dismissed L-1B Case: Information Technology

prevent clearly unwtwramd 
Gm&m of persorrel pmmcy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W.. Rm. A3042 
Washington. UC 20529 
U. S. Citizenship 
and Immigration 
Services 
muc COPY 
FILE: EAC 02 155 52555 Office: VERMONT SERVICE CENTER Date: JUM 2 8 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOI(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(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. 
fkbmor Administrative Appeals Office 
EAC 02 155 52555 
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-1 B nonimmigrant 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 IOl(a)(I 5)(L). The 
petitioner claims that it is a branch of the beneficiary's foreign employer, located in Mumbai, Maharashtra, 
India, and is operating in the United States as an information technology consulting firm. The petitioner now 
seeks to extend the beneficiary's stay for three years. 
The director determined that the petitioner had failed to demonstrate that the beneficiary would be employed 
by the United States entity in a specialized knowledge capacity. The director noted that the record did not 
show that the knowledge possessed by the beneficiary is unusual for an individual employed as an 
applications software analyst/programmer. 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 the 
director'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 (SEl- 
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 10l(a)(15)(L) of the Act, 8 
U.S.C. 1 101(a)(15)(L). Specifically, within three years preceding the beneficiary's application for 
admission into the United States, a qualifying organization must have employed the beneficiary in a 
qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one continuous year. 
In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his or her 
services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized 
knowledge capacity. 
The regulation at 8 C.F.R. fj 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 02 155 52555 
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 himiher to perform the intended services in the United States; 
however, the work in the United States need not be the same work which the alien performed abroad. 
The issue is whether the beneficiary would be employed by the United States entity in a specialized 
knowledge capacity. 
Section 214(c)(2)(B) of the Act, 8 U.S.C. 5 1 184(c)(2)(B), provides the following: 
For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity 
involving 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. 5 2 14.2(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 tevel of knowledge or expertise in the organization's 
processes and procedures. 
A specialized knowledge professional is further defined at 8 C.F.R. tj 2 14.2(1)(1 )(ii)(E) as: 
[A]n individual who has specialized knowledge as defined in paragraph (I)( 1 )(ii)(D) of this 
section and is a member of the professions as defined in section 1 Ol(a)(32) of the Immigration 
and Nationality Act. 
The petitioner filed the instant nonimmigrant petition on April 8, 2002, indicating that the beneficiary would 
be employed in the United States as an "Applications Software Analyst/Programmer." In an March 27, 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 with 2 Is' Century Insurance Group requires specialized knowledge 
of this process. Specifically, the petitioner noted that the beneficiary is one of 9,500 information technology 
professionals employed by the foreign entity to have received the SEI-CMM Level 5 training, which the 
petitioner claimed "is neither commonly known or widely utilized in the international software industry." 
The petitioner explained that the successful completion of the beneficiary's current onsite job duties requires 
an understanding of the following key process areas: Requirements Management, Software Project Planning, 
Software Project Tracking and Oversight, Software Contlgllration Management, Software Quality Assurance, 
Inter-group coordination, Defects Prevention, Software Quality Management, Process Focus, and Process 
EAC 02 155 52555 
Page 4 
Definition procedures. The petitioner also provided the following outline of the beneficiary's job 
responsibilities in the United States: 
Utilize IPMS, PAL, BAL (web-based systems) to customize TCS' internally developed, 
SEI-CMM assessed (level 5) software development and maintenance process to meet 
project quality and operational process requirements 
Use Project Planning Guidelines, Project Plan Template, Software Development Life 
Cycle Models document, Guidelines for Software Estimation, etc. (all available in IPMS, 
PAL, BAL) to develop Software Project Plan 
Prepare monthly status reports on effort and status of planning 
Enter Status Report into IPMS database 
Establish Software Project Tracking and Oversight as per outlines in Quality Manual 
Track and review software accomplishments and results against documented estimates 
and adjust plans based on actual accomplishments and results 
Coordinate and implement Software Configuration Management (SCM) activities as 
outlined in TCS' Quality Manual 
Ensure that changes to all contigurable items are done as per TCS' Change Control 
Procedure 
Conduct Final Inspection before releasing software work items 
Prepare Software Quality Assurance (SQA) Plan as per guidelines in TCS' Quality 
Manual 
Conduct Final Inspections to ensure compliance with the project's SQA Plan 
Use IPMS to monitor the status of SQA activities 
Interact with clients to gather and finalize requirements specifications 
Prepare specifications for offshore development 
Identify and allocate work for offshore development 
Coordinate the uploading of specifications for offshore development 
Provide technical guidance to offshore resources as required 
Review Defect Prevention activities fortnightly 
Conduct Peer reviews, as per IPMS, DP Checklist, guidelines for software product 
quality, project plan template, etc., of work product produced onsite and offshore 
Ensure that deliverables are handed over to client within agreed upon parameters 
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 Bachelor's degree in Engineering, and 
provided: 
Since completing his training, [the beneficiary] has been utilized in a specialized knowledge 
capacity on a number of assignments involving [Customer Relationship Management (CRM)] 
software application systems for TCS' international clients including such industry leaders as 
GE Aircraft Engines, CE Energy Services, and 21" Century Insurance Group. On these 
signiticant assignments, [the beneficiary] acquired over 2.5 years of advanced, highly 
specialized, practical knowledge of 'TCS' internally developed, SEI-CMM Assessed (Level 5) 
EAC 02 155 52555 
Page 5 
software development and maintenance process as it is specifically customized to meet the 
operational and quality requirements of assignments in the international marketplace. [The 
beneficiary's] advanced knowledge of TCS' SEI-CMM level 5 software development and 
maintenance process, which he acquired through training and considerable experience, is not 
readily transferable to another individual and is highly indispensable to the success of this 
assignment. Moreover, [the beneficiary] is highly qualified to contribute to TCS' U.S. 
operations as a result of his specialized knowledge of TCS' SEI-CMM Level 5 software 
development and maintenance, which is not generally found in the industry. 
The petitioner submitted a resume, transcripts, college diploma, and an earnings statement with the 
accompanying evidence. 
The petitioner subsequently submitted a letter dated July 3, 2002 in response to the director's request for 
evidence.' The petitioner stated 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 and who possess experience utilizing the petitioner's SEI-CMM Level 
5 software development and maintenance process. 
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 
just under three years of advanced, practical, highly specialized knowledge of TCS' SEI- 
CMM Level 5 software development and maintenance process as it is tailored to meet the 
requirements of assignments involving the design and development of CRM solutions for 
TCS clients in the global marketplace. He also has substantive knowledge of TCS' onsite- 
offshore software development process, which allows project teams working offshore and 
onsite to collaborate on projects for clients around the world. This process enables TCS to 
work around the clock to provide its international clients with timely and cost-effective 
software services. Moreover, with a year of onsite experience, [the beneficiary] has gained 
substantial knowledge of TCS' SEI-CMM Level 5 software development and maintenance 
process as it is modified to meet the specific operational and quality requirements of the 
CRM solution imptementation assignment for the 2 I" Century Insurance Group. Through his 
otisite project experience, [the beneficiary] has also acquired considerable knowledge of the 
database, operating system, programming, networking, and various other platforms on which 
the client's CRM system is being developed. This combination of company-specific, client- 
specific, and general knowledge, which [the beneficiary] possesses, constitutes a body of 
-- - 
' As the director's notice of request for evidence is not included is the record, the specific requests made to the 
petitioner cannot be outlined herein. 
EAC 02 155 52555 
Page 6 
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 skills is 
advanced in relation to the vast majority of our project staff, particularly with regard to his 
training in our internal quality assurance framework. It is at this level that TCS believes it is 
entitled to transfer key specialized knowledge employees, such as [the beneficiary], to the 
U.S. as a specialized knowledge intracompany transferee. 
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. 
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 that the beneficiary possesses advanced and 
specialized knowledge. 
The petitioner further stated that legislative history indicates that Congress intended the L-I B classification to 
be broader than CIS' interpretations prior to the Immigration Act of 1990. The petitioner also referred to a 
1994 Immigration and Naturalization (now CIS) memorandum, which the petitioner stated indicates that the 
availability of United States workers able to perform the duties requiring specialized knowledge is not 
relevant to determining whether a beneficiary possesses specialized knowledge. 
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 beneticiary's position does not warrant the expertise of someone possessing 
specialized knowledge. The director acknowledged the petitioner's claim that the beneticiary'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 corlsulting 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 
EAC 02 155 52555 
Page 7 
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 sofmare 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 and/or maintenance lack mature software processes (a mature software process is one 
that is clearly defined, measure, managed, controlled, and effective)." Counsel states that these articles also 
demonstrate that "the Petitioner's SEI-CMM Level 5 compliant software process is indispensable to the 
organization's competitiveness in the marketplace." 
With regard to the level of knowledge possessed by the beneficiary, counsel challenges CIS' request that the 
petitioner demonstrate that the beneficiary's knowledge of the petitioner's processes and procedures is 
"substantially" different, exclusive, restricted, or narrowly held. Counsel states that no such constraint on the 
beneficiary's knowledge is imposed by the statute, regulations, legislative history or CIS' policy history. 
Counsel also refers to the 1994 CIS memorandum, which advises that CIS should not impose 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 3.5 years of 
practical experience and expertise working with the Petitioner's SEI-CMM Level 5 compliant 
processes. Certainly, with this level of practical experience, the Beneficiary's knowledge of 
the process is obviously 'beyond the elementary or introductory;' 'greatly developed beyond 
the initial stage;' 'highly developed;' 'complex;' in other words, advanced. The 
Beneficiary's knowledge of the Petitioner's sofiware process is also clearly special, for such 
knowledge is 'uncommon,' 'noteworthy,' 'distinct among others in a kind,' i.e. distinct 
EAC 02 155 52555 
Page 8 
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. 4 214.2(1)(3)(ii). 
The petitioner must submit a detailed description of the services to be performed sufficient to establish 
specialized knowledge. Id. 
Although the petitioner adequately described the position of "Applications Software Analyst/ProgrammerW 
and the tasks that this position entails, the petitioner has not documented the beneficiary's claimed specialized 
knowledge. Both counsel and the petitioner repeatedly assert throughout the record that the beneficiary was 
trained in the SEI-CMM Level 5 software development and maintenance process. However, 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 eight-page resume fails to 
identify the beneficiary's participation in a training course related to SEI-CMM level 5 methodologies or 
highlight his success in completing the level 5 assessed training. Also, the descriptions of the beneficiary's 
current and previous work assignments and the accompanying 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 the beneficiary's 
work both abroad and in the United States. Absent documentary evidence demonstrating the beneficiary's 
SEI-CMM level 5 process training, the beneficiary is considered to possess the ordinary knowledge of a 
skilled worker. Without documentary evidence to support the claim, the assertions of counsel will not satisfy 
the petitioner's burden of proof. Mutter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Mutter cgRamirez- 
Sanchez, I7 l&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. Mutter of C'ollry, 18 I&N Dec. 1 17, 120 (Comm. 198 1) (citing Maitcr of Ruulin, 13 I&N Dec. 6 1 8 
(R.C. 1970) and Mutier of LeBlunc. 13 I&N Dec. 8 16 (R.C. 197 l)).l As stated by the Commissioner in 
* Although the cited precedents pre-date the current statutory definition of "specialized knowledge," the AAO 
finds them instructive. Other than deleting the former requirement that specialized knowledge had to be 
"proprietary," the 1990 Act did not significantly alter the definition of "specialized knowledge" from the prior 
INS interpretation of the term. The 1990 Committee Report does not reject, criticize, or even refer to any 
specific INS regulation or precedent decision interpreting the term. The Committee Report simply states that 
the Committee was recommending a statutory definition because of "[vlarying [i.e., not specifically incorrect] 
interpretations by INS," H.R. Rep. No. 101-723(1), at 69, 1990 U.S.C.C.A.N. at 6749. Beyond that, the 
Committee Report simply restates the tautology that became section 2 14(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-I B classification. The AAO supports its use of Mufler of P~enner, as well in 
EAC 02 155 52555 
Page 9 
Mutter of Penner, when considering whether the beneficiaries possessed specialized knowledge, "the LeBlanc 
and Ruulin decisions did not find that the occupations inherently qualified the beneficiaries for the 
classifications sought." 18 I&N Dec. at 52. Rather, the beneficiaries were considered to have unusual duties, 
skills, or knowledge beyond that of a skilled worker. Id. The Commissioner also provided the following 
clarification: 
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 Muller 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 Mutfer 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 Ma~er of Penner remains applicable to the current matter. The decision noted that the 1970 
House Report, H.R. NO= stated that the number of admissions under the L-1 classification "will not be 
large" and that "[tlhe class of persons eligible for such nonimmigrant visas is narrowly drawn and will be 
carefully regulated by the Immigration and Naturalization Service." Id. at 51. The decision noted that the 
House Report was silent on the subject of specialized knowledge, but that during the course of the sub- 
committee hearings on the bill, the Chairman specifically questioned witnesses on the level of skill necessary 
to qualify under the proposed "L" category. In response to the Chairman's questions, various witnesses 
responded that they understood the legislation would allow "high-level people," "experts," individuals with 
"uniquet' skills, and that it would not include "lower categories" of workers or "skilled craft workers." Mutter 
of Penner, id. at 50 (citing H.R. Subcornm. No. 1 of the Jud. Comm., Immigrcrtion Act of I9 70: Hemings on 
HR. 445,91 st Cong. 21 0,2 1 8,223,240,248 (November 12, 1969)). 
Reviewing the Congressional record, the Commissioner concluded in Mutter 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 e~nployees with any level of specialized knowledge." Matrer ofPenner, 18 l&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 classificatiot~ as 
intracompany transferees." 18 I&N Dec. at 11 9. According to Mutter ofPenner, "[s]uch a conclusion would 
permit extremely large numbers of persons to qualify for the 'L-I' visa" rather than the "key personnel" that 
Congress specifically intended. 18 I&N Dec. at 53; see ulso, 17.56, 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.") 
offering guidance interpreting "specialized knowledge." Again, the Committee Report does not reject the 
interpretation of specialized knowledge offered in Mutfer ofPenner. 
EAC 02 155 52555 
Page 10 
The statutory definition of specialized knowledge also 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. Atlorney 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 genemily, H.R. REP. No. 91-85 I, 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!~ II New College Dictionary 605 
(Houghton Mifflin Co. 2001). In general, all employees can reasonably be considered "important" to a 
petitioner's enterprise. If an employee did not contribute to the overall economic success of an enterprise, 
there would be no rational economic reason to employ that person. An employee of "crucial importance" or 
"key personnel" must rise above the level of the petitioner's average employee. Accordingly, based on the 
definition of "specialized knowledge" and the congressional record related to that term, the AAO must make 
comparisons not only between the claimed specialized knowledge employee and the general labor market, but 
also between that employee and the remainder of the petitioner's workforce. 
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, Inlerpretution of Specialized 
Knowkedge, 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 or distinct among other 
applications support analystsiprogrammers employed by the foreign or U.S. entities or by other unrelated 
"gain, 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(1), I990 U.S.C.C.A.N. 6710,6749, 1990 WL 200418 
EAC 02 155 52555 
Page I I 
companies. The petitioner stated in its July 1, 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 emptoyed 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 
applications sofware analysts/programmers. 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 Mutter of Penner, 18 l&N Dec. at 52. 
The petitioner asserted in its July 2002 letter that the beneficiary's responsibilities differ from those of a 
typical applications software analyst/programrner, yet offered no description of the tasks performed by a 
"typical" employee in this position. The beneficiary's "combination of knowledge, experience, and skills" is 
also highlighted by the petitioner as being more advanced than the majority of the company's project staff. 
Yet, the petitioner again failed to explain the knowledge, experience and skills of the project staff, and 
specifically identify how the beneficiary is advanced in comparison to this group. Absent this documentation, 
there is no way to determine the legitimacy of the petitioner's claim that the beneficiary's knowledge and 
work experience "separate his knowledge from the general knowledge possessed by all Applications Software 
Analyst/Programmers." Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Treasure C'rafi ofC'diforniu, 14 
I&N Dec. 190 (Keg. Comm. 1972). Additionally, the petitioner does not reconcile this claim with its previous 
statement in the March 2002 letter that the beneficiary possesses the minimum educational degree required to 
perform in this position, which is consistent with industry standards. The petitioner's statement implies that 
no additional education or training is necessary to successfully perform the job responsibilities of an 
applications software 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 the 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 andlor 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, itnprovised, 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. 
EAC 02 155 52555 
Page 12 
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:/lwww.sei.cmu.edu/productslcourses lit~folintro.cinin.l~t~~~l, (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 andlor 
maintenance around the world, only 74 have software processes that have been assessed at SEI-CMM Level 
5" is not given any evidentiary weight. The record offers no indication as to the number of organizations that 
have chosen to receive the SEI-CMM training. 
Furthermore, the petitioner's claim that the beneficiary can be categorized as "senior level personnel" rather 
than a typical applications software analyst/programmer is questionable. The petitioner stated in its 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 2.5 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. Mutter of 
Treusure c'rqfi of Cirlifornia, 14 I&N Dec. I90 (Reg. Comm. 1972). 
Lastly, counsel claims that the legislative history of the L- t B classification indicates that Congress' intention 
"was to acknowledge the growing scope of international business and the need to allow the free transfer of 
key personnel to the United States in order to facilitate and promote business objectives of multinational 
organizations." The legislative history for the term "specialized knowledge" provides ample support for a 
restrictive interpretation of the term. In 1756, Inc. v. Attorney Generul, 745 F. Supp. 9 (D.D.C. 1990), the 
court upheld the denial of an L-l petition for a chef, where the petitioner claimed that the chef possessed 
specialized knowledge. The court noted that the legislative history demonstrated a concern that the L-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. 91-851, 1970 U.S.C.C.A.N. 2750, 2754, 1970 WL 5815). The court stated, "[I]n 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, Jnc., 745 F. Supp. at 16. 
Similarly, in Mutter of Penner, the Commissioner emphasized that the specialized knowledge worker 
classification was not intended for "all employees with any level of specialized knowledge." 18 I&N Dec. 49 
(Comm. 1982). According to Mafter 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. 
EAC 02 155 525.55 
Page 13 
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." 
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-IB 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' I990 amendments to the Act did not specifically overrule 
1756, Inc., nor any administrative precedent decision, nor did the 1990 amendments otherwise mandate a less 
restrictive interpretation of the term "specialized knowledge." The House Report, which accompanied the 
1990 amendments, stated: 
One area within the L visa that requires more specificity relates to the 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 cotnpany. 
H.R. REP. No. 101-723(1), 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 lmmigration Act of 1990, the statute did not provide a definition for the term specialized 
knowledge. Instead, the regulations defined the term as follows: 
4 Muller r?f 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 "rejectedt' 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 Com~nittee was 
recommending a statutory definition because of "[v]arying," [k., not specifically incorrect], "interpretations 
by INS," H. Rep. No. 101-723(I), m, at 69, 1990 U.S.C.C.A.N. at 6749. Beyond that, the Committee 
Report simply restates the tautology that became 5 2 14(c)(2)(B). Id. AAO concludes, therefore, that Matter 
of Prnn~r remains useful guidance concerning the intended scope of the "specialized knowledge" L-IB 
classification. 
EAC 02 155 52555 
Page 14 
"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. 3 214,2(1)(1)(ii)(D)(1990). 
Although the lmmigration 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 quatify 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 lmmigration Act of 1990. 
In the present case, an evaluation of the record reveals that other software companies have achieved an 
SEI-CMM Level 5 rating, that the claimed specialized knowledge is itself 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 
5 In addition, a review of the 1970 House Report indicates that Congress assumed that the nonim~nigrant 
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 tlights would not 
enter the United States under an L-l nonimmigrant classification but could enter on an international flight 
under a different nonimmigrant classification. The Chairman observed that the entry of flight attendants was 
regulated to prevent them from competing with United States citizen flight attendants. Regarding the L-l 
classification, the Chairman stated that "the international personnel would not be competing, in my opinion at 
least, with an American worker which I think is a significant differentiation." H.R. Subcornm. No. 1 of the 
Jud. Comm., lmmigration Act of 1970: Hearings on H.R. 445,91 st Cong. 222 (November 12, 1969). 
Just as flight attendants do not normally enter under the L-l classification, Deltu Airlines, Inc. v. USDOJ, Civ. 
No. 00-2977 LFO (D.D.C. Filed April 6, 200 l), sunarnuriiy afJirmed Delta Airlines, Inc., v. USDOJ, No. 0 1 - 
5 186, 2001 WL 1488616 (D.C.Cir. 2001), computer programmers typically enter the United States as 
nonimmigrant workers under the H-IB classification, which is also regulated to prevent them from unfairly 
competing with United States workers. See generully 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, Enlployment & Training Administration, http:l/www.flcdataccntcr.co~ii~owt.asp (last 
updated Jan. 6,2004). 
EAC 02 155 52555 
Page 15 
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 quatify as a specialized knowledge worker. 
It is noted that the current petition is for an extension of a L-1 B petition that was previously approved by the 
director. If the previous nonimmigrant petition was approved based on the same unsupported assertions that 
are contained in the current record, the approval would constitute clear and gross error on the part of the 
director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology Internationul, 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); cerl 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. Louisiunu Philharmonic Orchestru v. INS, 2000 WL 282785 (E.D. La.), uffd 248 F.3d 1139 (5th Cir. 
200 1 ), cerl, denied, 122 S.Ct. 5 1 (200 1 ). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.