dismissed L-1B Case: Information Technology

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W , Rm A3042 
Washington, DC 20529 
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FILE: EAC 02 173 53364 Office: VERMONT SERVICE CENTER Date: JUW 8 8 20m 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 10 1 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
*1 
/: i 
~&ert P. Wiernann, Director 
\ Administrative Appeals Office 
EAC 02 173 53364 
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-1B nonimrnigrant intracompany transferee with specialized knowledge pursuant 
to 5 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 101(a)(15)(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 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 8 1 10 1 (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. 5 214.2(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 02 173 53364 
Page 3 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior education, 
training, and employment qualifies 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. 
The issue is whether the beneficiary would be employed by the United States entity in a specialized 
knowledge capacity. 
Section 214(c)(2)(B) of the Act, 8 U.S.C. $ 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 specialized knowledge with respect to a company if the alien has a special 
knowledge of the company pralduct 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(1)(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. 5 214.2(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 101(a)(32) of the immigration 
and Nationality Act. 
The petitioner filed the instant nonimmigrant petition on April 26, 2002, indicating that the beneficiary would 
be employed in the United States as an "Applications Software AnalystIProgrammer." In an April 23, 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 Verizon Data Services (VDS) requires specialized knowledge 
of this process. The petitioner stated that the beneficiary obtained his specialized knowledge through his 
participation in the foreign entity's in-house training program, which is offered only to select employees. 
Specifically, the petitioner noted that the beneficiary was one of fewer that half of the company's 19,000 
information technology consultants to h~ave received the SEI-CMM Level 5 training, which the petitioner 
claimed "is not commonly known or generally practiced in the international software development and 
maintenance sector." 
The petitioner explained that the beneficiary's job duties onsite at VDS would include: analyzing business 
data; designing staging areas in the database; loading data into initial tables; developing data transfer scripts 
EAC 02 173 53364 
Page 4 
from Oracle to DB2; developing procedures for transferring data from initial tables to master tables; 
performing backup and recovery for staging area databases; and validating and changing user data. The 
petitioner also provided the following outline of the beneficiary's job responsibilities in the United States: 
Utilize TCS' Quality and Knowledge Management Systems, such as IPMS, PAL, BAL 
(Quality and Knowledge management Systems) to customize the company's internally 
developed, SEI-CMM Level 5 assessed software development and maintenance process 
to meet project quality and operational process requirements; 
Use Project Planning Guidlelines, 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; 
Implement and Coordinate Software Configuration Management (SCM) activities as 
outlined in TCS' Quality Manual; 
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 future offshore maintenance; 
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; 
Ensure that software work product is handed over to client within established TCS 
parameters; and 
Work with teams to implement changes in technology and/or processes as may be 
required. 
The petitioner stated that in order to successfully perform these job duties, the foreign corporation requires, at 
a minimum, a baccalaureate degree in computer science, computer information systems 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 Masters of Technology degree in Computer 
Science, and provided: 
Since May 1998, [the beneficiary] has gained advanced, highly specialized practical 
knowledge of TCS' internally developed SEI-CMM Level 5 Assessed software development 
and maintenance process, as well as its customization to meet the quality and operational 
requirements for considerable assignments involving the development, enhancement, 
maintenance, and support of application systems across a variety of business application and 
technology domains for TCS' clients in the international marketplace. These skills, 
experience, and knowledge constitute a body of highly specialized knowledge that is not 
readily transferable to another individual. [The beneficiary's] training and experience 
qualifies him to contribute to TCS' U.S. operations as a result of knowledge not generally 
EAC 02 173 53364 
Page 5 
found in the information technology services and consulting sector worldwide. [The 
beneficiary's] specialized knowledge of TCS' quality assurance processes and procedures is 
still required for the successful completion of ongoing assignments for VDS. As stated 
before, [the beneficiary's combination of training and nearly four years of experience 
utilizing our quality assurance framework make him a critical specialized knowledge 
professional on this project. 
The petitioner submitted a resume, transcripts, a provisional certificate for Master of Science degree, and an 
earnings statement with the accompanying evidence. 
The director issued a request for additional evidence on June 16, 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 July 29, 2002, stating that the beneficiary's knowledge is different 
from others in his field as a result of his training in the foreign entity's processes and procedures, which are 
consistent with SEI-CMM Level 5 quality assurance methodologies. The petitioner explained that a level 5 
assessment of the SEI-CMM "is the highest and most sought after quality assurance standard in the 
information technology industry worldwide, and 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, Software Inspections, Walkthroughs, Peer 
Reviews, Root Cause Analysis, Statistical Process Control, etc.) 
Software Quality Management Procedures 
Software Project Planning and Oversight 
Requirements Management 
Software Product Engineering 
Software Metrics and Measurement 
Software Maintenance Management 
Software Configuration Management 
Software Testing 
Software Process Improvement and Assessment 
Software Estimation 
EAC 02 173 53364 
Page 6 
Software Quality Assurance 
Inter-group Coordination 
Quantitative Process Management 
Technology Change Management 
o Process Change 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. Moreover, in his tenure with TCS, [the beneficiary] has 
more than 4 years of advanced, highly specialized, practical knowledge of TCS' SEI-CMM 
Level 5 software development and maintenance process as it is tailored to meet the quality 
and operational requirements of Database Administration assignments for clients in the 
international marketplace. [The beneficiary] has acquired considerable knowledge of TCS' 
onsite-offshore software development process, which utilizes high-speed satellite data links, 
voice, and video communications, sophisticated process flows, quality and knowledge 
management systems, software development tools, and project management process and 
procedures, that allow onsite and offshore project teams to work together to provide clients 
such as Verizon [Dlata Services with timely, cost-effective, and highly qualitative software 
services. This combination of skills, knowledge, and experience, which [the beneficiary] 
possesses, constitutes a body of advanced, highly specialized knowledge that is not readily 
transferable to another individual. It is our position that [the beneficiary's] combination of 
knowledge, experience, and skill is advanced in relation to the vast majority of our project 
staff, particularly with regard to his training in our internal quality assurance framework. It is 
at this level that TCS believes it is entitled to transfer [the beneficiary] to the U.S. as a 
specialized knowledge employee. 
The petitioner further provided this additional job description of the beneficiary's assignment in the United 
States: 
[The beneficiary] is involved in such activities as the development of data extraction, transfer, 
and load scripts for the transfer of data for Oracle to DB2 Databases; the design of staging 
area tables in databases; [and the] perform[ance] [of] backup and recovery staging area 
databases; etc. He is also responsible for implementing and overseeing TCS' SEI-CMM 
Level 5 software development and maintenance process on these assignments including: root 
cause analysis, software inspection, software reviews, code walkthrough, software 
configuration management, defects tracking and prevention, defects measurement, 
requirements management, software project planning and oversight, intergroup coordination, 
technology change management, process change management, and quantitative process 
management, all of which are critical components or phases of TCS' quality assurance 
measures. As these projects are still in active development, [the beneficiary's] advanced 
skills in quality assurance are still required by TCS for these undertakings. 
EAC 02 173 53364 
Page 7 
The petitioner stated that the above-outlined job duties distinguish the beneficiary from a "typical Information 
Technology Analyst." 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 
information technology analysts 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-1B 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. 
In 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 beneficiary's job duties does not distinguish the tasks performed 
by the beneficiary as significantly different from those of other applications software analysts/programmers, 
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. 
Accordingly, the director denied the petition. 
In an appeal filed on May 1, 2003, counsel claims that the director 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 
EAC 02 173 53364 
Page 8 
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 imposed 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. Counsel 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 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. 
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. 5 
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 AnalystRrogrammer" 
and the tasks that this position entails, the petitioner has not documented the beneficiary's claimed specialized 
knowledge. Both counsel and the petitioner repeatedly assert throughout the record that the beneficiary 
participated in the foreign entity's in-house training program, which provided specialized knowledge of its 
SEI-CMM Level 5 software development and maintenance process. However, the record is devoid of 
documentation, such as a course certification, training records, or a confirmation from a corporate director, 
that the beneficiary received the claimed SEI-CMM training or that the beneficiary is familiar with the 
petitioner's internally developed SEI-CMM process. In fact, the beneficiary's five-page resume identifies 
only one training course completed by the beneficiary, titled "Initial Training Programme [sic]," which, from 
the topics listed in the training program, does not incorporate training in SEI-CMM level 5 methodologies. 
Also, the descriptions of the beneficiary's current and previous work assignments and the accompanying 
EAC 02 173 53364 
Page 9 
responsibilities do not reflect the application of the foreign entity's SEI-CMM level 5 processes and 
procedures to each particular job. 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 tlie 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. Matter of Obaigbena, 19 
I&N Dec. 533, 534 (BIA 1988); Matter 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, 120 (Comm. 198 1) (citing Matter of Raulin, 13 I&N Dec. 6 18 
(R.C. 1970) and Matter of LeBlanc, 13 I&N Dec. 8 16 (R.C. 1971)).' As stated by the Commissioner in 
Matter of Penner, when considering whether the beneficiaries possessed specialized knowledge, "the LeBlanc 
and Raulin decisions did not find that the occupations inherently qualified the beneficiaries for the 
classifications sought." 18 I&N Dec. at 52. Rather, the beneficiaries were considered to have unusual duties, 
skills, or knowledge beyond that of a skilled worker. Id. The Commissioner also provided the following 
clarification: 
A distinction can be made between a person whose skills and knowledge enable him or her to 
produce a product through physical or skilled labor and the person who is employed primarily 
for his ability to carry out a key process or function which is important or essential to the 
business' operation. 
Id. at 53. 
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 Matter 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 of Penner remains applicable to the current matter. The decision noted that the 1970 
House Report, H.R. No. 91-85 1, stated that the number of admissions under the L-1 classification "will not be 
- - 
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 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(I), at 69, 1990 U.S.C.C.A.N. at 6749. Beyond that, the 
Committee Report simply restates the tautology that became section 214(c)(2)(B) of the Act. Id. The AAO 
concludes, therefore, that the cited cases remain useful guidance concerning the intended scope of the 
"specialized knowledge" L-1B classification. The AAO supports its use of Matter of Penner, as well in 
offering guidance interpreting "specialized knowledge." Again, the Committee Report does not reject the 
interpretation of specialized knowledge offered in Matter of Penner. 
EAC 02 173 53364 
Page 10 
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 5 1. 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." Matter 
of Penner, id. at 50 (citing H.R. Subcomm. No. 1 of the Jud. Comm., Immigration Act of 1970: Hearings on 
H.R. 445, 91st Cong. 210,2 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 classification 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 of Colley, "[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." 18 I&N Dec. at 119. According to Matter ofPenner, "[sluch a conclusion would 
permit extremely large numbers of persons to qualify for the 'L-1' visa" rather than the "key personnel" that 
Congress specifically intended. 18 I&N Dec. at 53; see also, 17j6, Inc., 745 F. Supp. at 15 (concluding that 
Congress did not intend for the specialized knowledge capacity to extend to all employees with specialized 
knowledge, but rather to "key personnel" and "executives.") 
The beneficiary's job description does not distinguish his knowledge as more advanced or distinct among 
other 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, 15 (D.D.C. 1990).~ The Congressional record specifically states that the L-1 category was 
intended for "key personnel." See generally, H.R. REP. No. 91-851, 1970 U.S.C.C.A.N. 2750. The term "key 
personnel" denotes a position within the petitioning company that is "of crucial importance." Webster's N New 
College Dictionary 605 (Houghton Mifflin Co. 2001). In general, all employees can reasonably be 
2 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 
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(I), 1990 U.S.C.C.A.N. 6710,6749, 1990 WL 200418. 
EAC 02 173 53364 
Page 11 
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 "officers adjudicating petitions involving 
specialized knowledge must ensure that the knowledge possessed by the beneficiary is not general knowledge 
held commonly throughout the industry but that it is truly specialized." Memorandum from James A. Puleo, 
Acting Associate Commissioner, Immigration and Naturalization Service, Interpretation 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 analysts/programmers. The petitioner stated in its July 28, 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 information technology analysts. As the petitioner failed to document 
the beneficiary's SEI-CMM training these claims have little value. However, despite the lack of 
documentation, the petitioner failed to demonstrate that the beneficiary's knowledge is more than the 
knowledge held by a skilled worker. See Matter of Penner, 18 I&N Dec. at 52. 
Although the petitioner asserted in its July 2002 letter that the beneficiary's responsibilities differ from those 
of a typical information technology analyst, the petitioner offered no description of the tasks performed by a 
typical information technology analyst. More importantly, the petitioner offers no explanation as to why the 
beneficiary, whose job title is "applications software analyst/programmer," is being compared to an 
information technology analyst. 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. Matter of Treasure Craji of California, 14 
I&N Dec. 190 (Reg. Comm. 1972). Additionally, the petitioner does not reconcile this claim with its previous 
statement in the April 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 
EAC 02 173 53364 
Page 12 
applications software analyst/programmer, 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://www.sei.cmu.edu/products/courses /info/intro.cmtn.html, (last updated Nov. 4, 2003). Because SEI is a 
voluntary training facility, any software company can purchase a report on how to perform software process 
assessments and train its employees in order to receive a Level 5 rating. 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 
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 analystlprogrammer is questionable. The petitioner stated in its July 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. Despite the beneficiary's undocumented 
training, it does not seem that the beneficiary's four years of work experience at the time of filing the petition 
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. Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
EAC 02 173 53364 
Page 13 
Lastly, counsel claims that the legislative history of the L-1B 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 term. In 1756, Inc. v. Attorney General, 745 F. Supp. 9 (D.D.C. 1990), the 
court upheld the denial of an L-1 petition for a chef, where the petitioner claimed that the chef possessed 
specialized knowledge. The court noted that the legislative history demonstrated a concern that the L-1 
category would become too large: "The class of persons eligible for such nonimmigrant visas is narrowly 
drawn and will be carefully regulated and monitored by the Immigration and Naturalization Service." Id. at 16 
(citing H.R. REP. No. 91-85 1, 1970 U.S.C.C.A.N. 2750, 2754, 1970 WL 5815). The court stated, "[Iln 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 Matter 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 Matter of Penner, "[s]uch a conclusion would permit extremely large numbers 
of persons to qualify for the 'L-1' visa" rather than the "key personnel" that Congress specifically 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 
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-1B visa 
would fundamentally alter the nature of the visa classification. Such an expansion of the term "specialized 
knowledge" would transform the visa classification from one for aliens with specialized knowledge to one for 
any employee working 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 
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 Committee was 
recommending a statutory definition because of "[vlarying," [k., not specifically incorrect], "interpretations 
by INS," H. Rep. No. 101-723(I), sujm, at 69, 1990 U.S.C.C.A.N. at 6749. Beyond that, the Committee 
Report simply restates the tautology that became 5 214(c)(2)(B). Id. AAO concludes, therefore, that 
Matter of Penner remains useful guidance concerning the intended scope of the "specialized knowledge7' L- 
1B classification. 
EAC 02 173 53364 
Page 14 
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 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(I), 1990 U.S.C.C.A.N. 6710, 6749, 1990 WL 200418. 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. $ 1 184(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. $ 2 14.2(1)(1)(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 
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-1 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 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-1 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-1 
classification, the Chairman stated that "the international personnel would not be competing, in my opinion at 
EAC 02 173 53364 
Page 15 
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 widely 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 beneficiary 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-1B 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. 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 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 Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd 248 F.3d 1139 (5th Cir. 
2001), 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 29 1 of the Act, 8 U.S.C. 9 136 1. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. 
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. 445,91st Cong. 222 (November 12, 1969). 
Just as flight attendants do not normally enter under the L-1 classification, Delta Airlines, Inc. v. USDOJ, Civ. 
No. 00-2977 LFO (D.D.C. Filed April 6, 2001), summarily afJirmed Delta Airlines, Inc., v. USDOJ, No. 01- 
5186, 2001 WL 1488616 (D.C.Cir. 2001), computer programmers typically enter the United States as 
nonimmigrant workers under the H-1B classification, which is also regulated to prevent them from unfairly 
competing with United States workers. See generally 8 C.F.R. 5 214.2(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. See 
U.S. Dept. of Labor, Employment & Training Administration, l~ttp://~w.flcdatacenter.com/owl.as~ (last 
updated Jan. 6,2004).