dismissed L-1B Case: Information Technology

U.S. Department of Homeland Security 
,. 
 20 Mass. Ave., N.W., Rm. 3000 
\ identifying data deisted to 
prevent clearly unwarranted 
invasion of personal privac~ 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
MAY 0 7 2007 
FILE: EAC 02 032 52802 Office: VERMONT SERVICE CENTER Date: 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 10 1 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
1 Robert P. 
vdministrative Appeals Office 
EAC 02 032 52802 
* Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the 
appeal. 
The petitioner filed this nonirnmigrant petition seeking to extend the employment of its applications 
software analystlprogrammer as an L-1B nonimmigrant intracompany transferee with specialized 
knowledge pursuant to $ IOl(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 
petitioner claims that it is a branch of the beneficiary's foreign employer, = 
, located in Mumbai, 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 two years. 
The director denied the petition on March 12, 2002, concluding that the petitioner failed to establish that the 
position offered to the beneficiary requires someone with specialized knowledge or that the beneficiary has 
such knowledge. 
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 asserts that the 
beneficiary possesses specialized knowledge that can only be gained through "extensive prior experience 
with [the petitioner's] methodologies and software.'' Counsel further states that the petitioner's 
"proprietary tools and procedures are not available in the public domain" but only to the petitioner's 
employees. In addition, counsel states that the specialized knowledge possessed by the beneficiary is 
limited to a "very few number of [the petitioner's] employees who specialize in the development, 
implementation and application of [the petitioner's] internally developed banking tools." Counsel fiuther 
explains that the beneficiary gained his specialized knowledge through a three-month training course 
provided by the petitioner, and through the beneficiary's "work on numerous projects abroad." Counsel 
states that the beneficiary obtained specialized knowledge of the petitioner's "internally designed banking 
products," and lists these products. Counsel also acknowledges the director's concern that 87 people are 
in the United States in L-1B status working on the same contract as the beneficiary and therefore it does 
not appear that the position requires a person with specialized knowledge. Counsel asserts that 87 
individuals on one team is not high since the petitioner employs over 17,500 consultants.' Counsel 
submits a brief in support of the appeal. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). Specifically, within three years 
preceding the beneficiary's application for admission into the United States, a qualifying organization 
must have employed the beneficiary in a qualifying managerial or executive capacity, or in a specialized 
knowledge capacity, for one continuous year. In addition, the beneficiary must seek to enter the United 
States temporarily to continue rendering his or her services to the same employer or a subsidiary or 
affiliate thereof in a managerial, executive, or specialized knowledge capacity. 
1 
 While the petitioner may have a total of 87 individuals in L-1B status working on this specific project, 
the AAO notes that CIS records indicate that the petitioner has filed a total of 16,429 L-1B petitions, with 
more than 3,979 petitions filed during fiscal year 2006. 
- EAC 02 032 52802 
k Page 3 
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. 
(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. 
This matter presents two related, but distinct issues: (1) whether the beneficiary possesses specialized 
knowledge; and (2) whether the proposed employment is in a capacity that requires specialized knowledge. 
Section 214(c)(2)(B) of the Act, 8 U.S.C. 9 1 184(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. fj 214.2(1)(l)(ii)@) defines "specialized knowledge" as: 
[Slpecial knowledge possessed by an individual of the petitioning organization's product, 
service, research, equipment, techniques, management or other interests and its application 
in international markets, or an advanced level of knowledge or expertise in the 
organization's processes and procedures. 
The petitioner filed the instant nonimmigrant petition on October 26,2001, indicating that the beneficiary 
would be employed in the United States as an "Applications Software Analyst/Programmer." In a letter 
dated October 19, 2001, the petitioner stated that the foreign organization is a worldwide information 
technology consulting firm, and it develops a "range of software for applications in special industries, 
such as banking, insurance, health care, telecommunications, retail and manufacturing." The petitioner 
EAC 02 032 52802 
Page 4 
also described the duties the beneficiary will continue to perform for his current on-site project in the 
United States for the United Services Automobile Association (USAA) as the following: 
One of USAA's key systems, the Automobile Insurance Maintenance System (ATMS), is 
being re-engineered from its old technology to an object based design. [The petitioner] 
has been enlisted to build, design, develop, and implement the object based business 
model. This is a 300-person year project is [sic] expected to be completed in two years. 
[The petitioner] is completing the First Phase of identifying and modeling the highest 
level of objects. The Second Phase of the project involves identifying all of the business 
objects and modeling them. The Third Phase involves the design, construction, and 
implementation. USAA currently needs an Applications Software AnalystIProgrammer 
with skills in insurance product modeling. [The beneficiary] has worked on insurance 
product modeling and has the specialized knowledge and experience required for the 
position. 
[The beneficiary] will continue to work as an Applications Software Analyst/Programmer 
and will be responsible for analyzing, gathering user requirements, designing, and 
developing. In addition, he will ensure that [the petitioner's] processes and standards are 
applied to this project. 
For this project, [the beneficiary] will continue to utilize his specialized knowledge of 
[the petitioner's] internally designed, IS0 9000 certified, offshore development processes 
and it exclusive development, testing and quality assurance tools and procedures. [The 
beneficiary] will continue to remain on [the petitioner's] payroll and will be directly 
supervised by a [petitioning company] manager at all times. 
[The beneficiary] has specialized knowledge of the proprietary [petitioning company] 
designed development systems and tools used on this project. In addition, as a 
[petitioning company] professional, he has worked on similar projects and has acquired a 
thorough knowledge of UNIX, Solaris, HP-UX, Windows 95/98/NT, MS-DOS, C, 
Pro*C, Shell Programming, SQL, PLISQL, Visual Basic, Developer 2000, Turbo C, 
XML, HTML, SQL Forms, SQL DBA, SQL Loader, Oracle, and MATLAB. His 
specialized knowledge of [the petitioner's] development methods, procedures and 
software tools is required for the data analysis, migration, technical design, programming, 
testing, implementation and documentation process involved in this project. 
The petitioner also submitted the beneficiary's resume that outlined the job positions filled by the 
beneficiary during his employment with the petitioner as of November 1998. The resume also indicated 
that the beneficiary completed a two-month training program with the petitioner that "envisaged the 
whole of Software Development Life Cycle." 
The director issued a request for additional evidence on December 1, 2001, stating that the record does 
not show that the beneficiary possesses specialized knowledge. The director requested: (1) an 
explanation of how the beneficiary's specialized knowledge of the petitioner's proprietary development 
'- EAC 02 032 52802 
\ Page 5 
procedures, methodologies, and tools is different from every other programmer that it employs; (2) an 
explanation as to whether the beneficiary participated on the project he is currently working on while 
employed by the foreign company abroad; (3) evidence verifying that the beneficiary's knowledge is 
uncommon, noteworthy, or distinguished by some unusual quality and is not generally known by others in 
the beneficiary's field or in the industry, or evidence that the beneficiary's advanced level of knowledge 
of the company's processes and procedures distinguishes him from those with elementary or basic 
knowledge; (4) evidence that the beneficiary possesses knowledge that is not commonly held throughout 
the industry but that is truly specialized or advanced, which may include knowledge that is valuable to the 
employer's competitiveness in the marketplace; and/or that he is qualified to contribute to the petitioner's 
knowledge of foreign operating conditions; (5) confinnation that the beneficiary has been utilized abroad 
on significant assignments that have enhanced the employer's productivity, competitiveness, image, or 
financial position, and that the knowledge possessed by the beneficiary can only be gained through prior 
experience with the foreign employer; (6) verification that the beneficiary possesses knowledge of a 
product or process that cannot be easily transferred or taught to another individual; (7) an explanation of 
the difference between the position currently held by the beneficiary in L-1B status and one that is held in 
H-1B status; (8) identification of the positions at the project site where the beneficiary is currently 
working and if it requires a person possessing specialized knowledge; (9) an explanation as to the manner 
in which the beneficiary has gained his specialized knowledge, including the total length of any classroom 
or on-the-job training courses completed and the minimum amount of time required to train a person to 
work in the position the petitioner is seeking to fill; (10) a statement discussing the type of training, both 
formal education and in-house training, needed for an individual to be able to adequately perform the 
duties of the proposed position; and, (1 1) an explanation of the petitioner's internally designed IS0 9000 
certified, offshore development processes and its exclusive development, testing, and quality assurance 
tools and procedures. 
The petitioner responded in a letter dated January 23, 2002, stating that the beneficiary "satisfies each 
element of L-1B Intracompany Transferee Classification." In addition, the petitioner explained how the 
beneficiary's employment abroad was in a position that involved specialized knowledge as follows: 
[The petitioner] requires a bachelor's degree or higher of every Applications Software 
Analystffrogrammer we send to the United States on account of the highly complex, 
technical nature of the work that the Applications Software Analyst/Programmer will 
perform. Further, [the petitioner's] training program in which all [of the petitioner's] 
Applications Software Analystffrogrammer must participate before being placed in the 
United States follows a rigorous academic curriculum .... [The petitioner's] training 
program lasts up to four months of full-time classroom training, and emphasizes systems 
development process, advanced concepts of programming, database management, data 
communication, testing, and system integration. 
[The petitioner] operates within a unique organizational structure for delivery of its 
software services. This involves the organization of its offices in India into centers 
oriented towards the use of a particular type of hardware and/or software and the 
'- EAC 02 032 52802 
Page 6 
development of its own standardized procedures for the development cycle. Similarly, 
[the petitioner] has internally developed its own Software Development Tools used in the 
analysis, design and testing of systems which it implements. [The petitioner's] 
organizational structure and the internal development of its own procedures and tools 
allow it to offer an exceptionally high level of services for software development, 
maximizing the number of software engineers with particularized expertise working on a 
specific project, reducing development time and utilizing the latest hardware available. 
[The petitioner's] unique organizational structure, as well as its internal development 
procedures and tools, are proprietary in nature. 
Upon beginning his employment with [the petitioner] in India, [the beneficiary] 
participated in [the petitioner's] intensive training program, where he immediately began 
developing an expertise in [the petitioner's] complex, unique software, [the petitioner's] 
particular organizational structure, and its internal development procedures mentioned 
above. The training program includes instruction on [the petitioner], Software 
Development Process, Requirement Engineering, Structured System Design, Software 
Maintenance, QMS, Reviews, Walk Through and Inspection, Testing and Debugging, 
Data Communication and Networking, and numerous other technical topics such as Unix 
and C, Cobol, User interface Concepts and GUI, IBM Overviews, and followed at SEI - 
CMM Level 5 companies. 
Through [the petitioner's] training program and over the course of [the beneficiary's] 
employment with [the petitioner], he has become well versed in [the petitioner's] 
proprietary IS0 9000 certified Software development process, software maintenance 
process, requirements engineering methodologies, systems design methodologies, and 
testing and debugging procedures. [The beneficiary] has a specific specialty in [the 
petitioner's] designed code, routines, methodologies, and logic that form the backbone of 
[the petitioner's] software development and maintenance offerings in the data collection 
and distribution sector. Further, he is highly skilled with [the petitioner's] proprietary, 
IS0 9000 certified, OnsiteIOffshore soRware development process which utilizes a high 
speed satellite datalink that allows offshore teams to work in tandem with onsite teams. 
[The beneficiary] has worked on developing proprietary applications at [the petitioner's] 
offshore location in India and thus has substantial experience with [the petitioner's] 
processes and procedures. 
In addition, the petitioner stated that it was "uniquely qualified to perform the advanced services required 
for the completion of this project due to its extensive internally designed banking tools." The petitioner 
further stated that it has developed innovative banking software products in "various divisions of the 
banking field." The petitioner listed the company's internally designed banking products that included 
the "integrated standard banking system (ISBS)," "Quartz," "eTreasury," "Inter Bank Reconciliation 
System (IBR)," "Asset Liability Management System (ALMITY)," "BankOnABM," and "eBankWorks." 
The petitioner also stated that the beneficiary's "extensive specialized knowledge of these [the 
petitioner's] proprietary tools and procedures is vital to the USAA project." The petitioner further 
" EAC 02 032 52802 
L Page 7 
asserted that the beneficiary has "extensive proprietary knowledge" of the petitioner's internally 
developed tool, ISBS. 
The petitioner further explained that all "IT staff from [the petitioning company] around the world 
complete the intensive classroom training," and for an employee to qualify for an assignment in the 
United States, they must complete the training program and "must have completed at least one complete 
year of intensive work with [the petitioner] in India." 
In addition, the petitioner asserted that the beneficiary meets the requirements set forth in the Puleo 
memorandum in that he possesses (1) knowledge valuable for competitiveness; (2) unusual knowledge of 
foreign operating conditions; (3) experience with significant assignments abroad that were beneficial to the 
employer; and (4) knowledge that can only be gained with the employer or which can not be easily 
transferred. See Memorandum from James A. Puleo, Acting Exec. Assoc. Comm., INS, Interpretation of 
Special Knowledge (March 9, 199l)(''Puleo Memo"). The petitioner noted that the beneficiary has been 
utilized as a "key employee" on several assignments and has worked on "detailed consulting projects 
involving data analysis, migration, technical design, programming, testing, implementation, and 
documentation." 
The petitioner's response to the director's request for evidence also explains how the position offered to 
the beneficiary in the United States requires an individual with specialized knowledge. The petitioner 
stated that it had been providing "development services" to its client in the United States for the past two 
years, and assisting the client with a "SEI-CMM assessment and in moving to higher levels." In addition, 
the petitioner stated that it has "taken over the maintenance of Bank system, Claims and Enterprise 
Systems." The petitioner explained that the two main applications under Bank systems is Credit 
Application Sales Processing and Reporting (CASPAR) and Home Loan SalesNember Financial Profile 
(HLSMFP). The petitioner explained both applications and the technological architecture of each 
application. The petitioner asserted the following: 
[The beneficiary] will continue to be responsible for CASPAR and HLS "maintenance, 
enhancements to the software, work allocation, and client interaction for new 
requirements utilizing his extensive specialized knowledge gained through his experience 
in India including ISBS, Unix, Windows NT, MVS, OS2, Bankpro, PLISQL, VB, Cobol, 
and Perl. 
For this project, [the beneficiary] will continue to utilize his specialized knowledge of 
[the petitioner's] internally designed, IS0 9000 certified, offshore development processes 
and its exclusive development, testing, and quality assurance tools and procedures. There 
are currently eighty-seven [of the petitioner's] L-1B employees onsite at USAA in San 
Antonio, Texas. These employees participated in [the petitioner's] Initial Training in 
India outlined above, and each worked for [the petitioner] in India for over a year in order 
to master [the petitioner's] unique software development tools and processes before 
beginning his assignment at USAA at San Antonio, TX. With the exception of general 
team management tasks, the members of [the beneficiary's] team will perform the same 
production tasks as [the beneficiary]. 
" EAC 02 032 52802 
Page 8 
The petitioner also submitted a letter from the petitioner's resident manager personnel certifying that the 
beneficiary completed 19 courses as part of his training with the petitioner. In addition, the petitioner 
submitted a copy of the "training program materials" for the petitioner's training program in India. 
On March 12, 2002, the director denied the petition concluding that the petitioner did not establish that the 
position of Application Software Analyst/Programmer requires someone with specialized knowledge, or that 
the beneficiary has such knowledge. The director noted that the beneficiary's duties do not appear to be 
significantly different from those of any other programmers employed by the petitioner, or different from the 
duties performed by other programmers in the computer industry. The director also noted that all 
programmers hired by the petitioner must undergo a three-month training course and therefore the 
training program is not specialized since it is offered to all programmers and not a select few who will 
obtain an advanced or specialized knowledge. The director asserted that the beneficiary did not obtain the 
advanced knowledge of the software required for the United States project since he did not work on the 
same project while employed by the foreign company. The director further stated that the United States 
project consists of 87 programmers and thus it appears that the position in the United States does not 
require an individual with specialized knowledge. The director asserted that the petitioner did not 
demonstrate that the petitioner's processes and procedures are significantly different fi-om the methods 
generally used by other information technology consulting companies. The director stated, "the employees 
of the petitioning company simply use existing software and programming languages with some 
modifications and adjustments based on the needs of the clients." 
On appeal, counsel for the petitioner asserts that the petitioner "selects only its top professionals to 
complete its overseas assignments on account of the highly complex, technical nature of the work." 
Counsel contends that the director erred by stating that the petitioner does not have any "proprietary" 
programs since the regulations do not state such requirement. Counsel also states that the beneficiary 
obtained his specialized knowledge through the three month training course and his tenure with the 
petitioner where he was "utilized as a key employee" on several important assignments. Counsel further 
asserts that the beneficiary has significant experience in the field of banking, and reiterates the experience 
the beneficiary has obtained with banking software as stated in the response to the director's request for 
evidence. Counsel further contends that it was erroneous to require that the beneficiary work on the same 
project abroad since this is not a requirement under the regulations, and states that although the 
beneficiary did not work on the same project abroad, he "clearly gained valuable specialized knowledge 
with [the petitioner's] proprietary banking tools." Counsel asserts that 87 individuals in L-1B status 
working on the project in the United States is a small number considering the petitioner employs 17,500 
consultants. Counsel further states that the director erred in requiring that the beneficiary have experience 
in the "design or writing of exclusive proprietary software of tools" as this is not required under the 
regulations. 
On review, the petitioner has not demonstrated that the beneficiary would be employed in the United 
States organization in a specialized knowledge capacity. In examining the specialized knowledge 
capacity of the beneficiary, the AAO will look to the petitioner's description of the job duties. See 8 
C.F.R. 9 214.2(1)(3)(ii). The petitioner must submit a detailed description of the services to be performed 
sufficient to establish specialized knowledge. Id. 
" EAC 02 032 52802 
Page 9 
Although the petitioner repeatedly asserts that the beneficiary's proposed U.S. position requires specialized 
knowledge, the petitioner has not adequately articulated any basis to support this claim. The petitioner has 
provided a detailed description of the beneficiary's proposed responsibilities as an application software 
analyst/programmer, however, the description does not mention the application of any specialized or 
advanced body of knowledge which would distinguish the beneficiary's role from that of other programmers 
employed by the petitioner or the information technology or banking industry at large. Going on record 
without documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of So@, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Maner of Treasure Craft of 
Cal~fomia, 14 I&N Dec. 190 (Reg. Comm. 1972)). Based upon the lack of supporting evidence, the AAO 
cannot determine whether the U.S. position requires someone who possesses knowledge that rises to the level 
of specialized knowledge as defined at 8 C.F.R. 214.2(1)(l)(ii)(D). 
The petitioner has repeatedly asserted that the beneficiary will be responsible for "CASPAR and HLS 
maintenance, enhancements to the software, work allocation, and client interactions for new requirements," 
however, the petitioner does not establish that the beneficiary must possesses knowledge of business 
processes, procedures and methods of operation that are unique and proprietary to the company in order to 
modify, maintain and update the applications server. The petitioner did not submit evidence to demonstrate 
that the petitioning company is the only, or one of the few, companies that utilizes CASPAR and HLS 
programs. There is no evidence in the record that the beneficiary actually participated in the development of 
such methodologies and processes that might lead to the conclusion that his level of knowledge is 
comparatively "advanced." As noted by counsel for the petitioner, there is no requirement that the 
beneficiary must develop the internal methodologies and processes, but this may be evidence of an advanced 
knowledge of the petitioner's internal processes that will demonstrate that the beneficiary possesses a 
specialized knowledge. Furthermore, according to the beneficiary's resume, it does not appear that he 
participated in any projects that involved CASPAR and HLS software while employed by the foreign 
company. Although the petitioner stated that the beneficiary is qualified to perform the duties in the United 
States due to his "extensive proprietary knowledge of [the petitioner's] internally developed tool, ISBS," it 
does not appear from the beneficiary's resume that he is working with ISBS in the United States project. 
Therefore, it does not appear that the beneficiary has previous exposure with CASPAR and HLS when 
employed by the petitioning company abroad. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to 
where the truth lies. Matter ofHo, 19 I&N Dec. 582,59 1-92 (BIA 1988). 
In addition, contrary to the assertions of the petitioner, there is no evidence on record to suggest that the 
processes and technology pertaining to application software analyst/programming positions within the 
U.S. company are different from those applied for other companies providing software consulting 
services to the banking industry. Moreover, there is no evidence on record to suggest that the computer 
programming processes pertaining to the banking industry, specifically, are different from those applied 
for any computer programming position. In addition, the petitioner has not explained how the knowledge 
of the petitioner's banking software products amounts to specialized knowledge, particularly since the 
systems are built upon Unix, VB, Cobol, Perl, Bankpro, Oracle, and PLISQL technologies, all of which 
are commonly used by computer programmers and system administrators in the industry. While 
" EAC 02 032 52802 
Page 10 
individual companies will develop a computer system tailored to its own needs and internal quality 
processes, it has not been established that there would be substantial differences such that knowledge of 
the petitioning company's processes and quality standards would amount to "specialized knowledge." 
In addition, there is no evidence in the record that the beneficiary has received specific in-house training 
that would have imparted him with the claimed "advanced" knowledge of the company's processes, 
procedures and methodologies. In the request for evidence, the director specifically requested that the 
petitioner identify the manner in which the beneficiary gained his specialized knowledge, including the 
total length of any classroom training or on-the-job training courses completed. In its response, the 
petitioner submitted a certification of participation from the petitioner indicating that the beneficiary 
participated in the in-house training program for a total of approximately three months. In reviewing the 
training program materials submitted by the petitioner, it appears that a large part of the training 
encompassed general subject matters such as Unix, C Programming, software maintenance and operating 
systems, and it does not specify if the beneficiary was trained in the petitioner's banking software such as 
CASPAR. HLS or ISBS. 
It is also appropriate for the AAO to look beyond the stated job duties and consider the importance of the 
beneficiary's knowledge of the business's product or service, management operations, or decision-making 
process. Matter of Colley, 18 I&N Dec. 1 17, 120 (Comm. 1981) (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. 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 fkction which is important or 
essential to the business' operation. 
2 
 Although the cited precedents pre-date the current statutory definition of "specialized knowledge," the 
AAO finds them instructive. Other than deleting the former requirement that specialized knowledge had 
to be "proprietary," the 1990 Act did not significantly alter the definition of "specialized knowledge" 
from the prior INS interpretation of the term. The 1990 Committee Report does not reject, criticize, or 
even refer to any specific INS regulation or precedent decision interpreting the term. The Committee 
Report simply states that the Committee was recommending a statutory definition because of "[vlarying 
[i.e., not specifically incorrect] interpretations by INS," H.R. Rep. No. 101-723(I), at 69, 1990 
U.S.C.C.A.N. at 6749. Beyond that, the Committee Report simply restates the tautology that became 
section 214(c)(2)(B) of the Act. Id. The AAO concludes, therefore, that the cited cases remain useful 
guidance concerning the intended scope of the "specialized knowledge" L-1B classification. The AAO 
supports its use of Matter of Penner, as well in offering guidance interpreting "specialized knowledge." 
Again, the Committee Report does not reject the interpretation of specialized knowledge offered in 
Matter of Penner. 
" EAC 02 032 52802 
Page 11 
Id. at 53. 
In Matter of Penner, the Commissioner discussed the legislative intent behind the creation of the 
specialized knowledge category. 18 I&N Dec. 49 (Comm. 1982). As noted previously, although the 
definition of "specialized knowledge" in effect at the time of Matter of Penner was superseded by the 
1990 Act to the extent that the former definition required a showing of "proprietary" knowledge, the AAO 
finds that the reasoning behind Matter of Penner remains applicable to the current matter. The decision 
noted that the 1970 House Report, H.R. No. 91-851, 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 carehlly regulated by the Immigration and Naturalization Service." Id. at 51. 
The decision noted that the House Report was silent on the subject of specialized knowledge, but that 
during the course of the sub-committee hearings on the bill, the Chairman specifically questioned 
witnesses on the level of skill necessary to qualify under the proposed "L" category. In response to the 
Chairman's questions, various witnesses responded that they understood the legislation would allow 
"high-level people," "experts," individuals with "unique" skills, and that it would not include "lower 
categories" of workers or "skilled craft workers." Matter of Penner, id. at 50 (citing H.R. Subcomm. No. 
1 of the Jud. Comm., Immigration Act of 1970: Hearings on H.R. 445,91st Cong. 210,218,223,240,248 
(November 12, 1 969)). 
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 1 19. 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., 745 F. Supp. at 15 (concluding that Congress did not intend for the specialized knowledge 
capacity to extend to all employees with specialized knowledge, but rather to "key personnel" and 
"executives.") 
The beneficiary's job description does not distinguish his knowledge as more advanced or distinct among 
other applications sofiware analysts/prograrnmers employed by the foreign or U.S. entities or by other 
unrelated companies. The statutory definition of specialized knowledge requires the AAO to make 
comparisons in order to determine what constitutes specialized knowledge. The term "specialized 
knowledge" is not an absolute concept and cannot be clearly defined. As observed in 1756, Inc. v. 
Attorney General, "[slimply put, specialized knowledge is a relative . . . idea which cannot have a plain 
meaning." 745 F. Supp. 9, 15 (D.D.C. 1990).~ The Congressional record specifically states that the L-1 
Again, Congress' 1990 amendments to the Act did not specifically overrule 1756, Inc. nor any other 
administrative precedent decision, nor did the 1990 amendments otherwise mandate a less restrictive 
" EAC 02 032 52802 
Page 12 
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 11 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. 
Further, the Puleo memo cited by counsel 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." Memo, Supra. 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 truly specialized." Id. The analysis for specialized knowledge 
therefore requires a test of the knowledge possessed by the United States labor market, but does not 
consider whether workers are available in the United States to perform the beneficiary's job duties. 
The record does not distinguish the beneficiary's knowledge as more advanced than the knowledge 
possessed by other programmers within the petitioning company, and within the information technology 
industry. As noted above, it appears that the petitioner's products are based on computer languages that 
are common in the information technology industry and are generally utilized by computer programmers. 
In addition, the petitioner stated in its January 23, 2002 response that all programmers employed by the 
petitioning company must undergo the same training program. The petitioner further stated, "before 
being assigned to the U.S., each [of the petitioner's] specialized knowledge workers must have completed 
at least one complete year of intensive work." As all employees must undergo the same training and 
work experience prior to working in the United States as a specialized knowledge employee, the 
--- ---- -- - - - - 
interpretation of the term "specialized knowledge." The House Report, which accompanied the 1990 
amendments, stated: 
One area within the L visa that requires more specificity relates to the term "specialized 
knowledge." Varying interpretations by INS have exacerbated the problem. The bill 
therefore defines specialized knowledge as special knowledge of the company product 
and its application in international markets, or an advanced level of knowledge of 
processes and procedures of the company. 
H.R. REP. No. 101-723(I), 1990 U.S.C.C.A.N. 6710,6749,1990 WL 200418. 
" EAC 02 032 52802 
, Page 13 
petitioner failed to demonstrate that the beneficiary's knowledge is more than the knowledge held by a 
skilled worker. See Matter of Penner, 18 I&N Dec. at 52. If the AAO were to follow the petitioner's 
reasoning, then any employee who had completed the training program and worked as a software 
analystlprogrammer with the parent company for at least one year possesses specialized knowledge. 
However, based on the intent of Congress in its creation of the L-1B visa category, as discussed in Matter 
of Penner, even showing that a beneficiary possesses specialized knowledge does not necessarily 
establish eligibility for the L-1B intracompany transferee status. The petitioner should also submit 
evidence to show that the beneficiary is being transferred to the United States as a crucial employee. 
Furthermore, it should be noted that Congress' 1990 amendments to the Act did not specifically overrule 
1756, Inc., nor any administrative precedent decision, nor did the 1990 amendments otherwise mandate a 
less restrictive interpretation of the term "specialized knowledge." The House Report, which 
accompanied the 1990 amendments, stated: 
One area within the L visa that requires more specificity relates to the term "specialized 
knowledge." Varying interpretations by INS have exacerbated the problem. The bill 
therefore defines specialized knowledge as special knowledge of the company product 
and its application in international markets, or an advanced level of knowledge of 
processes and procedures of the company. 
H.R. REP. No. 101-723(I), 1990 U.S.C.C.A.N. 6710, 6749, 1990 WL 200418. As previously noted, the 
statutory definition states, "an alien is considered to be serving in a capacity involving specialized 
knowledge with respect to a company if the alien has a special knowledge of the company product and its 
application in international markets or has an advanced level of knowledge of processes and procedures 
of the company." 8 U.S.C. 3 1 1 84(c)(2)(B). 
The AAO does not dispute that the petitioner's organization has its own internal information systems 
processes and methodologies. However, there is no evidence in the record to establish that the beneficiary's 
knowledge of these systems processes and methodologies is particularly advanced in comparison to his peers, 
that the processes themselves cannot be easily transferred to its U.S. employees or to professionals who have 
not previously worked with the organization, that the U.S.-based staff does not actually possess the same 
knowledge, or that the U.S. position offered actually requires someone with the claimed "advanced 
knowledge." The petitioner has not submitted sufficient documentary evidence in support of its assertions or 
counsel's assertions that the beneficiary's skills and knowledge of the foreign entity's processes, procedures 
and methodologies would differentiate him fi-om any other similarly employed software analyst/programmer 
with the petitioner's group or within the industry. Simply going on record without supporting documentary 
evidence is not sufficient for the purpose of meeting the burden of proof in these proceedings. Matter of 
SofJici, 22 I&N Dec. at 165. 
Counsel's reliance on the Puleo memorandum is misplaced. It is noted that the memoranda were intended 
solely as a guide for employees and will not supersede the plain language of the statute or regulations. 
Therefore, by itself, counsel's assertion that the beneficiary's qualifications are analogous to the examples 
outlined in the memoranda is insufficient to establish the beneficiary's qualification for classification as a 
specialized knowledge professional. While the factors discussed in the memorandum may be considered, 
EAC 02 032 52802 
Page 14 
the regulations specifically require that the beneficiary possess an "advanced level of knowledge" of the 
organization's processes and procedures, or a "special knowledge" of the petitioner's product, service, 
research, equipment, techniques or management. 8 C.F.R. 9 214.2(1)(l)(ii)(D). As discussed above, the 
petitioner has not established that the beneficiary's knowledge rises to the level of specialized knowledge 
contemplated by the regulations. 
In sum, the beneficiary's duties and technical skills demonstrate knowledge that is common among 
computer systems professional working in the beneficiary's specialty in the information technology field. 
The petitioner has failed to demonstrate that the beneficiary's training, work experience, or knowledge of 
the company's processes is more advanced than the knowledge possessed by others employed by the 
petitioner, or that the processes and systems used by the petitioner are substantially different from those 
used by other large information technology consulting companies. The AAO does not dispute the fact 
that the beneficiary's knowledge has allowed him to successfUlly perform his job duties for the foreign 
entity. However, the successful completion of one's job duties does not distinguish the beneficiary as 
possessing special or advanced knowledge or as a "key personnel," nor does it establish employment in a 
specialized knowledge capacity. As discussed, the petitioner has not submitted probative evidence to 
establish that the beneficiary's knowledge is uncommon, noteworthy, or distinguished by some unusual 
quality and not generally known in the beneficiary's field of endeavor, or that his knowledge is advanced 
compared to the knowledge held by other similarly employed workers within the petitioner and the 
foreign entity. 
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 has not been employed abroad and would not be employed in the United 
States in a capacity involving specialized knowledge. For this reason, the appeal will be dismissed. 
It is noted that the current petition is for an extension of a L-1B petition that was previously approved by 
the director. If the previous nonimmigrant petition was approved based on the same unsupported 
assertions that are contained in the current record, the approval would constitute clear and gross error on 
the part of the director. The AAO is not required to approve applications or petitions where eligibility has 
not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter 
of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. 
v. Montgomely, 825 F.2d 1084, 1090 (6th Cir. 1987); cert denied 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between the 
court of appeals and the district court. Even if a service center director had approved the nonimmigrant 
petitions on behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision 
of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd 248 F.3d 
1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
'- EAC 02 032 52802 
Page 15 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with 
the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.