dismissed L-1B Case: Information Technology

identifyingdatadeletedto
preventclearh nm:.varr~ted
invasionof personalpnvaey
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: LIN 0523952111 Office: NEBRASKA SERVICE CENTER Date: MAR 2 7 20M
INRE: Petitioner:
Beneficiary:
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)(l5)(L)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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.
i Robert P. Wiemann, Chier
Administrative Appeals Office
LIN 0523952111
Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the
appeal.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of BaaN
ERP Teclmical Consultant as an L-1B nonimmigrant intracompany transferee with specialized knowledge
pursuant to section 101(a)(I5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.c. §
llOl(a)(15)(L). The petitioner claims to be engaged in information processing, manufacturing, sales and
service. The petitioner states that it is the parent company of the beneficiary's foreign employer, ffiM Global
Services 1GS India Pvt. Ltd, located in India. The petitioner seeks to employ the beneficiary for a period of
three years.
The director denied the petition, concluding that the petitioner failed to establish that the position offered to
the beneficiary requires an employee with specialized knowledge or that the beneficiary possesses such
knowledge.
On appeal, the petitioner disputes the director's decision and outlines the beneficiary's experience and
specific specialized knowledge in the petitioner's software. The petitioner concludes that the beneficiary
possesses advanced knowledge of the petitioner's processes and procedures and therefore qualifies for the
benefit sought. The petitioner submits a brief in support of the appeal.
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8
U.S.C. § 1101(a)(I5)(L), the petitioner must demonstrate that the beneficiary, within three years preceding
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year
by a qualifying organization and seeks to enter the United States temporarily in order to continue to render his
or her services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial,
executive, or involves specialized knowledge.
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)(l)(ii)(G) of this
section.
(ii) Evidence that the alien will be employed in an executive, managerial, or
specialized knowledge capacity, including a detailed description of the services
to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing
of the petition.
LIN 0523952111
Page 3
(iv) Evidence that the alien's prior year of employment abroad was in a position that
was managerial, executive or involved specialized knowledge and that the alien's
prior education, training, and employment qualifies 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.
This matter presents two related, but distinct issues: (1) whether the beneficiary possesses specialized
knowledge; and (2) whether the proposed employment is in a capacity that requires specialized knowledge.
Section 214(c)(2)(B) of the Act, 8 U.S.C. § 1184(c)(2)(B), provides:
For purposes of section 101(a)(l5)(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. § 214.2(l)(l)(ii)(D) defines "specialized knowledge" as:
[S]pecial knowledge possessed by an individual of the petitioning organization's product,
service, research, equipment, techniques, management or other interests and its application
in international markets, or an advanced level of knowledge or expertise in the
organization's processes and procedures.
The nonimmigrant petition was filed on August 12,2005. In a letter dated August 11,2005, the petitioner
explained that the petitioner wishes to transfer the beneficiary to the United States in order to work on a
project on a four-member team for a U.S. client that has outsourced the foreign company. The petitioner
stated that the "primary mission of [the petitioner's] team is to support and develop the BaaN N application.
The [U.S. entity's] on-site team will interface with [the petitioner's] US team and also coordinate activities
with [the petitioner's] team in India, for the successful execution of the project." In addition, the petitioner
provided the following description of the beneficiary's proposed position as a BaaN ERP Technical
consultant in the United States:
As Baan ERP Technical Consultant, [the beneficiary] will be a key member of the team
responsible for understanding the specific requirements from the client and architect the
solutions. He will also be responsible for planning and prioritizing the application
development upon consultation with the client and the delivery team in India. [The
beneficiary] will be responsible for gathering and understanding the new business and
technical requirements from the client, creating the technical specifications based on the
requirements and facilitating the transfer of the specifications to the development team in
India. He will analyze the system requirements documents. [The beneficiary] will
coordinate with the client and the offshore delivery team on project tasks. He will also be
responsible for performing Unit testing of the component codes in isolation and participating
and supporting Systems training of the overall application, including writing and executing
test cases and test plans.
LIN 0523952111
Page 4
In order to qualify for this position, the individual must have professional knowledge in a
specific field of BaaN ERP application and specifically the BaaN IV (ERP) application. In
addition[,] the individual should have knowledge of the technologies and tools that are
required for the daily job duties described above. These technologies include: the
International Corporation client server, Upgradation and Migration, and UNIX Scripting.
Further, this position requires the specialized knowledge of the Waterfall SDLC
Methodology so that future development of the application continues to follow this
methodology.
In the letter dated August 11, 2005, the petitioner also stated that the beneficiary has the specialized
knowledge required for the proposed position, including advanced knowledge of the BaaN IV (ERP)
application. The petitioner described the beneficiary's advanced knowledge as follows:
• The BaaN IV ERP application - This is an Enterprise Resource Planning (ERP)
application. ERP is a business management system that integrates all areas of the business,
in this project
-International, including planning, manufacturing, sales and marketing. This application aid
[sic] [the U.S. client] implement ERP in such activities, such as order training, inventory
control, manufacturing, and customer service. The BaaN IV ERP application combines each
department's own computer system into a single integrated software program that runs off of
a single database so departments can share information and communicate easily. This
application simultaneously serves the need of people in sales, [mance, manufacturing and
warehouse and each department can have access to information in other departments. The
ultimate goal of this application system to help management be [sic] establishing better
business practices and equipping them with the right information to make time [sic1
decisions.
• WaterfaU SDLC Methodology - This is a process model for software engineering where
each phase must be completed in a strict sequence of requirements analysis, design,
implementation/integration, and testing. This linear sequential model suggests a systematic,
sequential approach to software development that begins at the system level and processes
through software requirements analysis, design, coding and testing, integration and testing,
and maintenance.
These tools, methodologies and applications are all critical to the project. [The beneficiary]
utilizes these tools, methodologies and applications in his current daily job duties and he will
continue to utilizes [sic] these tools in the proposed position. This project consists of 4 team
members. Because this project is outsourced strictly to [the foreign company] and that there
are only 4 employees who have knowledge of the BaaN IV ERP application customization
for [the U.S. client], [the beneficiary's] knowledge is unique and indeed specialized.
The petitioner also asserted that the beneficiary gained his knowledge through his work with the foreign
company, specifically working on the same project with the U.S. client that he will continue in the United
States, and the "specific training he has received on this application from the client." The petitioner explains
LIN 0523952111
Page 5
that the beneficiary will continue to work in the United States on the same project with the U.S. client. The
petitioner described the duties the beneficiary has been performing with the foreign company as follows:
[The beneficiary] has used his specialized knowledge of the BaaN ERP application in the
development of several key projects during his involvement with this project. He has
developed application information documentation - this required analysis of the process
flow of order to delivery, shop flow and material systems for [the U.S. client]. This analysis
also required his knowledge of the BaaN ERP system to be able to develop the flow
diagrams and map the customization and process of the standard BaaN ERP system. [The
beneficiary] also determined support issues to create the transition plan for this project.
Following this analysis and planning, [the beneficiary] was responsible for the migration of
one of [the U.S. client's] plants to the BaaN ERP system. This involved the creation of
UNIX scripts, BaaN job environment variables and user directories. He also resolved
various migration issues, user requests and reports - which involved creating a process flow
for the plant and mapping with it when the various jobs should be running. Because of his
involvement on this project, the plant went live on time as planning.
The petitioner also asserted that the beneficiary started his practical experience in the information technology
industry, and specifically as a BaaN consultant, in March 1998 and thus has obtained his specialized
knowledge with information technology systems though his seven years of work experience, and his nearly
one year and a half years of work experience with the foreign company; and four months of classroom
training in BaaN Tools and Distribution and UNIX and Shell Scripting. The petitioner stated that the
beneficiary's development of enhancements to BaaN N ERP specifically for the petitioner's client "clearly
shows his advanced and unique knowledge of the application and the proprietary customization of this
product." The petitioner emphasized that only four employees are assigned to the client project, and that the
beneficiary's duties are not performed by any other members of the project team.
The petitioner submitted the beneficiary's resume that lists the beneficiary's technical skills including the
tools, languages and methodologies the beneficiary has utilized in his work experience. The beneficiary's
resume also lists all the projects in which the beneficiary has participated in while employed by the petitioner,
and a brief description of the duties performed for each project. The petitioner submitted the beneficiary's
educational documents including his school transcripts and his certificate from Venkateswara University
where he was awarded a Bachelor of Technology (Mechanical Engineering) degree, and several letters of
reference from the beneficiary's former employers.
On September 29, 2005, the director issued a notice requesting additional evidence in order to establish that
the beneficiary has specialized knowledge, and the position in the United States requires specialized
knowledge. Specifically, the director requested: (1) a detailed description of the beneficiary's current duties
for the employer abroad, including the percentage of time spent on each duty; (2) evidence to establish that
the beneficiary's knowledge is uncommon, noteworthy, or distinguished by some unusual quality that is not
generally known by petitioners who are similarly educated and/or engaged within the industry; (3)
corroborating evidence that sets the beneficiary apart from his team members or any other employee similarly
engaged in the industry; (4) evidence to establish that the beneficiary possesses an advanced or unique
knowledge of processes, procedures, research, equipment, technique, management, and/or other interests of
LIN 0523952111
Page 6
the company that is distinguished from basic knowledge possessed by others who are similarly employed
within the same occupation within the company or in the industry; (5) evidence of the beneficiary's technical
training such as copies of diplomas, certificates of completion, or information of courses and the period of
study; and, (6) if the beneficiary acquired his specialized knowledge only through practical employment
experience, a detailed description of how the beneficiary's training and/or work experience differs from
training and experience an individual would receive whom is similarly engaged within the industry.
In response, the petitioner submitted a letter dated November 11, 2005, responding to the director's request.
In response to the director's request for a detailed description of the beneficiary's current duties for the
foreign company, the petitioner provided a detailed description, including the percentage of time spent on
each duty. The detailed description is in the record for reference and will not be repeated in its entirety here.
It appears that the beneficiary spends 45 percent of his time on "support production issues related to constant
and consistent support"; 10 percent of his time on "analysis of the existing BaaN application functionality
with other legacy applications"; 10 percent of his time "gathering requirements from the end users and
developing the system and technical specifications"; 5 percent of his time to "execute unit tests and
participate in and support system testing"; 5 percent of his time to "develop estimations and scheduling of
project activities in conjunction with the Project Manager"; 10 percent of his time to "provide technical and
functional guidance to team in development activities"; and 15 percent of his time on "creation of report for
[the U.S. client's] management team."
The petitioner further explained the beneficiary's specialized knowledge as follows:
It is [the beneficiary'S] particular combination of general IT skills and knowledge,
specialized International Business Machines ("IBM") classroom training, and on-the-job,
practical experience with IBM-proprietary processes and methodologies that make him
uniquely different from other individuals in the IT industry and [the foreign company]. [The
beneficiary's] specialized knowledge and expertise in [the petitioner's] business processes,
teclmologies and systems, and his previous experience on the project distinguish him from
other in the field and from the other member of his team. [The beneficiary's] comprehensive
and in-depth specialized knowledge in these area makes him essential to the success of the
U.S. Team.
[The beneficiary] possesses the specialized knowledge, training and experience required to
perform the proposed job duties in the Untied States. As previously stated in our support
letter, [the beneficiary] was employed be several companies since March 1998, he has been
employed by [the petitioner] as an Application Programmer on the BaaN ERP project for
[the U.s. client]. During his employment at [the foreign company], [the beneficiary] has
developed and applied his highly specialized knowledge of [the foreign company's]
procedures, methodologies, strategies, and technologies.
In the response letter dated November 11, 2005, the petitioner also specified how the beneficiary has gained
his specialized knowledge. The petitioner asserted that beneficiary possesses over seven years of
professional experience in the information technology industry, including practical experience with BaaN
ERP technology. In addition, the petitioner stated that the beneficiary has been employed by the petitioner
LIN 0523952111
Page 7
since March 2004 and thus "possesses practical experience with the petitioner's business systems and
practices in India and the United States." The petitioner also stated that the beneficiary "has extensive
practical experience with [the petitioner's] application development and maintenance projects, and [the U.S.
client's] BaaN ERP project in particular, making him intimately familiar with the design and development of
applications for [the petitioner]." The petitioner reiterated several of the duties the beneficiary has performed
for the foreign company, as described in the original petition. The petitioner further stated that through the
beneficiary's practical work experience with the petitioner, and the U.S. client in particular, the beneficiary is
familiar with the U.S. client's "specific mix and customizations ofteclmologies, its corporation environment,
and its interactions with [the petitioner]." Finally, the petitioner asserted that the beneficiary has
"professional classroom training and nineteen months of practical, on-the-job experience with [the
petitioner's) proprietary and intemal-use-only business systems such as Quality Management System (QMS),
[the petitioner's] set of quality management procedures, and Application Management Services (AMS), [the
petitioner's] application management procedures and standards."
In the response to the request for evidence, the petitioner failed to provide documentary evidence to establish
that the beneficiary's knowledge is uncommon, noteworthy, or distinguished by some unusual quality that is
not generally known by petitioners who are similarly educated and/or engaged within the industry;
corroborating evidence that sets the beneficiary apart from his team members or any other employee similarly
engaged in the industry; and evidence of the beneficiary's technical training such as copies of diplomas,
certificates of completion, or information of courses and the period of study. 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)(14).
On January 9, 2006, the director denied the petition concluding that the petitioner did not establish that the
position of BaaN ERP technical consultant requires an employee with specialized knowledge, or that the
beneficiary has such knowledge. The director noted that the petitioner did not demonstrate that the
petitioner's processes and procedures are significantly different from the methods generally used by other
computer companies, especially since the petitioner asserts that the beneficiary obtained his specialized
knowledge, in part, through his practical experience with other information technology companies. The
director determined that the petitioner failed to establish that the beneficiary's knowledge is noteworthy or
uncommon, or the training received by the beneficiary is different or more advanced compared to training
given to other similarly employed individuals with the petitioner or in the information teclmology industry.
In addition, the director noted that the petitioner failed to submit any tangible evidence to corroborate its
claims regarding the beneficiary's specialized knowledge.
On appeal, the petitioner asserts that the beneficiary is "clearly qualified for L-lB visa status." In addition,
the petitioner summarizes the same points presented with the original petition and in the response to the
director's request for evidence. The petitioner asserts that the beneficiary has acquired specialized knowledge
in the following areas:
1. Knowledge of the application functionality and architecture, which is required to
continue to perform the customizations in [the U.S. client's] BaaN ERP project in the
United States and to resolve the internal issued faced in the project with the help ofteam
LIN 0523952111
Page 8
in India. It will be extremely difficult for another individual to start on the project
without knowing the customized features of the application.
2. Knowledge of how to customize the Baan ERP system technology, inside [the
petitioning company].
3. Knowledge of the specific application technologies and tools that are needed to further
customize the project.
4. Knowledge of [the petitioner's] internal business processes, techniques and standards that
are required to execute the project. These processes are unique and internal to [the
petitioner] and the knowledge of these processes are critical to work in the preferred
position.
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has been
employed in a specialized knowledge position or that the beneficiary is to perform a job requiring specialized
knowledge in the proffered U.s. position. 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.P.R. § 214.2(l)(3)(ii).
The petitioner must submit a detailed job description of the services to be performed sufficient to establish
specialized knowledge. Id. Based upon the vague job description of the proposed duties and 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.P.R. § 214.2(l)(l)(ii)(D).
The petitioner has repeatedly asserted that the beneficiary will be responsible for the customization of BaaN
ERP system technology for the petitioner's United States client, however, the petitioner does not establish that
the beneficiary must possesses knowledge of business processes, procedures and methods of operation that
are unique and proprietary to the company in order to implement, customize, and modify the software
package. 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." The beneficiary's resume lists specific projects with the petitioner in which he
has participated in order to modify, implement, maintain and update the software, but does not mention any
experience in the development of internal policies or procedures. Simply 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.
In addition, contrary to the assertions of the petitioner, there is no evidence on record to suggest that the
processes and technology pertaining to BaaN ERP technical consultant positions within the U.S. company
are different from those applied for other companies providing BaaN ERP customization and integration
services. In addition, the petitioner has not explained how the knowledge of the petitioner's systems
technology amounts to specialized knowledge, particularly since the system is built upon BaaN ERP and
UNIX technologies, all of which are commonly used by computer programmers and system
administrators in the industry. While individual companies will develop a computer system and
methodologies tailored to its own needs and internal quality processes, it has not been established that
there would be substantial differences such that knowledge of the petitioning company's processes and
quality standards would amount to "specialized knowledge."
LIN 05 239 52111
Page 9
In addition, there is no evidence in the record that the beneficiary has received specific in-house training
that would have imparted him with the claimed "advanced" knowledge of the company's processes,
procedures and methodologies. In the request for evidence, the director specifically requested that the
petitioner submit documentary evidence which would establish that the beneficiary possessed specialized
knowledge above that which is normally possessed by other BaaN ERP technical consultants employed
by the foreign organization. In its response, the petitioner submitted a letter from the petitioner's
immigration specialist stating that the beneficiary has completed professional classroom training,
however, the petitioner neither indicated the length of time it took to complete these training courses nor
presented evidence that the beneficiary actually completed the courses, as requested by the director.
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)(14). Without specific information of the training courses completed by
the beneficiary at the foreign company, the AAO cannot determine if this training provided the
beneficiary with an advanced knowledge or if it is reasonable to believe that a BaaN ERP technical
consultant with a background in related technologies may learn the petitioning company's specific project
methodologies and processes with minimum training.
In addition, the petitioner did not submit any documentation to evidence that the beneficiary received
additional training that was not provided to other BaaN ERP technical consultants employed by the
foreign company. The petitioner did note that the beneficiary will be part of a team of four members for
the project in the United States, and only four employees in the entire company have the beneficiary's
specific knowledge in BaaN ERP systems as it relates to the specific U.S. client. However, the petitioner
failed to present any evidence to corroborate this claim and it seems implausible that a company of 14,582
employees has only 4 employees with the beneficiary's level of knowledge of BaaN ERP technical
systems. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter ofHo,
19 I&N Dec. 582, 591 (BIA 1988). 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 undoubtedly 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 BaaN ERP customization client project
team within the petitioner's organization would be considered to possess "specialized knowledge."
In addition, the petitioner did not submit documentation to evidence that the beneficiary has an advanced or
special knowledge from other BaaN ERP consultants in the information technology industry. According to
the beneficiary's resume, it appears that once the beneficiary commenced his employment with the foreign
company, he immediately began working on the project for the U.S. client involving the BaaN ERP systems.
This fact provides further evidences that the petitioner does not utilize a proprietary system that differs
from the system used by BaaN ERP consultants in the information technology industry. 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.
Based on the above, the AAO concurs with the director's conclusion that the petitioner has failed to
demonstratethat the beneficiary has acquired specializedknowledge as defined in the statute and regulations.
LIN 0523952111
Page 10
The AAO does not dispute the likelihood that the beneficiary is a BaaN ERP technical consultant who
understands the petitioner's technology and is able to apply it within the context of the petitioner's specific
environment. 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 ofColley, 18 I&N Dec. 117, 120 (Comm. 1981)(citingMatter ofRaulin, 13
I&N Dec. 618(R.C. 1970) and Matter of LeBlanc, 13 I&N Dec. 816 (R.C. 1971».1 As stated by the
Commissioner in Matter of Penner, when considering whether the beneficiaries possessed specialized
knowledge, "the LeBlanc and Raulin decisions did not find that the occupations inherently qualified the
beneficiaries for the classifications sought." 18 I&N Dec. at 52. Rather, the beneficiaries were considered to
have unusual duties, skills, or knowledge beyond that of a skilled worker. Id. The Commissioner also
provided the following clarification:
A distinction can be made between a person whose skills and knowledge enable him or her to
produce a product through physical or skilled labor and the person who is employed primarily
for his ability to cany out a key process or function which is important or essential to the
business' 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 defmed. 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. at 15. The Congressional record specifically states that the L-l category was intended for "key
personnel." See generally, H.R. REp. No. 91-851, 1970 V.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). In general, all employees can reasonably be considered
"important" to a petitioner's enterprise. If an employee did not contribute to the overall economic success of
an enterprise, there would be no rational economic reason to employ that person. An employee of "crucial
importance" or "key personnel" must rise above the level of the petitioner's average employee. Accordingly,
I Although the cited precedents pre-date the current statutory definition of "specialized knowledge," the
AAO finds them instructive. Other than deleting the former requirement that specialized knowledge had
to be "proprietary," the 1990 Act did not significantly alter the definition of "specialized knowledge"
from the prior INS interpretation of the term. The 1990 Committee Report does not reject, criticize, or
even refer to any specific INS regulation or precedent decision interpreting the term. The Committee
Report simply states that the Committee was recommending a statutory definition because of "[v]arying
[i.e. not specifically incorrect] interpretations by INS," H.R. Rep. No. 101-723(1), at 69, 1990
U.S.C.C.A.N. at 6749. Beyond that, the Committee Report simply restates the tautology that became
section 214(c)(2)(B) of the Act. Id. The AAO concludes, therefore, that the cited cases remain useful
guidance concerning the intended scope of the "specialized knowledge" L-l B classification. The AAO
supports its use of Matter of Penner, as well in offering guidance interpreting "specialized knowledge."
Again, the Committee Report does not reject the interpretation of specialized knowledge offered in
Matter ofPenner.
LIN 05 239 52111
Page 11
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. 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, 91st
Congo 210, 218, 223,240,248 (November 12, 1969».
Reviewing the Congressional record, the Commissioner concluded in Matter of Penner that an expansive
reading of the specialized knowledge provision, such that it would include skilled workers and technicians, is
not warranted. The Commissioner emphasized that the specialized knowledge worker classification was not
intended for "all employees with any level of specialized knowledge." Matter ofPenner, 18 I&N Dec. at 53.
Or, as noted in Matter of Colley, "[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 ofPenner, "[s]uch a conclusion would
permit extremely large numbers of persons to qualify for the 'L-1' visa" rather than the "key personnel" that
Congress specifically intended. 18 I&N Dec. at 53; see also, 1756, Inc. 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.")
The record does not distinguish the beneficiary's knowledge as more advanced than the knowledge
possessed by other BaaN ERP technical consultants. The petitioner has not established that the
beneficiary has received extensive training or has participated in developing proprietary methodologies
for the petitioner. The beneficiary is claimed to have "advanced" knowledge of the company's business
processes, procedures and methodologies, as well as "specialized knowledge" in the intricate software
created by and utilized by the company. However, as the petitioner has failed to document any specific
training, or otherwise describe or document the purported knowledge, these claims are not persuasive.
Going on record without supporting 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 ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972». Without this information,
the AAO has no basis to compare the beneficiary's knowledge to that of other workers within the
company, and therefore it can not be concluded that her knowledge is "advanced." There is no indication
LIN 0523952111
Page 12
that the beneficiary has any knowledge that exceeds that of any experienced BaaN ERP technical
employee, or that he has received special training in the company's methodologies or processes whi~h
would separate him from any other similarly employer worker with the foreign company. Further,
notwithstanding the lack of documentation, the petitioner failed to demonstrate that the beneficiary's
knowledge is more than the knowledge held by a skilled worker. See Matter ofPenner, 18 I&N Dec. at
52.
The petitioner noted that the beneficiary obtained his specialized knowledge by working with the foreign
company for nearly one year and a half. If the AAO were to follow the petitioner's reasoning, then any
employee who had worked as a BaaN ERP technical consultant with the foreign company for the same
period of time possesses specialized knowledge. However, based on the intent of Congress in its creation
of the L-IB visa category, as discussed in Matter of Penner, even showing that a beneficiary possesses
specialized knowledge does not necessarily establish eligibility for the L-IB intracompany transferee
status. The petitioner should also submit evidence to show that the beneficiary is being transferred to the
United States as a crucial employee. The petitioner asserts that it would be impossible to train U.S.
workers to perform the duties to be undertaken by the beneficiary and other L-IB workers. This assertion
is not substantiated by documentary evidence.
In sum, the beneficiary's duties and technical skills, while impressive, demonstrate knowledge that is
common among computer systems professionals working in the beneficiary's specialty in the information
technology field. The petitioner has failed to demonstrate that the beneficiary's training, work experience, or
knowledge of the company's processes is more advanced than the knowledge possessed by others employed
by the petitioner, or that the processes and systems used by the petitioner are substantially different from
those used by other large information technology companies. The AAO does not dispute the fact that the
beneficiary's knowledge has allowed him to successfully perform his job duties for the foreign entity.
However, the successful completion of one's job duties does not distinguish the beneficiary as possessing
special or advanced knowledge or as a "key personnel," nor does it establish employment in a specialized
knowledge capacity. As discussed, the petitioner has not submitted probative evidence to establish that the
beneficiary's knowledge is uncommon, noteworthy, or distinguished by some unusual quality and not
generally known in the beneficiary's field of endeavor, or that his knowledge is advanced compared to the
knowledge held by other similarly employed workers within the petitioner and the foreign entity.
The legislative history of the term "specialized knowledge" provides ample support for a restrictive
interpretation of the term. In the present matter, the petitioner has not demonstrated that the beneficiary
should be considered a member of the "narrowly drawn" class of individuals possessing specialized
knowledge. See 1756, Inc. v. Attorney General, supra at 16. Based on the evidence presented, it is concluded
that the beneficiary has not been employed abroad and would not be employed in the United States in a
capacity involving specialized knowledge. For this reason, the appeal will be dismissed.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 U.S.c. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.