks performed by a "typical" systems
administrator within the company . Absent some explanation of-what level of knowledge and experience is
"typical" for this position and evidence that the beneficiary somehow exceeds this threshold, the petitioner
cannot establish that the beneficiary's knowledge and/or experience are comparatively "advanced." The
resume provided for the beneficiary shows that he was employed b y the foreign entity for approximately 27
months prior to his transfer to .the United States, and that during this period , his role was as a Unix System
Administrator for a client project that appears to be unrelated to his current assignment in the United States.
The position as described in the beneficiary's resume involved installation and configuration of servers,
systems and applications , "general administration ," ~nd , appJying patches , with no apparent special or
advanced duties , nor any part icular responsibility ,for ensuring quality assuranc~ processes and procedures
according to SEI-CMM Level 5 .
/
Although the petitioner indicates that only about half of its information technology consultants 'worldwide.
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, nor has it specifically indicated what proportion of systems administrators within the company
have completed the same training as the beneficiary. 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 .
While the claimed specialized knowledge need not be narrowly held within an organization in order to be
specialized knowledge , the L-l B visa category was not created in order to allow the transfer of employees
wi'th 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 benefic iary'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" emplo yee, as
contemplated by the statute. See Matter ofPenner , 18I&N Dec. at 53. ,
Furthermore, 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. See Matter ofPenner, 18 I&N Dec. at -52.
EAC 02 196 50429
Page 12
If the AAO were to follow the petitioner's reasoning , then any employee who had completed the SEI-CMM
training program and work~d' as a systems administrator with the parent company for at least one year
possesses specialized knowledge . However , based on the intent of Congress in its creation of the L-l B visa
category , as discussed in Matter of Penner, even showing that a beneficiary possesses specialized knowledge
does not necessarily establish eligibility for the L-1B i ntracompany transferee status . The 'petitioner should
also submit evidence to . show that the beneficiary is being tran~ferred to the United .States as a crucial
employee.
The petitioner has also failed to establish the beneficiary's knowledge as specialized within the petitioner's
industry in general. The 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 and managing customer projects, thereis 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 ora Level 5 SEI -CMM
assessment. Relying on the Puleo memorandum , counsel states that this knowledge is "different from that
generally fo~nd in th~ 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 mainta in
software ;, r See SEI Education and Tra ining, Introduction to the Software CMM ,
http://www.sei.cmu.edu/products /courses linfo/intro.cmm.html, (last updated Nov. 4, 2003). 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,
coun'sel 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.fhe knowledge to gain that status is widely available , and likewise "generally found in
the industry.' Failure to submit requested evidence that precludes a material l ine of inquiry shall be grounds
for denying the petition . 8 C.F.R. § 103.2(b)(l4).
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 anorganization that elected to
receive training from SEI. . As stated previou sly, software companies are not obligated to attend training
provided by SEI. Cou~sel ha ~failed to provide evidence establishing that a company that does not participate
in software "process assessment training from SEI does not employ systems administrators 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 asses~ed
by SEI are those that actually participate in training and 'report their results. Therefore : counsel has failed to
establish that the beneficiary's SEI training alone differentiates his knowledge from that generally .found,in
the software sector. ' ". .
EAC 02196 50429
Page 13
Moreover, as' noted above , there is rio evidence in the record , such as a course certification or company
affidavit , that establi shes the beneficiary actually received ,the claimed SEI-CMM training. The petitioner
merely asserted that the beneficiary is one of 9,500 information technology professionals within 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 ofSoffici, 22 I&N Dec. at 165.
Lastly, counsel claims that the legislative history of the L-1B classificatioriindicates 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 j 756, Inc. v.Attorney General, 745 F. Supp. 9 (D .D.C.
1990), the court upheld the denial of an L-1 petition for a chef, where the petitioner claimed that the chef
possessed specialized knowledge. The court noted that:the legislative history demon strated 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." Id. at 16
(citing H .R. REp. No. 91-851 ; l~nO U.S.C.C.A.N . 2750, 2754,1970 WL 5815). The court stated , " [I]n light
. of Congress ' intent that the L-1 category should be limited, it was reasonable for the INS to conclude that
specialized knowledge capacity should not extend to all employees with 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 legisiative history , it would he
-inappropriat eto expand the visa category to allow the entry'of any personnel who alreadyhad knowledge of a
petitioner's operations .3 ' " . : ~.
( '
r.
If the AAO were to follow counsel's reasoning, then any employee would qualify for a specialized 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-seven organizations have attained SEI-CMM Level 5
certification . .To assert that .any employee of theseorganizations 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 foran enterprise at the forefront of its field . In short, counsel's interpretation of the
. regulations improperly emphasizes a firm's accreditationrather 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 "specialized knowledge." The
House Report : which accompanied the 1990 amendments , stated:
One area w ithin the Lvisa 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 internation~l markets, or an advanced level of knowledge of processes and procedures of the
c<?mpany.
)
\
EAC 02 196 50429
Page 14
IfR. REP. No. 101-723(1) , ' 1990 U.S.CCA.N. 6710, 6749, 1990 WL 200418 . As previously noted, the
statutory definition states , " [a]n 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
, J ', , , '
application in international markets <,>r has an advanced level of knowledge of processes and procedures of the
company." ~ 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 CF.R. § 214.2(l)(l)(ii) (D)(l990).
, . .
The AAO does not dispute that the petitioner 's organization has its own internalinformation systems processes ,
tools, and methodologies. , However, there is no evidence in the record to establish that the beneficiary 's
knowledge of these systems processes and methodologiesis 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 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 assertions or counsel's assertions
that the beneficiary's skills and knowledge of the foreign entity's processes, procedures aridmethodologies would
djfferentiate him from any .other similarly employed systems administrator swithin 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 ofSoffici, 22 I&N Dec. at 165.
An evaluation of the record reveals that other software companies have achieved an SEI-CMM LevelS rating,
that the claimed specialized knowledge itself is itself widely available, and that other organizations , although
not assessed at an SEI-CMM LevelS, 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 profes sionals to have received the SEI-CMM levelS training, thereby raising doubts
that the beneficiary should be considered "key personnel" based on his purported completion of this training
and 27 months of employment with the foreign entity in the role of systems administrator. Finally and most
important, the petitioner has failed 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 systems used by the petitioner are substantially different from those used by other
large information technology consulting companies. The AAO does not dispute the fact that the beneficiary 's
EAC 02 196 50429
Page15 ..
J .
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
advanced knowledge or as a "key personnel ," nor does it establish employment ina 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 . .
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, legislative history and prior precedent. The memorandum was issued as guidance to assist CIS
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-1B 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 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 petit ioner'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. '. ;
.J
The legislative history of 'the term "specialized . knowledge" provides ample support for a restrictive
interpretation of the term . IIi the present matter ; the petit ioner 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, 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-lB petition that was previously approved by a
U.S. consular officer pursuant to the petitioner's Blanket Lpetition. If the previous nonimmigrant petition
, was approved based on the same unsupported assertions that are c~ntained in the current record , the approval
would constitute clear and .gross error on the part of the officer. The AAO is not required to approve
applications or petitions where eligibility has not been demonstrated, merely becau se of prior approvals that
may have been erroneous . See, e.g. Matter of Church Scientology Internat ional, 19 I&N Dec . 593, 597
· (Comm. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged .errors as
biriding precedent. Sussex Engg. Ltd. v-Montgom ery; 825 F.2d 1084, 1090 (6th .Cir. 1987); cert denied 485
U.S. 1008 (}988).
o . • •
·In visa petition proceedings , the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of theAct, 8 U.S.c. § 1361. Thepetitioner has not sustained that burden .
ORDER: The appeal is dismissed.