dismissed L-1B Case: Information Technology

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 U.S. Department of Homeland Security 
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 U.S. Citizenship and Immigration Services PY&,$Zi,c ;, . , Office of Administrative Appeals MS 2090 
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 Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: EAC 08 099 52542 Office: VERMONT SERVICE CENTER Date: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l5)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the ofice that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to 
have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 
5 103.5 for the specific requirements. All motions must be submitted to the office that originally decided 
your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 
103S(a)(l)(i). 
/;?&&- 
YJohn F. Grissom 
Acting Chief, Administrative Appeals Office 
EAC 08 099 52542 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant 
visa. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO 
will dismiss the appeal. 
The petitioner is an information technology solutions and services provider. 
 It seeks to 
temporarily employ the beneficiary in the United States as a programmer analyst, and filed a 
petition to classify the beneficiary as a nonimmigrant intracompany transferee with specialized 
knowledge. The petitioner claims to be a branch of, located in 
Bangalore, India. The director denied the petition, finding that the petitioner had not established 
that the beneficiary possesses specialized knowledge or that the proffered position requires 
specialized knowledge. 
On appeal, counsel for the petitioner asserts that the director's decision was based on conjecture 
that the beneficiary's responsibilities are merely entry-level and thus not specialized. In support 
of these assertions counsel submits a brief and additional evidence. 
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. 5 1 lOl(a)(lS)(L). Specifically, 
within three years preceding the beneficiary's application for admission into the United States, a 
qualifying organization must have employed the beneficiary in a qualifying managerial or 
executive capacity, or in a specialized knowledge capacity, for one continuous year. In addition, 
the beneficiary must seek to enter the United States temporarily to continue rendering his or her 
services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. $ 214.2(1)(3) further states that an individual petition filed on Form 
I- 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 qualifling 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 
EAC 08 099 52542 
. Page 3 
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: (I) 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. 5 1 184(c)(2)(B), provides the following: 
For purposes of section 101(a)(15)(L), an alien is considered to be serving in a 
capacity involving specialized knowledge with respect to a company if the alien 
has a special knowledge of the company product and its application in 
international markets or has an advanced level of knowledge of processes and 
procedures of the company. 
Furthermore, the regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(D) defines "specialized knowledge" as: 
[Slpecial knowledge possessed by an individual of the petitioning organization's 
product, service, research, equipment, techniques, management, or other interests 
and its application in international markets, or an advanced level of knowledge or 
expertise in the organization's processes and procedures. 
As stated above, the petitioner seeks to employ the beneficiary temporarily in the United States 
as a programmer analyst. In a letter of support dated February 13,2008, the petitioner stated that 
the beneficiary was a lead identity and access management consultant at the foreign entity for 
more than one year. Specifically, the petitioner stated: 
In India, where he was a Senior Systems Engineer, [the beneficiary] has managed the 
consulting, product development, testing, design, and successfully implementing 
Identity and Access Management Solutions. We expect him to do the same thing 
here in the United States. He has the unique responsibility of designing, developing, 
architecting and implementing Identity Management/Provisioning solutions at 
enterprise level whether single sign-on or identity and access management solutions. 
Product Management 
He also has responsibility for ensuring that product development meets the 
requirements of [the petitioner's] selling partners. Because of his unique role, he is 
charged with developing and conducting presentations and product trainings to 
customers and partners on [the petitioner's] products. He is responsible for technical 
and domain consulting in identity and access management, partner management, and 
product management. He also works with the presales & technical team in 
developing presentations, product-training materials for conducting presentations. 
EAC 08 099 52542 
Page 4 
He has performed these duties and will continue to perform same duties including 
those below 
Carry out multi-threading programming and object-oriented design. Design 
and implemented string matching algorithm and connection between the 
database and string matching process for cleansing the data. 
Access system architectures and limitations, define and design system 
specifications, input/output process, and working parameters in co-ordination 
with Architecture team. 
Develop system requirements and provide input info defining and designing 
system solutions for enterprise equipment. 
Provide reviews, validation, and enforcement of enterprise policies. 
Responsible for configuration control boards to review systems engineering, 
software development, and sensor integration and test procedures to support 
the client's technical needs. 
Complete documentation for quality, standard operating procedures, 
standards, disaster recovery, work instructions and proposals. 
Develop data-centric network designs focused on intra-building connectivity. 
Research and plan for security technology solutions such as encryption, access 
controls, fail-over and fault-tolerant environments, wireless, hand-held 
devices, security controls in new technologies. 
Regarding the specialized knowledge of the beneficiary's proposed position, the petitioner 
stated: 
[The beneficiary's] position involves specialized knowledge of [the petitioner's] 
products and processes and services including Identity and Access Management 
Solutions. He has specialized knowledge in [the petitioner's] product-line . . . . 
Specialized knowledge of [the petitioner's] product line is required to [tailor the 
petitioner's] sophisticated and complex product line within an intricate and dynamic 
marketplace, Knowledge of and expertise in each product, and its appropriate 
implementation and essence of its customization to a particular market need is 
essential. [The beneficiary] is very adept in [the petitioner's] implementation 
standards, development procedures, architecting and processes. 
Finally, the petitioner provided an overview of the beneficiary's qualifications, and stated: 
EAC 08 099 52542 
Page 5 
[The beneficiary] graduated [with a] Bachelor's degree (B.Tech) in Information and 
Communication Technology from Dhirubhai Ambani Institute of Information and 
Communication Technology Gandhinagar Gujarat, India. In addition, he holds many 
industry relevant certifications including IBM Tivoli Identity Manager Deployment 
Professional 4.6 from leading technology vendors like IBM. He has been with [the 
petitioner] since October 2006, during which time he has undertaken dynamic and 
innovative consulting career that reflects pioneering experience in security 
infrastructure concepts across operating systems, multi-tiered architectures access 
management solutions, user provisioning solutions and enterprise directory solutions. 
[The beneficiary] has in depth expertise and experience of [the petitioner's] products 
and processes. 
The petitioner also submitted copies of various organizational charts for the petitioner and the 
foreign entity, which provided an overview of the staffing structure of the two entities and the 
beneficiary's role therein. 
The director found this evidence insufficient to establish the beneficiary's eligibility, and issued a 
request for additional evidence on March 3, 2008. Specifically, the director requested 
information establishing the beneficiary's specialized knowledge, and requested evidence such as 
a description of a typical work week for the beneficiary, the manner in which he gained his 
specialized knowledge such as the amount of classroom or on-the-job training he received and 
the minimum amount of time required to train a person in the proposed position. Additionally, 
the director requested evidence demonstrating that the beneficiary's position in the United States 
required specialized knowledge, as well as evidence that the beneficiary's knowledge is 
uncommon, noteworthy, or distinguished, and not generally known by practitioners in the field or 
that his advanced knowledge of the company's processes and procedures is apart from the basic 
knowledge possessed by others. Finally, the director asked for clarification regarding whether 
the physical location of the beneficiary's proposed position was offsite from the petitioner's 
place of business. 
Counsel for the petitioner submitted a letter from the petitioner addressing these requests in a 
response dated April 10, 2008. First, the petitioner addressed the question of whether the 
beneficiary would work offsite, and claimed that it had clearly stated at item 13 of Form 1-129 
that the beneficiary would not be stationed offsite in the United States. The AAO, however, 
notes that contrary to the petitioner's claim, the petitioner clearly answered item 13 in the 
affirmative. Nevertheless, this discrepancy has been resolved and is not pertinent to the question 
of specialized knowledge. 
The petitioner addressed the issue of s ecialized knowledge by first referring to a March 9, 1994 
Guidance memorandum from A Acting Executive Associate Commissioner, 
recently reaffirmed by a memorandum from Associate Commissioner for Service 
Center Operations dated December 20, 2002, and claims that the language contained in the 
EAC 08 099 52542 
Page 6 
director's request was contrary to the points outlined in these memoranda.' Specifically, the 
petitioner asserts that the evidence submitted in support of the beneficiary's qualifications is 
sufficient to satisfy the regulatory requirements as explained in further detail by the memoranda. 
Regarding the beneficiary's qualifications, the petitioner stated: 
Our products, methods and standards for performing work do differ significantly from 
the products and methods generally used in the industry. 
Our IT professionals are very well versed in our design and architecture of identity 
management. Our partnerships with and understanding of the premier products in 
this vertical industry is crucial to the success of ours and our clients' businesses. Our 
ability to implement successful programs helps companies increase efficiency, 
productivity and profitability by identifying trends and delivering solutions contained 
within their reservoir of data. This technology delivers diverse business security and 
intelligence applications that companies need to manage the full range of corporate 
performance. It allows multiple users storing and accessing the information 
repository simultaneously with the most updated and accurate information. The 
interoperability of this integrative technology is not limited to one industry. Our 
integrated system has been designed to suit the needs of multiple industries and 
businesses. These technologies, designed and developed by [the petitioner], are so 
powerful and diversified in their data and reporting capabilities, that many users from 
different locations can use them simultaneously. Accuracy, timely data, easy access, 
virtual location capabilities and, above all, the security of the information that is 
accessed makes these tools and technologies of [the petitioner] very valuable (and in 
high demand) to the present and emerging Information Portal Technology industry. 
[The beneficiary] is a highly qualified and trained professional in the area of Identity 
& Access Management. He was specially trained in [the petitioner's] product-line, 
required to market and [tailor the petitioner's] sophisticated and complex product line 
within an intricate and dynamic marketplace, particularly [the petitioner's] 
implementation standards, development procedures, architecting and processes. He 
has been a key employee in developing and implementing complex projects in User 
Provisioning, Single Sign-ON and Federation for both our national and international 
1 
 See Memo. from, Acting Exec. Assoc. Cornmr., Office of Operations, 
Immigration and Naturalization Serv., to All Dist. Dir. et al., 
 Interpretation of Special 
Knowledge, 1-2 (March 9, 1994) (copy on file with Am. Immig. Law Assn.). 
EAC 08 099 52542 
. Page 7 
clients. 
 There are very few professionals in this domain. 
 Identity and Access 
Management is a very specialized domain, once an organization turns on Identity 
Management, it certainly reaps its benefits in terms of security audit and ease of use. 
However, a solution designed improperly can open up fatal fissure in the security 
blanket. At [the petitioner], [the beneficiary] has been extensively trained at [the 
petitioner's] Identity Manager Reporting Solution, IAM Consulting, [the petitioner's] 
Compliance Manager for TIM: [the petitioner's] Compliance Manager for Tivoli 
Identity Manager ("ICMI") which enables easy control and managing of the 
company's compliance objectives by providing robust information dissemination 
capability; [the petitioner's] Reporting Solution for MIIS; [the petitioner's] SA 
Reports for SOX Compliance; [the petitioner's] ESM Reporting Tool for Symantec 
ESM (Enterprise Security Manager) Report Generator developed to enhance the 
reporting capabilities of ESM, etc. Knowledge of each product; how each product 
functions; its appropriate implementation and how the product can or cannot be 
tailored to a particular client are all part of the technology arsenal of [the beneficiary]. 
It is important to understand that the beneficiary's knowledge is different from the 
rest of the market because this knowledge is proprietary to our company. [The 
beneficiary] has been helping our company define and fine tune this technology and, 
at the same time, exploit its full potential. He has been part of the development and 
implementation of same as a remote resource because of his uncommon expertise and 
proficiency in identity and access management, security and reporting. He also 
played a key role in the design and implementation of some of the processes. His 
pioneering effort and excellence with these technologies has earned us valuable and 
durable clientele and immense goodwill. His prototype development efforts have 
hrther elevated the standing of [the petitioner] in the IT industry. In this process, 
beneficiary and his team members became intimately knowledgeable in every aspect 
of these unique software technologies. The beneficiary and his team are the only 
professionals with detailed information on these extraordinary technologies which are 
the direct result of [the petitioner's] procedures and processes. [The beneficiary] has 
used these technologies to customize applications for Information Resources, Inc., 
Medica Health Plans, Pekin Insurance, in the United States Sargento Foods, to name a 
few. His assignments spread across Retail, Telecom, Health Care, BFSI & 
Technology verticals. The knowledge and expertise regarding the far complicated 
world of security, audit and compliance understanding makes him one of [the] most 
valuable professional resource[s] at [the petitioner]. 
Finally, the petitioner stated that typical trainees in the identity and access management 
technologies have two or more years of industry experience before being accepted into the 
program and are required to have a good understanding of identity management, business 
hnctionalities and software experience on various database platforms. Once accepted, trainees 
EAC 08 099 52542 
Page 8 
undergo six months of intensive training and lab activities. At the conclusion of the training 
period, trainees are assigned to a project. 
On April 22, 2008, the director denied the petition. Specifically, the director concluded that the 
position of programmer analyst was a common position available in similar IT firms, and that the 
petitioner's in-house training seems standard. Moreover, the director found that although the 
petitioner claimed that its practices and software provided a "competitive edge for the 
petitioner," there was insufficient evidence to demonstrate that that these practices and software 
were proprietary, owned by the petitioner, or significantly different that others available in the 
industry. 
On appeal, the petitioner claimed that its documentation submitted in support of the petition 
established the beneficiary's specialized knowledge and likewise demonstrated that the 
petitioner's practices and software were proprietary in nature. The petitioner submits copies of 
its company overview and product descriptions taken from its website in support of the appeal. 
Upon review, the AAO concurs with the director's decision. 
As enacted by the Immigration Act of 1990, section 214(c)(2)(B) of the Act, 8 U.S.C. 
$ 1 184(c)(2)(B), provides the statutory definition of specialized knowledge: 
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. 
Looking to the plain language of the statutory definition, Congress has provided USCIS with an 
ambiguous definition of specialized knowledge. Although 1756, Inc. v. Attorney General was 
decided prior to enactment of the Immigration Act of 1990, the court's discussion of the ambiguity 
in the former INS definition is equally illuminating when applied to the definition created by 
Congress: 
This ambiguity is not merely the result of an unfortunate choice of dictionaries. It 
reflects the relativistic nature of the concept special. An item is special only in the 
sense that it is not ordinary; to define special one must first define what is ordinary. . 
. . There is no logical or principled way to determine which baseline of ordinary 
knowledge is a more appropriate reading of the statute, and there are countless other 
baselines which are equally plausible. Simply put, specialized knowledge is a 
relative and empty idea which cannot have a plain meaning. CJ Westen, The Empty 
Idea of Equality, 95 Harv.L.Rev. 537 (1982). 
745 F.Supp. 9,14-15 (D.D.C., 1990). 
EAC 08 099 52542 
. Page 9 
In effect, Congress has charged the agency with making a comparison based on a relative idea that 
has no plain meaning. To determine what is special, USCIS must first determine the baseline of 
ordinary. 
While Congress did not provide explicit guidance for what should be considered ordinary 
knowledge, the canons of statutory interpretation provide some clue as to the intended scope of the 
L- 1 B specialized knowledge category. NLRB v. United Food & Commercial Workers Union, Local 
23, 484 U.S. 1 12, 123 (1987) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct 1207, 94 
L.Ed.2d 434 (1987)). 
First, it is instructive to look at the common dictionary definitions of the terms "special" and 
"advanced." According to Webster's New World College Dictionary, the word "special" is 
commonly found to mean "of a kind different from others; distinctive, peculiar, or unique." 
Webster's New World College Dictionary, 1376 (4th Ed. 2008). The dictionary defines the word 
"advanced" as "ahead or beyond others in progress, complexity, etc." Id. at 20. 
Second, looking at the term's placement within the text of section 101 (a)(15)(L), the AAO notes that 
specialized knowledge is used to describe the nature of a person's employment and that the term is 
listed among the higher levels of the employment hierarchy with "managerial" and "executive" 
employees. Based on the context of the term within the statute, the AAO would expect a 
specialized knowledge employee to be an elevated class of workers within a company and not an 
ordinary or average employee. See 1756, Inc. v. Attorney General, 745 F.Supp. 9, 14 (D.D.C., 
1990). 
Third, the legislative history indicates that the original drafters intended the class of aliens eligible 
for the L-1 classification would be "narrowly drawn" and "carefully regulated and monitored" by 
USCIS. See generally H.R. Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750, 2754, 
1970 WL 58 15. The legislative history of the 1970 Act plainly states that "the number of temporary 
admissions under the proposed 'L' category will not be large." Id. This legislative history has been 
widely viewed as supporting a narrow reading of the definition of specialized knowledge and the 
L-1 visa classification in general. See 1756, Inc. v. Attorney General, 745 F.Supp. at 15-16; Boi Na 
Braza Atlanta, LLC v. Upchurch, Not Reported in F.Supp.2d, 2005 WL 2372846 at *4 (N.D.Tex., 
2005), afd 194 Fed.Appx. 248 (5th Cir. 2006); American Auto. Ass'n v. Attorney General, Not 
Reported in F.Supp., 1991 WL 222420 (D.D.C. 1991); Fibermaster, Ltd v. INS., Not Reported in 
F.Supp., 1990 WL 99327 (D.D.C., 1990); Delta Airlines, Inc. v. Dept. of Justice, Civ. Action 00- 
2977-LFO (D.D.C. April 6,2001)(on file with AAO). 
Although the Immigration Act of 1990 provided a statutory definition of the term "specialized 
knowledge," the definition did not expand the class of persons eligible for L-1B specialized 
knowledge visas. Pub.L. No. 101-649, 5 206(b)(2), 104 Stat. 4978, 5023 (1990). Instead, the 
legislative history indicates that that Congress created the statutory definition of specialized 
knowledge for the express purpose of clarifying a previously undefined term from the Immigration 
Act of 1970. H.R. Rep. 101-723(1) (1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6749, 1990 WL 
EAC 08 099 52542 
Page 10 
200418 ("One area within the L visa that requires more specificity relates to the term 'specialized 
knowledge.' Varying interpretations by INS have exacerbated the problem."). While the 1990 Act 
declined to extend the "proprietary knowledge" and "United States labor market" references that had 
existed in the existing agency definition, there is no indication that Congress intended to liberalize 
the L- 1 B visa classification. 
If any conclusion can be drawn from the ultimate statutory definition of specialized knowledge and 
the changes made to the legacy INS regulatory definition, the point would be based on the nature of 
the Congressional clarification itself. Prior to the 1990 Act, legacy INS pursued a bright-line test of 
specialized knowledge by including a "proprietary knowledge" element in the regulatory definition. 
See 8 C.F.R. $ 214.2(1)(l)(ii)(D) (1988). By deleting this element in the ultimate statutory 
definition and further emphasizing the relativistic aspect of "special knowledge," Congress created a 
standard that requires USCIS to make a factual determination that can only be determined on a case- 
by-case basis, based on the agency's expertise and discretion. Rather than a bright-line standard that 
would support a more rigid application of the law, Congress gave legacy INS a more flexible 
standard that requires an adjudication based on the facts and circumstances of each individual case. 
Cf Ponce-Leiva v. Ashcroft, 331 F.3d 369,377 (3d Cir. 2003) (quoting Baires v. INS, 856 F.2d 89, 
91 (9th Cir.1988)). 
Accordingly, as a baseline, the terms "special" or "advanced" must mean more than simply 
skilled or experienced. By itself, work experience and knowledge of a firm's technically 
complex products will not equal "special knowledge." Matter of Penner, 18 I&N Dec. 49, 53 
(Comm. 1982). Specialized knowledge requires more than a short period of experience, 
otherwise "special" or "advanced" knowledge would include every employee in an organization 
with the exception of trainees and entry-level staff. If everyone in an organization is specialized, 
then no one can be considered truly specialized. 
Considering the definition of specialized knowledge, it is the petitioner's fundamental burden to 
articulate and prove that an alien possesses "special" or "advanced" knowledge. Section 
2 14(c)(2)(B) of the Act, 8 U.S.C. 8 1 184(c)(2)(B). USCIS cannot make a factual determination 
regarding the beneficiary's specialized knowledge if the petitioner does not, at a minimum, 
articulate with specificity the nature of the claimed specialized knowledge, describe how such 
knowledge is typically gained within the organization, and explain how and when the beneficiary 
gained such knowledge. 
After articulating the nature of the claimed specialized knowledge, it is the weight and type of 
evidence which establishes whether or not the beneficiary actually possesses specialized 
knowledge. A petitioner's assertion that the alien possesses an advanced level of knowledge of 
the processes and procedures of the company must be supported by evidence describing and 
setting apart that knowledge from the elementary or basic knowledge possessed by others. 
Because "special" and "advanced" are comparative terms, the petitioner should provide 
evidence that allows USCIS to assess the beneficiary's knowledge relative to others in the 
petitioner's workforce or relative to similarly employed workers in the petitioner's industry. 
EAC 08 099 52542 
Page I I 
In examining the specialized knowledge capacity of the beneficiary, the AAO will look to the 
petitioner's description of the job duties and the weight of the evidence supporting any asserted 
specialized knowledge. See 8 C.F.R. $ 214.2(1)(3)(ii). 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 proposed position in the United States 
requires an employee with specialized knowledge or that the beneficiary has specialized 
knowledge. 
In the present matter, the petitioner has provided a generic description of the beneficiary's intended 
employment with the U.S. entity. Moreover, the petitioner failed to specifically articulate the duties 
of the beneficiary, and merely claimed that he has specialized knowledge in the petitioner's product 
line and that he is "very adept in [the petitioner's] implementation standards, development 
procedures, architecting and processes." The petitioner, however, has not sufficiently documented 
the actual nature of the beneficiary's proposed job duties, nor has it clarified how the performance 
of said duties distinguishes his knowledge as specialized. The petitioner repeatedly states 
throughout the record that the beneficiary is instilled with special and advanced knowledge of the 
petitioner's practices and software, yet fails to provide any specific evidence to support these 
assertions. 
For example, the petitioner describes in detail both on appeal and prior to adjudication the various 
types of software and practices it uses in connection with its services. The petitioner also provided a 
brief overview of the training it provides, stating that new trainees receive a six-month intensive 
training course including lab activities. However, the petitioner has made no correlation between 
the training and expertise of the beneficiary in relation to its products, nor has it made a claim that 
the beneficiary actually was trained by the petitioner in this manner. The petitioner merely states 
that "eligible trainees" in general, and not specifically the beneficiary, participate in this six-month 
training course. This is particularly relevant since the petitioner claims that all "eligible trainees" 
have, on average, a minimum of two years experience in the industry, and cites no specific 
qualifications or training necessary to be hired by the petitioner. This lack of specificity, therefore, 
creates a presumption that any programmer analyst could perform the duties of the beneficiary in a 
mere six months after completing the petitioner's "intensive training." 
Moreover, while the petitioner acknowledges the training it provides, it does not articulate with 
specificity the nature of the training; namely, in what particular software or systems the beneficiary 
received instruction and whether the beneficiary's instruction differs from any other person deemed 
an "eligible trainee." In fact, the petitioner repeatedly refers to the beneficiary's assistance in 
refining "this technology" and his familiarity in "these unique software technologies," yet fails to 
specifically identifl the name and/or nature of these products. Finally, the record indicates that the 
beneficiary earned his bachelor's degree in Information and Communication Technology in 2005, 
and began working for the petitioner in October 2006. Therefore, it does not appear that the 
beneficiary possesses the minimum two years of experience in the industry which the petitioner 
claims is required for its "eligible trainees," since the record contains no resume for the beneficiary 
and he was still in school in 2005. Therefore, at best, the AAO can feasibly conclude that the 
EAC 08 099 52542 
Page 12 
beneficiary has received the same basic training as other "eligible trainees." Merely concluding that 
the beneficiary is an expert in the petitioner's "proprietary" technologies, without identifLing the 
nature of the beneficiary's knowledge or providing documentation to support the claimed 
proprietary nature of the petitioner's products will not establish eligibility in this matter. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Cornm. 1998) 
(citing Matter of Treasure Craft of Calqornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Furthermore, another issue identified by the AAO but not raised by the director is the actual length 
of employment the beneficiary had abroad. The record indicates that the beneficiary joined the 
foreign company on October 16, 2006. However, USCIS records indicate that the beneficiary 
entered the United States on August 20, 2007; therefore, the beneficiary only had ten months of 
employment abroad with the foreign entity.2 Therefore, if the beneficiary completed the petitioner's 
intensive six-month training course when he first joined the company, i.e., from October 2006 to 
April 2007, that means that the beneficiary had a mere four months of hands-on experience with the 
petitioner's projects and processes prior to his departure in August 2007. This issue, therefore, 
raises further questions with regard to the depth and intensity of the beneficiary's training and 
experience in relation to his colleagues and other similarly trained programmers in the industry. 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 of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The AAO notes that, on appeal, a total of seven training certificates were submitted in support of the 
beneficiary's qualifications. Specifically, these certificates, issued to the beneficiary by the 
petitioner between December 2006 and August 2007, indicate that the beneficiary has successfully 
completed various training courses. This evidence is not acceptable for two reasons. 
First, the regulation states that the petitioner shall submit additional evidence as the director, in 
his or her discretion, may deem necessary. The purpose of the request for evidence is to elicit 
further information that clarifies whether eligibility for the benefit sought has been established, 
as of the time the petition is filed. See 8 C.F.R. $9 103.2(b)(8) and (12). The failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. 9 103.2(b)(14). In this matter, the director specifically requested evidence of 
2 
 The regulation at 8 C.F.R. $214.2(1)(3)(iii) provides that the beneficiary must have at least one 
continuous year of full time employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. Pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(A), periods spent in the United 
States in lawful status for a branch of the same employer or a parent, affiliate , or subsidiary thereof and 
brief trips to the United States for business or pleasure shall not be interruptive of the one year of 
continuous employment abroad, but such periods shall not be counted toward fulfillment of that 
requirement. 
EAC 08 099 52542 
Page 13 
the petitioner's training process, including how long it takes to train an employee and in what 
specific manner this training is conducted. 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been 
given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for 
the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of 
Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence 
to be considered, it should have submitted the documents in response to the director's request for 
evidence. Id. Under the circumstances, the AAO need not and does not consider the sufficiency 
of the evidence submitted on appeal. 
Second, even if the training certificates were afforded evidentiary value on appeal, they fail to 
describe or outline the specifics of the training provided. For example, the certificates do not 
indicate how many classroom hours were required, the intensiveness of the training process, or how 
many other employees received this same training. Based on these documents alone, the AAO 
would be unable to determine the level of the beneficiary's training or expertise in any of the 
identified processes. 
As stated above, it is the petitioner's fundamental burden to articulate and prove that an alien 
possesses "special" or "advanced" knowledge. Section 214(c)(2)(B) of the Act, 8 U.S.C. fj 
1184(c)(2)(B). USCIS cannot make a factual determination regarding the beneficiary's 
specialized knowledge if the petitioner does not, at a minimum, articulate with specificity the 
nature of the claimed specialized knowledge, describe how such knowledge is typically gained 
within the organization, and explain how and when the beneficiary gained such knowledge. 
No discussion of how the beneficiary learned the skills necessary to customize applications for 
clients or modify the petitioner's technology, or the manner in which his skills are substantially 
different from other programmer analysts of the petitioner, is submitted. Essentially, the petition 
is based on the petitioner's claim that the beneficiary possesses specialized knowledge not 
normally possessed by the petitioner's other employees or programmer analysts. However, the 
petitioner does not distinguish the beneficiary's training from any other "eligible trainee," and 
more importantly does not discuss the extent of the beneficiary's training at all. Specifically, 
counsel for the petitioner claims on appeal that "it is important to understand that the 
beneficiary's knowledge is different from the rest of the market because this knowledge is 
proprietary to our company and he is one of only a few who have this knowledge." This 
statement is simply insufficient to overcome the well-reasoned conclusions cited by the director 
as a basis for the denial. Without documentary evidence to support the claim, the assertions of 
counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel 
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). 
EAC 08 099 52542 
Page 14 
In this matter, the petitioner has omitted any discussion of the nature of the beneficiary's 
knowledge. For example, what truly distinguishes the beneficiary's skills from other programmer 
analysts or colleagues? The petitioner focuses on identity and access management as a means to 
thwart identity theft; however, the AAO does not accept that the petitioner is the only company in 
the industry implementing such solutions. Does the beneficiary work solely in one area or on one 
software application that is not widely known or commonly used by other analysts in the petitioning 
entity or in the industry itself? If so, what type of training is required to work with such software or 
processes? The petitioner provides no details regarding any aspects of the petitioner's business 
which would distinguish the petitioner's processes as uncommon or distinctive and thus lead to a 
conclusion that the beneficiary's knowledge was likewise uncommon or distinctive. 
In the present matter, the petitioner has failed to demonstrate that the beneficiary's training, work 
experience, or knowledge in the IT industry is more special or advanced than the knowledge 
possessed by others employed by the petitioner, or in the industry as a whole. It is clear that the 
petitioner considers the beneficiary to be an important employee of the organization. The AAO, 
likewise, does not dispute the fact that the beneficiary's knowledge has allowed him to competently 
perform his job in the foreign entity. However, the successful completion of one's job duties does 
not establish possession of specialized knowledge or establish employment that requires specialized 
knowledge. 
While the beneficiary's skills and knowledge may contribute to the success of the petitioning 
organization, this factor, by itself, does not constitute the possession of specialized knowledge. 
The petitioner failed to provide additional evidence to support this proposition, and the AAO 
notes that the appeal brief submitted by counsel is virtually identical to the response submitted 
by the petitioner to the request for evidence, and contains no new documentation or assertions. 
The petitioner's reliance on the 2002 Associate Commissioner's memorandum is again repeated; 
however, the memorandum was intended solely as a guide for employees and will not supersede 
the plain language of the statute or regulations. Although the memorandum may be useful as a 
statement of policy and as an aid in interpreting the law, it was intended to serve as guidance and 
merely reflects the writer's analysis of the issue. Therefore, while the beneficiary's contribution 
to the economic success of the corporation may be considered, the regulations specifically 
require that the beneficiary possess an "advanced level of knowledge" of the organization's 
process and procedures, or a "special knowledge" of the petitioner's product, service, research, 
equipment, techniques, or management. 8 C.F.R. 5 214.2(1)(l)(ii)(D). As determined above, the 
beneficiary does not satisfy the requirements for possessing specialized knowledge. 
Based on the evidence presented, it is concluded that the beneficiary does not possess specialized 
knowledge, nor would the beneficiary be employed in a capacity requiring specialized 
knowledge. For this reason, the appeal will be dismissed. 
Beyond the decision of the director, the regulation at 8 C.F.R. $ 214.2(1)(3)(iii) provides that the 
beneficiary must have at least one continuous year of hll time employment abroad with a 
qualifying organization within the three years preceding the filing of the petition. As previously 
Page 15 
discussed, the beneficiary commenced employment with the foreign entity in October 16, 2006 
and entered the United States in B-1 visitor status on August 20, 2007. Therefore, the 
beneficiary did not have one year of full time employment with the foreign entity at the time of 
the petition's filing. For this additional reason, the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 
(E.D. Cal. 2001), afd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 
9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if she shows that the AAO abused it discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 
(E.D. Cal. 2001), afd. 345 F.3d 683 (9th Cir. 2003). 
The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. 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. 8 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.