dismissed L-1B Case: Information Technology

"Identifyingdatadeletedto
preventclearlyunw~
invasionofpersonalpnvacy
PUBLIC COpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File:
INRE:
WAC 05 800 54280
Petitioner:
Beneficiary:
Office: CALIFORNIA SERVICE CENTER Date: JUN g 4 Z007
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § I 101(a)(l5)(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.
RObert~(
Administrative Appeals Office
www.uscis.gov
WAC 05 800 54280
Page 2
DISCUSSION: The Director, California 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 employ the beneficiary as an L-1B nonimmigrant
intracompany transferee with specialized knowledge pursuant to section 101(a)(l5)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The petitioner, a California corporation, is engaged in the
rovision of software desi development and consulting services. It states that it is the parent company of
located in India. The petitioner seeks to employ the beneficiary as a consultant
for a three-year period.
The director denied the petition on November 18, 2005, concluding that the petitioner did not establish that
the position offered to the beneficiary requires the services of an individual possessing specialized knowledge ,
or that the beneficiary possesses specialized knowledge.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the beneficiary
possesses specialized knowledge, that the knowledge attained by him is uncommon in his field, and that the
U.S. position requires the beneficiary's specialized knowledge. Counsel submits a brief and additional
evidence in support of the appeal.
To establish L-1 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. § 214.2(1)(3) further 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 (1)(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 one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(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
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education, trammg, and employment qualifies himlher to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
This matter presents two related, but distinct, issues: (1) whether the beneficiary possesses specialized
knowledge; 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 the following:
For purposes of section 101(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:
[S]pecial knowledge possessed by an individual of the petitioning organization's product,
service, research, equipment, techniques, management, or other interests and its application in
international markets, or an advanced level of knowledge or expertise in the organization's
processes and procedures.
The nonimmigrant petition was filed electronically on August 17, 2005. In a supporting letter dated
September 1, 2005, the petitioner described the beneficiary's proposed duties as a consultant as follows:
• Plan , develop & test Business Intelligence programs, using commercial off the shelf
business intelligence tools and web technologies.
• Design, development , implementation & testing of logical & physical data models ,
warehouse architecture , data cleansing & extraction, data transformation , ETL loading
processes, using commercial off the shelf ETL tools and custom applications.
• Consult the user to set operating procedures and clarify program objectives.
• Write code following given standards and carry out tests per the plan.
• Provide maintenance support upon completion of installation.
• Develop documentation for application modules, users' instructions and technical
reference.
• The minimum requirement for this position is a bachelor degree and proficient
experience using proprietary Business Intelligence Programs.
• Business Intelligence & Data Warehouses
• E-Business Technologies
• Training
The petitioner indicated that the beneficiary would be required to work on the implementation of business
intelligence and data warehousing solutions for multiple clients in the Los Angeles, California area. The
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petitioner explained that the U.S . company is an information technology finn specializing in delivering
customer-focused Business Intelligence and data warehouse solutions and services.
With respect to the beneficiary's specialized knowledge , the petitioner submitted that most software engineer
positions within its organization are specialized in nature within the statutory definitions. The petitioner noted
that employees who are assigned to onsite/offsite teams must receive "relevant training and attain
considerable experience" with the company prior to becoming part of a team , and that newly-hired software
engineers are not eligible to be part of such teams until they have acquired training and experience. The
petitioner further asserted that "since acquiring knowledge of [the petitioner's] processes and procedures is a
significant factor given the risks involved in not having such knowledge , attainment of such knowledge about
[the petitioner's] methodologies is considered specialized."
The petitioner explained that it implements the MicroStrategy Business Intelligence platform, a product used
by many of the top companies in the world in various industries. The petitioner further explains the
significance of Business Information within the scope of the petitioner's business as follows:
The technologies used to implement the MicroStrategy platform are technically specialized
and complicated in nature. Certificates, training and understanding of process are a pre­
requisite for not only MicroStrategy but also [the petitioner], as MicroStrategy Reseller and
Authorized Training Partner. There are few organizations that can bring the quality of service
and the technical expertise to implement such large-scale programs.
[The petitioner] not only develops these novel technologies , but also pursues emerging trends
by building integrative tools which make some of these technologies compatible with
otherwise non-compatible platforms of clients in various industries. Our partnerships and
understanding of the product is crucial to the success of MicroStrategy products and its future
technologies. Our ability to implement successful programs helps companies increase
efficiency , productivity and customer profitability by identifying trends and delivering
answers contained within their warehouse of data.
The petitioner noted that its team members develop specialized skills in understanding and solving complex,
client specific problems, and that its solutions "tend to be specialized custom solutions based on our common
reference architectures [and] our methodology." The petitioner stated that every employee undergoes
classroom and on-the-job training , but that, even among employees with the same functional job title , the
specific training modules completed , and the contents of training vary significantly depending on an
employee's assignments. The petitioner described the beneficiary's specific training background as follows :
Since the commencement of his employment with [the foreign entity] in November 2002, the
Beneficiary has been part of its offshore development team in India, working on BI and
Datawarehousing Technology projects as detailed. As a Software Engineer Specialist , the
Beneficiary has undergone both classroom training and on-the-job training in effectively
utilizing tools and processes of [the petitioner] as they related to the projects that he has been
a part of.
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Because of his client-specific experience with Business Intelligence and Data Warehouse
projects , he has developed a specialized knowledge of [the petitioner's] computer software
production and its application with an advanced level of [the petitioner's] processes and
procedures as they related to BI and DW. [The petitioner] has carefully designed [the
Beneficiary's] training program keeping in mind the specific projects he would be working
and training on.
The petitioner further described the beneficiary's "special or advanced duties" as follows:
[The beneficiary is a professional Lean Specialist whose particular knowledge and experience
in developing and using this technology is absolutely very critical to the success of our
projects. Even through the technology is developed remotely, its implementation, installation
and finally, training on its application at our clients' sites here in [the] US, is particularly
inevitable. This particular phase in having an effective technology and application
implementation is possible only with [the beneficiary] and several others who have acquired
the knowledge and experience with this technology while working with [the petitioner]. They
alone have the background and training and can pass on this knowledge by implementing the
technology and training others in it. This accounts for the choice of [the beneficiary] whom
we know is among only a few most appropriate individuals to deploy this technology and
training our clients in [the] US who are in pursuit of excellence in the field of BI
technologies.
It is important to understand that the beneficiary's knowledge is different from the rest of the
market because this knowledge is proprietary to our company. In the two and half years [the
beneficiary] has been helping our company define this technology and, at the same time ,
exploit its full potential. He has been part of the development and implementation of same as
a remote resource because of his uncommon expertise and proficiency in BI technology in
relation to data warehousing. He also played a key role in the design and implementation of
the process ....
He has worked on similar Business Intelligence and Data Warehouse projects for for [sic] the
project as discussed above. His pioneering effort and excellence with this technology led to
his recognition and promotion to the role of technical lead and MicroStrategy at our
company. . .. His prototype development efforts at [the petitioner's] own Lab devising
industry specific solutions - called "Insights" - further elevated the standing of [the
petitioner] in the IT industry. He also spearheaded the development of an industry specific
Planning and Forecasting application based on BI technologies , a technology that is
increasingly becoming valuable for our client both in Asia and North America. In this
process, beneficiary and his team members became intimately knowledgeable in every aspect
of these unique software technologies.
The petitioner stated that the beneficiary's expertise "is not available in the U.S. job market ," and "involves
our peculiar proprietary interests." The petitioner noted that eligible trainees for its Business Information and
WAC 05 800 54280
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data warehousing technologies typically have two or more years of industry experience "with a good
fundamental understanding. of business functionalities and software experience on various database
platforms." The petitioner stated that participants in its training program are exposed to business
communications and customer etiquette, and "a thorough understanding of the technology."
The petitioner noted that it currently employs 33 employees at its California location, including seventeen
foreign nationals on nonimmigrant visas, two of whom have L-IB visas. The petitioner noted that there are
other employees with similar experience at the location where the beneficiary will work, but that these
employees "are performing job duties different from those for which we need the beneficiary's services." The
petitioner concluded that the beneficiary possesses "in depth and specialized knowledge on [the petitioner's]
methodology and procedures" that qualifies him for the position offered.
The petitioner submitted documentary evidence in support of the petition, which included copies of the
beneficiary's educational credentials, training certificates for professional courses completed by the
beneficiary prior to joining the foreign entity, organizational charts for the U.S. and foreign entities, and
company brochures describing the petitioner's services.
The director issued a request for additional evidence on September 24, 2005. The director requested, inter
alia, additional information regarding the number of similarly employed workers with the foreign and United
States entities, organizational charts for both entities, the number of foreign nationals employed at the U.S.
location, including the types of visas held by each, an explanation regarding any special or advanced duties
performed by the beneficiary abroad or in the United States, and an explanation as to how his duties differ
from those of other workers employed by the petitioner or by other U.S. employers in this type of position.
The director also requested that the petitioner explain exactly what is the equipment, system, product,
technique or service of which the beneficiary has specialized knowledge, and requested that the petitioner
indicate whether it is used or produced by other employers in the United States or abroad. Finally, the
director requested an explanation as to how the beneficiary's training or experience is uncommon, noteworthy,
or distinguished by some unusual quality and not generally known by practitioners in his field in comparison
to that of others employed by the petitioner.
The petitioner submitted a response dated November 3, 2005. The petitioner re-submitted its letter dated
September 1, 2005 and asserted that many of the director's requests regarding the beneficiary's specialized
knowledge are addressed in the letter, including information regarding the number of employees working in
similar positions, the beneficiary's special or advanced duties, the petitioner's product, the training the
beneficiary will provide, and the impact the beneficiary will have on the petitioner's business. The petitioner
indicated that the U.S. company now employs 52 employees, and stated that a total of nine employees hold
positions which are the same as or similar to that offered to the beneficiary. The petitioner submitted an
"employee status report" listing 31 employees who work at the beneficiary's proposed location as
nonimmigrant workers, including nine L-1B visa holders identified as programmer analysts and 22 H-1B visa
holders who are employed in the positions of computer programmer, programmer analyst, software engineer,
senior software engineer, senior financial analyst, finance manager, business analyst, software engineer, and
market research analyst.
WAC 05 800 54280
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The director denied the petition on November 18, 2005, concluding that the petitioner had failed to establish
that the beneficiary possesses specialized knowledge, or that the beneficiary had been or would be employed
in a position requiring specialized knowledge. The director noted that the petitioner's qualifications were
vaguely described, and that the petitioner's response to the request for evidence did not provide any new
insight into the specialized skills or knowledge possessed by the beneficiary. The director observed that "the
petitioner primarily claims that the beneficiary possesses the specialized knowledge because he/she has been
trained on the proprietary [Business Information] and data warehousing technologies."
The director determined that the petitioner had failed to establish that the beneficiary's duties with the foreign
company required specialized knowledge, noting that the position description provided was not sufficiently
specific. The director further found that the petitioner did not demonstrate that the beneficiary's knowledge is
uncommon or advanced, as the petitioner did not provide any information pertaining to other IT consultants
employed by the company, or attempt to distinguish the beneficiary's knowledge, work experience or training
from that of its other employees. Finally, the director noted that the Business Information platform
implemented by the petitioning company was actually developed by an unrelated company, MicroStrategy.
The director found that the implementation processes developed by the petitioner are standard processes that
all employees of the petitioning company utilize and receive training on. The director further determined that
the petitioner failed to demonstrate how the petitioner's processes are different from other processes utilized
by similar companies that implement the MicroStrategy Business Information platform.
The director concluded that the petitioner did not demonstrate that the beneficiary's knowledge constitutes an
advanced level of knowledge of the processes and procedures of the petitioning organization, or that his
knowledge is substantially different from, or advanced in relation to, that of an information technology
consultant employed by any similar consulting company.
On appeal, counsel for the petitioner asserts that the beneficiary possesses specialized knowledge and that the
knowledge obtained by him while employed with the foreign entity is uncommon in his field of practice.
Counsel further attempts to clarify the beneficiary's claimed specialized knowledge as follows:
The beneficiary has been involved in the projects dealing with Business Intelligence (BI) and
Data Warehousing (DW) technologies from the conceptual stage. [The petitioner] utilizes
indigenously designed tools, methodologies, procedures and operates them with other high
ended software applications. The Beneficiary's [sic] has designed tools and procedures in
relation to this technology which are not available to other companies in the IT industry. For
example the beneficiary's prototype development effort at [the petitioner's] own lab, devising
industry specific solutions called - "Insights" further elevated the standing of [the petitioner]
in the IT industry. The beneficiary also spearheaded the development of an industry specific
planning & forecasting application based on BI technologies ....
The beneficiary and his team are the only professionals with detailed information on the
applications mentioned above, which is the direct result of [the petitioner's] procedures and
processes. The expertise gained by the beneficiary in the process of developing, modifying
WAC 05 800 54280
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and technologies, is not available in the U.S. job market and involves peculiar proprietary
interest of the beneficiary.
Counsel asserts that the beneficiary's involvement in "devising products and services related to the mentioned
technology is specialized." Counsel further contends that the beneficiary's work experience and training
"truly signifies that the beneficiary's knowledge is uncommon or advanced." Counsel acknowledges that
every employee of the petitioning company undergoes training, and asserts that the beneficiary, as a software
engineer specialist, has undergone both classroom and on-the-job training to prepare him to effectively utilize
the petitioner's tools and processes as they related to his specific project assignments.
Counsel states that the "typical training program" for a software engineer specialist working on Business
Intelligence and data warehousing projects includes the following modules or topics: (1) understanding
business functionalities; (2) software experience on various database platforms; (3) interaction techniques
with users and end users; (4) devising robust solutions which will aid the decision making process; (5) insight
into current operations; (6) exposure to business communications and customer etiquette; and (7)
understanding the application, the program, and assignment to work on a project. Counsel asserts that the
beneficiary has undergone training in all of these modules, and notes that only a limited number of software
engineers working on projects in the Business Intelligence and data warehousing industry are offered this
"hybrid" training program. Counsel asserts that the knowledge is not held commonly throughout the
organization, but it is truly specialized, advanced, and based upon the beneficiary's background, experience
with the petitioning organization, and specific training he has received.
Finally, counsel addresses the director's observation that the "Business Intelligence" platform implemented by
the petitioning company was actually developed by an unrelated company, MicroStrategy, and therefore is not
specific to the petitioning organization. Counsel emphasizes that the technologies used by the petitioner to
implement the MicroStrategy platform are "technically specialized and complicated in nature." Counsel
states that the petitioner builds "integrative tools" which make some of these technologies compatible with
otherwise non-compatible platforms for clients in various industries, and specializes in developing data
warehousing solutions based on the Business Intelligence platform. Counsel asserts that the petitioner's
solutions are therefore "specialized, custom solutions based on the common reference architectures and
methodology for every client."
Counsel concludes that it "is difficult to determine what tools and procedures are used by other companies in
the IT industry that offer similar services as the petitioner the reason being such tools and procedures are
mostly internal and proprietary within the company, and protected by copyright and patent laws." Counsel
asserts that the petitioner cannot describe or provide evidence to demonstrate that the internal tools and
processes it utilizes are substantially different from or advanced compared to those utilized by other
comparnes.
In support of the appeal, the petitioner re-submits its initial supporting letter dated September 1, 2005, and its
response to the director's request for evidence. Counsel states that the petitioner is submitting at exhibit 4 "the
beneficiary's training certificates, which certify that the Beneficiary has undergone training at [the foreign
entity]" in the above referenced training modules. The attached exhibit consists of one letter from the foreign
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entity, dated November 11, 2002, indicating that the beneficiary was offered the position of "Business
Intelligence Trainee" with the foreign entity for a probationary period of six months. According to the letter,
the beneficiary would be training on "Data Warehousing concepts and related tools" for a period of six to
eight weeks, before commencing regular work assignments.
On review, counsel's assertions are not persuasive. The petitioner has not submitted sufficient evidence to
establish that the beneficiary possesses "specialized knowledge" as defined in section 214(c)(2)(B) of the Act,
8 U.S.C. § 1184(c)(2)(B), and the regulation at 8 C.F.R. § 214.2(l)(1)(ii)(D), or that the intended position
requires an employee with specialized knowledge.
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(l)(3)(ii). The petitioner must submit a detailed description
of the services to be performed sufficient to establish specialized knowledge. Id. In addition, 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 operations, or decision-making process. Matter
of Colley, 18 I&N Dec. 117, 120 (Comm. 1981) (citing Matter ofRaulin, 13 I&N Dec. 618 (R.C. 1970) and
Matter ofLeBlanc, 13 I&N Dec. 816 (R.C. 1971)).1 As stated by the Commissioner in Matter ofPenner, 18
I&N Dec. 49, 52 (Comm. 1982), 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." 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. As discussed below, the evidence of record demonstrates that the beneficiary is more akin to an
employee whose skills and experience enable him to provide a service, rather than an employee who has
unusual duties, skills, or knowledge beyond that of a skilled worker.
1 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 regulation or precedent decisions interpreting the term. The legislative history does not indicate that
Congress intended to expand or loosen the standards for the L-l B classification. 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.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, as well as Matter ofPenner, remain useful guidance
concerning the intended scope of the specialized knowledge L-IB classification.
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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, the term "specialized knowledge" is inherently 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 personne1." 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 that employee and the remainder of the petitioner's workforce.
Moreover, in Matter of Penner, 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
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, 91st
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. 117, 119 (Comm. 1981). 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 Congress did not intend for the specialized knowledge capacity to extend to all employees
with specialized knowledge, but rather to "key personnel" and "executives.")
Therefore, based on the intent of Congress in its creation of the L-IB visa category, even if the petitioner were
to demonstrate that the beneficiary has received some specialized training, acts as a specialist, or performs
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highly technical duties, this showing will not necessarily establish eligibility for L-IB intracompany
transferee classification. The petitioner must submit evidence to show that the beneficiary has "special" or
"advanced level" knowledge within the company and is being transferred to the United States as a "key
employee." This has not been successfully demonstrated in the instant case, where the beneficiary appears to
be one among a large number of the petitioner's employees who possesses similar training and knowledge.
In the instant matter, the petitioner submitted a description of the beneficiary's proposed employment in the
United States entity. However, the petitioner has not documented that the job duties to be performed require
specialized knowledge as defined at 8 C.F.R. § 214.2(l)(1)(ii)(D). The beneficiary's job description does not
distinguish his knowledge as more advanced or distinct among other software consultants employed by the
foreign or U.S. entities or by other unrelated companies. The beneficiary's duties involve: planning,
developing and testing Business Intelligence programs using "commercial off the shelf business intelligence
tools and web technologies"; development, implementation and testing of data warehouses and related
applications using "commercial off the shelf ETL tools" and "custom applications"; requirements gathering;
writing code and carrying out tests; providing maintenance support; developing documentation for users; and
providing training to clients. The petitioner has not described the technological environment in which the
beneficiary has been and would be working, other than noting that the company is a reseller and authorized
training partner of MicroStrategy's Business Intelligence software solutions. The ability to implement
software solutions developed by an unrelated company, and to utilize widely available "commercial off the
shelf' tools and web technologies cannot be equated to specialized knowledge of the petitioning organization.
The petitioner's description of the beneficiary's duties does not distinguish his knowledge or experience from
that of any other software consultant who is experienced in implementing customized Business Intelligence
and data warehousing solutions for clients.
The petitioner noted that over 90 percent of Fortune 2000 companies deploy or are planning to deploy data
warehouses. Accordingly, in general, the knowledge and skills required to work on a consulting team
implementing Business Intelligence and/or data warehousing technologies, while likely complex and
technically sophisticated, can not be deemed uncommon in the petitioner's industry. The petitioner attempts
to distinguish itself and its employees by noting that the company "designs and develops Data Warehouse and
Business Intelligence solutions for these companies using its home grown distinctive specialized variation and
knowledge of these technologies." The petitioner suggests that knowledge of these vaguely-defined
"processes" is essential for performance of the beneficiary's job duties, and also differentiates his knowledge
from that which is generally known by similarly employed professionals in the beneficiary's field.
However, while the petitioner and counsel have repeatedly asserted that the beneficiary is knowledgeable of
processes, standards and tools that are proprietary and unique to the petitioner and its foreign parent company,
the petitioner has neither identified the petitioner's claimed proprietary processes or tools with any specificity,
nor established that the beneficiary actually possesses the claimed knowledge as a result of his training or
work experience. Thus the record does not demonstrate that knowledge of these procedures and tools alone
constitutes specialized knowledge, or that the beneficiary possesses advanced knowledge of these tools and
processes. The petitioner's only attempt to distinguish the beneficiary's knowledge as advanced or beyond that
of other employees was a brief reference to his contribution to the prototype development effort of "industry
specific solutions" known as "Insights." The petitioner neither describes the beneficiary's specific role in
WAC 05 800 54280
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developing "Insights," nor provides any additional information or explanation regarding the significance of
such developments, particularly with respect to the applicability of such knowledge to the duties to be
performed in the United States. Going on record without supporting documentary evidence is not sufficient
for purposes of meeting the burden of proof in these proceedings. Matter 0/Soffici, 22 I&N Dec. 158, 165
(Comm. 1998) (citing Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
Moreover, upon review of the initial evidence, the director specifically advised the petitioner that the evidence
submitted was insufficient to establish the beneficiary's eligibility as an intracompany transferee with
specialized knowledge. The director clearly instructed the petitioner to submit additional explanation
regarding any special or advanced duties performed abroad and those to be performed in the United States,
and how they differ from those performed by the petitioner or other U.S. employers. The director also
specifically requested clarification as to what equipment, system, product, technique or service the beneficiary
has specialized knowledge of. In response, counsel referred the director to the petitioner's twelve-page letter
dated September 1, 2005, which was submitted in support of the petition and already found to be inadequate
by the director.
While lengthy, the petitioner's letter does not contain the level of detail regarding the beneficiary's experience,
training or claimed specialized knowledge to establish his eligibility for the benefit sought. For example, the
petitioner stated that it is difficult for the company to identify which positions within its organization would
require the services of a person who possesses specialized knowledge, and noted that not all individuals
holding the same occupational job title would be considered to possess such knowledge. The petitioner
suggested that the beneficiary's position is specialized because he "has a well defined knowledge of [the
petitioner's] tools, methodologies, processes and procedures," but then appeared to contradict itself by stating
that "most software engineer positions within the organizational [sic] overseas and in the United States are
specialized in nature within the definition of the Immigration and Nationality Act." The petitioner's letter
consists of mostly generalized statements regarding the petitioner's products, and the beneficiary's' training
and experience. Specifics are clearly an important indication of whether a beneficiary's duties involve
specialized knowledge, otherwise meeting the definitions would simply be a matter of reiterating the
regulations. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d.
Cif. 1990).
The regulation states that the petitioner shall submit additional evidence as the director, in his or her
discretion, may deem necessary. The purpose of the request for evidence is to elicit further information that
clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See
8 C.F.R. §§ 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of
inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14).
The petitioner's processes and tools, while specific to the company, have not been shown to be significantly
different from those used by other information technology consulting firms, which necessarily also develop
internal methods, procedures, standards, project methodologies, and internal applications in order to
effectively plan and manage similar client Business Information and data warehouse projects. As discussed
further below, the petitioner did not specify the amount or type of training its technical staff members receive
in the company's tools and procedures and therefore it is impossible for the AAO to assess whether these
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processes are particularly complex or different compared to those utilized by other companies in the industry,
or whether it would take a significant amount of time to train an experienced information technology
consultant who had no prior experience with the petitioner's family of companies. Any consulting company
engaged in implementing the MicroStrategy Business Intelligence platform and "commercial off the shelf'
solutions would reasonably have its own processes and tools for the completion of projects. However, it has
not been established that the petitioner's processes are anything more than customized versions of standard
practices used in the software consulting industry. For this reason, the petitioner has not established that
knowledge of its processes and procedures alone constitutes specialized knowledge.
The record is also deficient with respect to describing and documenting the training received by the
beneficiary. The petitioner has indicated that every employee of the company undergoes on-the-job and
classroom training, noting that the specific training modules and content will vary depending on an
employee's job function and the projects to which he or she has been assigned. The petitioner states that the
beneficiary has undergone such classroom and "on-the-job training in effectively utilizing tools and processes
... as they relate to the projects that he has been a part of," and noted that the beneficiary's training program
had been "carefully designed." Clearly, the petitioner's vague statement was of little assistance in establishing
that the beneficiary's training has given him an advanced knowledge of the petitioner's processes or tools, or
knowledge that was in any way different from that possessed by the petitioner's average employee. The
petitioner provided no information regarding the type and length of training its employees receive, nor did it
provide evidence that the beneficiary actually completed the training at all, much less received more advanced
or intensive training or experience compared to his peers within the company.
Accordingly, the director specifically requested that the petitioner address how the beneficiary's training or
work experience is uncommon, noteworthy, or distinguished by some unusual quality and not generally
known by practitioners in the beneficiary's field. In response, counsel again referred the director to the
petitioner's September 1, 2005 letter. Again, failure to submit requested evidence that precludes a material
line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14).
On appeal, counsel asserts that the beneficiary has completed the "typical training program" for a software
engineer specialist working with Business Intelligence and data warehousing programs, and lists seven
"training modules" included in the program. Counsel states that the beneficiary completed training in all
seven modules in the "typical training program," and indicates that not all of the petitioner's software
engineers working in similar positions are offered all of these modules. Counsel contends that only a limited
number of software engineers working in the beneficiary's specialty are offered such "hybrid" training, and
asserts that as a result of his training, the beneficiary has "uncommon expertise." It appears that counsel is
simultaneously representing the training program completed by the beneficiary as both "typical" and atypical
for a software engineer in his specialty. Regardless, neither counsel nor the petitioner offers any explanation
with respect to the "hybrid" training purportedly completed by the beneficiary, and the brief descriptions of
the seven training modules are too vague to establish that such training would have imparted specialized or
advanced knowledge specific to the petitioning organization. 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.
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The petitioner has not adequately substantiated its claim that the beneficiary possesses "advanced" knowledge
of the company's processes, procedures and tools. Although the petitioner indicated that it was attaching
certificates evidencing the beneficiary's completion of training in the above-referenced training modules, the
only evidence attached indicated was the above-referenced offer letter from the foreign entity, indicating that
the beneficiary would be required to complete six to eight weeks of training in data warehousing concepts and
tools immediately upon joining the company in November 2002. This letter is not sufficient to establish that
the beneficiary completed the claimed specialized "hybrid" training, as indicated by counsel. Again, going on
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof
in these proceedings. Matter of Sofflci, 22 I&N Dec. at 165. The petitioner has presented a confusing
explanation of the amount and type of training typically required for the beneficiary's position and the type
and amount of training actually completed by the beneficiary, and has therefore failed to establish that the
beneficiary has completed specialized training that would equip him with an "advanced" knowledge of the
petitioner's processes or technologies.
Regardless of the petition's lack of evidentiary support, the petitioner's assertions regarding the beneficiary's
completion of a "typical training program" defy reason: if all similarly employed workers within the
petitioner's organization receive essentially the same training, then mere possession of knowledge of the
petitioner's processes and methodologies does not rise to the level of specialized knowledge. Although
knowledge need not be narrowly held within an organization in order to be specialized knowledge, the L-IB
visa category was not created in order to allow the transfer of all employees with any degree of knowledge of
a company's processes. If all employees are deemed to possess "special" or "advanced" knowledge, then that
knowledge would necessarily be ordinary and commonplace. The petitioner has not successfully
demonstrated that the beneficiary's knowledge of the petitioner's processes and procedures is advanced
compared to other similarly employed workers within the organization. Such a conclusion is supported by the
petitioner's assertion that nine other employees at the beneficiary's proposed U.S. worksite, nearly 20 percent
of the workforce, will serve in the same or similar positions.
In addition to failing to describe the beneficiary's training with the foreign company, the petitioner has offered
very few details regarding his specific duties and assignments while employed by the foreign entity. The
petitioner indicated that he has been "part of its offshore software development team in India, working on BI
and Data Warehousing Technology projects." Although the petitioner characterizes the beneficiary as among
a group of employees who possess specialized knowledge as a result of their training and experience, it is not
evident from the record that the beneficiary's less than three years of experience with the foreign entity at the
time of filing should be equated to "special" or "advanced level" knowledge on the level of "key personnel."
Absent a detailed description of his project assignments and duties, including any special or advanced duties,
and documentary evidence regarding the beneficiary's training, the record does not support a conclusion that
the beneficiary's knowledge differs from that of any other software engineering consultant employed by the
foreign entity. The petitioner has not established that the beneficiary possesses "advanced knowledge" of the
petitioner's processes or procedures as a result of his training or work experience.
Finally, even assuming that the petitioner had established that the beneficiary possesses advanced knowledge
of the petitioner's processes and procedures, there is no evidence in the record to establish that the position
with the United States entity requires such knowledge. As noted above, the beneficiary will be performing
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duties typical of a software consultant, using technologies and skills which are common in his profession.
While it is clear that he may use the petitioner's internal systems and tools to assist in the project development
process, the record does not establish that the beneficiary will be performing any duties which would require
more than basic proficiency with the company's internal procedures. The petitioner has not identified the
beneficiary's particular project assignment(s), nor identified any proposed duties which would require an
advanced knowledge of company processes and tools. Rather, it appears that any employee who had similar
experience in the beneficiary's technical specialty (i.e., Business Intelligence and data warehousing) and had
completed the petitioner's internal training program could perform the duties of the offered position.
In sum, the beneficiary's duties and technical skills demonstrate knowledge that is common among software
engineers providing consulting services in the information technology field, specifically, in the data
warehousing specialty. 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 used by the petitioner are substantially different from
those used by other technology consulting companies. It is clear that the petitioner considers the beneficiary to
be an important employee of the organization. The AAO, likewise, does not dispute the fact that the
beneficiary's knowledge has allowed him to successfully perform his job duties for the foreign entity.
However, the successful completion of one's job duties does not distinguish the beneficiary as possessing
special or advanced knowledge or as "key personnel," nor does it establish 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 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.
Rather, the record reveals that other information technology companies utilize comparable procedures and
tools to implement the same third party solutions for their clients, that the claimed specialized knowledge is
itself widely available within the petitioner's organization, and that other organizations, although they do not
utilize exactly the same project procedures, implement similar solutions for their clients and may employ
workers with technical knowledge and skills equivalent to that of the beneficiary. Furthermore, the petitioner
has failed to document that the beneficiary has actually received training in the company's internally
developed procedures and tools, much less established that his training and experience have resulted in
advanced knowledge of such procedures which would elevate him to the level of key personnel. Thus, as the
petitioner has not established that the beneficiary possesses a special knowledge of the petitioner's product or
an advanced level of knowledge of the company's processes or procedures, the director reasonably
determined that the beneficiary does not qualify as a specialized knowledge worker.
The legislative history for 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. Attorney General, 745 F. Supp. at 16. The petitioner has not established that
the beneficiary has specialized knowledge or that the position offered with the United States entity requires
specialized knowledge.
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For these reasons, the appeal must be dismissed.
Counsel emphasizes that two "identical cases" involving other L-1B beneficiaries were approved based on the
same documentation that was submitted with the instant case. It must be emphasized that each petition filing
is a separate proceeding with a separate record. See 8 C.F.R. § 103.8(d). In making a determination of
statutory eligibility, CIS is limited to the information contained in that individual record of proceeding. See 8
C.F.R. § 103.2(b)(16)(ii). If other nonimmigrant petitions were approved based on the same unsupported
assertions that are contained in the current record, the approvals would constitute material and gross error on
the part of the director. 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).
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions by
the petitioner for similar positions, the AAO would not be bound to follow the contradictory decision of a
service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139
(5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001).
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an
independent and alternative basis for the decision. In visa petition proceedings, the burden of proving
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361.
Here, that burden has not been met.
ORDER: The appeal is dismissed.