dismissed L-1B Case: Information Technology

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invasionofpersonalprivacy
U.S.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File:
INRE:
WAC 0519051105
Petitioner:
Beneficiary:
Office: CALIFORNIA SERVICE CENTER Date:
NOV 30 2007
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(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.
. ~4:p.Wiemann, Chief
\{~strative Appeals Office
www.uscis.gov
WAC 05 19051105
Page 2
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service Center, and
certified to the Administrative Appeals Office (AAO) for review as provided for at 8 C.F.R. § 103.4(a)(l).
The decision of the director will be affirmedand the petition will be denied.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as a programmer as an
L-1B nonimmigrant intracompany transferee with specialized knowledge pursuant to section
101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101 (a)(l 5)(L). The
petitioner is a business information technology consulting firm that "provides product development and
consulting services in all aspects of systems and software engineering to companies throughout the
world." The petitioner seeks to employ the beneficiary as a programmer for a period of three years. 1
Citing to the anti ''job shop" provisions of the L-l Visa Reform Act of 2004, the director denied the
petition as an impermissible arrangement to provide labor for hire.' Specifically, the director concluded
that the beneficiary, who will be stationed primarily at a worksite of an unaffiliated employer, will be
employed in a position which is essentially an arrangement to provide labor for hire for the unaffiliated
1 The AAO notes that Citizenship and Immigration Services (CIS) records indicate that the petitioner has
filed a total of 16,429 L-lB petitions, with more than 3,979 petitions filed during fiscal year 2006.
2The term ''job shop" is commonly used to describe a firm that petitions for aliens in L-lB status to
contract their services to other companies, often at wages that undercut the salaries paid to U.S. workers.
Upon introducing the L-l Visa Reform Act, described the abuse as follows:
The situation in question arises when a company with both foreign and U.S.-based
operations obtains an L-l visa to transfer a foreign employee who has "specialized
knowledge" of the company's product or processes. The problem occurs only when an
employee with specialized knowledge is placed offsite at the business location of a third
party company. In this context, if the L-l employee does not bring anything more than
generic knowledge of the third party company's operations, the foreign worker is acting
more like an H-lB professional than a true intracompany transferee. Outsourcing an L-l
worker in this way has resulted in American workers being displaced at the third party
company.
149 Congo Rec. Sl1649, *Sl1686, 2003 WL 22143105 (September 17, 2003).
In general, the L-lB visa classification does not currently include the same U.S. worker protection
provisions as the H-lB visa classification. See generally, 8 C.F.R. §§ 2l4.2(h) and (1). The L-lB visa
classification is not subject to a numerical cap, does not require the employer to certify that the alien will
be paid the "prevailing wage," and does not require the employer to pay for the return transportation costs
if the alien is dismissed from employment. Additionally, an employer who files a petition to classify an
alien as an L-lB nonimmigrant would not pay the $1,500 fee that is currently required for each new H-lB
petition and which funds job training and low-income scholarships for U.S. workers. See Section
2l4(c)(9) of the Act.
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Page 3
employer, Toyota Financial Services (hereinafter "the unaffiliated employer"). The director further
determined that the beneficiary does not have specialized knowledge of a product or service specific to
the petitioner.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed
the beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity,
for one continuous year within three years preceding the beneficiary's application for admission into the
United States. In addition, the beneficiary must seek to enter the United States temporarily to continue
rendering his or her services to the same employer or a subsidiary or affiliate thereof in a managerial,
executive, or specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) further states that an individual petition filed on Form 1-129 shall
be accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ
the alien are qualifying organizations as defined in paragraph (1)(1)(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 him/her to perform the
intended services in the United States; however, the work in the United States
need not be the same work which the alien performed abroad.
Section 214(c)(2)(B) of the Act, 8 U.S.C. § 1184(c)(2)(B), provides:
For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity
involving specialized knowledge with respect to a company if the alien has a special
knowledge of the company product and its application in international markets or has an
advanced level of knowledge of processes and procedures ofthe company.
Furthermore, the regulation at 8 C.F.R. § 214.2(1)(1)(ii)(D) defines "specialized knowledge" as:
[S]pecial knowledge possessed by an individual of the petitioning organization's product,
WAC 0519051105
Page 4
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.
I. L-l Visa Reform Act
As amended by the L-l Visa Reform Act of 2004, section 214(c)(2)(F) of the Act, 8 U.S.C. §
1184(c)(2)(F), provides:
An alien who will serve in a capacity involving specialized knowledge with respect to an
employer for purposes of section 1101(a)(15)(L) and will be stationed primarily at the
worksite of an employer other than the petitioning employer or its affiliate, subsidiary, or
parent shall not be eligible for classification under section 1101(a)(15)(L) if -
(i) the alien will be controlled and supervised principally by such unaffiliated
employer; or
(ii) the placement of the alien at the worksite of the unaffiliated employer is
essentially an arrangement to provide labor for hire for the unaffiliated
employer, rather than a placement in connection with the provision of a
product or service for which specialized knowledge specific to the
petitioning employer is necessary.
Section 214(c)(2)(F) of the Act was created by the L-l Visa Reform Act of 2004 and is applicable to all
L-IB petitions filed after June 6, 2005, including extensions and amendments involving individuals
currently in L-l status. See Pub. L. No. 108-447, Div. I, Title N, 118 Stat. 2809 (Dec. 8, 2004). The
primary purpose of the L-l Visa Reform Act amendment was to prohibit the "outsourcing" of L-IB
intracompany transferees to unaffiliated employers to work with "widely available" computer software
and, thus, help prevent the displacement of United States workers by foreign labor. See 149 Congo Rec.
S11649, *S11686, 2003 WL 22143105 (September 17, 2003); see also Sen. Jud. Comm., Sub. on
Immigration, Statement for Chairman Senator Saxby Chambliss, July 29, 2003, available at
<http://judiciary.senate.gov/member_statement.cfm?id =878&wit_id=3355> (accessed on July 16, 2007).
In evaluating a petition subject to the terms of the L-l Visa Reform Act, the AAO must emphasize that
the petitioner bears the burden of proof. Section 291 of the Act, 8 U.S.C. § 1361; see also 8 C.F.R. §
103.2(b)(I). If a specialized knowledge beneficiary will be primarily stationed at the worksite of an
unaffiliated employer, the statute mandates that the petitioner establish both: (1) that the alien will be
controlled and supervised principally by the petitioner, and (2) that the placement is related to the
provision of a product or service for which specialized knowledge specific to the petitioning employer is
necessary. Section 214(c)(2)(F) of the Act. These two questions of fact must be established for the
record by documentary evidence; neither the unsupported assertions of counselor the employer will
suffice to establish eligibility. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998); Matter of
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988). If the petitioner fails to establish both of these elements,
WAC 0519051105
Page 5
the beneficiary will be deemed ineligible for classification as an L-1B intracompany transferee.
A. Threshold Question: Worksite of Beneficiary
As a threshold question in the analysis, Citizenship and Immigration Services (CIS) must examine
whether the beneficiary will be stationed primarily at the worksite of the unaffiliated company. Section
214(c)(2)(F) of the Act.
As noted on page 2 of the Form 1-129, in the field entitled "Address where the person(s) will work," the
petitioner stated that the work location for the beneficiary will be at Toyota Financial Services in Torrance,
California, an unaffiliated employer. The petitioner also stated in its letter of support, dated June 18, 2005,
that it wishes for the beneficiary to enter the United States for a period of three years as a programmer for a
project at Toyota Financial Services. Accordingly, the AAO concludes that the beneficiary will be
primarily employed as a programmer at the worksite of the unaffiliated employer.
Therefore, under the terms of the L-l Visa Reform Act, the petitioner must establish both: (1) that the
alien will be controlled and supervised principally by the petitioner, and (2) that the placement is related
to the provision of a product or service for which specialized knowledge specific to the petitioning
employer is necessary. Section 214(c)(2)(F) of the Act.
B. Control and Supervision of Beneficiary
The first issue under the L-l Visa Reform Act analysis is whether the petitioner has established that the
alien will be controlled and supervised principally by the petitioner, and not by the unaffiliated employer.
Section 214(c)(2)(F)(i) of the Act.
Notwithstanding the director's finding to the contrary, the petitioner has not satisfied this prong of the L-l
Visa Reform Act test. The petitioner asserted on the Form 1-129 that the beneficiary will be supervised
by the Business Relationship Manager, an employee of the petitioner. The petitioner further explained
that the beneficiary will be supervised through "weekly and monthly status reports, emails, and
meetings." However, no evidence was submitted in support of this statement. The petitioner does not
provide evidence to document how, exactly, the beneficiary will be managed and controlled while offsite
at the unaffiliated employer's workplace. Going on record without supporting evidence will not satisfy
the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165.
Furthermore, despite the director's specific request for evidence, the petitioner did not provide sufficient
documentation to establish whether the beneficiary will be controlled and supervised principally by the
petitioner. On July 12,2005, the director requested copies of contracts, statements of work, work orders,
and service agreements between the petitioner and the unaffiliated employer specifying the services to be
provided by the beneficiary. In response, the petitioner submitted an incomplete copy of a document
titled "Application Support, Maintenance And Development Services Agreement" (hereinafter
"Agreement") between the petitioner and the unaffiliated company. Upon review, the document appears
to have been modified to remove information that would pertain to the question of who controls and
WAC 0519051105
Page 6
supervises the petitioner's personnel at the unaffiliated employer's worksite. Specifically, the petitioner
has modified the Agreement to delete sections 2 and 3 (pages 3 to 8), section 10 (pages 23 to 25), the
initial paragraphs of section 13 (pages 31 and 32), section 15 (pages 40 and 41), and all attached
schedules to the Agreement. The petitioner did not explain the reason for the deleted sections.
In the cover letter submitted in response to the request for evidence, the petitioner referred the director to
section 19.4 of the agreement in response to the request for evidence of the petitioner's control and
supervision of the beneficiary. Rather than discussing the supervision or control of the beneficiary or the
petitioner's personnel, section 19.4 relates to the issuance of notices, requests, demands, and
determinations under the Agreement. The petitioner's reference to section 19.4 of the Agreement is not
probative and fails to document who actually supervises and controls the beneficiary.
Although section 19.4 does not discuss the control of the beneficiary, the AAO notes that at least one
section in the Agreement provides for projects that are led by the unaffiliated employer using the
petitioner's personnel. Specifically, according to sections 4.2(B) and (C) of the Agreement (page 10), the
petitioner is responsible for managing projects that are assigned by the unaffiliated employer and also
obligated to commit personnel to projects led or managed by the unaffiliated employer. This provision of
the Agreement raises unanswered questions as to which entity manages and controls the personnel that
are committed to projects led by the unaffiliated employer.
As concluded by the director, the beneficiary appears to be serving as a "programmer for hire" who will,
at most, make changes to the unaffiliated employer's existing systems and software. According to section
9.6 of the Agreement, the software, services, deliverables, and systems developed by the petitioner
pursuant to the Agreement are considered to be "works made for hire" under United States copyright law
and the unaffiliated employer is the legal author. Title 17 U.S.C. § 101 of United States copyright law
states in pertinent part that a "work made for hire" is a work prepared by an employee within the scope of
his or her employment. See also Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).
Therefore, as the beneficiary's work product is considered to be a "work made for hire" on behalf of the
unaffiliated employer, the question remains whether the beneficiary will actually be under the control and
supervision ofthe petitioner.
Finally, despite the director's specific request for documents relating to the services to be provided by the
beneficiary, the Agreement fails to provide evidence of the beneficiary's specific work assignment and
services he will provide to the unaffiliated employer. The petitioner declined to submit a statement of
work or a work order with the beneficiary's itinerary. Absent such information, the petitioner has not
established that it will principally control and supervise the alien beneficiary or even that the beneficiary
will actually be employed at the claimed worksite.
Accordingly, the petitioner's failure to fully respond to the director's request for evidence is fatal to its
claimed eligibility. The petitioner's failure to submit the requested evidence precluded a material line of
inquiry and shall be grounds for denying this petition. 8 C.P.R. § 103.2(b)(l4).
As the petitioner has not established that the beneficiary will be controlled and supervised by the
WAC 05 19051105
Page 7
petitioner during his employment at the unaffiliated employer's workplace, the petition may not be
approved for this reason.
c. Necessity of Specialized Knowledge Specific to the Petitioning Employer
The second issue under the L-l Visa Reform Act analysis is whether the petitioner has established that the
beneficiary's placement is related to the provision of a product or service for which specialized knowledge
specific to the petitioning employer is necessary. Section 214(c)(2)(F)(ii) of the Act.
The petitioner described the beneficiary's job duties and purported specialized knowledge in a letter dated
June 18, 2005 as follows:
The TFS project [with the unaffiliated employer] is specialized in nature because it
involves expertise with [the petitioner's] banking and financial services industry practice
group tools, procedures, and methodologies. [The petitioner's] banking and financial
services industry practice offerings span the entire gamut of the banking and financial
services. [The petitioner], with its extensive experience and in-depth understanding of
the financial services industry, develops innovative, result-oriented and cost effective
services to ensure that our clients around the world meet the challenging requirements of
this industry. [The petitioner] has extensive experience in developing solutions for
different business areas within the financial services industry, spanning stock exchanges,
depositories, custodial services, brokerage firms, mutual funds, rating agencies, portfolio
management companies, and foreign exchange and money markets.
[The unaffiliated employer] is undergoing a significant change in the Inventory Tracking
System (ITS). In Customer Service module the main systems are Collection, ITS,
Document Management System (DMS), and Behavioral Scoring and Cash Receipt
System (CRS). Currently, Automated Vehicle Processing System (AVPS) sends and
receives data from ITS. [The unaffiliated employer] has engaged [the petitioner] to
execute this message. The project involves performing impact analysis, designing the
requirements, coding the application, reviewing and testing the programs, implementing
the system changes, and supporting the existing system. The efficient development,
support and maintenance of [the unaffiliated employer's] applications require specialized
knowledge of [the petitioner's] proprietary tools including Adex, Assent, @Test, and
Causal Analysis (CA). Adex is a modeling tool and is very powerful in meeting the
demand of software development teams. It provides various industry-standards modeling
techniques like UML (Unified Modeling Language) and ER (Entity Relationship). Adex
also allows for the creation of user-defined models and notations. Adex provides a level
of customization that is essential for effective modeling of a wide variety of applications.
It also facilitates code and report generation that is specific to the model and the project.
Assent is a specific driven standards enforcement tool that automatically checks for
conformance of an input program to the programming standards or guideline for the
language. Assent uses a flow analysis technique to detect runtime properties statically.
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Assent improves the quality of standards checking and reduces the cost of software
development and maintenance. @Test is used for testing the piece of software against its
requirements during software development. It supports features to test a system during all
phases of its development, such as unit, system or integration testing. CA is helpful in
identifying the causes for the defects of the project. Based on those fmdings appropriate
measures are taken in the next change request and enhancements.
[The beneficiary] will utilize his specialized knowledgeof I @Test, and CA,
as well as [the petitioner's] banking and financial services industry practice group tools,
procedures, and methodologies to ensure the successful completion of the proposed
project.
As previously noted, the director requested additional evidence on July 12, 2005. The director requested,
inter alia, further evidence establishing that the beneficiary has specialized knowledge; evidence that he
will be controlled and supervised by the petitioner; a description of where the beneficiary will work; and
evidence that the placement of the beneficiary at the unaffiliated employer's worksite is not an
arrangement to provide labor for hire. The director specifically requested copies of contracts, statements
of work, work orders, and service agreements between the petitioner and the unaffiliated employer for the
services to be provided by the beneficiary. The director also requested copies of the petitioner's human
resource records that would provide the beneficiary's job description and worksite location.
The petitioner failed to fully comply with the director's request. In response, the petitioner submitted a
letter dated July 27, 2005, a copy of the beneficiary's resume, and a copy of the "Application Support,
Maintenance And Development Services Agreement" between the petitioner and the unaffiliated
employer. The petitioner did not submit the statement of work that covers the beneficiary's services.
Finally, the petitioner also failed to submit human resource records or any other documents that provide
the beneficiary's official job description and worksite location.
In the July 27, 2005 letter, the petitioner asserted that the beneficiary will be "playing a key role for the
enhancement of [the unaffiliated employer's] system." The petitioner also stated that the beneficiary will
be supervised by the business relationship manager, and it provided the contact information for that
individual. The petitioner further explained that the beneficiary is an ideal candidate for this position
since he has over one year of experience on the same project while working for the petitioner abroad.
On August 11, 2005, the director denied the petition. The director concluded that the beneficiary, who
will be stationed primarily at a worksite of an unaffiliated employer, will be employed in a position which
is essentially an arrangement to provide labor for hire for the unaffiliated employer. The director further
determined that the beneficiary does not have specialized knowledge of a product or service specific to
the petitioner. Specifically, the director concluded as follows:
It appears from the record that the placement of the beneficiary outside the petitioning
organization is essentially an arrangement to provide labor for hire rather than the
placement in connection with the provision of a product or service. The service the
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petitioner is providing is, essentially , a programmer for hire to change the [unaffiliated
employer]'s already existing system and/or software [rather] than develop [their own
software]. The specialized knowledge the beneficiary possesses is that of the petitioner's
tools, procedures, and methodologies to be applied to the client's existing program.
Therefore, the beneficiary's knowledge is only tangentially related to the performance of
the proposed offsite activity.
In essence, the beneficiary will be working on a product that is used to conform with the
[unaffiliated employer]'s specification and needs, rather than a product unique to the
specifications and needs of the petitioner. In this case, the specialized knowledge is not
specific to the petitioner.
As such, the petitioner has not established that the placement of the beneficiary at the
worksite of the unaffiliated employer is not merely labor for hire.
Upon review, the AAO affirms the director 's conclusion and finds that the petitioner's assertions are not
persuasive. First , as discussed in Part II, infra, the petitioner has failed to establish that the beneficiary 's
knowledge is "specialized." Second, the petitioner has not established that the beneficiary's placement is
related to the provision of a product or service for which specialized knowledge specific to the petitioning
employer is necessary. Section 214(c)(2)(F)(ii) of the Act.
With regard to the beneficiary 's claimed knowledge, the petitioner asserts that the beneficiary has
specialized knowledge specific to the petitioner's processes and procedures. In particular, the petitioner
states that the beneficiary has specialized knowledge of the petitioner's proprietary tools including Adex,
Assent, @Test, and Causal Analysis. Further , the petitioner asserts that the beneficiary will use his
specialized knowledge of these tools in his capacity as an employee of the petitioner, which has been
hired by the unaffiliated employer to implement the tools and redesign theorganization's systems.
Overall, the petitioner describes the beneficiary as having specialized knowledge "of [the petitioner's]
proprietary development procedures, methodologies, and tools" that will be integral components used for
the project with the unaffiliated employer. The petitioner further explains that the beneficiary has been
working on the same project abroad and that the beneficiary's specialized knowledge of the unaffiliated
employer's requirements permits him to work more efficiently. The petitioner stated that with "over
40,000 employees to choose from, " the beneficiary was identified as the ideal candidate based on his
work abroad where he gained experience with the petitioner's tools. Finally, the petitioner stated that the
beneficiary completed a "two-week project-specific training program that covered numerous relevant
topics."
On the other hand , the petitioner also asserts that the beneficiary was selected for this project because he
has worked on the same project abroad and because the beneficiary has specialized knowledge of the
unaffiliated employer's requirements. As noted above, although the petitioner repeatedly asserts that the
beneficiary has specialized knowledge of the petitioner's proprietary tools, the petitioner notes that these
tools are utilized to monitor, test, and improve the quality of the unaffiliated employer's existing
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Inventory Tracking System.
While it is possible that the beneficiary here possesses knowledge that is directly related to both the
petitioner and the unaffiliated employer's product or service, it is incumbent upon the petitioner to
establish that the position for which the beneficiary's services are sought is one that primarily requires
knowledge specific to that of the petitioner. Otherwise, the beneficiary and the position for which he is
being hired would fall squarely within the prohibition imposed by the L-1 Visa Reform Act of 2004 on
the "outsourcing" ofL-lB nonimmigrants who do not have specialized knowledge related to the provision
of a product or service specific to a petitioner.
In this matter, the petitioner's major failing with regard to this issue was in not providing corroborating
evidence that the beneficiary would be employed in a position that primarily requires specialized
knowledge of a product or service specific to the petitioner. In other words, whether the beneficiary
possesses knowledge of a product or service specific to the petitioner is irrelevant if the position in which
he will be employed will not primarily require the use of this knowledge. As previously noted, the
petitioner failed to fully respond to the director's request for evidence regarding the manner in which the
alien will be employed. The submitted Agreement fails to provide evidence of the beneficiary's specific
work assignment and services the beneficiary will provide to the unaffiliated employer. Further, the
submitted Agreement does not address the beneficiary's actual assignment or duties or otherwise detail
the beneficiary's itinerary. Other than the unsupported assertions of the petitioner, there is nothing in the
record to support the claim that the beneficiary's placement with the unaffiliated employer is related to
the provision of a product or service for which specialized knowledge specific to the petitioning employer
is necessary. As the record does not contain any documentation of the specific duties the beneficiary
would perform for the petitioner's client, the AAO cannot analyze whether his placement is related to the
provision of a product or service for which specialized knowledge specific to the petitioning employer is
necessary.
Accordingly, the petitioner failed to meet its burden of establishing that the beneficiary's placement is
related to the provision of a product or service for which specialized knowledge specific to the petitioning
employer is necessary, and the petition may not be approved for that reason.'
3 It is noted that, as the beneficiary is not required under current law to possess knowledge of proprietary
products or processes in order to be deemed to have specialized knowledge, the director's use of the word
"unique" may not be entirely appropriate. See Section 206(b)(2), Immigration Act of 1990, Pub. L. No.
101-649, 104 Stat. 4978 (effective Oct. 1, 1991); H.R. Rep. No. 101-723(1),at 69, 1990 U.S.C.C.A.N. at
6749. At the same time, when the petitioner claims that the beneficiary has experience with a proprietary
product or procedure, this does not serve as prima facie evidence that the beneficiary possesses
specialized knowledge. For this reason, when the petitioner asserts, as it has in this matter, that a
beneficiary has experience with proprietary products or procedures, CIS must carefully evaluate the
claimed knowledge, nature of the petitioner's product or procedure, and the depth of the beneficiary's
experience in order to determine whether it rises to the level of specialized knowledge as contemplated by
8 C.F.R. § 214.2(l)(l)(ii)(D). In any event, given that the director's decision does not clearly address this
issue, the director's use of the word "unique" and his decision to deny the petition on this basis is
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Page 11
II. Specialized Knowledge
Beyond the decision of the director, even if the beneficiary's knowledge were proven to be specific to the
petitioning employer, the petitioner has also failed to establish that this knowledge is specialized as
defmed at 8 C.F.R. § 214.2(l)(1)(ii)(D) and that the beneficiary has been or will be employed 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. §§ 214.2(l)(3)(ii) and (iv). The petitioner must submit a
detailed job description of the services to be performed sufficient to establish specialized knowledge. In
this case, the petitioner fails to establish that the beneficiary's position in the United States requires an
employee with specialized knowledge or that the beneficiary has specialized knowledge.
Although the petitioner repeatedly asserts that the beneficiary's proposed position in the United States
will require "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
a 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 Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 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).
Specifically, while the petitioner repeatedly asserts that the beneficiary will be utilizing the petitioner's
proprietary tools including Adex, Assent @Test and Causal Analysis, the petitioner did not submit evidence
to demonstrate that the knowledge of these tools is specialized and that the beneficiary actually possesses this
knowledge. More specifically, 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." Although there is no requirement that the beneficiary must develop
the internal methodologies and processes, this may constitute evidence of an advanced knowledge of the
petitioner's internal processes that could demonstrate that the beneficiary possesses a specialized knowledge.
Furthermore, according to the beneficiary's resume, it appears that the beneficiary immediately began
working with the above-mentioned tools when he began his employment with the petitioner abroad. Thus,
there is no evidence on record to suggest that the processes and technology pertaining to the programming
positions for the petitioner are different from those applied for other companies providing software
consulting services to the banking industry. While 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
withdrawn to avoid any possible implication that there is a proprietary knowledge requirement with
respect to the L-1B classification.
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Page 12
substantial differences such that knowledge of the petitioning company's processes and quality standards
would amount to "specialized knowledge."
Despite the petitioner's assertions, the petitioner has not established that the beneficiary's knowledge of
programming for the banking and financial services industry, either in the context of the ongoing project
being performed for the unaffiliated employer or in connection with his employment with the petitioner
abroad, constitutes "specialized knowledge." The record does not reveal the material difference between
the beneficiary's knowledge of the banking programming tools and the ongoing implementation project
and the knowledge possessed by similarly experienced programmers in the industry or employed by the
petitioner's organization. Without producing evidence that the petitioner's programming services are
different in some material way from similar services offered on the market by similarly experienced
software professionals, the petitioner cannot establish that the beneficiary's knowledge is noteworthy,
uncommon, or distinguished by some unusual quality that is not generally known by similarly
experienced personnel engaged within the beneficiary's field of endeavor. Again, going on record
without documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings. Matter ofSoffici, 22 I&N Dec. at 165.
The AAO does not discount the likelihood that the beneficiary is a skilled and experienced programmer
who has been, and would be, a valuable asset to the petitioner's organization and to the unaffiliated
employer. However, it is appropriate for the AAO to look beyond the stated job duties and consider the
importance of the beneficiary's knowledge of the business's product or service, management operations,
or decision-making process. Matter of Colley, 18 I&N Dec. 117, 120 (Comm. 1981)(citing Matter of
Raulin, 13 I&N Dec. 618(R.C. 1970) and Matter ofLeBlanc, 13 I&N Dec. 816 (R.C. 1971». As stated
by the Commissioner in Matter of Penner, when considering whether the beneficiaries possessed
specialized knowledge, "the LeBlanc and Raulin decisions did not find that the occupations inherently
qualified the beneficiaries for the classifications sought." 18 I&N Dec. 49, 52 (Comm. 1982). Rather, the
beneficiaries were considered to have unusual duties, skills, or knowledge beyond that of a skilled
worker. Id. The Commissioner also provided the following clarification:
A distinction can be made between a person whose skills and knowledge enable him or
her to produce a product through physical or skilled labor and the person who is
employed primarily for his ability to carry out a key process or function which is
important or essential to the business firm's operation.
Id. at 53.
It should be noted that the statutory definition of specialized knowledge requires the AAO to make
comparisons in order to determine what constitutes specialized knowledge. The term "specialized
knowledge" is not an absolute concept and cannot be clearly defined. As observed in 1756, Inc. v.
Attorney General, "[s]imply put, specialized knowledge is a relative ... idea which cannot have a plain
meaning." 745 F. Supp. 9, 15 (D.D.C. 1990). The Congressional record specifically states that the L-l
category was intended for "key personnel." See generally, H.R. REp. No. 91-851, 1970 u.S.C.C.A.N.
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2750. The term "key personnel" denotes a position within the petitioning company that is "of crucial
importance." Webster's II New College Dictionary 605 (Houghton Mifflin Co. 2001). ill general, all
employees can reasonably be considered "important" to a petitioner's enterprise. If an employee did not
contribute to the overall economic success of an enterprise, there would be no rational economic reason to
employ that person. An employee of "crucial importance" or "key personnel" must rise above the level of
the petitioner's average employee. Accordingly, based on the definition of "specialized knowledge" and
the congressional record related to that term, the AAO must make comparisons not only between the
claimed specialized knowledge employee and the general labor market, but also between the employee
and the remainder of the petitioner's workforce. While it may be correct to say that the beneficiary in the
instant case is a highly skilled and productive employee, this fact alone is not enough to bring the
beneficiary to the level of "key personnel."
Moreover, in Matter ofPenner, the Commissioner discussed the legislative intent behind the creation of
the specialized knowledge category. 18 I&N Dec. 49 (Comm. 1982). The decision noted that the 1970
House Report, H.R. REp. No. 91-851, stated that the number of admissions under the L-l classification
"will not be large" and that "[t]he class of persons eligible for such nonimmigrant visas is narrowly drawn
and will be carefully regulated by the Immigration and Naturalization Service." Id. at 51. The decision
further noted that the House Report was silent on the subject of specialized knowledge, but that during the
course of the sub-committee hearings on the bill, the Chairman specifically questioned witnesses on the
level of skill necessary to qualify under the proposed "L" category. In response to the Chairman's
questions, various witnesses responded that they understood the legislation would allow "high-level
people," "experts," individuals with "unique" skills, and that it would not include "lower categories" of
workers or "skilled craft workers." Matter ofPenner, id. at 50 (citing H.R. Subcomm. No. 1 of the Jud.
Comm., Immigration Act of 1970: Hearings on H.R. 445, 91
8
( Congo 210, 218, 223, 240, 248 (November
12, 1969».
Reviewing the Congressional record, the Commissioner concluded in Matter ofPenner 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 ofColley, "[m]ost employees today are specialists and
have been trained and given specialized knowledge. However, in view of the House Report, it can not be
concluded that all employees with specialized knowledge or performing highly technical duties are
eligible for classification as intracompany transferees." 18 I&N Dec. at 119. According to Matter of
Penner, "[s]uch a conclusion would permit extremely large numbers of persons to qualify for the 'L-l'
visa" rather than the "key personnel" that Congress specifically intended. 18 I&N Dec. at 53; see also,
1756, Inc. v. Attorney General, 745 F. Supp. at 15 (concluding that Congress did not intend for the
specialized knowledge capacity to extend to all employees with specialized knowledge, but rather to "key
personnel" and "executives.")
A 1994 Immigration and Naturalization Service (now CIS) memorandum written by the then Acting
Executive Associate Commissioner also directs CIS to compare the beneficiary's knowledge to the
general United States labor market and the petitioner's workforce in order to distinguish between
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Page 14
specialized and general knowledge. The Executive 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 Acting Executive Associate Commissioner,
Immigration and Naturalization Service, Interpretation of Specialized Knowledge, CO 214L-P (Mar. 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 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 thebeneficiary's job duties.
As explained above, the record does not distinguish the beneficiary's knowledge as more advanced than
the knowledge possessed by other similarly experienced persons employed by the petitioner's
organization or in the industry generally. As the petitioner has failed to document any materially unique
qualities to the petitioner's processes and procedures, the petitioner's claims are not persuasive in
establishing that the beneficiary, while highly skilled, would be a "key" employee. There is no indication
that the beneficiary has knowledge that exceeds that of any programmer with experience with banking
programming tools and implementation, or that he has received special training in the company's
methodologies or processes which would separate him from any other persons employed with the
petitioner's organization or in the industry at large.
The legislative history of the term "specialized knowledge" provides ample support for a narrow
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 additional reason, the petition will be
denied.
The initial approval of an L-1B petition does not preclude CIS from denying an extension of the original
visa based on a reassessment of petitioner's qualifications. See Texas A&M Univ., 99 Fed. Appx. 556,
2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not
have any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof
in a subsequent petition. See section 291 of the Act, 8 U.S.C. § 1361.
An application or petition that fails to comply with the technical requirements of the law may be denied
by the AAO even if the Service Center does not identify all of the grounds for denial in the initial
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001),
aff'd, 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting
that the AAO reviews appeals on a de novo basis).
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The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff
can succeed on a challenge only ifit is shown that the AAO abused its discretion with respect to all of the
AAO's enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with
the petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the director's
decision will be affirmed and the petition will be denied.
ORDER: The director's decision is affirmed. The petition is denied.