dismissed L-1B Case: Information Technology

1~"'tWetlId~
~vent Clearly~.8llMted
Invasionofpersonal privacy
u.s.Department of Homeland Security
20 Massachusetts Ave., N.W.,Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services )
FILE: EAC 02 08054041 Office: VERMONT SERVICE CENTER Date:
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.c.§ 1101(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.
RObcrt~f
Administrative Appeals Office
EAC 02 080 54041,
Page 2
DISCUSSION: The Director , Vermont Service Center , denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAQ) on appeal. (T he AAO will dismiss the appeal.. .
The petitioner filed th is nonimmigrant petition seeking -to extend the bet;leficiary's employment as an L-IB
. nonimmigrant intracompany transferee with specialized knowledge pursuant to § 101(a)(l5)(L) of the
Immigration and Nat ionality Act (the Act) , 8 U.S.c. § 1101(a)(l5)(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-IB classification under the petitioner's blanket L petition, and the petitioner now 'seeks to extend
the beneficiary's employment as a senior programmer for three additional years . .
.The director denied the petition on July 10, 2002, concluding that the petitioner failed to establish that the
beneficiary possesses specialized knowledge, or that he has been or would be employed in aposition requiring
specialized knowledge. J
On appeal , counsel for the petitioner contends that the director improperly applied the applicable statute and
regulation s 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 SEI-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 implementing regulations, legislative
history and previous INS guidance. Counsel submits a brief and additional evidence in support of the appeal.
.- , I . .
. ,
To establish L-1 eligibility, the petitioner must meet the criteria . outlined in section 101(a)(l5)(L ) of the
Immigration and Nationality Act (the Act), 8 ·U.S.C. § 1101(a)(l5)(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. § 214.2(l)(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 arequalifying organizations as defi!1edin paragraph (l)(l)(ii)(G) of this section .
.(ii) Evidence that the alien will be employed in an executive, managerial , or specialized
knowledgecapacity , including a detailed description of the services to be performed . .
(iii) -Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organizat ion within the three years preceding the filing of
the petition.
. 1
EAC 02 080 54041
Page 3 ! .,
, , '\ ,
, (iv) Evidence that the alien 'sprior year of employment abroad was In a position that was
managerial , executive or 'involved specialized .knowledge and that the alien's prior
education , training , and employment qualifies himlher to perform the intended '
services in the United States; however , the work in the l!nited States need not be the '
same work which the alien performed abroad.
\
This matter presents two related , but distinct issues : (1) whether the beneficiary possesses specialized knowledge ;
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 101 (a)(l5)(L),an alien is considered to be serving III 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)(1)(ii)(D) defines "specialized knowledge " as: ,
[Sjpecial knowledge possessed by an individual of the petitioning organization 's product,
service. tresearch, equipment, techniques , management or other interests and its application in
international markets , or an advanced level of knowledge or expertise in the organization's :
processes and procedures. L
The petitioner filed the nonimmigrant visa petitionon January 4,2002. In a letter dated December 27, 2001,
, ,
the petitioner outlined the beneficiary's proposed responsibilities as a senior programmer as follows:
' :.
• Work with Onsite andOffsite resources to customize [the' petitioner's] internally developed , '
standard , SEI-CMM Assessed (Level 5) software development and maintenance process to
meet project operational requirements . , " ,
' . Conduct Software Configuration Management activities as per SCM Plan ' established by
Project Leader.
• Perform changes to-all configurableitems as per [the petitioner's] Change Control Procedure ,
, " , , ' , \
which is established by the Project Leader. , ', ' , ' .
• " Ensure that all designs , developme~t , testing , implementation, etc. activities are ,done as per
guidelines established in [the petitioner's] Quality ManagementSystem . ,
• Ensure that all work done (requirements gathering, specificatio 'ns development , coding ,
testing , and debugging, etc.) meets project operational 'process requirements and Software
Project Plan as established by the Project Leader using Project' Planning Guidelines ,'Project
Plan Template " Software 'Development Life Cycle Models 'document , 'Guidelines for
/ Software Estimation , quality manual, etc., which are all available via TCS ' PAL, BAL ,
IPMS, etc.web-based systems.
• Participate , in Final Inspections , which are conducted' before software work items are
released to client. ' " " .
• Prepare specifications for offshore development .
• Upload specifications for offshore development.
• Provide technical guidance to offshore resources as required .
• ' , +
EAC 02 0,80 54041
Page 4
\,
• Participatein Defects Prevention Activities: Peer Reviews, Causal Analyses Sessions;
Inspections, etc., as per IPMS , DP Checklist , guidelines for software 'product quality,
proje ct plan template , etc., of work product produced onsite and offshore . .
• Participate in Quantitative Process Management as per QPM established by the Project
Leader.
• Participate in fortnightly Defects Prevention meetings , as well as on a need basis as
required .
• . As may be required, participate with team to develop software process improvements for
areas of concern.
With respect to the beneficiary's qualifications , the petitioner further provided that 'as a prerequisite to
employment as an senior programmer; the petitioner requires a baccalaureate degree in computer science 'or a
relevant engineering discipline. An attached resume indicated that the beneficiary possessed a Master's
Degree 'in Engineering . During the beneficiary's employment with the foreign company , which began in
March 1998, he had been 'involved in projects utilizing skills such as MS-SQL Server vo.S, 7.0, Oracle 8i,
Visual Basic ,Windows 95 and NT, MS-DOS 6.22, and SQL NavigatorAdd itionally , the petitioner indicated
that the beneficiary participated in the foreign entity's. in-house training program,' during which . he was
exposed to the Software Engineering Institute 's (SEI) Capability Maturity Model for Software (CMM)
software development process used by several ofthe foreign company 's offshore development centers.
j : . •
The petitioner explained that the foreign entity 's offshore development . centers' are among only 61
organizations worldwide to have 'achieved SEI-CMM Level 5 Assessment for their software development and
. maintenance processes . The petitioner emphasized that the .company's internally-developed SEI~CMM level 5
process is "neither widely known nor is it commonly utilized in the software industry including the United
"states ." The petitioner stated that since completing the .petitioner's Internal Training Program, [the
beneficiary] has been utilized in a specialized knowledge capacity that enhanced 'the company's image and
competitiveness, while gaining "highly specialized , practical knowledge ?f' the SEI-CMM Level 5 process.
The petitioner further explained the beneficiary's qualifications as follows:
While indiViduals with 'industry experience developing and maintaining a variety of software
application systems are common in the industry , the ' fact is that the beneficiary's duties are
different preciselybecause they are not executed in a random fashion ,' but are performed
within th~ framework of the pet itioner's standard SEI-MM Level 5 assessed .software
development and maintenance process as it is customized to, meet the requirements of this
particular assignment - a process , as we have sa id, is not commonly utilized in the software
industry. All work performed by this beneficiary must be performed within the .strict' and
highly structured guidelines of [the petitioner's] key process areas (KPAs) of Requirements
Management , Software ' Project Planning , Software . . Project Assurance , Inter-group
Coordination , Defects Prevention, Software Quality Management , Process Focus , and
Process Definit ion procedures. Every member of the team must understand these KPAs as
they apply to th is particular project in order to successfully complete the assignment within
established parameters such as time , cost, quality, etc - and imparting such knowledge to .a
person who is not familiar with the petitioner's software development and maintenance
procedures would unquestionably entail a significant economic inconveni~nce to the firm.
EAC 02 080 54041
Page 5
The directo; issued a request for additional evidence on February 11, 2002, noting 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 ~owledge is uncommon ,
noteworthy , or distinguished by some unusual quality and is not generally known by others in the
beneficiary's field or in the industry ; (2) evidence that the beneficiary's advanced level of knowledge .of the
company's processes and procedures distinguishes him from those with elementary or basic knowledge ; (3)
evidence that the beneficiary possesses knowledge that is valuable to the employer's competitiveness in the
marketplace, -and "that he is qualified to contribute , to the petitioner 's knowledge of foreign operating
conditions; (4) confirmation that the beneficiary has been utilized abroad on significant assignments that have
enhanced the employer's productivity, competitiveness , image, or financial posit ion, and that the knowledge
possessed by the beneficiary can only be gained through prior experience with the foreign employer; (5)
, verification that the beneficiary possesses .knowledge of a product or process that cannot be easily transferred
or taught to another individual; and (6) evidence that "the petitioning organization would experience a
significant interruption in business in order to train .a replacement employee for the beneficiary.
, ,
The petitioner responded in a letter dated April 29 ; 2002, stating that the benefic iaryhas 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 isdifferent from others in his fieldas 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 pet itioner]
is one of very few firms that have achieved it." The petitioner further explained that the beneficiary is one of
fewer than half of the foreign company's over 19,000 'information technology professionals to ~ave received
training in the following "Key Process Areas" of the company's SEI-CMM Level 5 software development and
maintenance process :
•
•
•
•
•
".•
•
•
•
•
•
'.,"
•
•
Defects Prevention (Software Reviews , Inspections, and Walkthroughs)
Peer Reviews
Software Quality Management Procedures
Software Project Planning and Oversight
Requirements Management
Software Product Engineering
Software Metrics and Measurement
Software Maintenance Management
Software Configuration Management '
Software Testing
Software Process Improvement and As sessment
Software Estimation
Software Quality Assurance
Inter-group Coordination
Quantitative Process Management
The petitioner noted that the beneficiary had also received training in the petitioner's software development
and maintenance tools, including IPMS, PAL and BAL ; which "facilitate customization implementation and
management of the company's SEI-CMMLeveI5 software development and maintenance."
EAC 02 080 54041
Page 6
The petitioner further explained the beneficiary's qualifications as follows:
[Th'e 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 methodologies. In his tenure with [the petitioning' organization], [the
beneficiary] has more than four years of advanced, highly specialized practical knowledge of [the
petitioner's] SEI-CMM Level 5 software development and maintenance process as' it is
customized to meet the quality and operational requirements of software assignments across a
variety of business application and technology domains for [the petitioner's] clients in the
international marketplace. Having worked on his current assignment for the past two years, [the
beneficiary] has also acquired advanced specialized knowledge of [the petitioner's] SEI-CMM
Level 5 software development and maintenance process as it is customized to meet the quality
and operational requirements of this particular project for [the petitioner's .client]. He has also
acquired extensive knowledge of the programming, networking, operating systems, database,
batch processing, online transaction processing, and interactive environments within which the
client's Contact Management system is being developed. [The beneficiary] also possesses
considerable knowledge of the functional and technical specifications of this system. This
amalgamation of knowledge that [the beneficiary] has acquired during his four-year tenure with
[the p~titioner] constitutes a body of advanced, highly specialized knowledge and skills that is not
readily transferable to another individual. It is our contention that [the b~neficiary's] combination
of knowledge, experience, and skills is advanced in relation to the vast majority 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 United
States as a specialized knowledge professional.
The petitioner provided a' more detailed description 'of the beneficiary's duties, and emphasized that he is
"required to perform these duties consistent with [the petitioner's] own SEI-CMM qualitystandards and he is
expected to ensure that the project conforms to those quality guidelines." The petitioner stated that "there are
certainly individuals also assigned to the project who do not have [the beneficiary'sjlevel of experience with
[the petitioning company], and who are not as specialized in their knowledge level with [the petitioner's]
processes and procedures." The petitioner stated that the beneficiary is assigned "a high level of
responsibility, which differs from that of a typical Information Technology Analyst" The petitioner identified
the beneficiary as)"senior level personnel" whose training, experience and responsibilities "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 possesses (1) knowledge valuable for the employer's competitiveness;
(2) unusual knowledge of foreign operating conditions; (3) experience with significant assignments abroad that
were beneficial to the employer; (4) knowledge that can only be gained with the employer or which can not be
.easily transferred; and (5) knowledge of a particular process or product this is not generally known in the United
States. See Memorandum from Ja~es 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 analysis,
migration, technical design, prograriuning, testing, implementation, and documentation." The petitioner stated
that the beneficiary's general knowledge of computer systems design and development, combined with his
EAC 02 080 54041 .
Page 7
specialized training in the petitioner's internal quality assurance practices and 'procedures and his experience
utilizing these skjl1sin significant project assignments, make him essential to the firm. .
The director denied the petition on July 10,2002 , 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 s ignificantly different from .those of
other senior programmers in computer consulting firms, and do not "warrant the expertise of someone
possessing truly specialized knowledge." The director noted that the ' petitioner's explanation of the
beneficiary's duties Iseemed to merelyparaphrase 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 did riot sufficiently demonstrate that the beneficiary 's knowledge is complex and
not generally known by others. ' . '
On appeal , counsel asserts that the director's denial of the petition contradicts prior guidance for interpreting
the statutory definition of specialized knowledge. First , counsel claims that 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 processesand techniques. Rather, counsel contends that
the intracompany transferee visa classification was intended to assist foreign companies that were locating to
the United States, and would experience difficulty hiring personnel familiar with the .practices of the
company.
Additionally, counsel asserts that the beneficiary's knowledge of the petitioner 's SEI-CMM LevelS 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 pet itioning organization has fifteen offshore development centers that have 'been
assessed at SEI-CMM LevelS . Level 5", the highestrating , represents an organization whose processes are
optimized, while a Level 1 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 processes used by petitioner are neither exclusive nor proprietary, counsel contends
that the Level S rating establishes that the petitioner "utilizes a software development and maintenance
process that is not commonly ~own or utilized in the software industry." Counsel asserts that the majority of
l).S.-based organizations conducting and reporting CMM assessments to the SEI are only at Level 2 of the
CMM scale .
Counsel further states that since the petitioner has established that it utilizes a sophist icated process "virtually
unknown" in the software 'development and maintenance sector in the United States, it is reasonable to
assume that anyone possessing knowledge of such a process intrinsically possesses advanced knowledge .
Counsel acknowledges that the computer hardware and software systems used by the beneficiary on
-..-,
EAC 02 080 54041
Page 8
assignments are comparatively common in the industry, yet claims that another individual with ' 'this
knowledge , wouid still need significant training in utilizing the petitioner 's software process before
competently performing the duties required for the beneficiary's position. Counsel 'asserts that it is the
beneficiary 's combination of general and company-specific knowledge that ' constitutes specialized
knowledge, which is not readily transferable to another individual.
Counsel also compares the present case to the facts of a hypothetical case outliried in ~he 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 should 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 organization in a specialized knowledge capacity. In examining the
specialized knowledge capacity of the beneficiary , the AA,O will look to the petitioner's description of the job
duties. See 8 C.F.R. § 214.2(1)(3)(ii). The pet itioner must submit a detailed description of the services to be
performed sufficient to establish specialized knowledge . Id. : "
Although , th ~ petitiorier adequately described the position of senior programmer and the tasks that this
position entails , the petitioner has not documented the beneficiary's claimed specialized knowledge : Both
counsel and the petitioner repeatedly assert throughout the record that the beneficiary participated in the
foreign entity's in-house training program, which provided specialized knowledge of its SEI-CMM Level 5
software de velopment and maintenance process. However , the record is devoid of documentation , such as a
course certification , training records, ora confirmation from a corporate director, that the beneficiary received
the claimed SEI-CMM training or that the benefic iary is familiar with the pet itioner's internally developed
SEI-CMM process. This evide,nceis particularly reievantas counsel and the petitioner base their claims of the
beneficiary's specialized knowledge on his completion of training involving the SEI-CMM Level 5 process
and its application to thebeneficiary's work both abroad and in the United States. Absent documentary
evidence demonstrating the beneficiary's SEI-CMM Level 5 process training, the petitioner has not
substantiated its claim that the beneficiary possesses knowledge beyond the ord inary knowledge of a skilled
programmer. Going on record without supporting documentary evidence 'is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158 , 165.(Comm. 1998)
(citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). '
It is also 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 ope rations, or decision-mak ing
process. Matter ofColley, 18 I&N Dec. 117 , 120 (Comm~ 1981) (citing Matter ofRaulin, 13 I&N Dec. 618
(R.C. 1970) and Matter of LeBlanc, 13 I&N Dec. 816 (R'C. 1971)).1 As stated by the Commissioner in
1Although the cited precedents pre-date the current statutory definition of "specialized knowledge," theAAO
finds them instructive. Other than deleting the fonrter requirement tha ,t specialized knowledge had to be
"proprietary," the 1990 Act did not significantly alter the definition of "specialized knowledge" from the prior
INS interpretation of the term. The 1990 Committee Report does not reject, criticize, or even refer to any
specific INS regulation or precedent decision interpreting the term. The Committee Report simply states that
the Committee was recommending a statutory definition because of "[v]arying [i.e:,not specifically incorrect]
interpretations by INS," H.R. Rep. No. 101-723(1), at 69, 1990 U.S.C.O.A.N. at 6749. Beyond that, the
EAC 02 080 54041 .
Page 9
Matter ofPenner, when considering whether the beneficiaries possessed specialized knowledge, "the LeBlanc
and Raulin dedisions 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 Ofher to
produce a product through physical or skilled labor and the ~erson 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 of Penner, the Commissioner discussed the legislative intent behind the creation of the specialized
knowledge category. '18' I&NDec. 49 (Comm, 1982). As noted previously, although the definition of
"specialized knowledge" in effect at the time oiMatter of Penner was superseded by· the 1990 ACt to the
. extent that the former definition required a showing of "proprietary." knowledge, the AAO finds .that the
reasoning behind Matter ofPenner remains applicab~e 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" categoI)'. 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 Acto! 19!O: Hearings on
H.R. 445, 91st Congo 210,218,223,240,248 (November 12, 1969)).
. .
Reviewing the Congressional record, the Commissioner c~ncluded 'ln Matter of P~nnef 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 ~as 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 peen trained and given
specialized knowledge. However , in view of the House Report , it can not be concluded that all employees
with specialized ' knowledge or performing . highly technical duties are eligible for ' classification as
intracompany transferees." 18 I&N Dec. at 119. According to Matter of Penner, "[s]uch a conclusion would
permit extremely large numbers of persons to qualify for the 'L-l' visa" rather than the "key personnel" that.
Congress specifically intended. 18 I&N Dec . at 53; see also , 1756, Inc., 745 F. Supp . at 15 (concluding that. . .
Committee Report simply restates' the tautology that became section 214(c)(2)(B) of the Act.ld . 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.
EAC 02 080 54041
Page 10
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 senior programmers employed by the foreign or U.S. 'entities or by other unrelated companies in the
petitioner's industry . The statutory ' definition 'of .specialized. iknowledge .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. 9, 15 (D.D.C. 1990) . ,The Congressional record specifically states that the L-l category was intended
for "key personnel." See generally, H.R. REP . No. 91-851, 1970 U.S.C.C.A.N. 2750. The term "key
personnel" denotes a position within the petitioning company that.is "of crucial importance." Webster's II New
College Dictionary 605 (Houghton 'Mifflin Co. 2001). In general, all employees can reasonably be
considered "important " to a petitioner's enterprise . If an employee did not ·contribute to the overall economic
success of an enterprise , there would be no rational economic reason to employ that person. An employee of
"crucial importance" or "key personnel" must rise above the level ,of the petitioner's . average ..employee.
Accordingly, based on the definition of "specialized knowledge" and the Congressional record related to that
, term, the AAO must make comparisons not only between the claimed special ized knowledge employee and
the general labor market , but also between that employee and the remainder of the petitioner's workforce .
Further , the Puleo memo cited by counsel allows USCISto 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 determine the level of the beneficiary's skills and knowledge and to
ascertain whetherthe beneficiary's knowledge is advanced. In other words, absent an outside group to which
to compare the beneficiary's knowledge, USCIS would not be able to "ensure that the knowledge possessed
by the beneficiary is truly specialized." !d. The analysis for specialized knowledge therefore requires an
analysis of the knowledge possessed by the United States labor market, but, as noted by counsel, does,not
consider whether workers are available in the United States to perform the beneficiary's job duties .
As noted above , the evidence of record does not distinguish the beneficiary's ,knowledge as more advanced
than the knowledge possessed by .other employees within the petitioner's group. .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 LevelS quality assurance methods ." The petitioner suggested that other employees assigned to the
same project do not have .the same level of experience with the organization or are "not as specialized in their
knowledge level withjthe petitioner's] processes and 'procedures ." ./The. petitioner further noted th~t the
beneficiary's ,training and work , experience in the fore ign corporation separates his knowledge from the "
general knowledge possess ed by a "typical Information Technology Analyst." 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 demonstratethat the beneficiary'sknowledge is more than knowledge
held by a skilled worker. See Matter ofPenner, 18 I&N Dec. at 52.
EAC 02 080 54041
Page 11
. ~.
Although the petitioner asserted that the ' beneficiary's responsibilities differ from those , of a "typ ical
, /'
Information Technology Analyst ," the petitioner offered no description of the tasks performed by a "typical"
information technology analyst , nor did it explain why the beneficiary's position of "senior programmer"
should be compared to this position. 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
beneficiary was employed by the foreign entity for approximately 23 months prior to his · transfer to the
United States, and during this period , his role was as a "team member." The position as described in the
beneficiary's resume involved "low-level design ," coding, server end programming, system testing and
performance tuning and other programming tasks , using commo~ technologies, with no apparent special or
advanced duties, nor any particular responsibility for ensuring quality assurance 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 pet itioner's
workforce, nor has it specifically indicated what proportion of senior programmers within the company have
completed the same training as the beneficiary . The pet itioner 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-I B visa category was not created in order to allow the transfer of employees
with any degree of knowledge of a company 's products and processes . The lack of evidence in the record
makes it impossible to "classify the beneficiary's knowledge of the petitioner 's "products or procedures as
"advanced, and precludes a finding that the beneficiary's role is "of crucial importance" to the organization .
While it may be correct to say that the beneficiary is a skilled and experienced employee, the petitioner has
not established that the beneficiary rises 'to .the "level of a specialized knowledge or "key" employee, as
contemplated by the statute. See Matter ofPenner, 18 I&N Dec. 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 of Penner, 18 I&N Dec . at 52.
If the AAO were to follow the petitioner's reasoning , then any employee who had completed the SEI-CMM
training program and -worked as a programmer 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-lB visa category , as
discussed in Matter of Penner; even showing that a beneficiary possesses specialized knowledge does not
necessarily establish eligibility for the L-IB intracompany transferee status. The petitioner should also submit
evidence to show that the beneficiary is being transferred to the United States asa crucial employee: '
The petitioner has also failed to establish the beneficiary's knowledge as special ized .within the petitioner's
industry in general. ·The servic es 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, there is insufficient evidence in the record to establish that the
EAC 02 080 54041
Page 12
petitioner's processes and methodologies 'differ substantially from those of other companies implementing
similar projects based on the same applications and technologies. The petitioner's claim that the beneficiary's
knowledge is different from that generally found in the industry is based on the' company's achievement of a
Level 5 SEI-CMM assessment. Relying on the Puleo memorandum, .counsel states that this knowledge is
'''different from that generally found in the software sector not only in the United States but internationall y."
The beneficiary 's ability to execute Level 5 asse ssed software development and maintenance processes does
not by itself establish' that the beneficiary's knowledge is different from that generally found in the industry .
The Software Engineering Institute is a research and development center that offers, among other , things,
education and training classes organized to aid companies in determining their ability to develop and maintain
software. See SEI .Education and Training, Introduction to the Software CMM ,
http://www.sei.cmu.edu /products/courses linfolintro .cmrri.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 ,
counsel failed to ,provide 'evidence that the beneficiary possesses knowledge that can normally be gained only
through prior experience with the petitioning organizat ion. Although it may be difficult for an organization to
achieve Level 5 status , the knowledge to ga in that status is widely available , and likewise "generally found in '
the industry ." Failure to submit requested evidence that precludes a material line of inquiry shall be grounds
for denying the pet ition. 8 C.F.R. § 103.2(b)(l4).
Furthermore , counsel essentially asserted that the beneficiary's knowledge is d ifferent from that generally
found in the software sector because of the beneficiary 's employinent within an organization that elected to
receive training from SEI. ,As stated previously , 'software companies are not obligated to attend training
provided by SEI. The petitioner has failed to provide evidence establishing that a company that does not
participate in software process assessment training from SEI does not employ senior programmers that
possess knowledge equivalent to that of the beneficiary. There is no evidence in the record that supports a '
finding that the CMM assessment results published by SEI are indicative of the knowledge processed by all
analysts in the software industry. In fact" counsel indicated in his brief on appeal that the only organizations
assessed by SEI are those that actually participate in training and report their results. Therefore, counsel has
failed to establish that the beneficiary's SEI training alone differentiates his knowledge from that generally
found in the software sector.
Moreover, as noted above , there is no evidence in the record, such as a course certification or company
affidavit, that establishes the beneficiary actually received the claimed SEI-CMM training. The petitioner
merely asserted that the beneficiary is one of 9,500 information technology professionals with in the
petitioner's organization to have received theSEI-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-lB classification indicates that Congress' intention
"was to acknowledge the growing scope of international business and the need to allow the free transfer of
key personnel to the ,United States in order to the United States in order to facilitate and promote bu siness
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
. I .
individuals pqssessing specialized knowledge. In 1756, Inc. v. Attorney General, 745 F. Supp. 9 (D:D.C.
EAC 02 080,54041
Page 13
1990), the courtuphel~ the denial of an L-l petition for a chef, where the petitioner claimed that the chef
possessed specialized knowledge .. The court noted that the legislative history demonstrated a concern that the
L-l category would become toolarge: "The class of persons eligible for such nonimmigrant visas is narrowly
drawn and will be carefullyregulated and monitored by the Immigration and Naturalization Service." Id. at 16
(citing H.R. REP. No. 91-851, 1970 V .S.C.C.A.N. 2750, 2754 ,1970 WL 5815). The court stated, "[I]n light
of Congress ' intent that the L'l :category should be 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 legislative history, it would be
inappropriate to expand the visa category to allow the entry of any personnel who already had knowledge of a
petitioner's operations .'
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 these organizations should qualify for an L-IB visa would
fundamentally alter the nature of the visa classificat ion . Such .an expansion of the term "specialized
knowledge" would transform the visa classification from one for aliens with specialized knowledge to one for
any employee working for an enterprise at the forefront 'of its fie}d. In ~hort , counsel's interpretation of the
regulations improperly emphasizes a firm's accreditation rather than an employee's specialized knowledge . .
Furthermore, it should be noted that Congress' 1990 amendments to the Act did not specifically overrule
1756, Inc. or otherwise mandate a less restricti ve interpretation of the term "specialized knowledge :" The. . _ . .
House Report , which accompanied the 1990 amendments , stated: .
One area within the L visa that requires more specificity relates to the term "specialized
knowledge." Varying interpretations by INS have exacerbated the problem. The bill therefore
defines specialized knowledge as special knowledge of the company product and its application, ,
in international markets, or an advanced level of knowledge of processes and procedures of the
company .
H.R. REp. No. 101-723(1), 1990 V .S.C.C.A.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
application in international markets or has an advanced .level of knowledge of processes and procedures of the
company." 8 V.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: '-
, Z Similarly , in Matter of Penner , the Commiss ioner emphasized that the specialized knowledge worker
classification was not intended for "all employee s with any level of specialized knowledge." 18 I&N Dec. 49
(Comm. 1982). According to Matter ofPenner, "[s]uch a conclusion would permit extremely large numbers
of persons to qualify for the 'L-l' visa" rather than the "key personnel" that Congress specifically intended.
Id. at 53.
•J
EAC 02 080 54041
Page 14
"Specialized knowledge" means knowledge possessed by an indiv idual whose advanced level
of expert ise and proprietary knowledge of the organization's product , service, research ,
equipment , techniques , management, or other interests of the employer are not readily
available in the United States labor market. This definition does not apply to persons who
have general knowledge or expertise which enables them merely to produce a product or
provide a service. ' )
8 c.F:.R. § 214.2(1)(1)(ii)(D)(1990) . .
The AAO does not dispute that the petitioner's organization has its own internal information 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 methodologies is particularly advanced in comparison to his peers, that
the processes themselves cannot be easily transferred to its U.S. employees or to professionals who have not
previously worked with the 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 and methodologies would
differentiate him from any other similarly employed senior programmers within the petitioner 's group or within
the industry. S imply going on record without supporting documentary evidence is not sufficient for the purpose
of meeting the burden of proof in these proceedings. Matter ojSoffici, 22 I<%N Dec. at 165 . .
An evaluation of the record reveals that other softw~re 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 Level 5, may employ workers with knowledge equivalent to that of the
beneficiary . It is further noted that the petitioner claims that 'the beneficiary is one of approximately 9,500 .
information technology professionals to have received the SEI -CMM 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 senior programmer or "team member."
Finally and most important, the petitioner has failed to document that the beneficiary has actually received the
petitioner'sSEI-CMM LevelS training, the basis for the beneficiary's claim to specialized knowledge .
In sum, the beneficiary 's duties and technical skil!s 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 proce sses 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
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 e stablish employment in a specialized knowledge
capacity . As discussed , the petitioner has not submitted probative evidence to establish that the beneficiary's
knowledge is uncommon , noteworthy , or di stinguished by some unusual quality arid '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 andthe foreign entity.
EAC 02 080 54041
Page 15
r.,
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 'ofCongress in creating the specialized knowledge classification, or to overturn prior
precedent decisions that continue to prove instructive in adjudicating L-lBvisa 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 petitioner's
product, service, research, equipment, techniques or management. 8 C.F.R. § 214.2(lK\)(ii)(D). As
discussed above, the petitioner has not established that the beneficiary's knowledge rises to the level of
specialized knowledge contemplated by the regulations.
The legislative history 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. See 1756, Inc. v.iAttorney 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 L petition. Ifthe previous nonimmigrant petition
was approved based on the same unsupported assertions that are contained in the current record, the approval
would constitute clear and gross error on the part of the officer. The AAO is not required to approve
applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that
may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597
(Comm. 1988).' It would be absurd to suggest that CIS or any agency must ,treat acknowledged errors as,
binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987); cert denied 485
u.s. 1008 (1988).
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 ofthe Act, 8 U.S.c.§ 1361. The petitioner has not sustained that burden.
ORDER: The appeal is dismissed.