dismissed L-1B Case: Information Technology

PUBLIC COpy
identifyingdatadeletedto
preventclearly llllwarr~nted
invasionof personalpnvacy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: SRC 06 042 51790 Office: TEXAS SERVICE CENTER Date: MAY 022007
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(L)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned
to the office that originally decided your case. Any further inquiry must be made to that office.
1
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YrRobert P. Wiemann, Chief
/ Administrative Appeals Office
SRC 06 042 51790
Page 2
DISCUSSION: The Director, Texas Service Center , denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as
untimely filed.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of Project
Lead as an L-IB nonimmigrant intracompany transferee with specialized knowledge pursuant to section
101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The petitioner
claims to be engaged in information processing, manufacturing , sales and service. The petitioner states that it
is the parent company of the beneficiary's foreign employer , ocated
in India. The petitioner seeks to employ the beneficiary for a period of three years.
The director denied the petition , concluding that the petitioner failed to establish that the position offered to
the beneficiary requires an employee with specialized knowledge or that the beneficiary possesses such
knowledge.
The record reflects that the director's decision of December 22, 2006 was sent to the petitioner at its
address of record. According to the date stamp on the Form I-1290B Notice of Appeal , the proper office
received the appeal 35 days later on January 26, 2006. Thus, the appeal was untimely filed. )
Under the regulations, an affected party has 30 days from the date of an adverse decision to file an appeal.
See 8 CFR § 103.3(a)(2). If the adverse decision was served by mail, an additional three-day period is
added to the prescribed period . See 8 CFR § l03.5a(b). In accordance with 8 C.F.R. § I03.2(a)(7)(i) an
application received in a CIS office shall be stamped to show the time and date of actual receipt, if it is
properly signed, executed , and accompanied by the correct file. For calculating the date of filing, the
appeal shall be regarded as properly filed on the date it is so stamped by the service center or district
office.
Moreover , in reviewing the merits of the appeal , the instant petition was properly denied. On appeal , the
petitioner disputes the director's decision and outlines the beneficiary's experience and specific specialized
knowledge in the petitioner's software. The petitioner concludes that the beneficiary possesses advanced
knowledge of the petitioner 's processes and procedures and therefore qualifies for the benefit sought. The
petitioner submits a brief in support of the appeal.
To establish L-l eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8
U.S.C. § llOl(a)(l5)(L), the petitioner must demonstrate that the beneficiary , within three years preceding
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying
managerial or executive capacity , or in a capacity involving specialized knowledge , for one continuous year
by a qualifying organization and seeks to enter the United States temporarily in order to continue to render his
) On appeal , the petitioner stated "due to the large mail volume at the U.S. Postal Service over the
Christmas Holidays , your Denial Letter was received in my office on December 30, 2005; hence , the
delay in filing this appeal to your office in Dallas ." The petitioner did not submit documentation to
corroborate this claim. The petitioner filed the I-290B and it was received by Citizenship and
Immigration Services (CIS) on January 26,2006, which was 35 days after the date of the decision.
SRC 06 042 51790
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or her services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial,
executive, or involves specialized knowledge.
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has been
employed in a specialized knowledge position or that the beneficiary is to perform a job requiring specialized
knowledge in the proffered U.S. position. 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 job description of the services to be performed sufficient to establish
specialized knowledge. Id. Based upon the vague job description of the proposed duties and lack of
supporting evidence, the AAO cannot determine whether the U.S. position requires someone who possesses
knowledge that rises to the level of specialized knowledge as defined at 8 C.F.R. § 214.2(1)(1)(ii)(D).
The petitioner has repeatedly asserted that the beneficiary will work in the United States as the lead of a
Central Customer Master System (CCMS) team and he will "design and develop applications for the project,
implement and test applications, migrate data from legacy applications, and design and develop application
enhancements." However, the petitioner does not establish that the beneficiary must possesses knowledge of
business processes, procedures and methods of operation that are specific to the company in order to
implement, customize, and modify the software package. There is no evidence in the record that the
beneficiary actually participated in the development of such methodologies and processes that might lead to
the conclusion that his level of knowledge is comparatively "advanced." The beneficiary's resume lists the
duties he performed while employed for the company in India which indicates that he was responsible for
modifying, implementing, maintaining and updating the software, but does not mention any experience in the
development of internal policies or procedures. Simply going on record without documentary evidence is not
sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at
165.
In addition, contrary to the assertions of the petitioner, there is no evidence on record to suggest that the
processes and technology pertaining to CCMS project team positions within the U.S. company are
different from those applied for other companies providing CCMS customization and integration services.
In addition, the petitioner has not explained how the knowledge of the petitioner's systems technology
amounts to specialized knowledge, particularly since the system is built upon general information
technologies such as Java/J2EE, Versata, Oracle, and Acta, all of which are commonly used by computer
programmers and system administrators in the industry. While individual companies will develop a
computer system and methodologies tailored to its own needs and internal quality processes, it has not
been established that there would be substantial differences such that knowledge of the petitioning
company's processes and quality standards would amount to "specialized knowledge."
In addition, there is no evidence in the record that the beneficiary has received specific in-house training
that would have imparted him with the claimed "advanced" knowledge of the company's processes,
procedures and methodologies. In the original petition, the petitioner submitted a letter from the program
manager of the foreign company that indicated that the beneficiary received nine days of training sessions
with the petitioning organization. It is implausible that nine days of training provided the beneficiary
with an advanced knowledge and it is reasonable to believe that a project lead employee with a
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background in related technologies may learn the petitioning company's specific project methodologies
and processes with minimum training.
In addition, the petitioner did not submit any documentation to evidence that the beneficiary received
additional training that was not provided to other project leads employed by the foreign company, or
individuals who work on the same team as the beneficiary. The petitioner did note that the beneficiary
will be part of a team of 22 members for the project in the United States, and the beneficiary is the only
project lead of the team, however, the petitioner failed to present any evidence to corroborate this claim.
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 at 165. The petitioner states
that the beneficiary has been involved with the team in the United States and India for 20 months and thus
"has extensive professional interactions with the member of the U.S. team, which create the rapport and
trust vital to a project that relies heavily on international cooperation." Knowledge related to a specific
clients' project cannot be considered "specialized knowledge" specific to the petitioning company. The
beneficiary's familiarity with the U.S. clients' project requirements is undoubtedly valuable to the
petitioner, but this knowledge alone is insufficient to establish employment in a specialized knowledge
capacity. If the AAO were to follow the petitioner's logic, any team member who has worked on a CCMS
application development team within the petitioner's organization would be considered to possess
"specialized knowledge."
In addition, the petitioner did not submit documentation to evidence that the beneficiary has an advanced or
special knowledge from other project lead employees in the information technology industry. According to
the beneficiary's resume, it appears that once the beneficiary commenced his employment with the foreign
company, he immediately began working on the project for the U.S. client involving the CCMS application
systems. This fact provides further evidences that the petitioner does not utilize a proprietary system that
differs from the system used by project leads in the information technology industry working with
CCMS. Thus, the AAO cannot conclude that the beneficiary has an "advanced knowledge" of the
petitioner's proprietary software over and above from other employees of the petitioner or other employees in
the computer industry.
Based on the above, the AAO concurs with the director's conclusion that the petitioner has failed to
demonstrate that the beneficiary has acquired specialized knowledge as defined in the statute and regulations.
The AAO does not dispute the likelihood that the beneficiary is a project lead who understands the
petitioner's technology and is able to apply it within the context of the petitioner's specific environment.
However, it is appropriate for the AAO to look beyond the stated job duties and consider the importance of
the beneficiary's knowledge of the business's product or service, management operations or decision-making
process. Matter of Colley, 18 I&N Dec. 117, 120 (Comm. 1981)(citing Matter of Raulin, 13 I&N Dec.
618(R.C. 1970) and Matter ofLeBlanc, 13 I&N Dec. 816 (R.C. 1971)).2 As stated by the Commissioner in
2 Although the cited precedents pre-date the current statutory definition of "specialized knowledge," the
AAO finds them instructive. Other than deleting the former requirement that specialized knowledge had
to be "proprietary," the 1990 Act did not significantly alter the definition of "specialized knowledge"
from the prior INS interpretation of the term. The 1990 Committee Report does not reject, criticize, or
SRC 06 042 51790
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Matter of Penner, when considering whether the beneficiaries possessed specialized knowledge, "the
LeBlanc and Raulin decisions did not find that the occupations inherently qualified the beneficiaries for the
classifications sought." 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 provided the following
clarification:
A distinction can be made between a person whose skills and knowledge enable him or her to
produce a product through physical or skilled labor and the person who is employed primarily
for his ability to carry out a key process or function which is important or essential to the
business' operation.
Id. at 53.
It should be noted that the statutory definition of specialized knowledge requires the AAO to make
comparisons in order to determine what constitutes specialized knowledge. The term "specialized
knowledge" is not an absolute concept and cannot be clearly defined. As observed in 1756, Inc. v. Attorney
General, "[s]imply put, specialized knowledge is a relative ... idea which cannot have a plain meaning." 745
F. Supp. at 15. The Congressional record specifically states that the L-l category was intended for "key
personnel." See generally, H.R. REp. No. 91-851, 1970 U.S.C.C.A.N. 2750. The term "key personnel"
denotes a position within the petitioning company that is "of crucial importance." Webster's II New College
Dictionary 605 (Houghton Mifflin Co. 2001). In general, all employees can reasonably be considered
"important" to a petitioner's enterprise. If an employee did not contribute to the overall economic success of
an enterprise, there would be no rational economic reason to employ that person. An employee of "crucial
importance" or "key personnel" must rise above the level of the petitioner's average employee. Accordingly,
based on the definition of "specialized knowledge" and the Congressional record related to that term, the
AAO must make comparisons not only between the claimed specialized knowledge employee and the
general labor market, but also between the employee and the remainder of the petitioner's workforce. While
it may be correct to say that the beneficiary in the instant case is a highly skilled and productive employee,
this fact alone is not enough to bring the beneficiary to the level of "key personnel."
Moreover, in Matter ofPenner, the Commissioner discussed the legislative intent behind the creation of the
specialized knowledge category. 18 I&N Dec. 49 (Comm. 1982). The decision noted that the 1970 House
Report, H.R. No. 91-851, 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
even refer to any specific INS regulation or precedent decision interpreting the term. The Committee
Report simply states that the Committee was recommending a statutory definition because of "[v]arying
[i.e. not specifically incorrect] interpretations by INS," H.R. Rep. No. 101-723(I), at 69, 1990
U.S.C.C.A.N. at 6749. Beyond that, the Committee Report simply restates the tautology that became
section 214(c)(2)(B) of the Act. Id. The AAO concludes, therefore, that the cited cases remain useful
guidance concerning the intended scope of the "specialized knowledge" L-IB classification. The AAO
supports 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.
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regulated by the Immigration and Naturalization Service." Id. at 51. The decision further 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-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, 91 st
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 knowledge provision, such that it would include skilled workers and technicians, is
not warranted. The Commissioner emphasized that the specialized knowledge worker classification was not
intended for "all employees with any level of specialized knowledge." Matter ofPenner, 18 I&N Dec. at 53.
Or, as noted in Matter of Colley, "[m]ost employees today are specialists and have been trained and given
specialized knowledge. However, in view of the House Report, it can not be concluded that all employees
with specialized knowledge or performing highly technical duties are eligible for classification as
intracompany transferees." 18 I&N Dec. at 119. According to Matter 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. 18 I&N Dec. at 53; see also, 1756, Inc. v. Attorney General, 745 F. Supp. at
15 (concluding that Congress did not intend for the specialized knowledge capacity to extend to all
employees with specialized knowledge, but rather to "key personnel" and "executives.")
In 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 companies. 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 legislative history of the term "specialized knowledge" provides ample support for a restnctrve
interpretation of the term. In the present matter, the petitioner has not demonstrated that the' beneficiary
should be considered a member of the "narrowly drawn" class of individuals possessing specialized
knowledge. See 1756, Inc. v. Attorney General, supra at 16. Based on the evidence presented, the director
properly concluded that the beneficiary has not been employed abroad and would not be employed in the
United States in a capacity involving specialized knowledge.
Any appeal that is not filed within the time allowed must be rejected as improperly filed. See 8 C.F.R. §
103.3(a)(2)(v)(B)(l).
ORDER: The appeal is rejected.