dismissed L-1B Case: Information Technology

U.S. Department of Homcland Security 
20 Mass. Ave., N.W.. Rm. A3042 
Washington. 1)C 20529 
U. S. Citizenship 
and Immigration 
FILE: EAC 02 147 50179 Office: VERMONT SERVICE CENTER ,ate: SM 2 8 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision ofthe Adlninistrative 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. 
A \ R ert P. Wiemann, Dire or 
Administrative Appeals Office 
-0 
EAC 02 147 50 179 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its applications software 
analyst/programmer as an L-I B nonimmigrant intracompany transferee with specialized knowledge pursuant 
to $ I Ol(a)(I 5)(L) of the lmmigration and Nationality Act (the Act), 8 U.S.C. $ 1 101 (a)(] 5)(L). The 
petitioner claims that it is a branch of the beneficiary's foreign employer, located in Mumbai, Maharashtra, 
India, and is operating in the United States as an information technology consulting firm. The petitioner now 
seeks to extend the beneficiary's stay for three years. 
The director determined that the petitioner had failed to demonstrate that the beneficiary would be employed 
by the United States entity in a specialized knowledge capacity. The director noted that the record did not 
show that the knowledge possessed by the beneficiary is unusual for an individual employed as an 
applications software analystlprogrammer. The director accordingly denied the petition. 
On appeal, counsel contends that Citizenship and Immigration Services (CIS) improperly applied the 
appropriate statute and regulation to the evidence in its denial of the petition. Counsel also claims that CIS'S 
decision contradicts prior guidance for interpreting the statutory definition of specialized knowledge. Counsel 
states that the beneficiary's knowledge should be deemed specialized because he possesses knowledge of the 
petitioner's Software Engineering Institute's Capability Maturity Model (SEI-CMM) Level 5 software 
process, which counsel states is "an optimized, formal, managed software process" that is indispensable to the 
organization's competitiveness in the marketplace. Counsel further states that the beneficiary's 3.5 years of 
work experience with the petitioner's SEI-CMM Level 5 process demonstrates that the beneficiary's 
knowledge "is obviously 'beyond the elementary or introductory," "greatly developed beyond the initial 
stage," highly developed," "complex," and "advanced." Counsel submits a comprehensive brief in support of 
the appeal. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section IOl(a)(I 5)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 101(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. 5 2 14.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the alien are 
qualifying organizations as defined in paragraph (l)(l)(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. 
EAC 02 147 50179 
Page 3 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior education, 
training, and employment qualities himiher 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. 
The issue is whether the beneficiary would be employed by the United States entity in a specialized 
knowledge capacity. 
Section 214(c)(2)(B) ofthe Act, 8 U.S.C. 5 1 184(c)(2)(B), provides the following: 
For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity 
involving speciatized 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. 5 214,2(I)(l)(ii)(D) defines "specialized knowledge" as: 
[Slpecial 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. 
A specialized knowledge professional is further defined at 8 C.F.R. ij 2 14.2(1)(l)(ii)(E) as: 
[A]n individual who has specialized knowledge as defined in paragraph (I)(l)(ii)(D) of this 
section and is a member of the professions as defined in section 10 l (a)(32) of the Immigration 
and Nationality Act. 
The petitioner filed the instant nonimmigrant petition on March 28, 2002, indicating that the beneficiary 
would be employed in the United States as an "Applications Software Analyst/Prograrnmer." In a March 22, 
2002 letter submitted with the petition, the petitioner stated that the foreign organization is a worldwide 
information technology consulting firm that internally develops its own "company-confidential" software 
development tools used in the analysis, design and testing of its systems. The petitioner explained that in 
order for the foreign corporation to maintain its quality assurance and competitiveness, it utilizes an internally 
developed SEI-CMM assessed Level 5 software development and maintenance process, and stated that the 
beneficiary's current on-site project in the United States for the American International Group, Inc. (AIG) 
requires specialized knowledge of this process. The petitioner provided the following outline of the 
beneficiary's job responsibilities in the United States: 
Use tools such as TCS' PAL, BAL, IPMS to custolnize the company's SEI-CMM Level 
5 software development and maintenance process to meet project operational and quality 
parameters 
Conduct Software Configuration Management activities as per TCS' SCM Plan 
Perform changes to all configurable items as per TCS' Change Control Procedure 
EAC 02 147 50179 
Page 4 
Ensure that all testing design, development, and implementation, activities are done as 
per guidelines established in TCS' Quality Management System 
Ensure that all work (analysis, design, coding, testing, deployment, maintenance, 
migration, etc.) meets project operational process requirements and Software Project Plan 
established 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 works items are 
released to client 
Prepare specifications for offshore development 
Upload specifications for offshore development 
Provide technical guidance to offshore resources as required 
Participate in Defects Prevention Activities: Peer Reviews, Causal Analyses Sessions, 
Inspections, etc., as per IPMS, DP Checklist, guidelines for software product quality, 
project plan template, etc., of work product produced onsite and offshore 
Participate in Quantitative Process Management as per QPM Plan 
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 
The petitioner stated that in order to successfully perform these job duties, the foreign corporation requires, at 
minimum, a baccalaureate degree in computer science or a relevant engineering discipline. The petitioner 
noted that this degree requirement is consistent with industry standards and is mandated by the theoretical 
complexity of the computer systems. The petitioner explained that the beneficiary satisfies the educational 
requirements as he earned a bachelor's degree in Electronics and Electrical Engineering from a university in 
India, and provided: 
Moreover, since completing his training from TCS' dedicated AIG offshore development 
center in Chennai (Ambattur), India, [the beneficiary] has been utilized in a specialized 
knowledge capacity on assignments involving the migration, enhancement, maintenance, and 
support of AIG's Mainframe software application systems. On these significant assignments, 
[the beneficiary] gained tremendous exposure to and significant, advanced practical 
knowledge of TCS' internally developed, SEI-CMM Level 5 software development and 
maintenance process as it is customized to meet the quality and operational requirements of 
assignments involving the development and maintenance of this particular client's Mainframe 
application systems. Together with his training in the company's SEI-CMM Level 5 
software development and maintenance process and his operational and quality requirements 
of assignments involving the development and maintenance of AIG's Mainframe software 
application systems, [the beneficiary] also acquired substantive knowledge of the technical 
and functional specifications (business logic, programming logic, system architecture, and the 
documentation for the databases, human and machine procedures, and all inputs, processing 
and output details of each data entry, query, update and report program in these systems). 
This combination of highly specialized knowledge is not readily transferable to another 
individual and is invaluable to the continued success of the assignments outlined herein. [The 
beneficiary] is highly qualified to contribute to TCS' U.S. operations as a result of specialized 
EAC 02 147 50 179 
Page 5 
knowledge acquired through training in and subsequent significant project-specific 
experience utilizing the company's SEI-CMM Level 5 software development and 
maintenance process, which is not commonly known or utilized in the software development 
and maintenance industry around the world including the United States. 
The petitioner submitted a resume, college transcripts, college degree, and an earnings statement with the 
accompanying evidence. It appears, however, that the petitioner incorrectly provided documentation for 
another employee, as none of the additional evidence references the beneficiary. 
The director issued a request for additional evidence on April 28, 2002, stating that the record does not show 
that the beneficiary possesses specialized knowledge. The director asked that the petitioner submit the 
following: (1) evidence verifying that the beneficiary's knowledge is uncommon, noteworthy, or 
distinguished by some unusual quality and is not generally known by others in the beneficiary's field or in the 
industry; (2) evidence that the beneficiary's advanced level of knowledge of the company's processes and 
procedures distinguishes him from those with elementary or 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 position, and that the knowledge possessed by 
the beneficiary can only be gained through prior experience with the foreign employer; (5) verification that 
the beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to 
another individual; and (6) evidence that the petitioning organization would experience a significant 
interruption in business in order to train a replacement employee for the beneficiary. 
The petitioner responded in a letter dated June 3, 2002, stating that the beneficiary's current project in the 
United States requires specialized knowledge of the petitioner's SEI-CMM Level 5 assessed software 
development and maintenance process, as the process is customized to meet the operational requirements of 
individual projects. 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 TCS is 
one of very few firms to have achieved it." The petitioner further explained that the beneficiary is one of 
approximately half of the foreign company's over 19,000 information technology professionals to have 
received training in the following "Key Process Areas" of the petitioner'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 
Sofhvare Maintenance Management 
Software Configuration Management 
Software Testing 
Software Process Assessment and Improvement 
Software Estimation 
EAC 02 I47 50179 
Page 6 
Software Quality Assurance 
Inter-group Coordination 
Quantitative Process Management 
The petitioner also provided the following description of the beneficiary's knowledge: 
[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 
TCS wishes to be employed in each of its projects, consistent with its SEI-CMM Level 5 
quality assurance methodologies. In his tenure with TCS, he has acquired well over two and 
a half years of practical, advanced, highly specialized knowledge of TCS' SEI-CMM Level 5 
software development and maintenance process as it [is] customized to meet the quality and 
operational requirements of assignments involving the development and maintenance of 
Mainframe systems for AIG, TCS' international client. [The beneficiary] also has significant 
knowledge of TCS' onsite-offshore software development process, which utilizes a variety of 
dedicated communications links including high-speed satellite data links, as well as voice and 
video communications that enable the company's resources to collaborate on projects in the 
international marketplace. He also has highly particularized knowledge of the programming, 
networking, batch, online transaction processing, database, operating systems, and various 
other environments within which AIG's systems are developed. [The beneficiary] also has 
substantive knowledge of AIG's business and processes. He also holds substantive 
knowledge of the insurance application domain. This particular combination of skills, 
experience, and expertise, which this beneficiary possesses, constitutes a body of highly 
specialized knowledge that is not readily transferable to another individual. 
The petitioner also outlined the following additional job duties of the beneficiary's assignment in the United 
States: 
Utilize proprietary IPMS, PAL, BAL (Quality and Knowledge management Systems) to 
customize the company's internally developed, SEI-CMM assessed (level 5) software 
development and maintenance process to meet project operational process requirements 
Develop detailed plans to effectively transition the development and support of AIG's 
Mainframe systems to TCS' AIG offshore development center in India 
Use Project Planning Guidelines, Project Plan Template, Software Development Life 
Cycle Models document, Guidelines for Software Estimation, etc. (all available in IPMS, 
PAL, BAL) to develop Software Project Plan 
Establish Software Project Tracking and Oversight as per outlines in TCS' Quality Manual 
Track and review software accomplishments and results against documented estimates and 
adjust plans based on actual accomplishments and results 
Implement and Coordinate Software Configuration Management (SCM) activities as 
outlined in TCS' Quality Manual 
Analyze, design, code, test, and deploy application enhancements and maintenance 
requests 
Migrate Data using hummingbird's GENIO Suite 
Develop and maintain code for new migrations 
Develop Remote Call Procedures (RPC) 
EAC 02 147 50179 
Page 7 
Develop and maintain Batch Programs 
Provide development and maintenance support for Backend Programs 
Ensure that changes to all configurable items are done as per TCS' Change Control 
Procedure 
Establish and Monitor Software Quality Assurance (SQA) Plan as per guidelines in TCS' 
Quality Manual 
Conduct Final Inspections to ensure compliance with the project's SQA Plan 
Prepare specifications for offshore development 
Identify and allocate work for offshore development 
Provide technical guidance to offshore resources as required 
Review Defect Prevention activities fortnightly 
Review and Monitor Defects Prevention activities: Peer Reviews, Code Walkthroughs, 
Causal Analyses Sessions, Inspections, etc., as per IPMS, DP Checklist, guidelines for 
software product quality, project plan template, etc., of work product produced onsite and 
offshore 
Ensure that software work products are handed over to client within established 
parameters 
The petitioner stated that these "high level" responsibilities distinguish the beneficiary from a "typical 
Applications Software Analyst/Programmer." The petitioner contended that the beneficiary's training and 
experience gained while working in the foreign corporation separate his knowledge from the general 
knowledge possessed by all applications software analysts/programmers and claimed that it demonstrates the 
beneficiary's advanced and specialized knowledge. 
The petitioner further stated that legislative history indicates that Congress intended the L-I B classification to 
be broader than CIS' interpretations prior to the Immigration Act of 1990. The petitioner also referred to a 
1994 Immigration and Naturalization (now CIS) memorandum, which the petitioner stated indicates that the 
availability of United States workers able to perform the duties requiring specialized knowledge is not 
relevant to determining whether a beneficiary possesses specialized knowledge. 
fn a decision dated April 23, 2003, the director determined that the petitioner did not demonstrate that the 
beneficiary would be employed under the extended petition in a specialized knowledge capacity. The director 
stated that the petitioner's description of the beneticiary's job duties does not distinguish the tasks performed 
by the beneficiary as significantly different from those of other applications software analysts/prograrnmers, 
and concluded that the beneficiary's position does not warrant the expertise of someone possessing 
specialized knowledge. The director acknowledged the petitioner's claim that the beneficiary's position 
requires an individual to possess an in-depth knowledge of the corporation's SEI-CMM Level 5 quality 
assurance methodology, but stated that the petitioner failed to demonstrate that the SEI-CMM procedure is 
significantly different from the procedures used in other technology consulting companies. The director also 
stated that the petitioner did not establish how the beneficiary's knowledge of the SEI-CMM process 
constitutes specialized knowledge. Lastly, the director noted that the petitioner did not show that the 
beneficiary's knowledge would be difficult to impart on a substitute worker, or that the petitioner would incur 
an economic inconvenience while training a replacement for the beneficiary. The director concluded that the 
record did not establish that the beneficiary would be employed in specialized knowledge capacity, and 
accordingly denied the petition. 
EAC 02 147 50 179 
Page 8 
In an appeal filed on May 1, 2002, counsel claims that CIS improperly applied the applicable statute and 
regulation governing the instant matter and incorrectly examined the record. Counsel also contends that CIS' 
denial of the petition contradicts prior CIS guidance for interpreting the statute defining specialized 
knowledge. 
Counsel states on appeal that the beneficiary's knowledge of the petitioner's SEI-CMM Level 5 software 
process is special and advanced because such knowledge is uncommon in the United States and in the 
international software sector. Counsel explains that SEI-CMM is the most sought after assessment of the 
maturity of an organization's software process capability, and states that presently, seventy-four software 
development and maintenance organizations worldwide have had their software processes assessed at a level 
5, the highest level available. Counsel further states that of the organizations conducting and reporting the 
Capability Maturity Model for Software results to the Software Engineering Institute, 48% employ 100 
software workers, and 0.9% have more than 2000 software personnel. Counsel states that "[tlhis is certainly 
an indicator that the total number of software personnel in the industry is indeed quite small, and this fact 
further supports the position that knowledge of SEI-CMM Level 5 compliant processes is uncommon in the 
industry." Counsel references several articles as evidence "that the majority of organizations involved in 
software development andlor maintenance lack mature software processes (a mature software process is one 
that is clearly defined, measure, managed, controlled, and effective)." Counsel states that these articles also 
demonstrate that "the Petitioner's SEI-CMM Level 5 compliant software process is indispensable to the 
organization's competitiveness in the marketplace." 
With regard to the level of knowledge possessed by the beneficiary, counsel challenges CIS' request that the 
petitioner demonstrate that the beneficiary's knowledge of the petitioner's processes and procedures is 
"substantially" different, exclusive, restricted, or narrowly held. Counsel states that no such constraint on the 
beneficiary's knowledge is itnposed by the statute, regulations, legislative history or CIS' policy history. 
Counsel also refers to the 1994 CIS memorandum, which advises CIS from imposing a requirement that 
advanced knowledge be narrowly held throughout a company. cbunse~ asserts the following in support of the 
beneficiary's possession of specialized knowledge: 
Nevertheless, that the beneficiary's knowledge is clearly advanced, i.e. 'at a higher level than 
others,' in comparison to that of similarly employed software personnel in the industry is 
readily apparent when it is considered that a significant number of organizations involved in 
software development and/or software maintenance have no formal software process much 
less an optimized, formal, managed software process such as the Petitioner's SEI-CMM 
Level 5 software process. Furthermore, he also has also [sic] acquired over 3.5 years of 
practical experience and expertise working with the Petitioner's SEI-CMM Level 5 compliant 
processes. Certainly, with this level of practical experience, the Beneficiary's knowledge of 
the process is obviously 'beyond the elementary or introductory;' 'greatly developed beyond 
the initial stage;' 'highly developed;' 'complex;' in other words, advanced. The 
Beneficiary's knowledge of the Petitioner's software process is also clearly special, for such 
knowledge is 'uncommon,' 'noteworthy,' 'distinct among others in a kind,' i.e, distinct 
among a large number of the class of software personnel in the industry, as the very 
uncommonness of the process suggests. As has been shown, the Petitioner's software process 
is of a sophisticated nature; it is not common in the industry; and it is of critical importance to 
the Petitioner's ability to deliver software on time and within budget - the very fundamental 
nature of the Petitioner's business. 
EAC 02 147 50179 
Page 9 
On review, the petitioner has not demonstrated that the beneficiary would be employed in the United States 
organization in a specialized knowledge capacity. In examining the specialized knowledge capacity of the 
beneficiary, the AAO will look to the petitioner's description of the job duties. See 8 C.F.R. 9 
214.2(1)(3)(ii). The petitioner must submit a detailed description of the services to be performed sufficient to 
establish specialized knowledge. Id, 
Although the petitioner adequately described the position of "Applications Software Analyst/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 was 
trained in the SEI-CMM Level 5 software development and maintenance process. However, there is no 
documentation, such as a course certification, training records, or a confirmation from a corporate director, in 
the record that the beneficiary received the claimed SEI-CMM training or that the beneficiary is familiar with 
the petitioner's internally developed SEI-CMM process. Additionally, the comprehensive resume submitted 
as part of the record belongs to another employee. There is no reference the beneficiary's completed training 
courses or work experience. This information is particularly relevant as 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 the beneficiary's work both abroad and in the United States. Absent 
documentary evidence demonstrating the beneficiary's SEI-CMM level 5 process training, the beneficiary is 
considered to possess the ordinary knowledge of a skilled worker. Without documentary evidence to support 
the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. Mutter of Bhaigbena, 19 
I&N Dec. 533, 534 (BIA 1988); Mutter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). For this 
reason alone, the petition may not be approved. 
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. 1 17, 1 20 (Comm. 198 1) (citing Mutter of Raulin, 13 I&N Dec. 6 18 
(R.C. 1970) and Mutter of LeBlunc, 13 I&N Dec. 8 16 (R.C. 1971)).' As stated by the Commissioner in 
Mutter of Penner, when considering whether the beneficiaries possessed specialized knowledge, "the LeBlanc 
and Ruulin decisions did not find that the occupations inherently qualified the beneficiaries for the 
classifications sought." 18 I&N Dec. at 52. Rather, the beneficiaries were considered to have unusual duties, 
skills, or knowledge beyond that of a skilled worker. Id. The Commissioner also provided the following 
clarification: 
Although the cited precedents pre-date the current statutory definition of "specialized knowledge," the AAO 
finds them instructive. Other than deleting the former requirement that specialized knowledge had to be 
"proprietary," the 1990 Act did not significantly alter the definition of "specialized knowledge" from the prior 
INS interpretation of the term. The 1990 Committee Report does not reject, criticize, or 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 "[vlarying [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. M. 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 Mutter 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 02 147 50179 
Page 10 
A distinction can be made between a person whose skills and knowledge enable him or her to 
produce a product through physical or skilled labor and the person who is employed primarily 
for his ability to carry out a key process or function which is important or essential to the 
business' operation. 
Id, at 53. 
In Matter of Penner, the Commissioner discussed the legislative intent behind the creation of the specialized 
knowledge category. 18 I&N Dec. 49 (Comm. 1982). As noted previously, although the definition of 
"specialized knowledge" in effect at the time of Mailer 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 applicable to the current matter. The decision noted that the 1970 
House Report, H.R. No. 91-851, stated that the number of admissions under the L-1 classification "will not be 
large" and that "[tlhe class of persons eligible for such nonimmigrant visas is narrowly drawn and will be 
carefully regulated by the Immigration and Naturalization Service." id at 51. The decision noted that the 
House Report was silent on the subject of specialized knowledge, but that during the course of the sub- 
committee hearings on the bill, the Chairman specifically questioned witnesses on the level of skill necessary 
to qualify under the proposed "L" category. In response to the Chairman's questions, various witnesses 
responded that they understood the legislation would allow "high-level people," "experts," individuals with 
"unique" skills, and that it would not include "lower categories" of workers or "skilled craft workers." Muaer 
of Penner, id. at 50 (citing H.R. Subcomm. No. I of the Jud. Comm., Immigruiion Act oflY70: Hearings on 
H R. 445,9 1 st Cong. 2 10,2 18,223,240,248 (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 classitication was not 
intended for "all employees with any level of specialized knowledge." Matter of Penner, 18 I&N Dec, at 53. 
Or, as noted in Matter r$ Coiley, "[mlost 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." 1 8 I&N Dec. at 1 1 9. According to Matter qf Penner, "[sluch a conclusion would 
permit extremely large numbers of persons to qualify for the 'L-I' visa" rather than the "key personnel" that 
Congress specifically intended. 18 I&N Dec. at 53; see also, 1756, Inc., 745 F. Supp. at 1 5 (concluding that 
Congress did not intend for the specialized knowledge capacity to extend to all employees with specialized 
knowledge, but rather to "key personnel" and "executives.") 
The beneficiary's job description does not distinguish his knowledge as more advanced or distinct among 
other applications software analysts/programmers employed by the foreign or U.S. entities or by other 
unrelated companies. 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, "[slimply put, specialized knowledge is a relative . . . idea which cannot have a plain meaning." 745 
F. Supp. 9, I5 (D.D.C. 1990)~ The Congressional record specifically states that the L-1 category was 
Again, Congress' 1990 amendments to the Act did not specifically overrule 1756, Inc. nor any other 
administrative precedent decision, nor did the 1990 amendments otherwise mandate a less restrictive 
EAC 02 147 50179 
Page I I 
intended for "key personnel." See generally, H.R. REP. No. 91 -85 1, 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 I2 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. 
A 1994 Immigration and Naturalization Service (now CIS) memorandum written by the Acting Associate 
Commissioner also allows CIS to compare the beneficiary's knowledge to the general United States labor 
market and the petitioner's workforce in order to distinguish between specialized and general knowledge. 
The Associate Commissioner notes in the memorandum that "oficers 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." Memorandum from James A. Puleo, 
Acting Associate Commissioner, Immigration and Naturalization Service, Interpretuiion of Specialized 
Knowledge, CO 214L-P (March 9, 1994). 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 whether the beneficiary's knowledge is advanced. In other words, absent an 
outside group to which to compare the beneficiary's knowledge, CIS would not be able to "ensure that the 
knowledge possessed by the beneficiary is not general knowledge held commonly throughout the industry but 
that it is truly specialized." Id. The analysis for specialized knowledge therefore requires a test of the 
knowledge possessed by the United States labor market, but, as noted by the petitioner in its June 2002 letter. 
does not consider whether workers are available in the United States to perform the beneficiary's job duties. 
The record does not distinguish the beneficiary's knowledge as more advanced than the knowledge possessed 
by other applications support analystslprogrammers. The petitioner stated in its June 3, 2002 response 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 TCS wishes to be employed in each 
of its projects, consistent with its SEI-CMM Level 5 quality assurance methods." The petitioner further noted 
that the beneficiary's training and work experience in the foreign corporation separate this knowledge from 
the general knowledge possessed by other applications software analystslprogrammers. As the petitioner 
failed to document the beneficiary's SEI-CMM training these claims have little value. However, despite the 
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 U.S.C.C.A.N. 67 10, 6749, 1990 WL 2004 18. 
EAC 02 147 50179 
Page 12 
lack of documentation, the petitioner failed to demonstrate that the beneficiary's knowledge is more than the 
knowledge held by a skilled worker. See Mc~tter ofPenner, 18 I&N Dec. at 52. 
Although the petitioner asserted in its June 2002 letter that the beneficiary's "high level responsibilities" 
differ from those of a typical applications software analystlprogrammer, the petitioner offered no description 
of the tasks performed by a typical applications software analystiprogrammer. Absent this documentation, 
there is no way to determine the legitimacy of the petitioner's claim. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matler of Treasure Crufi of California, 14 I&N Dec. 190 (Reg. Comm. 1972). Additionally, the petitioner 
does not reconcile this claim with its previous statement in the March 2002 letter that the beneficiary 
possesses the minimum educational degree required to perform in this position, which is consistent with 
industry standards. The petitioner's statement implies that no additional education or training is necessary to 
successfully perform the job responsibilities of an applications software analystlprograrnmer, and therefore, 
that the beneficiary's knowledge is equal to other workers employed by the petitioner in this field. 
This conclusion is further strengthened by counsel's summary on appeal of an article from Computerworld, in 
which the author explains the lack of formal software processes by United States software organizations and 
its impact on software quality. The author states that the reason behind the offshore development companies' 
ability to boast SEI-CMM levels of four or five is because "[they have] figured out that in order to scale their 
organizations into veritable software manufacturing factories, they have to follow processes that don't: depend 
on the genius of a few creative [individuals]." Counsel provides the following summary of the author's 
statement: 
In simple terms, the development and/or maintenance of software within offshore 
organizations such as the Petitioner's is strictly process driven, i.e. driven by managed, 
predictable, repeatable, optimized processes. In the United States, however, improvised, ad 
hoc processes and the competence, or what [the author] calls the 'genius,' of a few talented 
individuals seemingly drive software development projects. 
Counsel's claim that the petitioner's development and maintenance of software is a predictable, repeatable, 
and optimized process, which is not driven by a few talented individuals supports a finding that the 
beneficiary possesses knowledge comparable to the foreign entity's 9,500 skilled information technology 
workers employed by the petitioner and can not be considered a key employee. 
Moreover, the rarity of a Level 5 SEI-CMM assessment, while significant to the image of a software 
development and maintenance organization, is not an indicator of the level of knowledge possessed by the 
beneficiary. 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://w~.w.sei.cm~~.edu/products/courses linfo/intro.c~nm.l~tml, (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. It is therefore incorrect to rely on a 
company's rating from a voluntary training institute as a factor in establishing specialized knowledge. 
Because the assessment ratings are attributed to specific companies and not their employees the company 
itself possesses an advanced level of software processes. Additionally, as participation in the Institute is not 
mandatory, counsel's claim that "of thousands of organizations engaged in software development and/or 
EAC 02 147 501 79 
Page 13 
maintenance around the world, only 74 have software processes that have been assessed at SEI-CMM Level 
5" is not given any evidentiary weight. The record offers no indication as to the number of organizations that 
have chosen to receive the SEI-CMM training. 
Furthermore, the petitioner's claim that the beneficiary can be categorized as "senior level personnel" rather 
than a typical applications software analyst/programmer is questionable. The petitioner stated in its June 
2002 letter that the beneficiary qualifies as senior level personnel because he received training and extensive 
experience abroad with the petitioner's processes and procedures. However, despite the beneficiary's 
undocumented training, the beneficiary's actual length of employment abroad is not clarified by the record. 
The petitioner's inconsistent statements that the beneficiary has been employed by the foreign entity for 2.5 
years and for 3.5 years raises doubt as to the legitimacy of the beneficiary's employment abroad. While the 
AAO does not doubt that the beneficiary has been employed by the foreign entity, it does not seem that the 
beneficiary's two or three years of work experience would amount to the level of senior personnel. Again, 
going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Multer of Treusure Cra$ c$C'alifornia, 14 I&N Dec. 190 (Reg. Comm. 
1972). 
Lastly, counsel claims that the legislative history of the L-1 B 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 facilitate and promote business objectives of multinational 
organizations." The legislative history for the term "specialized knowledge" provides ample support for a 
restrictive interpretation of the tenn. In 17.56, Inc. v. Attorney Genrrui, 745 F. Supp. 9 (D.D.C. 1990), the 
court upheld the denial of an L-1 petition for a chef, where the petitioner claimed that the chef possessed 
specialized knowledge. The court noted that the legislative history demonstrated a concern that the L-1 
category would become too large: "The class of persons eligible for such nonirnrnigrant visas is narrowly 
drawn and will be carefillly regulated and monitored by the Immigration and Naturalization Service." Id. at 16 
(citing H.R. REP. No. 9 1-85 1, 1970 U.S.C.C.A.N. 2750, 2754, 1970 WL 581 5). The court stated, "[IJn light 
of Congress' intent that the L-1 category should be limited, it was reasonable for the INS to conclude that 
specialized knowledge capacity should not extend to all employees with specialized knowledge. On this 
score, the legislative history provides some guidance: Congress referred to 'key personnel' and executives." 
1756, Inc., 745 F. Supp. at 16. 
Similarly, in Mutter of Penner, the Commissioner emphasized that the specialized knowledge worker 
classification was not intended for "all employees with any level of specialized knowledge." 18 I&N Dec. 49 
(Comm. 1982). According to MuMer of Penner, "[s]uch a conclusion would permit extremely large numbers 
of persons to qualify for the 'L-I' visa" rather than the "key personnel" that Congress specitically intended. 
Id. at 53. 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." 
3 
Matter of Penner pre-dates the 1990 amendment to the definition of "specialized knowledge." 
Other than deleting the former requirement that specialized knowledge had to be "proprietary," however. the 
1990 amendment did not greatly alter the definition of the term. In particular, the 1990 Committee Report 
does not even support the claim that Congress "rejected" the INS interpretation of "specialized knowledge." 
The 1990 Committee Report does not criticize, and does not even refer to, any specific INS regulation or 
precedent decision interpreting the term. All the Committee Report says is that the Comtnittee was 
recommending a statutory definition because of "[vlarying," [k., not specific all^ incorrect], "interpretations 
EAC 02 147 50 179 
Page 14 
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 seventy-four software engineering firms have attained 
SEI-CMM Level 5 certification. To assert that any employee of these firms should qualify for an L-1 B visa 
would fundamentally alter the nature of the visa classification. Such an expansion of the term "specialized 
knowledge" would transform the visa classification from one for aliens with specialized knowledge to one for 
any employee working for an enterprise at the forefront of its field. In short, 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., nor any administrative precedent decision, nor did the 1990 amendments otherwise mandate a less 
restrictive 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 tenn "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 U.S.C.C.A.N. 6710, 6749, 1990 WL 20041 8. As previously noted, the 
statutory definition states, "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." 8 
U.S.C. 1184(c)(2)(B). 
Prior to the Immigration Act of 1990, the statute did not provide a definition for the term specialized 
knowledge. Instead, the regulations defined the term as follows: 
"Specialized knowledge" means knowledge possessed by an individual whose advanced level 
of expertise and proprietary knowledge of the organization's product, service, research, 
equipment, techniques, management, or other interests of the employer are not readily 
available in the United States labor market. This definition does not apply to persons who 
have general knowledge or expertise which enables them merely to produce a product or 
provide a service. 
8 C.F.R. 5 2 14.2(1)(l)(ii)(D)(1990). 
Although the Immigration Act of 1990 provided a statutory definition of the term "specialized knowledge," 
Congress did not give any indication that it intended to expand the field of aliens that qualify as possessing 
by INS," H. Rep. No. 101-723(I), ~upra, at 69, 1990 U.S.C.C.A.N. at 6749. Beyond that, the Committee 
Report simply restates the tautology that became 9 214(c)(2)(B). u. AAO concludes, therefore, that 
Mutter of Penner remains useful guidance concerning the intended scope of the "specialized knowledge" L- 
1 B classification. 
EAC 02 147 50179 
Page 15 
specialized knowledge. Although the statute omitted the term "proprietary knowledge" that was contained in 
the regulations, the statutory definition still calls for "special knowledge" or an "advanced level of 
knowledge," similar to the original regulation. Neither the 1990 House Report nor the amendments to the 
statute indicate that Congress intended to expand the visa category beyond the "key personnel" that were 
originally mentioned in the 1970 House Report. Considered in light of the original 1970 statute and the 1990 
amendments, it is clear that Congress intended for the class of nonimmigrant L-l aliens to be narrowly drawn 
and carefully regulated, and to this end provided a specific statutory definition of the term "specialized 
knowledge" through the Immigration Act of 1990. " 
In the present case, an evaluation of the record reveals that other software companies have achieved an 
SEI-CMM Level 5 rating, that the claimed specialized knowledge is itself widety available, and that other 
organizations, although not assessed at a 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 Level 5 training, 
thereby raising doubts that the beneficiary should be considered "key personnel.'' Finally, and most 
importantly, the petitioner has failed to document that the beneticiary has actually received the petitioner's 
SEI-CMM Level 5 training, the basis for the beneficiary's claim to specialized knowledge. 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 rationally determined 
that the beneficiary does not qualify as a specialized knowledge worker. 
It is noted that the current petition is for an extension of a L- I B petition that was previously approved by the 
director. If the 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 
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. Mutter ($Church 
' In addition, a review of the 1970 House Report indicates that Congress assumed that the nonimmigrant 
intracompany transferees would not compete with United States citizens for employment. When discussing 
airline personnel, for example, the Chairman noted that flight attendants on international flights would not 
enter the United States under an L-l nonimmigrant classification but could enter on an international flight 
under a different nonimmigrant classification. The Chairman observed that the entry of flight attendants was 
regulated to prevent them from competing with United States citizen flight attendants. Regarding the L-l 
classification, the Chairman stated that "the international personnel would not be competing, in my opinion at 
least, with an American worker which I think is a significant differentiation." H.R. Subcomm. No. 1 of the 
Jud. Comm., Immigration Act of 1970: Hearings on H.R. 445, 9 1 st Cong. 222 (November 12, 1969). 
Just as flight attendants do not normally enter under the L-l classification, Delta Airlines, lnc. v. USDOJ, Civ. 
No. 00-2977 LFO (D.D.C. Filed April 6, 2001), surnnlarily afjrmed Deilu Airlines, Inc., v. USDCIJ, No. 01- 
5186, 2001 WL 1488616 (D.C.Cir. 2001), computer programmers typically enter the United States as 
nonimmigrant workers under the H-IB classification, which is also regulated to prevent them from unfairly 
competing with United States workers. See gctrrrally 8 C.F.R. 6 214.2(h). Although not a determining factor 
in the present case, the beneficiary's current salary appears to be lower than the prevailing wage earned by a 
computer programmer employed in California, the state in which the beneficiary is presently working. Set. 
U.S. Dept. of Labor, Employment & Training Administration, htt~://www.flcdataccnter.com/owl.asp (last 
updated Jan. 6, 2004). 
EAC 02 147 50 179 
Page 16 
Scienlology Intrrnutional, 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. Sus.se?c Engg. Lid. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987); cert denied485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between the court 
of appeals and the district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philhurrnonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), ufd 248 F.3d 1139 (5th Cir. 
200 I), cert. denied, 122 S.Ct. 5 1 (200 1). 
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. 5 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.