dismissed L-1B Case: Information Technology

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US. Department of Homeland Security 
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 Washington, DC 20529-2090 
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 U. S. Citizenship 
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File: WAC 07 171 54598 Office: CALIFORNLA SERVICE CENTER Date: 
 NOV 0 3 
Petition: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 6 1 101 (a)(] 5)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 07 171 54598 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to amend a previous approved petition (EAC 07 019 
5 1539) having validity dates of November 1,2006 through October 3 1,2008. The petitioner seeks to employ 
the beneficiary as a "test lead" as an L-1B nonimmigrant intracompany transferee with specialized knowledge 
pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 
1 101 (a)(15)(L). The petitioner, an information technology service provider, claims to be acquiring the 
beneficiary's foreign employer and its subsidiary in the United States, RelQ, and now seeks permission to 
employ the beneficiary based on this newly formed qualifying relationship. 
Citing to the anti "job shop" provisions of the L-1 Visa Reform Act of 2004, the director denied the petition 
as an impermissible arrangement to provide labor for hire.' Specifically, the director concluded that the 
beneficiary, who will be stationed primarily at a worksite of an unaffiliated employer, will not be 100% 
supervised by the petitioner, and that he will be employed in a position which is essentially an arrangement to 
provide labor for hire for the unaffiliated employer, Shopzilla.com (hereinafter "the unaffiliated employer"). 
The director &her determined that the beneficiary does not have specialized knowledge of a product or 
service specific to the petitioner. 
On appeal, counsel argues that the director used an improper standard to conclude that the beneficiary "may 
not be 100% supervised by the petitioner," leading to the determination that the beneficiary is ineligible for 
1 
 The term "job shop" is commonly used to describe a firm that petitions for aliens in L-1B status to contract 
their services to other companies, often at wages that undercut the salaries paid to U.S. workers. Upon 
introducing the L-1 Visa Reform Act, Senator Saxby Chambliss described the abuse as follows: 
The situation in question arises when a company with both foreign and U.S.-based operations 
obtains an L-1 visa to transfer a foreign employee who has "specialized knowledge" of the 
company's product or processes. The problem occurs only when an employee with 
specialized knowledge is placed offsite at the business location of a third party company. In 
this context, if the L-1 employee does not bring anything more than generic knowledge of the 
third party company's operations, the foreign worker is acting more like an H-1B professional 
than a true intracompany transferee. Outsourcing an L-1 worker in this way has resulted in 
American workers being displaced at the third party company. 
149 Cong. Rec. S11649, *S11686,2003 WL 22143 105 (September 17,2003). 
In contrast with the H-1B visa classification, the L-1B visa classification does not contain any provisions to 
protect U.S. workers. See generally, 8 C.F.R. 5 214.2(h). The L-1B visa classification is not subject to a 
numerical cap, does not require the employer to certify that the alien will be paid the "prevailing wage," and 
does not require the employer to pay for the return transportation costs if the alien is dismissed from 
employment. Additionally, by filing under the L-1B classification, an employer avoids paying the $1,500 fee 
required for each new H-1B petition which hds job training and low-income scholarships for U.S. workers. 
Section 214(c)(9) of the Immigration and Nationality Act. 
WAC 07 171 54598 
Page 3 
the benefit sought pursuant to the L-1 Visa Reform Act. Consequently, counsel argues that the petitioner 
established that the beneficiary will be principally supervised by the petitioner, and not by the unaffiliated 
employer. Furthermore, counsel asserts that the director relied on evidence outside of the record in 
concluding that the beneficiary does not have specialized knowledge of a product or service specific to the 
petitioner. Finally, counsel argues that the record establishes that the beneficiary has specialized knowledge 
of the petitioner's tools, methodologies, and technologies, i.e., Project Monitoring System, Test Professional, 
Automate Q, and Professional Q, which are used in the petitioner's provision of services to the unaffiliated 
employer. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (a)(15)(L) of the Act. Specifically, 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 within three years preceding the beneficiary's application for admission into the United 
States. 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) further states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (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. 
(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 himher 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. 
Section 214(c)(2)(B) of the Act, 8 U.S.C. 5 1184(c)(2)(B), provides: 
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 product and its application in international markets or has an 
advanced level of knowledge of processes and procedures of the company. 
Furthermore, the regulation at 8 C.F.R. 214.2(1)(l)(ii)(D) defines "specialized knowledge" as: 
WAC 07 171 54598 
Page 4 
[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. 
Finally, as amended by the L-1 'Visa Reform Act of 2004, section 214(c)(2)(F) of the Act, 8 U.S.C. 5 
1 184(c)(2)(F), provides: 
An alien who will serve in a capacity involving specialized knowledge with respect to an 
employer for purposes of section 1 101 (a)(15)(L) and will be stationed primarily at the 
worksite of an employer other than the petitioning employer or its affiliate, subsidiary, or 
parent shall not be eIigibIe for classification under section 1 10 1 (a)(15)(L) if - 
(i) the alien will be controlled and supervised principally by such unaffiliated 
employer; or 
(ii) the placement of the alien at the worksite of the unaffiliated employer is 
essentially an arrangement to provide labor for hire for the unaffiliated 
employer, rather than a placement in connection with the provision of a product 
or service for which specialized knowledge specific to the petitioning employer 
is necessary. 
Section 214(c)(2)(F) of the Act was created by the L-1 Visa Reform Act of 2004 and is applicable to all L-1B 
petitions filed after June 6,2005, including extensions and amendments involving individuals currently in L-1 
status. See Pub. L. No. 108-447, Div. I, Title IV, 118 Stat. 2809 (Dec. 8, 2004). As explained above, the 
primary purpose of the L-1 Visa Reform Act amendment was to prohibit the "outsourcing" of L-1B 
intracompany transferees to unaffiliated employers to work with "widely available" computer software and, 
thus, help prevent the displacement of United States workers by foreign labor. See 149 Cong. Rec. S11649, 
*S11686, 2003 WL 22143105 (September 17, 2003); see also Sen. Jud. Cornm., Sub. on Immigration, 
Statement for Chairman Senator Saxby Chambliss, July 29, 2003, available at 
<http://judiciary.senate.gov/member~statement.cfm?id =878&witMid=3355> (accessed on June 3,2008). 
In evaluating a petition subject to the terms of the L-1 Visa Reform Act, the AAO must emphasize that the 
petitioner bears the burden of proof. Section 291 of the Act, 8 U.S.C. 5 1361; see also 8 C.F.R. § 103.2(b)(l). 
If a specialized knowledge beneficiary will be primarily stationed at the worksite of an unaffiliated employer, 
the statute mandates that the petitioner establish both: (1) that the alien will be controlled and supervised 
principally by the petitioner, and (2) that the placement is related to the provision of a product or service for 
which specialized knowledge specific to the petitioning employer is necessary. Section 214(c)(2)(F) of the 
Act. These two questions of fact must be established for the record by documentary evidence; neither the 
unsupported assertions of counsel or the employer will suffice to establish eligibility. Matter of Soffici, 22 
I&N Dec. 158, 165 (Comm. 1998); Matter of Obaigbena, 19 I&N Dec. 533,534 (BIA 1988). If the petitioner 
fails to establish both of these elements, the beneficiary will be deemed ineligible for classification as an L-1B 
intracompany transferee. 
WAC 07 171 54598 
Page 5 
I. 
 Control and Supervision of Beneficiary 
The first issue in this matter is whether the petitioner has established that the beneficiary, who will be 
stationed primarily at the worksite of the unaffiliated employer, will be controlled and supervised principally 
by the petitioner. Section 214(c)(2)(F)(i) of the Act. 
The petitioner claims in the Form 1-129 that the beneficiary will be stationed primarily offsite and that the 
beneficiary "will be supervised on a daily basis b who is the Test Manager." 
On May 29,2007, the director requested additional evidence. The director requested, inter alia, evidence that 
the beneficiary will be controlled and supervised principally by the petitioner; information regarding the 
location where the beneficiary will work; evidence that the beneficiary's placement at the client's worksite is 
not merely labor for hire; copies of contracts, statements of work, work orders, or service agreements between 
the petitioner and the unaffiliated employer for the services to be provided; and a copy of the pertinent parts 
of the petitioner's milestone plan showing beginning and ending dates for the service to be provided by the 
petitioner with projected work completion dates shown in weekly increments. 
In response, counsel submitted a letter dated August 20, 2007 in which counsel describes the beneficiary's 
employment at the worksite of the unaffiliated employer as follows: 
The beneficiary is stationed with [the unaffiliated employer] in Los Angeles, California as a 
Test Lead. Although he is not stationed at a facility belonging to the petitioner, [the 
petitioner] retains ultimate authority over the beneficiary as he engages in the above 
responsibilities. The beneficiary is required to report on a daily basis to his direct manager, 
- Delivery Manager at [the petitioner]. The process of all activities at 
the client worksite is controlled by [the petitioner]. [The petitioner], and more specifically 
, supervises the beneficiary's work, delegates tasks at the worksite, manages 
day-to-day functions that the beneficiary engages in, and determines the length of time spent 
at the worksite and the tests as well as procedures that are conducted there. [The petitioner] 
also supervises the preparation of test plans and test cases before they are installed at the 
client worksite; reviews weekly status reports to ensure all work is performed within a set 
budget and on a set schedule; and oversee any technical challenges that arise during the 
project execution. 
Although the beneficiary is stationed outside the L organization, that fact alone does not 
establish ineligibility for L classification. In order for the ground of ineligibility to apply 
"control and supervision" of the beneficiary at the nonaffiliated worksite must be "principally 
by the unaffiliated employer." This is not the case for [the beneficiary] as his work is 
controlled and supervised first and foremost by [the petitioner]. [The beneficiary] is required 
to repot the results of regression testing and the execution of automation scripts to Mr. 
. Mr. 
 reviews each Test Plan that is to be conducted for [the unaffiliated 
employer], helps solve any technical challenges that arrive at the worksite and manages any 
training that is required prior to executing the tests. [The petitioner] reviews weekly status 
reports of the beneficiary. The beneficiary's testing schedule is coordinated on a weekly basis 
WAC 07 171 54598 
Page 6 
by [the petitioner] and his day-to-day activities are monitored and directed by [the 
petitioner's] management. 
Although [the unaffiliated employer] exercises some control over the work performed such as 
monitoring the status of the project and daily work progress, ultimate control over the 
beneficiary's work is by his direct manager The beneficiary receives all 
direction and instruction from his supervisor within the L organization. [The unaffiliated 
employer] does not control the work or the day-to-day tasks of the beneficiary in the sense of 
directing responsibilities or activities. 
Counsel also submits two documents titled "Master Services Agreement" which pertain to the petitioner's 
provision of services to the unaffiliated employer. These documents indicate that the petitioner, through its 
"authorized representatives," is an independent contractor who has been engaged to provide software testing 
services. However, these documents do not address the control or supervision of the authorized 
representatives, other than in paragraph 13 which indicates that representatives must "observe the working 
hours, working rules and security procedures established" by the unaffiliated employer. Furthermore, while 
the agreements are both for one-year terms, the unaffiliated employer reserves the right to terminate the 
petitioner's services at any time upon 30 days notice. However, the agreements do not specifically address a 
projected completion date for the project. Likewise, the remainder of the record is devoid of evidence 
addressing the progress and overall completion of the project. 
On or about September 2, 2007, an adjudications officer at the California Service Center telephoned counsel 
and left a message with a staff member requesting further information pertaining to the ownership of the 
software being tested at the unaffiliated employer's ~orksite.~ Counsel replied by facsimile on September 7, 
2007. 
On or about September 7, 2007, the director once again requested additional evidence. 
 The director 
requested, inter alia, information pertaining to the ownership of the software being tested at the unaffiliated 
employer's worksite and a list of all foreign nationals working at the same location as the beneficiary. 
In response, counsel submitted a letter dated October 22, 2007 in which she indicates that "the beneficiary is 
the sole employee stationed at the [unaffiliated employer's] worksite working in L-1B status." 
2 
 The officer's telephone call was an impermissible ex parte or "off record" communication. 
 The 
Administrative Procedure Act (APA) specifically prohibits ex parte communications: "no member of the 
body comprising the agency . . . who is or may reasonably be expected to be involved in the decisional 
process of the proceeding, shall make or knowingly cause to be made to any interested person outside the 
agency an ex parte communication relevant to the merits of the proceeding." 5 U.S.C. 557(d)(l)(B). As 
defined by the APA, an "ex parte communication" is "an oral or written communication not on the public 
record." 5 U.S.C. 551(14). While a telephone call or other communication may help an officer expedite a 
decision, the contents of the communication must be recorded for the record of proceeding. Otherwise, the 
record will be incomplete and the agency decision may not be given deference in court. Additionally, an ex 
parte communication may give an appearance of impropriety if an officer approves a petition based on 
communications or evidence that is not contained in the record. 
WAC 07 171 54598 
Page 7 
On November 6, 2007, the director denied the petition. The director concluded as follows: 
In order to establish the first requirement of the L-1 Visa Reform Act, the petitioner states the 
following: 
[The beneficiary] will be supervised on a daily basis by who is 
the Test Manager. 
The petitioner indicates that there are no other foreign national employees stationed at the 
[unaffiliated employer's] worksite. Therefore, it appears that the beneficiary may not be 
100% supervised by the petitioner. 
On appeal, counsel argues that the director used an improper standard in concluding that the beneficiary "may 
not be 100% supervised by the petitioner" and asserts that the beneficiary is eligible for the benefit sought. 
Counsel argues that the L-1 Visa Reform Act only obligates the petitioner to establish that the beneficiary will 
be "controlled and supervised principally" by the petitioner, and that this language does not require a 
demonstration that the beneficiary will be supervised by the petitioner off-site 100% of the time. See section 
214(c)(2)(F) of the Act. Counsel also claims that the record establishes that the beneficiary will be principally 
supervised by the petitioner, and not by the unaffiliated employer. 
Upon review, while the AAO agrees that the director applied an improper standard, the petitioner nevertheless 
failed to establish that the beneficiary, who will be employed at a worksite of an unaffiliated employer, will 
be controlled and supervised principally by the petitioner. Accordingly, the director's decision will be 
withdrawn in part, and the appeal will be dismissed. 
As a threshold matter, it is noted that the director's determination that "it appears that the beneficiary may not 
be 100% supervised by the petitioner" is an incorrect standard under the L-1 Visa Reform Act, and this 
determination shall be withdrawn. As accurately indicated by counsel, the L-1 Visa Reform Act requires that 
the petitioner establish that the alien will be controlled and supervised "principally" by the petitioner. The 
AAO agrees that the term "principally" does not require that the petitioner establish that the beneficiary will 
be supervised and controlled by the petitioner 100% of the time. Citizenship and Immigration Services (CIS) 
must interpret the term "principally" in accordance with its common usage. According to Webster's New 
College Dictionary, the word "principal" means "first, highest, or foremost in importance, rank, worth, or 
degree." p. 899 (3rd Ed. 2008). As an adverb, the terms "chiefly" and "mainly" are appropriate synonyms. 
Thus, even if the non-affiliated entity exercises some control or supervision over the work performed, the 
ground of ineligibility does not apply as long as such control and supervision lies first and foremost with the 
petitioning employer and the employer retains ultimate authority over the worker. 
That being said, the petitioner in this matter failed to establish that it is more likely than not that the 
beneficiary will be principally controlled and supervised by the petitioner. The record is entirely devoid of 
evidence addressing this issue other than the petitioner's uncorroborated claim in the Form 1-129 that the 
beneficiary "will be supervised on a daily basis b- who is the Test Manager." Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Soffici, 22 I&N Dec. at 1 65 (citing Matter of Treasure Craft of California, 14 
WAC 07 171 54598 
Page 8 
I&N Dec. 190 (Reg. Cornrn. 1972)). In response to the Request for Evidence, counsel submitted only her 
uncorroborated letter dated August 20, 2007. Consequently, the petitioner did not submit any evidence 
responsive to the director's request pertaining to the beneficiary's supervision and control. The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. at 534; Matter of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Without documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's 
burden of proof. Failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). The non-existence or other unavailability of 
required evidence creates a presumption of ineligibility. 8 C.F.R. $ 103.2(b)(2)(i). It is again emphasized 
that the petitioner bears the burden of proof in these proceedings. Section 291 of the Act; see also 8 C.F.R. 5 
103.2(b)(l).~ 
Accordingly, as the petitioner failed to establish that the beneficiary, who will be employed at the worksite of 
an unaffiliated employer, will be principally controlled and supervised by the petitioner, the petition may not 
be approved, and the appeal is dismissed. 
11. Specialized Knowledge 
The second issue in this matter is whether the petitioner has established that the beneficiary has specialized 
knowledge of a product or service specific to the petitioner and, thus, will not be employed in a position 
which is essentially an arrangement to provide labor for hire for an unaffiliated employer. Section 
214(c)(2)(F)(ii) of the Act. 
The petitioner described the beneficiary's job duties and purported specialized knowledge in a letter dated 
May 15, 2007 as follows: 
In this position as a Test Lead [the beneficiary] will perform the following job duties: 
Prepare project's planning documents - Test approach, Test Plan, CM Plan; 
Establishing project's specific process based on RMS and project requirements; 
Ensuring generation of test case documents, reviewing them for completeness and 
accuracy; 
Ensuring the project is executed as per project's plans and processes; 
Even considering counsel's uncorroborated assertions in her August 20, 2007 letter, this description fails to 
credibly establish that the beneficiary will be principally supervised and controlled by the petitioner. As 
noted by the director, the beneficiary will be the only employee of the petitioner stationed at the worksite of 
the unaffiliated employer. According to the service agreements, the beneficiary will need to abide by the 
same rules and procedures imposed by the unaffiliated employer on its own workers. Although counsel 
claims that the beneficiary will be supervised on a daily basis by a test manager, the record does not indicate 
where, exactly, this test manager is located or how he will "supervise" or "control" the beneficiary without 
having some personal interaction with him. Once again, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 
22 I&N Dec. at 165. 
WAC 07 171 54598 
Page 9 
Test execution and reporting; 
Reporting the project status to the Test Manager; 
Communication with the customer's project manager or designated representative; 
Resolving any customer complaints and ensuring customer satisfaction; 
Conducting test-design and test-procedure walk through and inspections; 
Ensuring that test-product documentation is complete; 
Provide project artifacts to the project office for archival and knowledge management. 
To perform the duties described above, [the beneficiary] has attained advanced knowledge 
and training of the RelQfs software products, tools, methodologies and management systems. 
This knowledge can only be gained through prior experience with RelQ and is a critical part 
of RelQ's competitive advantage. 
[The beneficiary] has the specialized knowledge and experience with proprietary tools such 
as RelQ Test ProfessionalTM (RTP), RelQ Project Monitoring SystemTM (PMS), BancQTM, 
AutomatedQTM (test automation), PerfonnanceQTM (performance testing), SecureQTM 
(security testing) and configuration management tools such as RevQTM, TestQTM and 
EstimQTM. These tools are a requirement for this position. Providing independent testing 
and quality assurance [the beneficiary] uses his knowledge for these RelQ proprietary tools 
and software engineering principles, project auditing, metrics-based management and root 
cause analysis models developed by RelQ. 
On May 29, 2007, the director requested additional evidence. The director requested, inter alia, evidence that 
the beneficiary's knowledge is uncommon, noteworthy, or distinguished by some unusual quality and is not 
generally known by practitioners in the beneficiary's field of endeavor; evidence setting the beneficiary's 
knowledge apart from elementary or basic knowledge; and copies of contracts, statements or work, work 
orders, or service agreements pertaining to the petitioner's provision of services to the unaffiliated employer. 
In response, counsel submitted a letter dated August 20,2007 in which she claims that the beneficiary "will be 
using his knowledge of several proprietary tools and procedures as part of his job duties as Test Lead while 
stationed at the client worksite." Specifically, counsel claims that the beneficiary has specialized knowledge 
of RelQ Test Professional (RTP), RelQ Project Monitoring System (PMS), AutomateQ, and PerformanceQ. 
Counsel also claims that these tools "were patented so as to protect the uniqueness of these processes," that 
they "have not been recreated by competitors in the industry," and that the beneficiary's knowledge of these 
tools could only have been gained through prior employment and training with the petitioning organization. 
Counsel further explains: 
The petitioner submits that it has been demonstrated, through the petition and supporting 
documents previously submitted and in this instant brief, that the beneficiary's knowledge is 
unique and apart from the elementary or basic knowledge possessed by others, both within 
[the petitioner] and within the information technology industry. The beneficiary possesses 
more than nine years of experience using the [petitioner's] proprietary tools and software, and 
he has been specifically trained on the [petitioner's] technology and methodology necessary 
for this critical project. In order to meet each one of his daily job duties, the [bleneficiary 
WAC 07 171 54598 
Page 10 
will have to utilize [the petitioner's] proprietary and unique procedures, tools and processes 
learned abroad. The knowledge of these processes and products is of a highly sophisticated 
nature that can only be gained through prior experience with [the petitioner] and is a critical 
part of [the petitioner's] competitive advantage. Furthermore, the [bleneficiary has 
knowledge of [the petitioner's] business procedures or methods of operation to the extent that 
is not general knowledge held commonly throughout the industry but that it is truly 
specializes. 
The beneficiary gained knowledge of the above-mentioned proprietary tools and procedures 
while employed by [the petitioning organization] (formerly RelQ) from August 1998 until 
present. During this time, the beneficiary received highly specialized training on the projects 
and tests he is currently conducting at the client worksite. Specifically, the beneficiary has 
received extensive training and gained experience using the following systems that are 
utilized specific to the project he is engaged in at [the unaffiliated employer]: 
1. E-Moneyger - Sessions on the Functionality by SMBC Business Team. This included 
regular interactive sessions on the requirements and purpose of the new system being 
organized by the business team. Sessions were scheduled during the system study phase 
and whenever there were any new releases. The desired hnctionalities of the new E- 
Moneyger system were explained using prototypes and videoconference. 
2. Verification and Validation Training - This training provided the beneficiary with an in 
depth understanding of all the verification and validation techniques for Software testing. 
It also covered the practical and theoretical aspects of Fagan's review process. The 
duration of this training was one month and conducted in Software Private Limited's 
training department and with guest lectures from experienced managers within [the 
petitioning organization]. 
3. Training on Quality Management System - This training on Quality Management System 
covered all the quality processes of [the petitioning organization] and taught how to 
effectively use the Quality processes for achieving the project goals. 
The above-mentioned proprietary tools, procedures and product are ones that are not 
available elsewhere and the [bleneficiary is familiar with the various procedures involved in 
such manufacture, use or service of these products. The knowledge needed to conduct the job 
duties on a daily basis could have only been gained through prior experience with [the 
petitioning organization]. These proprietary tools are unique to RelQ and are not the type to 
normally be found in the industry. The products used are ones that are not used by other 
businesses and is [sic] different from other products to the extent the U.S. firm would 
experience significant interruption of business in order to train a new worker to assume the 
duties to be assigned to the applicant. The [bleneficiary has been using his knowledge of the 
above tools and procedures as Test Lead for various clients, including [the unaffiliated 
employer], for the last seven years. [The beneficiary's] advanced knowledge of [the 
petitioning organization's] processes and procedures cannot be easily duplicated, and it is not 
possible to easily or quickly train an U.S. worker to undertake the proposed job duties in the 
United States. 
WAC 07 171 54598 
Page 1 I 
Counsel also submits two documents titled "Master Services Agreement" which pertain to the petitioner's 
provision of services to the unaffiliated employer. The agreements indicate in paragraph 7 that the 
unaffiliated employer will own all work product produced by the petitioner. 
Counsel further argues that the prior L-1B approvals for the beneficiary should be given deference in the 
instant matter because there has not been a significant change in his employment and there was not a material 
error in the prior approvals. See Memo. From William R. Yates, Associate Director for Operations, to 
Service Center Directors, The SigniJicance of a Prior CIS Approval of a Nonimmigrant Petition in the Context 
of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity (April 23,2004). 
On or about September 2, 2007, an adjudications officer at the California Service Center telephoned counsel 
and left a message with a staff member requesting further information pertaining to the ownership of the 
software being tested at the unaffiliated employer's worksite. Counsel replied by facsimile on September 7, 
2007 with a letter substantively identical to the letter submitted in response to the September 7,2007 Request 
for Evidence (see infra). 
On or about September 7, 2007, the director once again requested additional evidence. This written request 
appears to have been substantively identical to the adjudication officer's earlier telephonic request. The 
director requested, inter alia, information pertaining to the ownership of the software being tested at the 
unaffiliated employer's worksite. Specifically, the director queried whether the beneficiary will be engaged in 
working with products designed, developed, produced, or sold by RelQ or the petitioning organization. 
In response, counsel submitted a letter dated October 22, 2007 in which she reiterates that the beneficiary has 
specialized knowledge of the petitioning organization's "proprietary tools and procedures." Consequently, it 
appears that the beneficiary will not be engaged in working with products designed, developed, produced, or 
sold by RelQ or the petitioning organization to the unaffiliated employer. To the contrary, the beneficiary 
will be using his purported specialized knowledge of the petitioner's tools and procedures to provide services 
to the unaffiliated employer with regards to software or products not originally developed by the petitioning 
organization. 
On November 6,2007, the director denied the petition. The director concluded that the beneficiary, who will 
be stationed primarily at a worksite of an unaffiliated employer, will be employed in a position which is 
essentially an arrangement to provide labor for hire for the unaffiliated employer. The director further 
determined that the beneficiary does not have specialized knowledge of a product or service specific to the 
petitioner. The director concluded in part: 
The petitioner states that the client project is specialized in nature because it involves 
expertise with the petitioner's IT project management tools, procedures, and methodologies. 
The beneficiary will utilize his knowledge of Project Management System (PMS), Test 
Professional, Automate Q, and Professional Q as well as the petitioner's procedures, and 
methodologies to ensure the successful completion of the proposed Information Technology 
(IT) project. Project Monitoring System (PMS), Test Professional, Automate Q, and 
Professional Q appear to be important, complex tools, absent the likes of which competitors 
in the petitioner's chosen field of endeavor probably could not succeed. Each of the 
WAC 07 171 54598 
Page 12 
petitioner's competitors appears to have similar tools, or combinations and modifications 
thereof, intended to facilitate and enhance the probability of a successfid IT project and 
result. Additionally, it appears that each of the petitioner's competitors also "promulgates" a 
unique name andlor acronym for these essential elements of IT project management, claiming 
proprietary ownership and, therefore, specialized knowledge. 
On appeal, counsel argues that the record establishes that the beneficiary has specialized knowledge of the 
petitioning organization's tools, methodologies and management systems. Counsel further argues that the 
director erred in considering evidence outside of the record by comparing the petitioner's tools to unnamed 
tools and methodologies used by unnamed competitors in concluding that the beneficiary's knowledge is not 
specialized. 
Upon review, while the AAO agrees that the director improperly relied on evidence outside of the record, the 
petitioner nevertheless failed to establish that the beneficiary, who will be employed at a worksite of an 
unaffiliated employer, has specialized knowledge of a product or service specific to the petitioner and, thus, 
will not be employed in a position which is essentially an arrangement to provide labor for hire for an 
unaffiliated employer. The petitioner has failed to establish that his knowledge is specialized as defined at 8 
C.F.R. 3 214.2(1)(l)(ii)(D). Accordingly, the director's decision will be withdrawn in part, and the appeal will 
be dismissed. 
As correctly noted by counsel, the regulations prohibit the rendering of an adverse decision on the basis of 
evidence outside of the record without first permitting the petitioner to have an opportunity to inspect and 
rebut this evidence. 8 C.F.R. 5 214.2(1)(8)(i). In this matter, the AAO agrees that the director improperly 
alluded to her apparent knowledge of tools or methodologies utilized by the petitioner's "competitors" in 
explaining her basis for denying the petition without first permitting the petitioner to inspect and rebut this 
"evidence." Upon review, the AAO agrees that this allusion was improper, and the decision will be 
withdrawn in part. However, because the petitioner nevertheless failed to establish that the beneficiary has 
"specialized knowledge," the petition may not be approved and the appeal will be dismissed. 
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. $8 214.2(1)(3)(ii) and (iv). The petitioner must submit a detailed job 
description of the services to be performed sufficient to establish specialized knowledge. In this case, the 
petitioner fails to establish that the beneficiary's position in the United States requires an employee with 
specialized knowledge or that the beneficiary has specialized knowledge. 
Although the petitioner and its counsel repeatedly assert that the beneficiary's position in the United States 
requires "specialized knowledge," the petitioner and its counsel have not adequately articulated any basis to 
support this claim. The petitioner has failed to identify any specialized or advanced body of knowledge which 
would distinguish the beneficiary's role from that of other similarly experienced test lead or software workers. 
Going on record without documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of SoSfici, 22 I&N Dec. at 165. Specifics are clearly an important indication of 
whether a beneficiary's duties involve specialized knowledge; otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. See Fedin Bros. Co., Ltd. v. Sava, 724, F. Supp. 1103 
(E.D.N.Y. 1989), afd, 905, F.2d 41 (2d. Cir. 1990). Moreover, the petitioner failed to submit evidence in 
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response to the director's Request for Evidence concerning the specialized qualities of the beneficiary's 
knowledge. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 
 8 C.F.R. § 103.2(b)(14). The only "evidence" submitted by the petitioner is an 
uncorroborated letter written by the petitioner's counsel purporting to explain the specialized qualities of the 
beneficiary's knowledge. However, the unsupported assertions of counsel do not constitute evidence. Matter 
of Obaigbena, 19 I&N Dec. at 534; Matter of Laureano, 19 I&N Dec. 1; Matter of Ramirez-Sanchez, 17 I&N 
Dec. at 506. Without documentary evidence to support the claim, the assertions of counsel will not satisfy 
the petitioner's burden of proof. It is again emphasized that the petitioner bears the burden of proof in these 
proceedings. Section 291 of the Act. 
Even accepting counsel's uncorroborated description of the beneficiary's purported specialized knowledge, the 
record is not persuasive in establishing that the beneficiary's knowledge of RelQ's software products, tools, 
methodologies, and management systems, either in the context of the ongoing project being performed for the 
unaffiliated employer or in connection with his employment with the petitioner, constitutes "specialized 
knowledge." The record does not reveal the material difference between the beneficiary's knowledge of these 
tools and methodologies and the knowledge possessed by similarly experienced test leads and software 
workers in the industry in general or employed by the petitioner's organization. Without producing evidence 
that the petitioner's tools or methodologies are different in some material way from software test tools or 
methodologies in general, the petitioner cannot establish that the beneficiary's knowledge is noteworthy, 
uncommon, or distinguished by some unusual quality that is not generally known by similarly experienced 
personnel engaged within the beneficiary's field of endeavor. Again, going on record without documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 
22 I&N Dec. at 165. 
The AAO does not discount the likelihood that the beneficiary is a skilled and experienced software worker 
who has been, and would be, a valuable asset to the petitioner's organization and to the unaffiliated employer. 
However, it is appropriate for the AAO to look beyond the stated job duties and consider the importance of 
the beneficiary's knowledge of the business's product or service, management operations, or decision-making 
process. Matter of Colley, 1 8 I&N Dec. 1 17, 120 (Comm. 198 l)(citing Matter of Raulin, 13 I&N Dec. 
61 8(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. 49, 52 (Comm. 1982). 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 firm's operation. 
Id. at 53. 
It should be noted that the statutory definition of specialized knowledge requires the AAO to make 
WAC 07 171 54598 
Page 14 
comparisons in order to determine what constitutes specialized knowledge. The term "specialized knowledge" 
is not an absolute concept and cannot be clearly defined. As observed in 1756, Inc. v. Attorney General, 
"[s]imply put, specialized knowledge is a relative . . . idea which cannot have a plain meaning." 745 F. Supp. 
9, 15 (D.D.C. 1990). The Congressional record specifically states that the L-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 II New College 
Dictionary 605 (Houghton Mifflin Co. 2001). In general, all employees can reasonably be considered 
"important" to a petitioner's enterprise. If an employee did not contribute to the overall economic success of 
an enterprise, there would be no rational economic reason to employ that person. An employee of "crucial 
importance" or "key personnel" must rise above the level of the petitioner's average employee. Accordingly, 
based on the definition of "specialized knowledge" and the congressional record related to that term, the AAO 
must make comparisons not only between the claimed specialized knowledge employee and the general labor 
market, but also between the employee and the remainder of the petitioner's workforce. While it may be 
correct to say that the beneficiary in the instant case is a highly skilled and productive employee, this fact 
alone is not enough to bring the beneficiary to the level of specialized knowledge. 
Moreover, in Matter of Penner, the Commissioner discussed the legislative intent behind the creation of the 
specialized knowledge category. 18 I&N Dec. 49 (Comm. 1982). The decision noted that the 1970 House 
Report, H.R. REP. 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 further noted that 
the House Report was silent on the subject of specialized knowledge, but that during the course of the sub- 
committee hearings on the bill, the Chairman specifically questioned witnesses on the level of skill necessary 
to qualify under the proposed "L" category. In response to the Chairman's questions, various witnesses 
responded that they understood the legislation would allow "high-level people," "experts," individuals with 
"unique" skills, and that it would not include "lower categories" of workers or "skilled craR 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. 445,91" Cong. 210,218,223,240,248 (November 12,1969)). 
Reviewing the Congressional record, the Commissioner concluded in Matter of Penner that an expansive 
reading of the specialized knowledge provision, such that it would include skilled workers and technicians, is 
not warranted. The Commissioner emphasized that the specialized knowledge worker classification was not 
intended for "all employees with any level of specialized knowledge." Matter 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 of Penner, "[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, 1756, Inc. v. Attorney General, 745 F. Supp. at 
15 (concluding that Congress did not intend for the specialized knowledge capacity to extend to all employees 
with specialized knowledge, but rather to "key personnel" and "executives."). 
As explained above, the record does not distinguish the beneficiary's knowledge as more advanced than the 
knowledge possessed by other similarly experienced persons employed by the petitioner's organization or in 
WAC 07 171 54598 
Page 15 
the industry generally. As the petitioner has failed to document any materially unique qualities to the 
petitioner's tools and methodologies, the petitioner's claims are not persuasive in establishing that the 
beneficiary, while highly skilled, would be a specialized knowledge employee. There is no indication that the 
beneficiary has knowledge that exceeds that of any software worker with experience with testing systems, or 
that he has received special training in the company's methodologies or processes which would separate him 
from any other persons employed with the petitioner's organization or in the industry at large. Although 
counsel refers to three training sessions, the petitioner fails to explain how long these sessions lasted, with the 
exception of the one-month "verification and validation training," or to explain how, exactly, this training 
instilled in the beneficiary "special" or "advanced" knowledge. The petitioner also failed to explain whether 
other employees received similar training. 
Finally, a review of the facts of this petition reveal that this is exactly the type of employment relationship the 
L-1 Visa Reform Act of 2004 was adopted to prohibit. As explained above, this legislation was proposed to 
primarily prevent the "outsourcing" of L-1B intracompany transferees to unaffiliated employers to work with 
"widely available" computer software. In this matter, the petitioner has indicated that the project on which the 
beneficiary has been working in the United States involves the testing of products not produced or sold by the 
petitioning organization. The petitioner has been hired to provide employees to test this software at the 
unaffiliated employer's worksite. Importantly, the petitioner is not providing these implementation services in 
connection with the sale of any technology products, and the beneficiary's purported specialized knowledge 
has not been established to be related to the petitioner's provision of a service other than the provision of 
labor. 
The legislative history of the term "specialized knowledge" provides ample support for a restrictive 
interpretation of the term. In the present matter, the petitioner has not demonstrated that the beneficiary 
should be considered a member of the "narrowly drawn" class of individuals possessing specialized 
knowledge. See 1756, Inc. v. Attorney General, supra at 16. Based on the evidence presented, it is concluded 
that the beneficiary will not be employed in the United States in a capacity involving specialized knowledge. 
For this reason, the appeal will be disrnis~ed.~ 
4 
 It is noted that counsel relies on three CIS memoranda in arguing that the petitioner has established that the 
beneficiary will be employed in the United States in a specialized knowledge capacity. Memo. From William 
R. Yates, Associate Director for Operations, to Service Center Directors, The Signijicance of a Prior CIS 
Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for 
Extension of Petition Validity (April 23, 2004); Memo. From James A. Puleo, Acting Executive Associate 
Commissioner, Immigration and Naturalization Service, Interpretation of Specialized Knowledge (March 9, 
1994); Memo. From William R. Yates, Associate Director for Operations, to Regional Directors et al., 
Changes to the L Nonimmigrant Classzjkation made by the L-1 Reform Act of 2004 (July 28,2005). 
However, it is noted that these memoranda articulate internal guidelines for agency personnel; they do not 
establish judicially enforceable standards. Agency interpretations that are not arrived at through precedent 
decision or notice-and-comment rulemaking - such as those in opinion letters, policy statements, agency 
manuals, and enforcement guidelines - lack the force of law and do not warrant Chevron-style deference. 
Christensen v. Harris County, 529 U.S. 576, 587 (2000). An agency's internal guidelines "neither confer 
upon [plaintiffs] substantive rights nor provide procedures upon which [they] may rely." Loa-Herrera v. 
WAC 07 171 54598 
Page 16 
The initial approval of an L-1B petition does not preclude CIS from denying an extension of the original visa, 
or an amended petition, based on a reassessment of petitioner's qualifications. See Texas AM Univ., 99 Fed. 
Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS 
does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden of 
proof in a subsequent petition. See section 291 of the Act, 8 U.S.C. 5 1361. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1 043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed. 
Trominski, 231 F.3d 984, 989 (5' Cir. 2000) (quoting Fano v. O'Neill, 806 F.2d 1262, 1264 (5' Cir. 1987)). 
Agency policy memoranda and unpublished decisions do not confer substantive legal benefits upon aliens or 
bind CIS. Romeiro de Silva v. Smith, 773 F.2d 102 1, 1024 (9th Cir. 1985); see also Prokopenko v. Ashcroft, 
372 F.3d 941,944 (8~ Cir. 2004). 
Upon review, the director did not contravene any of the cited policy memoranda and did not commit any 
prejudicial error. Counsel's reliance on these memoranda as legally binding, to the exclusion of existing 
legacy Immigration and Naturalization Service precedent, is misplaced.