dismissed L-1B Case: Information Technology

U.S. Department of Homeland Security
20Mass . Ave., N.W., Rm. 3000
Washington, DC 20529
identifyingdata deletedto
preventclearly unwarranted.
. invasionofpersonalprivacy
PUBLIC COpy
MAY .072001
FILE: EAC 04 11652221 Office: VERMONT SERVICE 'CENTER Date:
·IN RE: Petitioner:
Beneficiary :
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the
Immigration and Nationality Act, 8U.S.C. §.1101(a)(15)(L)
ON BEHALF OF PETITIONER:
INSTRUCTIONS: .
This isthe 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.
, r;
IRobert P. Wiemann , Chief .
([)Administrative Appeals Office
. "
'EAC 0411652221 '
.' Page 2
DISCUSSION: The Director , Vermont Service Center, denied the petition fora nonimmigrant visa. The
matter is now before the Administrative Appeal s Office (AAO) on appeal. The ,AAO will dismi ss the ' '. . . .
appeal. ,
The petitioner filed this nonimmigrant petition ,seeking , to employ the beneficiary in the position of
"technical consultant as an L-JB nonimmigrant intracompany transferee w ith specialized knowledge
pursuant to § 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U .S.c. § 110Ha)(l5 )(L). '
The petitioner 'claims that it 'is a subsidiary of l-Flex Solutions, Ltd ., located in India. The petitioner
states that itis an information technology business. The petitioner seeks to employ the beneficiary for a
three-year period.
The director denied the petition on April 12, 2004, 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.
" '
Onappeal , counsel contends that 'the decision is "arbitrary , capricious, and anabuse of discretion," and
that Citizenship and Immigration Services (CIS) improperly applied the appropriate 'statute and regulation
to the evidence in its deriial ~f thepetition . Counsel for the petitioner states that the petitioner'has satisfied,
the factors utilized to determine specialized knowledge as ' outlined in - two legacy Immigration ' arid
Naturalization Service (INS)' memoranda. See Memorandum from James A. Puleo, Acting Exec. Assoc.
Comm., INS , Interpretation of Special Knowledge (March 9 , 1991)("Puleo Memo"); Memorandum from
Fujie Ohata , Assoc. Comm ., INS,:Interpretation of Specialized Knowledge (December 20, 2002)("Ohata
Memo ~') . Counsel 'asserts that the beneficiary qualified under th~ Puleo memo as the petitioner manufactures
a "proprietary techriologyproduct," andthe beneficiary is ";familiar with the procedures in the'useandservice
of th~ product," which enhances the petitioner's productivity and financial position, and the knowledge can
only be gained through the employment with the petition ing company. Counsel further asserts 'that the
director erred in stating that .the petitioning company is ' a "consulting company since it is primarily a
"developer of information technology products and customized services." Counsel cites to a previous
decision where the AAO approved L-lB 'status fora technical consultant for the petitioning company.
Counsel submits ~ brief and additional documentation in support of the appeal.
To establish L~{ eligibility, the petitioner must meet the criteria outlined in section lOl(a)05)(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 ' ~ ppl i c at i on for admission into ' the United States: a 'qualifying~rganizatio~
must have employed the'beneficiary in a qualifying managerial or executive capac ity, or in a specialized '
knowledge capacity , tor one continuous year. In addition , the ·beneficiary must seek to enter the United ,
States temporarily to continue rendering h is or her services to the same employer 01: a subsidiary or
affiliate thereof in a managerial, executive, or specialized knowledge capacity. ' ,
The regulation at 8 ,C.F.R. § 214.2(1)(3) state ~ that an i~dividual petiti~n fped on Form 1-129 shall be
accompanied by: ,,' " .
°EAC 04 11652221
Page 3
(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
specializedknowledge capacity, including a d~tailed 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) Evidencethat the alien's prior year 6f employment abroad was in a positionthat
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 ,notbe the same work which the alien performed abroad.
This matter presents' two related, but distinct issues: (l) 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, 8U.S.c. § 1184(c)(2)(B),provides:
Forpurposes of section 101(a)(l5)(L), an alien is considered to be serving in a ~apacity
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 ofprocesses and procedures of the company.
, , . .
Furthermore, theregulation at 8 C.F.R. § 214.2(l)(l)(ii)(D) defines "specialized knowledge" as:" ,
[Sjpecial knowledge possessed by an individual ofthe 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'sprocesses and procedures.
The petitioner filed the instant nonimmigrant petition on March 12, 2004, indicating that'the beneficiary
would be employed in the United States as a technical consultant. In a support letter dated March 1,
2004, 'the petitioner stated that it wishes to transfer the beneficiary to the United State~ "utilizing his
specialized knowledge of [the petitioner's] proprietary software to assist in the development of our
client' ,,' The petitioner also indicated the company's business activities as the
following:
The company's professional staff of over 1800 inforination technology professionals is
engaged in the design and development of both proprietary and customized information
• \. 'I - • .
'EAC 0411652221
Page 4
, technology systems to support the 'global banking and .financial operations of leading
international banking and financial organizations, as well as the development and
marketing of specialized software products for, the banking and financial services
industry, including is flagship product,' FLEXCUBETM, the company's proprietary
banking system software, FLEXCUBE is the choice of more than 170. financial
institutions worldwide. ,[The petitioner] also offers financial. institutions customized
solutions through its domain and technology Centers of Excellence, which encompass
areas such as Business Intelligence, CRM, e-services, Integration Services, Insur,at~ceand
Payment Systems. ,.The company's technical consultants utilize [the petitioner's]
solutions' proprietary '~roject management and information systems methodologies
PROMOTORTM and PrimeSourcing, as w~ll as [the petitioner's] solutions" proprietary
project and process database, "QuBase;\' .
The petitioner described the duties to be performed by the .beneficiary 'i~ the United States, and his
qualifications to fill the position, as the following:
In this position [technical consultant], he will' be engaged in the continued development'
and implementation of the Data Warehouse System for our client, Citibank, at their
offices in 1'J'ew York. [The beneficiary] has been engaged irithe development of
Citibank's Data Warehouse System in India, and where he has utilized his knowledge of
[the petitioner's] proprietary banking. systems software, including PROMOTOR~M and
. Primexourcingtv, in the development and implementation of the Data Warehouse
System. This system is' an application to' support the country financial requirements
pertaining to management reporting, local reporting, etc. It provides consistent and
, consolidated information'to bankers and to clients. The DataWarehouseSystem uses
[the 'petitioner's] proprietary software and project management .inforrnation systems;
includingPROMOTORTM ,and Primexourcing'P', in, conjunction with Citibank's
corporate audit and compliance testing, standards, software platforms and security
management systems.
, '. " ' , ',' . " I
[The beneficiary] is well qualified to assume this specialized knowledge position with our
organization. ,[The beneficiary] has been employed by [the petitioning company], in May
2000, and , has held the position of Technical Consultant since, then. As Technical"
' Co~ s ulta nt ; [the beneficiary] has been engaged inthe dev elopement andimpie~entation
of the company's software systems and products using [the petitioner's]PROMOTORTM
'and PrimeSourcing proprietary project management and information systernssoftwaie
methodologies and' protocols. During this period, he has also been engaged in the
,'development and implementation of Citibank informationtechnology systems includin,g ,
and ' in
conjunction, with Citibank's corporate audit and compliance testing standards, software
platforms and security management systems. In this capacity as Technical Consultant,
[the beneficiary] has been involved in the design, development, and documentation of
functions specifications and software ,modules of these proprietary software products,
including responsibility for the documentation, of technical,design specifications and the
"EAC 04 11652221
Page 5
diagnostic and evaluation testing of quality assurance and audit control :software
requirement s.
. .
[The beneficiary] holds a Bachelor of Commerce degree from .the Uni versity of Delhi in
. India. Throughout ' nearly four , year s of .employment with "[the 'petitioner] , (the
beneficiary] has developed advanced 'and "proprietary knowledge of [the petitioner 's]
products , software , management information systems ; and specifications ; as well as their
application to ()ur client's systems, which will assist the company 's competitive position .":
He posse sses knowledge of [the petitioner's] :methods of operations , including ' activities
with respect to client"service, as well as an advanced and in-depth .understanding of all
aspects of the international commodities markets and structures. Through his experience
withIthe petitioner] , [the beneficiary] has developed expertise in the business models and
software and systems requirements of [the 'petitioner ' s] clients. . He possesses knowledge
and skills that are highly developed and corriplex.and that are not readily available in the
United States.market. The fact that he has been engaged in the development of the Data
. Warehouse Systems at [the petitioning company] m~kes his knowledge . of our company"
. . I. " • ' .
and our:Client's requirements truly specialized . '
The petitioner also submitted a letter from the .foreign company confirming the benefic iary's employment
as a technical consultant since May 2000, and copies ofpay statements issued to the beneficiary from the .
' foreign company from July 2003 until January 2004 , and the 'tax return for the beneficiary, The petitioner
also 'submitted the petitioning company 's annualreport for ,~002 ~ 2003 , .
The director issued a reque st for additional evidence on March 24, 2004 , stating that the record does not:
· show that the beneficiary possesses specialized knowledge : The direct~~req~ested : (l}an explanation as
to whether the beneficiary participated on the ,same project he would work on .in the United States;
including the length of time, the specialized knowledge acquired when working ' on this project, and a
contract or personnel records evidencing the beneficiary worked onthis assignment; (2) a copy of the'
beneficiary's resume; (3) ev idence 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 possessesknowledge that is not commonlyheld throughout the industry 'but 'ihat is
truly specialized or advanced , which may include knowledge that is vaI~able "to the employer's
competitiveness in themarketplace ; ,and/or thathe is,qualified to.contribute.to the petitioner .';' knowledge
· of foreign operating conditions; (5) confirmation that the beneficiary . has been ,utilizeo abroad on
significant assignments that have enhanced the .employer 's productivity , .competitiveness ,' image , or
finan~ial position ,and that 'the knowledge possessed by.the beneficiary canonly be gained through prior
· experience with the':foreign employer; (6) verification . th~t the beneficiary ' possess es knowledge of a
product or process that cannot be easily transferr ed or taught to another individual ; (7) the number of L­
1B noni~migrai1t . worker~ employed in the United .States , including a' brief job 'description for each
employee ; (8) ~nexpl ~nati~n as to the manner iri which the be.neficiary 'has· gained his specialized
' knowledge, including the:total length of any classroom or on-the-job train ing courses completed and the
, minimum .amount of time required to 'train a persontowork in the position the petitioner is seeking to fill;. ' . ' ' . , ' : '." ," . "
-> ;
'EAC 0411652221
Page 6
and, (9) 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 prop~sedposition , · and the m.i~ber of '
employees who have' received such training.
, The'petitioner responded in a letter dated April 7, 2004. Counsel co~tended that the director's request for
additional evidence was 'misplaced and erroneous and that the petitioner had previously submitted ample '
evidence ~ith the initial petition .that established the beneficiary's specialized knowledge: Counsel further '
.asserted that the current standardfor the interpretation of specialized knowledge is outlined in two Iegacy :
INS memoranda. See Memorandu~ from . Assoc. Comm., INS,Interpretation " '
of Special Knowledge (March.9, 1991)("Puleo Memo"); Memorandum from Fujie Ohata, Assoc. Comm.,
. , INS, Interpretation ofSpecialized Knowledge (December 20, 2002)("Oha~ Memo"): Counsel stated that the
Puleo memo instructs CIS "that the statutory and regulatory ,definitions are less stringent than the previous
'. standard of proprietary knowledge ." Thus, counsel asserted that the beneficiary has specialized knowledge
·since.it has reached the 'higher standing of "proprietary' knowledge.of the company's products and services."
Counsel aiso stated that the beneficiary's knowledge' of the "proprietary technology -and its applications .to
banking requirements cannot be replicated easily to another individual." -,Furthermore,.counsel reviewed the
.'intent of the.statute and stated the director erred by reading such a strict interpretation of the regulat~?ns and
statute.
The petitioner fail~d tosub~it documentation'requested by the director such as documentation regarding the '
training required to fill the position of technical consultant arid information regarding similarly employed
individuals by the petitioning company. Failure to submit requested evidence that precludes a materi~lline
of i~quiryshall be ir~unds for denying the petition. 8 C.F.R. § 103.2(b)(i4) ... ··. . , . . . . ' . "
'; . > .
The director denied the petition on April 12, 2004, concluding that the petitioner failedto establish that the
position offered to ·theb eneficiaiy requires someone with specialized knowledge or that the beneficiary has
such knowledge. The 'director noted that the beneficiary's knowledge of the petitionei'spropn'etaryp~odu~ts, ;
without anyother documentation, is not sufficient to establish that the beneficiary possesses specialized
,knowledge. Thedirector noted that if the regulations were .intended ' to be interpreted so broadly, any
individual who has knowledge of a company's proprietary products will qualify for L-IB C1assificati()~ ..'·The
director .also stated' that the petitioning company does not develop its own softwareproducts , and..the
, beneflciaryvdidnot take part in the development" of the petitioner's proprietary products asdescribed In the'
. petition. The . :directb~ noted that the beneficiary 's duties 'do not appear to besignificantly differ~~t from .
those ofany other programmers employed by 'the petitioner, or different fromthe duties performed byother
.programmers in the -computer industry. The director further stated that allprogrammers hired. by the
.petitioner . must· undergo a inrec-monm training course and therefore : the trai~ing ' program, is' not
specialized since it is offered to all programmers 'and not a select few ~ho \viii bbtain .an advanc~d or
specialized.knowledge. '
On appeal , cbunsd contends that the decision is "arbitrary, capricious. rand an abuse Ofdiscretion," and
. ,t hat CIS improperly applied. the appropriate statute 'and regulation to the evidence in its denialof the
petition. 'Counsel for the' petitioner 'states that thepetitioner has' satisfied the factors utilizedto determine
specialized knowledge as outlined.in two legacy INSmerrioranda. See.Memorandum fro~Jaines A. Puleo,
Acting Exec. Assoc. Comm., IN~, Interpretation of Special Knowled¥e (March 9, 1991)("P~leo Me~o");
· EAC 04 11652221
Page 7
Memorandum from , INS, Interpretation ofSp ecialized Knowledge (December
20, 2002)( Memo") , Counsel states th~t"the beneficiary qualified under ' the Puleo memo as the
petitioner manufactures .a "proprietar y technology product ," and the: beneficiary is " familiar with the
procedures in the use and service ofthe product ':' which enhances the petitioner 's product ivity and financial
position and can only be gained through the employment with the petitioning company . Counsel also asserts
that the director erred in stating that the petitioning company is a consulting company 'since it is in fact
foremost a " d e~~ l o per of information technology product s .and customized ~ervices ." . Counsel states that th~
director included fact~ that were.not in .the record such as the petitioning company provides a three-month
training program to all of Its employees. Counsel states; "nowhere in this petition is the length of any training
program discussed." Counsel cites to a previous decision where the AAO approved L-lB status for a
technical consultant for the petitioning company. ' '
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. § 2l4.2(1)(3)(ii). 'The petitioner must submit a detailed description of the services to be performed
suffic ient to establish specialized knowledge . Id. .
Although the petitioner repeatedly asserts that the beneficiary 's proposedU.S. position requires specialized
;knowledge , the petitioner has not adequately articulated any ba sis to support this claim. The petitioner has
provided .a description .of the' beneficiary's proposed responsibilities as a technical consultant , but th~ .
description does not mention the application of any specialized or advanced body of knowledge which would
distinguish the' beneficiary 's role from that ofother technical consultants employed by the petitioner. 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) (c iting Matter of Treasure Craft of
·California, l4I&N Dec . 190 (Reg. ·Comm . 1972)) . Based upon the lack of supporting eviderice, the 'AAO
cannot determine whether the U.S. position requires someone who possesses knowledgethat rises to the level. .
of specialized knowledge as defined at 8 C.F.R. § 214.2(1)(1)(ii).cD).
The petitioner has repeatedly asserted that the beneficiary possesses knowledge of the petitioner's proprietary
· products such as FLEXCUBE, PROMOTORTM andPnmeSourcing, and QuBase , and thus the beneficiary
possesses specialized knowledge. According to the petitioner 's support letter dated MarchI, 2004, it
app'ears thatonce the benefic iary commenced his employment with the f~reignco~pany , he immediately
began working as a technical consultant "en.gag:din the development and implementation of the
·company 's software systems and products. " . Moreover ; in the response to the director 's request for
evidence ; the petitioner stated that the beneficiary immediately began working 'on "several projects fo[··
. Citibank." These facts provide further evidence that the petitioner does not utilize a proprietary system
that greatly differs from the systems used by technical consultants in the information technology industry
·since the beneficiary immediately began working with the petitioner's products upon commencement of
his employment with the petitioner. Thus , the AAO cannot .conclude that . the beneficiary has an
"advanced knowledge " of the petitioner 's proprietary software over and above from other employees of
the petitioner or other employees in the computer industry.
'"
. EAC 04 1'1652221
Page ,8
In addition, there i s.no e~idencein the record that the beneficiary has received specific in-house training
that would have imparted , himwith the claimed "advanced" knowledge of .the company's processes ,
procedures and methodologies .. .In the request for evid ence ; the director specificallyrequested that the
'petitioner submit documentary evidence to establish that the beneficiary possessed ,specialized
' knowledge a1;'ove that which is normally possessed by other technical consultants employed by the
foreign.organization. The petitioner failed to submitthis documentation in its response : Failure to submit. ' . . . ' .
requested evidence that precludes .a .material line of inquiry shall be grounds for denying the petition .
8 C.F.R § 103.2(b)(l4) . Without specific information of the training courses completed by the
beneficiary at ,the foreign company, if any, the AAO cannot ' determine ir' this training provided the
" beneficiary with an advanced knowledge orif it is reasonable to believe that a technical consultant with a
background in relatedtechnologies may learn the petitioning company's specific project methodologies
and processes with little to no training.
,In addition, the petitioner did not submit any documentation to evidence that the beneficiary received
additional training that was' not provided to other technical consultants employed by the foreign company.
The petitioner did note that th~ beneficiary has worked with the U.S. CIie~t on the same project and his
experience and knowledge .of the , client's requirements are "truly specialized." Knowledge related to'a
specific ' clients': project cannot be considered "specialized knowledge" specific to the petitioning
company . The beneficiary's familiarity with ,the u.s..clients' project requirements ' is 'undoubtedl y
valuable to the .petitioner , but ,this knowledge ' alone ,is insufficient to establish employment 'in a
specialized-knowledge capacity, If the AAO , were to follow the petitioner's logic , any technical
consultant who had ,worked on a client project team "within the petitioner's 'organization would be
considered to possess "specialized knowledge." ' "
Counsel repeatedly asserts that .the beneficiary possesses .specialized knowledge due to the nature of the
petitioner 's "proprietary technology product." The petitioner did not submit evidence describing in detail the '
, .
petitioner's proprietary products and how they differ .from other information technology products utilized by
the banking industry. Despite ,the director's request forevidence, the petitioner failed to submit any evidence
to establish the purported proprietary nature of the petitioner's "proprietary technology product" or 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; Mere assertions are not enough to
'meet the petitioner's burden Of proof. Going 'on record without supporting documentary evidence is not
sufficient for purposes of meeting the burden of proof in these proceedings , :Matt er of Sofjici, 22 I&N
, : Dec. 158.' 165 (Comm. 1998) (cit ~ng Matter of Treasur e Craft of California , 14 i&N r?ec. '190 (Reg.
Comm. 1972».
Contrary 'to theassertions Of the petitioner, there is no evidence on record to suggestthat the processes :
and technology pertaining to technical consultant .positions within the ,U.S. 'company are different from
,' , those applied for other companies providing software development and consulting services to the banking
• industry ; Moreover.ithere 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. . While individual companies will develop acomputer system tailored ' to its own
needs a~d internal quality processes, it has not been established that there would .be substantial diffe~ences
..... .
· EAC 04 11652221
· ·Page 9.
· such that kno wledge of. the p etitioning compan y's proces ses..and quality .standards would amount to
"specialize dkn owled ge," ' . .
. ' . , ' .\ ' . . ..
It is al so 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) (~{tingMattero/Raulin ,13 I&N Dec.
. , . I . ' . ' .
618 (R.C . 1970) and Matter ofLelilanc.Ys I&N Dec. 816 ,(R.C. 1971)) . As stated by the Commissioner '
in Matter of Penner, when considering whether the beneficiaries ' possessed ~pecializedknowledge , "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 conside~ed to have unusual
duties, skills, or knowledge beyond that of a ,skilled worker, !d. The Commissioner also provided the
following clarification:
A distinction can be made between a person whose . skills arid knowledge enable him or
her to produce a productthrough 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 'b~siness ' operation . . .' '" ' . ' ' .r
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 P~nn e/ was supersededby the
:.1990 Act to the extentthat the former .definition required a showing of "proprietary " knowledge , the AAO
finds that the reasoning b~hind Matt~r of Penner remains '~pplicable to the current matter . The decision
noted that the 1970 House Report, H.R. No. 91-851 : stat~d that the number of admissi~~s under the L ~ 1 .
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 noted that the Hotise Report was silent on the subject of specialized knowledge, but that
.during the course of the sub-committee hearings on the .:bill, the Chairrriah" specifically. questioned
I Although the cited precedent s .pre-date the current .statutory 'definition of "sp~ciali ied knowledge," 'the
AAO' finds-them instructi ve. Other ' than deleting the former requirement that specialized knowledge had '.
to be "proprietary," the' 19~0 Act 'did not significantl y alter the definition of "specialized knowledge" . .
from the priorINS 'interpr etation Of the term. The 1990 'Committee Report does not reject ; 'criticize, or
even refer to any , specific INS ' regulation or precedent decision interpreting ' ~h e term. ' The Committ~e
Report simply states that the Committee was recommending a statutory definition because of "[vjarying
[i.e., . ~ o t specifically incorrect] interpretations by INS," H.R. : Rep. No . ·l Ol-i 23(I) ,· at 69 , ,1990
U.S.C.C.A.N. at 6749 . Beyondthat , the Committee Report simply restates 'the tautology that qe.ca,me
section 214(c)(2)(B) of the 'Act. !d. The AAO concludes. therefore ; that the cited cases remain ''useful
guidance 'concerning the intended scope 'of the "specialized knowledge " L- l'i3 'c ia s s i fi ~ ad on . The AAO
supports its use of Matter of Penner, as well in offering guidance interpreting. t'specialized knowledge ."
Again, the Committee Report does not ' rej e ~t the interpretation of specialized knowledge offered in '
Matter ofPenner.
,.;:
.' ,
"
' J ~ .
"';',
" EAC 04116 52221
Page 10
witnesses on the level Of skill necessary to qualify under the. proposed "L" category. In response to the
Chai~an's questions, various witnesses responded that they understood the legislationwould 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. atSf) (citing H.R. Subcomm. No.,
, 1 ofthe Jud. Comm.,Iminigration Act of 1970: Hearings on HR. 445, 91st Congo 210, 2i8, 223, 240, 248
'(November 12, 1969».
Reviewing the Congressional record, the Commissione~ concluded in Matter ofPennerthat an expansive
reading of the specialized knowledge provision.r such that it would, include skiiled workers and
technicians, is not warranted. The Commissioner emphasized that the' specialized knowledge worker
classification was notintended for "all employees with any level ofspecialized 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.jt can not be '
concluded that all employees with specialized knowledge or performing highly technical duties ani
-eligible for classification as intracompany' transferees." 18 I&N Dec: at 119.' According, to Matter' of
Penner, "[s]uch a conclusion would perinit extremely large numbers ofpersons to qualify for the 'L-l'
visa" rather than the "key personnel" that Congressspecifically intended. 18 I&N Dec. at 53; see also,
]]56, Inc., 745 F. Supp. at 15 (concluding that Congress did not intend for the specialized knowledge
capacity to, extend to all, employees with specialized knowledge, but rather to "key personnel" and
, "executives.")
The beneficiary's job description does not distinguish his knowledge as more advanced or distinct among
other technical consultants employed by the foreign or U.S. entities orbyother 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
conceptarid cannot be clearly defined. As observed in j 756, Inc. V. AttorneyGeneral, "[slimply put,
specialized knowledge is a relative ... idea which cannot have a plain 'meaning." 745F. Supp. 9, 15
(D.D. C. 1990)? The Congressional record specifically states that the L~ I, category was i~tended for "key
-personnel." See genii-ally, H.R. REP. ,No. 91-851; 1970,U.S.C.C:A.N.' 2750. The term "key personnel"
, denotes a position within the petitioning company that is "of crucial importance." Webster's II. New
College Dictionary 605 '(Houghton Mifflin Co. 2001 ).Ingeneral, fill employee's, can reasonably be
2 Again, Congress' 1990 amendments 'to the Act did not specifically oveiTUle1756, 1nc. nor any other
administrative"precederit decision, nor did the 1990' amendments othe~se .mandate a less restrictive
interpretation of the term "specialized knowledge." The House Report, which accompaniedthe 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 procedl;lres of the company.
H.R. REP. No. 101-723(1), 1990 u.S.C.C.A.N. 6710,6749, 1990WL 200418.',
. EAC 0411652221
.Page 11
considered "important" to a petitioner's enterprise :' If an employee did not contribute to the overall
economic success of an enterprise, there WQuid be no r~tional economic,reasont~ 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 betweerrthe 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'sknowledge 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 knowledg~ must ensure that the kn~wh~dgepossessed 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 coml?are'the beneficiary 's knowledge, CIS wouldnot be able to "ensure that the
knowledge possessed by the beneficiary is truly specialized :" !d. The analysis for specialized knowledge '
therefore requires a test o'(th~ knowledge possessed by the United ,States labor market, but does not '
co~siderwhether workers ate available in the United States to perforin the beneficiary's job duties.
The record does not distinguish the beneficiary 's knowledge as more advanced ,thim theknowl~dge
possessed by other programmers within the petitioning company or within :the .information technology
industry. As noted above , the fact that the beneficiary immediately began working on assignments with
the petitioning company utilizing its banking products, it .appears that any iridividual ~ith experience in
the information technology industry may work with the petitioner's ,prO ducts'"and learn its .specific
requirements fairly quickly. " Thus, it appears that the petitioner's products are based on info~ation
technology systems that are common in the industry. In addition, the petitioner did not indicate a training
program required of its technical consultants and thus it .appears any individuai with an information
technology background may fill the position of technicalconsultant. Since the petitioner did.not indicate
aspecific training program or the minimum requirements to fill the position of technical 'consultant, the
petitioner failed to demonstrate that the beneficiary's knowledge is any different than the knowledge held ,
'by a trained technician or a skilled worker. See Matter ofPenner, 18 I&N Dec , at '.s~. 'If the AAO were "
to follow the petitioner'sreasoning , then any employee wh~ has worked with the 'petitioning company .
possesses specialized knowledge. However , based on the intent of. Congress in its creation of the L-l B .
visa category , as discussed in Matter of Penner, even showing that a beneficiary possesses specialized
knowledge does not necessarily establish eligibility for theL-IB intracompany . transferee ' status. 'T he '
petitioner should also 'submit, evidence to show that the beneficiary is 'being transferred to the Uriited
States as a crucial employee . " ','
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 establi~hothat the beneficiary's
knowledge of these systems, processes, and methodologies is particularly advanc~d in ''comparison to his '
peers, that the processes themselves cannot be easily transferred to its U.S. employees or to professionals who. .' . ,
". ;.
• EAC 0411652221
, Page 12
,h~ve ' not previously worked 'with the organization , that the Ll.Si-based staff does not ac~allypossess the
same knowledge, or that the ,U.S. position offered actually requires someone with the claimed "advanced
knowledge." The petitioner has not submitted sufficientdocumentary evidence 'in support ofits assertions or
counsel's assertions that the beneficiary's skills and knowledge of the foreign entity ~s 'processes, procedures;
and methodologies would differentiate him from any other similarly employed software analyst/programmer
within the petitioner's group or within the industry. Simply going on record without supporting documentary'
evidence is not sufficient for'the purpose of meet ing the burden of. proof in these 'proceedings. Matter of "
Soffici, 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 ,
, ' " I " " ,
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 pet itioner's product, service ,
research, equipment, techniques or management. 8 C.F .R. § 214.2(I)(l )(ii)(D). As discus sed above.fhe
petitioner has not established that the beneficiary 's knowledge rises to th~ level of specialized knowledge
contemplated by the regulations. " ' '
Iri sum, the evidence indicat es that, the beneficiary 's duti e ~ and technicai skills are based on knowledge
that is common among computer systems professional working in thebe~eficiarY.' s specialty in the
i~foITnation technology field '. :The petitioner has failed to demon strate that th~ beneficiary's training,
work experience , ' Of' knowledge of the company 's processes is more advanced than the knowledge ,
possessed by others' employed by the petitioner , or thatthe processes and systems used by the petitioner '
are substantially different from 'those used by other large information technologoy consulting 'companies.
The AAO does not dispute the fact that the beneficiary 's knowledge has allowed himto 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 employmentin a specialized knowledge capacity. As discussed , the petitioner ha~ not
, submitted probative evidence to establish that the beneficiary's knowledgei~uncorrimon, noteworthy, or
" distinguished by some unusual quality and riot generally known .in the beneficiary 's -field of endeavor, or
, "that hIS knowledge is ad vanced compared to the knowledge held by othersirnilarly employed 'workers
within the petitioner and the foreign entity. " ' " . " "
Th~ petitioner noted that CIS approved otherpet itions that had been previously filed Onbehalf of the
petitioner ,for other employees. The director's decision does not indicate whether he reviewed the prior '
'approvals of the other nonimmigrant petitions. If the previous nonimmigrant petitions were approved
based on thesa~e unsupported and contradictory assertions that arecontained in the current record , the ,
approval 'would constitute material and gross error on the part-of the director. The AAO is not required to
approve applications or p etitions where eligibility has not been demonstrated , merely because ,of prior
approvals that 'may have been erroneous . See. ie.g. Matter 'o f Church Scientology International, 19 I&N '
, : Dec. 593, 597 (Comm." 1988).' 'It would be absurd to suggest that CIS'or any agency must treat
' t . . ,
• EAc::: 04 11652221 .
Page 13
acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825,F.2d '1084, 1090 (6th, ". . - .
Cir. 1987), cert.. denied, 485 U.S. 1008 (1988).
The AAO's authority over the service centers is comparable to the relationship between a court of appeals
and a,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 WL282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. .
2001), cert. denied, 122 S.Ct. 51 (2001).
Furthermore, the fact that the AAOmay haveapproved a previous petition filed by the petitioner will not.
establish eligibility in the present matter. ' It must be emphasized that each petition is a separate
proceeding with a separate, record. See 8 C.F.R. § 103.8(d). In making a determination of statutory'
eligibility, CIS is limited to the information contained in the record of proceeding. See 8 C.F.R. §
103.2(b)(l6)(ii).
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.·
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with
the petitioner. Section 291 ofthe Act, 8 U.S.c. §1361. ,The petitioner has not sustained that burden..
ORDER: The appeal is dismissed.