dismissed L-1B Case: Information Technology

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
OfJice of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
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File: EAC 08 124 5 1192 Office: VERMONT SERVICE CENTER Date: 'JUL 0 8 2009 
IN RE: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(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 office 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. fj 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 or reopen, as required by 8 C.F.R. fj 103.5(a)(l)(i). 
cting Chief, Administrative Appeals Office 
EAC 08 124 51 192 
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 filed this nonimmigrant visa petition to employ the beneficiary as an L-1B intracompany transferee 
with specialized knowledge pursuant to section 101 (a)(15)(L) of the Immigration and Nationality Act ("the Act"), 
8 U.S.C. 5 I lOl(a)(lS)(L). The petitioner, a New Jersey-based information technology company, claims to be a 
subsidiary of the beneficiary's foreign employer located in India. The petitioner seeks to employ the beneficiary as 
a software engineer assigned to the "Core 11, Tier 4" project for its client, Cummins, Inc., for a period of two 
years. 
The director denied the petition, concluding that the petitioner: (1) failed to establish that the beneficiary 
possesses specialized knowledge or that he has been or will be employed in a capacity involving specialized 
knowledge; and (2) failed to establish that the beneficiary's employment at various worksites of Cummins, 
Inc. would be permissible under the anti-'ljob shop" provisions of section 214(c)(2)(F) of the Act, as created 
by the L-l Visa Reform Act of 2004.' The director observed that the beneficiary "will be primarily engaged 
in work on the client's systems" and not on processes that are specific to the petitioning company. 
On appeal, counsel for the petitioner asserts that the petitioner's client in this matter, Cummins, Inc. is "an 
affiliated company," as it is a "part-owner" of the petitioner's parent company. Counsel states that the 
software applications with which the beneficiary has been and will be working are proprietary to Cummins. 
Counsel asserts that the director mischaracterized the petitioner's claims regarding the nature of the 
beneficiary's specialized and advanced knowledge. Counsel contends that the beneficiary's specialized 
knowledge relates specifically to his experience with the "Core 11, Tier 4 project," and is not simply 
knowledge of commercially available software or knowledge of the petitioner's software development 
processes. Counsel submits a brief and additional evidence in support of the appeal. 
1 
 The term "job shop" is commonly used to describe a firm that petitions for aliens in L-1B status to contract 
their services to other companies, often at wages that undercut the salaries paid to United States workers. 
Upon introducing the L-l Visa Reform Act of 2004, Senator Saxby Chambliss described the abuse as follows: 
The situation in question arises when a company with both foreign and U.S.-based operations 
obtains an L-1 visa to transfer a foreign employee who has "specialized knowledge" of the 
company's product or processes. The problem occurs only when an employee with 
specialized knowledge is placed offsite at the business location of a third party company. In 
this context, if the L-1 employee does not bring anything more than generic knowledge of the 
third party company's operations, the foreign worker is acting more like an H-IB professional 
than a true intracompany transferee. Outsourcing an L-l worker in this way has resulted in 
American workers being displaced at the third party company. 
149 Cong. Rec. S 1 1649, *S 1 1686, 2003 WL 22 143 105 (September 17, 2003). In general, the L-1 B visa 
classification does not include the same U.S. worker protection provisions as the H-IB visa classification. 
See generally 8 C.F.R. 5 5 2 14.2(h) and (1). 
EAC08 12451192 
Page 3 
To establish L-1 eligibility under section 101(a)(15)(L) of the Act, 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. The petitioner must also demonstrate that the 
beneficiary seeks to enter the United States temporarily in order to continue to render 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. 5 214.2(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 (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himfher 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. 
I. Relevant Law 
Under section 101(a)(15)(L) of the Act, an alien is eligible for classification as a nonimmigrant if the alien, 
among other things, will be rendering services to the petitioning employer "in a capacity that is managerial, 
executive, or involves specialized knowledge." Section 214(c)(2)(B) of the Act, 8 U.S.C. 5 1184(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. 
Furthermore, the regulation at 8 C.F.R. fj 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 
EAC 08 124 51 192 
Page 4 
international markets, or an advanced level of knowledge or expertise in the organization's 
processes and procedures. 
Section 2 14(c)(2)(F) of the Act, 8 U.S.C. fj 1 184(c)(2)(F) (the "L-1 Visa Reform Act"), in turn, provides: 
An alien who will serve in a capacity involving specialized knowledge with respect to an 
employer for purposes of section 101(a)(15)(L) and will be stationed primarily at the worksite of 
an employer other than the petitioning employer or its affiliate, subsidiary, or parent shall not be 
eligible for classification under section 10 1 (a)(15)(L) if - 
(i) 
 the alien will be controlled and supervised principally by such unaffiliated 
employer; or 
(ii) 
 the placement of the alien at the worksite of the unaffiliated employer is 
essentially an arrangement to provide labor for hire for the unaffiliated 
employer, rather than a placement in connection with the provision of a product 
or service for which specialized knowledge specific to the petitioning employer 
is necessary. 
Section 214(c)(2)(F) of the Act is applicable to all L-1B petitions filed after June 6, 2005, including petition 
extensions and amendments for individuals that are currently in L-IB status. See Pub. L. No. 108-447, Div. I, 
Title IV, fj 412, 118 Stat. 2809,3352 (Dec. 8,2004). 
Due to the nature of the L-1 Visa Reform Act, the two issues raised by the director - whether the petitioner has 
established that the beneficiary possesses the requisite "specialized knowledge" and whether the requirements of 
the L-1 Visa Reform Act have been satisfied - are independent but legally intertwined. Prior to evaluating 
whether the L-1 Visa Reform Act applies, an adjudicator must determine whether the beneficiary is employed in 
a specialized knowledge capacity. If the beneficiary is not employed in this capacity, the petition may be denied 
on this basis and there is no need to address the requirements of the L-1 Visa Reform Act. Because the director 
reviewed both issues, and because counsel objects to both determinations, the AAO will nevertheless discuss both 
specialized knowledge and the elements of the L-1 Visa Reform Act. Upon review, the AAO concurs with the 
director's decision to deny the petition. 
11. Specialized Knowledge 
The first issue addressed by the director is whether the petitioner established that the beneficiary possesses 
specialized knowledge and that he has been and will be employed in a capacity requiring specialized 
knowledge. 
The petitioner filed the nonimmigrant petition on March 27, 2008. In a letter dated February 29, 2008, the 
petitioner described the beneficiary's employment with its foreign parent company as follows: 
[The beneficiary] has been employed at [the foreign entity] for over one year (from November 
2006 to the Present) in the capacity of Software Engineer. In this capacity, he has worked on 
EAC 08 124 51 192 
Page 5 
CORE I1 (Industrial Current Product Support) project for Cummins, Inc. The purpose of the 
CORE I1 project is to develop an application that provides software support to the current 
ECWECU product customers of Cummins, Inc. The software is Cummins proprietary and is 
used for the control of the Cummins Industrial MRI, QSL, QSB and QSC series of engines. [The 
beneficiary's] role has been to analyze, code, test automotive (engine) control software which 
includes new feature introduction and current feature support. His general responsibilities on the 
CORE project have been to provide product support, develop new features, integrate the features 
in existing software, communicate and liaison with client and coordinate project. [The 
beneficiary] provides full time technical support for the development of the existing Core I1 Tier 
4 application issues using Matlab, C, Simulink and Calterm I11 (and proprietary Cummins tools). 
He is also involved in ascertaining the requirements for the system, developing the specifications 
and developing the test procedures. 
The petitioner stated that the beneficiary's qualifications include a bachelor of engineering and a master of 
technology degree, and three years of work experience, including over one year of experience with the foreign 
entity. The petitioner stated that the beneficiary has the required specialized and advanced knowledge of the 
project required for the software engineer position in the Core I1 Tier 4 project in the United States. 
Specifically, the petitioner stated that the beneficiary "will continue to provide production support on the CORE I1 
Tier 4 project," and that such support will include "coordination of any local modifications and enhancements, 
addressing integration issues, recommending improvements and add-ons and providing liaison between the 
business needs and the IT development staff, on-site on-shore and off-site, off-shore." 
The petitioner explained that the projects it undertakes for client and affiliate companies are substantially 
executed at its facilities in India, while some project activities, such as project scoping, design, manpower and 
cost estimation, on-site coordination, production support, liaison, production configuration and integration are 
performed in the United States. The petitioner further explained the purpose of the transfer as follows: 
[W]e transfer to the USA some of our professional overseas employees, who have a thorough 
knowledge of our pricing mechanisms, availability of in-house knowledge and resources, 
specialized analysis, design, execution and delivery methodologies and mechanisms and also 
have specialized and advanced knowledge of specific projects andlor clients and/or the domain. 
[The beneficiary] is a specialized and advanced knowledge employee as he is currently working 
on the CORE 11 Tier 4 project. He is the most appropriate candidate with the necessary 
specialized and advanced knowledge of this project. Since we are the primary service provider 
for IT, ERP and SOX compliance we have a [sic] several teams stationed at Cummins, Inc. and 
elsewhere. [The beneficiary] will be reporting to and working directly under the supervision of 
the on-site manager. 
Since we are SEI-CMM Level 4 company, the work is performed following the quality 
processes pursuant to these standards. He will be involved with requirements, developing and 
designing, effectuating delivery including testing of applications, installation and integration of 
the application components and quality control. He will assume direct responsibility for 
EAC 08 124 51 192 
Page 6 
compliance with this standard. He will also be involved in project coordination, feasibility, 
metrics collection and resource allocation. 
In support of the petition, the petitioner submitted evidence of the beneficiary's educational qualifications and the 
beneficiary's resume, which indicates that he has three years and eight months experience in Automotive 
Embedded software development. The beneficiary indicates that his technical skills include programming 
languages such as C, Ctt, Embedded C, Cross Compiler, CAPL and Perl, and that he is experienced with tools 
such as MATLAB, Simulink, C2ST and Calterm 111. 
The beneficiary indicates that he has been assigned to the Cummins Inc. "Core2Tier4" project since November 
2006, and describes his specific contribution as a software engineer as follows: 
Analysis, Coding and Testing, of Automotive control software, which involves new feature 
introduction, as well as current feature support. 
Work on PRCR. Study the System design documents (SDR) and to implement those 
changes in the current software. Give over all support for the current software. Study, 
Analyze & Modify System design documents (SDR). 
Make modifications to existing functions initiated by Problem Report/Change Request 
(PRCR), maintaining product compatibility. 
Document work performed via PRCR system evaluations, and necessary technical reports. 
Debug code using the appropriate diagnostic tools with real-time test bench capability. 
Work comfortably with company coding standards and Configuration Management system 
processes and established Core Workflow. 
Client communication, Client co-ordination and issue management. 
Environment: C2ST, Calterm 111, Rational Clearcase 
On May 6, 2008, the director requested additional evidence (RFE), including, inter alia, a more detailed 
description of the proprietary nature of the procedures used by the beneficiary, and how the beneficiary's 
knowledge of such procedures is not general knowledge held commonly throughout the industry or throughout 
the petitioning organization. The director also requested that the petitioner explain in more detail, exactly what the 
equipment, system, product, technique, research or service the beneficiary has specialized knowledge of and how 
such knowledge will be specifically used on the project for Cummins Inc. The director advised that, based on the 
initial evidence, it appears that the beneficiary's knowledge relates to the client's products and technologies, while 
the beneficiary's use of tools and methodologies specific to the petitioner appears to be incidental to the proposed 
duties in the United States. 
The director further requested evidence pertaining to the number of H-I B and L-1 employees the petitioner has 
working at the beneficiary's proposed worksites, and evidence relating to pertinent training the beneficiary has 
completed while employed by the petitioner's parent company. Finally, the director requested that the petitioner 
specify how many of its workers are similarly employed within the organization, and explain how the 
beneficiary's training differs from that of other workers who have been employed for roughly the same amount of 
time. 
EAC 08 124 51192 
Page 7 
The petitioner submitted a letter dated July 28, 2008 in response to the RFE. The petitioner explained that its 
Indian parent company is "partly owned by Cummins, Inc." and therefore it is "affiliated to" Cummins, Inc. The 
petitioner did not provide any corporate documentation in support of this assertion. The petitioner noted that the 
U.S. company and its foreign parent execute software development projects for Cummins and its U.S. and other 
affiliates as well as for other customers, as well as providing business process services and circuit and component 
design services and embedded systems design in the automotive domain. 
The petitioner reiterated the position description for the beneficiary that was included in its original submission 
and again stated that the beneficiary "has specialized and advanced knowledge" of the Core I1 project. The 
petitioner provided a list of over 170 company employees currently assigned to work on Cumrnins, Inc. projects 
in Indiana and Minnesota in L-1 and H-1 B status. 
On August 26, 2008, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary possesses specialized knowledge or that the beneficiary has been or will be 
employed in a capacity involving specialized knowledge. In denying the petition, the director found that the 
beneficiary will be primarily engaged to work on the client's systems rather than performing duties that 
require knowledge specific to the petitioning company. The director further emphasized that the petitioner 
failed to provide additional evidence pertaining to the beneficiary's claimed specialized and advanced 
knowledge. The director noted that the petitioner has filed "a multitude of petitions with [USCIS] in which the 
beneficiaries are well-versed in Matlab, C, Simulink and Calterm 111" and therefore it could not be concluded 
that familiarity with such tools constitutes specialized knowledge. The director also noted the petitioner's 
failure to provide requested information regarding the length and type of training completed by the 
beneficiary during his employment with the foreign entity. 
The director acknowledged the petitioner's assertion that its methodologies have received a rating of 4 under 
the Software Engineering Institutes' Capability Maturity Model. The director emphasized, however, that the 
petitioner has not demonstrated that its procedures are significantly different from those generally used in any 
other computer consulting company, or that knowledge of such methods within the company is indicative of 
advanced knowledge. 
In addition, the director noted the petitioner's claim that it would be economically and practically prohibitive 
to hire any other person to work on the Core I1 Tier 4 project, but found that there was insufficient evidence in 
the record to corroborate this claim. The director noted that the tools used by the beneficiary in executing the 
project appear to be widely accessible. 
Finally, the director concluded that the beneficiary, based on his 17 months of experience with the foreign 
entity, did not appear to have acquired the expertise that would qualify him as a "specialized knowledge" 
worker within the petitioning organization. The director noted that the petitioner had not clearly documented 
how the beneficiary's knowledge of the processes and procedures of the organization are substantially 
different from, or advanced in relation to, any individual similarly employed. 
On appeal, counsel for the petitioner emphasizes that Cummins, Inc. is a part-owner of the foreign entity and 
therefore an affiliated company. Counsel states that the software applications on which the beneficiary has 
been and will be working as a member of the Core I1 project are proprietary to Cummins, Inc., while the tools 
EAC 08 124 51 192 
Page 8 
used to develop the software include commercially available tools (Matlab, C, Simulink) and proprietary 
Cummins tools. Counsel asserts that the "applications comprising CORE I1 are specific and custom made for 
Cummins, thus proprietary." 
Counsel further emphasizes that the beneficiary's specialized knowledge derives not from his knowledge of 
SEI CMM Level 4 processes or from experience in commercially available software, but from his specific 
knowledge and experience with the Core I1 Tier 4 project. Counsel asserts that such knowledge would be 
difficult to impart to another individual without significant economic cost and inconvenience to the United 
States or foreign firm, and therefore qualifies as specialized knowledge pursuant to a 1994 legacy 
Immigration and Naturalization Service policy memorandum, and a subsequent 2002 memorandum 
addressing the interpretation of specialized knowledge. 
2 
The petitioner also submits a letter dated September 26, 2008 in support of the appeal. The petitioner further 
addresses the beneficiary's qualifications for L-1B classification as follows: 
[The beneficiary] joined our employ and his specialized and advanced knowledge has been 
gained during the one year of his employment with us overseas. In our experience, it takes 
anywhere from 6 months to 2 years of working on a specific project to be considered as 
having the necessary amount of specialized and/or advanced knowledge of the project to be 
transferred to the USA to continue to work on that project. 
The petitioner emphasizes that the U.S. client, Cummins, Inc., is a part-owner of the petitioner's parent 
company and therefore an affiliate. The petitioner further states that the beneficiary "is coming to the USA to 
continue to work on a family of projects that are the same or similar to the project he is currently working on?" 
and that his "specialized and advanced knowledge is of this family of projects and of the professionals 
working on these projects." 
The petitioner explains that the beneficiary has not received any extensive training since joining the foreign 
entity, and notes that his knowledge instead derives from his project experience. The petitioner indicates that 
it would be cost prohibitive to hire an IT professional to work on the project in the United States because 
there are no classes, programs or facilities in the United States to train a new employee on the specifics ofthe 
project. The petitioner stated that it would instead need to send a new employee to India for a year to work on 
the project and then return to the United States at a cost of at least $100,000. The petitioner further states: 
[The beneficiary] is not being transferred because of his experience, expertise or knowledge 
of conlmercially available software tools but because of his specialized and advanced 
knowledge of the Core I1 Software System which is clearly proprietary to Cummins. He has 
2 
 See Memorandum from James A. Puleo, Assoc. Comm., INS, Interpretation of Special Knowledge, March 
4, 1994. (hereinafter "Puleo memorandum"); Memorandum of Fujie Ohata, Assoc. Comm., INS, 
Interpretation cfSpecialized Knowledge (Dec. 20,2002)(hereinafter "Ohata memorandum"). 
EAC 08 124 51 192 
Page 9 
gained this knowledge because he has been working on this system while employed at [the 
foreign entity]. 
Upon review, the petitioner's assertions are not persuasive. The evidence of record does not establish that the 
beneficiary possesses specialized knowledge or that he has been or will be employed in a capacity requiring 
specialized knowledge. 
The Standard for Specialized Knowledge 
Looking to the language of the statutory definition, Congress has provided USCIS with an ambiguous definition 
of specialized knowledge. In this regard, one Federal district court explained the infeasibility of applying a 
bright-line test to define what constitutes specialized knowledge: 
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). 
1756, Inc. v. Attorney General, 745 F.Supp. 9, 14-15 (D.D.C., 1990).~ 
While Congress did not provide explicit guidance for what should be considered ordinary knowledge, the 
principles of statutory interpretation provide some clue as to the intended scope of the L-1B specialized 
knowledge category. NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 123 (1987) 
(citing INSv. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207,94 L.Ed.2d 434 (1987)). 
First, the AAO must look to the language of section 214(c)(2)(B) itself, that is, the terms "special" and 
"advanced." Like the courts, the AAO customarily turns to dictionaries for help in determining whether a word in 
a statute has a plain or common meaning. See, e.g., In re A.H. Robins Co., 109 F.3d 965, 967-68 (4th Cir. 1997) 
(using Webster's Dictionary for "therefore"). According to Webster's New College Dictionary, the word "special" 
is commonly found to mean "surpassing the usual" or "exceptional." Webster's New College Dictionary, 1084 
(3rd Ed. 2008). The dictionary defines the word "advanced" as "highly developed or complex" or "at a higher 
level than others." Id. at 17. 
Second, looking at the term's placement within the text of section 101(a)(15)(L) of the Act, 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 together with "managerial" and "executive" employees. Based on 
3 
 Although 1756, Inc. v. Attorney General was decided prior to enactment of the statutory definition of 
specialized knowledge by the Immigration Act of 1990, the court's discussion of the ambiguity in the legacy 
Immigration and Naturalization Service (INS) definition is equally illuminating when applied to the definition 
created by Congress. 
EAC 08 124 51 192 
Page 10 
the context of the term within the statute, the AAO therefore would expect a specialized knowledge employee to 
occupy an elevated position within a company that rises above that of an ordinary or average employee. See 
1756, Inc. v. Attorney General, 745 F.Supp. at 14. 
Third, a review of the legislative history for both the original 1970 statute and the subsequent 1990 statute 
indicates that Congress intended for USCIS to closely administer the L-1B category. Specifically, the original 
drafters of section 101(a)(15)(L) of the Act intended that the class of persons 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 5815. 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. In 
addition, the Congressional record specifically states that the L-1 category was intended for "key personnel." 
See generally, id. The term "key personnel" denotes a position within the petitioning company that is "[olf 
crucial importance." Webster's New College Dictionary 620 (3'* ed., Houghton Mifflin Harcourt Publishing 
Co. 2008). Moreover, 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." See H.R. Subcomm. No. 1 of the Jud. Comm., Immigration 
Act of 1970: Hearings on H.R. 445,91a Cong. 210,218,223,240,248 (Nov. 12, 1969). 
Neither in 1970 nor in 1990 did Congress provide a controlling, unambiguous definition of "specialized 
knowledge," and a narrow interpretation is consistent with so much of the legislative intent as it is possible to 
determine. H. Rep. No. 91-85 1 at 6, 1970 U.S.C.C.A.N. at 2754. This interpretation is consistent with legislative 
history, which has been largely supportive of 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); Fibermaster, Ltd. v. I.N.S., 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). 
Further, although the Immigration Act of 1990 provided a statutory definition of the term "specialized 
knowledge" in section 214(c)(2) of the Act, the definition did not generally 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 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(I) (1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6749, 1990 WL 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 codify the "proprietary knowledge" and "United 
States labor market" references that had existed in the previous agency definition found at 8 C.F.R. 
5 214.2(1)(l)(ii)(D) (1988), there is no indication that Congress intended to liberalize its own 1970 definition of 
the L- 1 visa classification. 
If any conclusion can be drawn from the enactment of the statutory definition of specialized knowledge in section 
2 14(c)(2)(B), it would be based on the nature of the Congressional clarification itself. By not including any strict 
EAC 08 124 51 192 
Page 11 
criterion 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 the INS a more flexible standard that requires an 
adjudication based on the facts and circumstances of each individual case. CJ: Ponce-Leiva v. Ashcrop, 33 1 F.3d 
369,377 (3d Cir. 2003) (quoting Baires v. INS, 856 F.2d 89,91 (9th Cir. 1988)). 
To determine what is special or advanced, USCIS must first determine the baseline of ordinary. 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." See Matter of Penner, 18 I&N Dec. 49, 53 (Comm. 1982). 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. In other words, specialized knowledge generally 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. Such an interpretation strips the statutory language of any efficacy and cannot 
have been what Congress intended. 
Considering the definition of specialized knowledge, it is the petitioner's, not USCIS's, burden to articulate 
and establish by a preponderance of the evidence that the beneficiary possesses "special" or "advanced" 
knowledge. Section 214(c)(2)(B) of the Act, 8 U.S.C. 9 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. 
Once the petitioner articulates 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 beneficiary possesses advanced knowledge of the processes and procedures of 
the company must be supported by evidence describing and distinguishing 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 
specific industry. 
Considering the definition of specialized knowledge, it is the petitioner's burden to prove that an alien 
possesses "special" or "advanced" knowledge by a preponderance of the evidence. Section 214(c)(2)(B) of 
the Act, 8 U.S.C. 9 1184(c)(2)(B). The inherently subjective standard serves to make the L-1B classification 
more flexible and capable of responding to changing economic models. Depending on the facts of the 
specific case, a petitioner may put forward a novel argument that is based on the employer's specific situation. 
Or, as in the present case, a knowledgeable petitioner may choose to rely on aspects of the INS memoranda to 
frame his or her argument. Even though, as addressed further below, the Puleo memorandum does not 
constitute a binding legal "standard," it does describe possible attributes that would support a claim of 
EAC 08 124 51192 
Page 12 
specialized knowledge. However, the petitioner would be unwise to simply parrot the memorandum, without 
submitting supporting evidence, and expect USCIS to approve a petition. Or, as observed in the Puleo 
memorandum: 
. . . 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. It 
is the weight and type of evidence, which establishes whether or not the beneficiary possesses 
specialized knowledge. 
Pursuant to section 291 of the Act, the petitioner bears the burden of proof in these proceedings. The 
petitioner must submit relevant, probative, and credible evidence that would lead the director to believe that 
the claim is "probably true" or "more likely than not." Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 
1989). 
Upon review, the petitioner has not demonstrated that the beneficiary possesses knowledge that may be 
deemed "special" or "advanced" under the statutory definition at section 214(c)(2)(B) of the Act. The 
decision of the director will be affirmed as it relates to this issue and the appeal will be dismissed. 
In examining the specialized knowledge 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. 
9 214.2(1)(3)(ii). The petitioner must submit a detailed job description of the services to be performed sufficient to 
establish specialized knowledge. At a minimum, the petitioner must articulate with specificity the nature of the 
claimed specialized knowledge. Merely asserting that the beneficiary possesses "special" or "advanced" 
knowledge will not suffice to meet the petitioner's burden of proof. 
The petitioner in this case has failed to establish either that the beneficiary's position in the United States or 
abroad requires an employee with specialized knowledge or that the beneficiary has specialized knowledge. 
Although the petitioner repeatedly asserts that the beneficiary has been and will be employed in a "specialized 
knowledge" capacity, the petitioner has not adequately articulated any basis to support this claim. The 
petitioner has failed to identify any special or advanced body of knowledge which would distinguish the 
beneficiary's role from that of other similarly experienced software engineers employed by the petitioning 
organization or in the industry at-large. Going on record without documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sofjci, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Specifics are clearly an important indication of whether a beneficiary's duties involve specialized knowledge; 
otherwise, meeting the definitions would simply be a matter of reiterating the regulations. See Fedin Bros. 
Co., Ltd. v. Sava, 724, F. Supp. 1 103 (E.D.N.Y. 1989), aff'd, 905, F.2d 4 1 (2d. Cir. 1990). 
The petitioner claims that the beneficiary's knowledge is derived from his approximately 17 months of 
experience with supporting, maintaining, troubleshooting and maintaining engine control software for 
Cummins, Inc.'s existing ECMIECU products. The petitioner grants that the beneficiary performs his duties 
using commercially available tools and sofhvare, and does not claim that his specialized knowledge derives 
from any company-specific methods or procedures for software development or project management. Rather, 
EAC 08 124 51 192 
Page 13 
the petitioner claims that the beneficiary's knowledge should be considered proprietary to the petitioning 
company because Cummins, Inc. is "affiliated to" the petitioner and its parent company, and is not merely a 
client or an "unaffiliated employer." 
The petitioner's claim that it is an affiliate of Cummins, Inc. is not corroborated by any documentary evidence 
of the purported corporate relationship. The petitioner merely states that Cummins, Inc. is a part-owner of its 
parent company. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Although the 
petitioner declined to provide this documentation, the AAO notes that the foreign entity is a publicly traded 
Indian firm whose shareholder information is easily accessible. As of March 3 1, 2008, Cummins, Inc. owned 
an 8.22 percent interest in the petitioner's parent company.4 This does not establish an affiliate relationship as 
that term is defined for the purposes of this nonimmigrant visa classification (see 8 C.F.R. 214.2(1)(1)(ii)(L)), 
nor does this level of common ownership create a situation in which products that are proprietary to 
Cummins, Inc. would also be deemed proprietary to the petitioner or its parent company. It is evident that 
Cummins, Inc. does outsource many information technology functions to the petitioner and its parent 
company and that the petitioner's employees thereby have access to Cummins proprietary product and 
systems information. However, such knowledge cannot be considered specific to the petitioning company, 
and knowledge of such products cannot be considered "specialized knowledge." 
Thus, while counsel argues that the beneficiary's familiarity with the client's proprietary products and systems 
should be considered knowledge that is "specific to the petitioner's interests" and therefore "specialized," the 
AAO notes that such an interpretation would essentially open the classification to any information technology 
consultant who worked on any client project with on-site and off-shore components for at least one year. Again, 
the beneficiary's familiarity with the client's systems and requirements, while valuable to the petitioner, 
cannot be considered knowledge specific to the petitioning organization and cannot form the basis of a 
determination that he possesses specialized knowledge. All information technology consultants within the 
petitioning organization would reasonably be familiar with its internal processes and methodologies for 
carrying out client projects. Similarly, most employees would also possess project-specific knowledge relative 
to one or more international clients. However, the fact that the beneficiary possesses very specific experience 
with a particular international client's project does not establish that the beneficiary's knowledge is indeed 
special or advanced. 
In addition, even assuming arguendo that the beneficiary's familiarity with the client's software could be 
considered "specialized knowledge" of the petitioner's products or processes, it is unclear how the beneficiary, 
who has worked as a team member on a single project for the client for approximately 17 months, is 
considered to have "advanced" knowledge of the petitioner's processes and methodologies relative to 
Cummins Inc. projects. 
All employees can be said to possess unique skills or experience to some degree. Moreover, any proprietary 
qualities of the petitioner's processes or product do not establish that any knowledge of such processes is 
See http://www.kpitcummins.com/downloads/Shareholding%2Opaern Mar 3 1 O8.pdf (accessed on June 
15,2009). 
EAC 08 124 51192 
Page 14 
"specialized." Rather, the petitioner must establish that qualities of the unique processes or product require 
this employee to have knowledge beyond what is common in the industry. This has not been established in 
this matter. The fact that other workers may not have the same level of experience with the petitioner's 
methodologies as applied to one component of a specific client project, or the same level of knowledge of a 
client's own proprietary products or systems, is not enough to establish that the beneficiary is an employee 
possessing specialized knowledge. While the AAO acknowledges that there will be exceptions based on the 
facts of individual cases, an argument that an alien is unique among a small subset of workers, (i.e., one of 
only several software engineers assigned to a client project team) will not be deemed facially persuasive if a 
petitioner's definition of specialized knowledge is so broad that it would include the majority of its workforce. 
Here, the petitioner states that it considers all employees with six months to two years of experience on a 
specific project to have specialized or advanced knowledge. 
The petitioner has not articulated any basis that would support a finding that the beneficiary's knowledge is 
advanced. The petitioner asserts on appeal that it would take at least one year of work experience in India to 
prepare a newly hired U.S. worker to perform the beneficiary's proposed duties as a software engineer in the 
United States. Although the petitioner claims that this knowledge can be acquired only through at least one 
year of experience with the foreign entity, the AAO notes that, based on a review of his resume, the 
beneficiary in this case came to the foreign entity with no apparent work experience in developing 
applications for engine control software and no prior knowledge of the client's proprietary engine control 
products. The petitioner acknowledges that the beneficiary has received no specific formal or on-the-job 
training upon joining the company in either the petitioner's internal policies or procedures or in the subject 
matter related to his project assignment. Despite his lack of company-specific training or experience, the 
beneficiary was hired by the foreign entity and immediately assigned to the role of software engineer on the 
Cummins, Inc. Core I1 Tier 4 project, performing the same duties that are proposed in the United States. 
This fact directly undermines the petitioner's claims. The minimal evidence submitted suggests that the 
petitioner's employees are not required to undergo any extensive training in the company's processes and 
methodologies. There is no indication that the beneficiary has not been fully performing the duties of the 
position since the date he was hired by the foreign entity, which raises questions regarding the complexity of 
the claimed specialized knowledge as it relates to the client's proprietary products. 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). Further, since 
it appears the beneficiary was able to assume such a role on the Cummins Inc. project with no prior work 
experience within the company, experience in developing engine control software, or experience with the 
client's products, then it is reasonable to question to what extent the knowledge required to perform the duties 
is truly specific to the petitioning organization, and not general knowledge the beneficiary gained through his 
education or prior work experience in developing automotive control systems with an unrelated company. 
In addition, it is not clear from the record how long the petitioner has been providing support, maintenance, 
troubleshooting and enhancement services for the client's ECMIECU software, such that the beneficiary's 17 
months of experience on the project could be considered relatively "advanced" within the petitioning 
organization. There is no evidence that the beneficiary holds a senior role within the project team or any other 
basis to determine that the beneficiary's knowledge is advanced as a result of his work experience. 
EAC 08 124 51 192 
Page 15 
Based on the petitioner's representations, its internal processes and tools, while highly effective and valuable 
to the petitioner, are simply customized versions of standard practices used in the industry that can be readily 
learned on-the-job by employees who otherwise possess the requisite technical background in software 
engineering in the automotive field. Here, however, the petitioner has not claimed or established that 
knowledge of its processes and procedures alone constitutes specialized knowledge. Rather, the beneficiary's 
specialized knowledge is stated to derive from his experience with a client's proprietary products. While this 
knowledge may not be widely held within the petitioning organization, it is also not a valid basis for arguing 
that the beneficiary possesses specialized knowledge specific to the petitioning organization, or an advanced 
knowledge of the petitioner's processes and procedures. 
It is appropriate for USCIS 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. at 120 (citing Matter of Raulin, 13 I&N Dec. at 61 8 and Matter of 
LeBlanc, 13 I&N Dec. at 816). 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 AAO acknowledges that the specialized knowledge need not be narrowly held within the organization in 
order to be considered "advanced." However, it is equally true to state that knowledge will not be considered 
"special" or "advanced" if it is universally or even widely held throughout a company. If all similarly 
employed workers within the petitioner's organization receive essentially the same training, then mere 
possession of knowledge of the petitioner's processes and methodologies does not rise to the level of 
specialized knowledge. The L-1B visa category was not created in order to allow the transfer of all 
employees with any degree of knowledge of a company's processes. If all employees are deemed to possess 
"special" or "advanced" knowledge, then that knowledge would necessarily be ordinary and commonplace. 
The petitioner has not successfully demonstrated that the beneficiary's knowledge of the petitioner's processes 
and procedures gained during his 17 months of employment with the foreign entity is advanced compared to 
other similarly employed workers within the organization. As noted above, the petitioner's attempts to 
distinguish the beneficiary's knowledge as advanced relative to a specific client project are unpersuasive. All 
of the foreign entity's technical employees would reasonably have project-specific knowledge in addition to 
knowledge of the company's tools and processes for implementing projects. By the petitioner's logic, any of 
them would qualify for L-1B classification if offered a position working on the same project in the United 
States. 
According to the reasoning of Matter of Penner, work experience and knowledge of a firm's technically complex 
products, by itself will not equal "special know~ed~e."~ An expansive interpretation of specialized knowledge in 
5 
 As observed above, the AAO notes that the precedent decisions that predate the 1990 Act are not categorically 
superseded by the statutory definition of specialized knowledge, and the general issues and case facts themselves 
remain cogent as examples of how the INS applied the law to the real world facts of individual adjudications. 
USCIS must distinguish between skilled workers and specialized knowledge workers when making a 
EAC 08 124 51 192 
Page 16 
which any experienced employee would qualify as having special or advanced knowledge would be untenable, 
since it would allow a petitioner to transfer any experienced employee to the United States in L-1B classification. 
The term "special" or "advanced" must mean more than experienced or skilled. In other terms, specialized 
knowledge requires more than a short period of experience, otherwise, "special" or "advanced" knowledge would 
include every employee with the exception of trainees and recent recruits. 
The AAO does not dispute the possibility that the beneficiary is a skilled employee who has been, and would 
be, a valuable asset to the petitioner. However, as explained above, the record does not distinguish the 
beneficiary's knowledge as more advanced than the knowledge possessed by other people employed by the 
petitioning organization or by workers who are similarly employed elsewhere. The beneficiary's duties and 
technical skills, while impressive, demonstrate that he possesses knowledge that is common among software 
engineers working in the automotive systems field. Furthermore, it is not clear that the performance of the 
beneficiary's duties would require more than basic proficiency with the company's internal processes and 
methodologies. 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 used by the petitioner are substantially different from those used by 
other technology consulting companies. The petitioner has failed to demonstrate that the beneficiary's 
knowledge is any more advanced or special than the knowledge held by a skilled worker. See Matter of 
Penner, 18 I&N Dec. at 52. 
The legislative history for 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. 
Finally, regarding the petitioner's reliance, in part, on the Puleo memorandum, it must be noted that in making 
a determination as to whether the knowledge possessed by a beneficiary is special or advanced, the AAO 
relies on the statute and regulations, legislative history and prior precedent. Although counsel suggests that 
USCIS is bound to base its decision on the above-referenced Puleo and Ohata memoranda, the memoranda 
were issued as guidance to assist USClS employees in interpreting a term that is not clearly defined in the 
statute, not as a replacement for the statute or the original intentions of Congress in creating the specialized 
knowledge classification, or to overturn prior precedent decisions that continue to prove instructive in 
adjudicating L-IB visa petitions. The AAO will weigh guidance outlined in the policy memoranda 
accordingly, but not to the exclusion of the statutory and regulatory definitions, legislative history or prior 
precedents.6 
- - 
determination on an L-1B visa petition. The distinction between skilled and specialized workers has been a 
recurring issue in the L-1B program and is discussed at length in the INS precedent decisions, including Matter of 
Penner. See 18 I&N Dec. at 50-53. (discussing the legislative history and prior precedents as they relate to the 
distinction between skilled and specialized knowledge workers). 
USCIS memoranda articulate internal guidelines for agency personnel; they do not establish judicially 
enforceable standards. Agency interpretations that are not arrived at through precedent decision or notice- 
and-comment rulemaking - such as those in opinion letters, policy statements, agency manuals, and 
EAC 08 124 51 192 
Page 17 
Therefore, based on the evidence presented and applying the statute, regulations, and binding precedents, the 
petitioner has not established that the beneficiary has specialized knowledge or that he has been or would be 
employed in the United States in a capacity involving specialized knowledge. For this reason, the appeal will 
be dismissed. 
111. L-1 Visa Reform Act 
Assuming arguendo that the petitioner had established that the beneficiary possesses specialized knowledge, 
the terms of the L-1 Visa Reform Act would still mandate the denial of this petition. One of the main 
purposes of the L-1 Visa Reform Act amendment was to prohibit the outsourcing of L-1B intracompany 
transferees to unaffiliated employers to work with "widely available" computer software and, thus, help 
prevent the displacement of United States workers by foreign labor. See 149 Cong. Rec. S11649, *S11686, 
2003 WL 22143 105 (September 17, 2003); see also Sen. Jud. Comm., Sub. on Immigration, Statement for 
Chairman Senator Saxby Chambliss, July 29, 2003, available at 
<http://judiciary.senate.gov/member~statement. cfm?id =878&wit_id=3355> (accessed on September 5, 
2008). 
If a specialized knowledge beneficiary will be primarily stationed at the worksite of an unaffiliated employer, 
the statute mandates that the petitioner establish both: (1) that the beneficiary will be controlled and 
supervised principally by the petitioner, and (2) that the placement is related to the provision of a product or 
service for which specialized knowledge specific to the petitioning employer is necessary. Section 
214(c)(2)(F) of the Act. These two questions of fact must be established for the record by documentary 
evidence; neither the unsupported assertions of counsel or the employer will suffice to establish eligibility. 
Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998); Matter of Obaigbena, 19 I&N Dec. at 534. 
If the petitioner fails to establish both of these elements, the beneficiary will be deemed ineligible for 
classification as an L-1B intracompany transferee. As with all nonimmigrant petitions, the petitioner bears 
the burden of proving eligibility. Section 291 of the Act, 8 U.S.C. 5 1361; see also 8 C.F.R. 5 103.2(b)(l). 
A. Threshold Question: Worksite of Beneficiary 
enforcement guidelines - lack the force of law and do not warrant Chevron-style deference. Christensen v. 
Harris County, 529 U.S. 576, 587 (2000). An agency's internal guidelines "neither confer upon [plaintiffs] 
substantive rights nor provide procedures upon which [they] may rely." Loa-Herrera v. Trominski, 23 1 F.3d 
984, 989 (5th Cir. 2000)(quoting Fano v. O'Neill, 806 F.2d 1262, 1264 (5th Cir. 1987)). Agency policy 
memorandum and unpublished decisions do not confer substantive legal benefits upon aliens or bind USCIS. 
Rorneiro de Silva v. Smith, 773 F.2d 1021, 1024 (9th Cir. 1985); see also Prokopenko v. Ashcroft, 372 F.3d 
94 1, 944 (8th Cir. 2004). 
In contrast to agency memoranda, a legacy INS or USClS decision is binding as a precedent decision once it 
is published in accordance with 8 C.F.R. 9 103.3(c). The INS precedent decisions relating to L-1B 
specialized knowledge are considered "interpretive rules" under the APA. See Spencer Enterprises, Inc. v. 
US., 229 F.Supp.2d 1025, 1044 (E.D.Ca1. 2001), af'd 345 F.3d 683 (9th Cir. 2003); see also R.L. Inv. Ltd. 
Partners v. INS, 86 F.Supp.2d 1014 (D.Hawaii 2000). 
EAC 08 124 51 192 
Page 18 
As a threshold question in the analysis, USCIS must examine whether the beneficiary will be stationed 
primarily at the worksite of the clientlunaffiliated company. Section 214(c)(2)(F) of the Act. The petitioner 
indicated on Form 1-129 that the beneficiary will be working at locations in Middlesex County, New Jersey, 
in Columbus, Indiana, and in Fridley, Minnesota, but did not provide exact street addresses. In response to 
Question 13 on the Form 1-129 Supplement L, the petitioner answered "No" when asked: "Will the 
beneficiary be stationed primarily offsite (at the worksite of an employer other than the petitioner or its 
affiliate, subsidiary, or parent)?" As discussed above, the beneficiary will be working on-site at Cummins, 
Inc. locations in the United States. While the petitioner claims that Cummins, Inc. is a partial owner of its 
Indian parent company, the evidence of record does not establish that the U.S. client is in fact an affiliate, 
parent, subsidiary or branch of the petitioning company, as those terms are defined at 8 C.F.R. 214.2(1)(l)(ii). 
The petitioner later indicated that it maintains its own "satellite business office" in Columbus, Indiana, but did 
not state that the beneficiary would work at this office. 
The director determined that the beneficiary will be stationed primarily at the worksite of a clienthnaffiliated 
employer and therefore the provisions of Section 214(c)(2)(F) of the Act are applicable. 
On appeal, the counsel and the petitioner reiterate that Cummins, Inc. is a "part owner" of the foreign entity, 
and therefore is an affiliate to the petitioner, thus suggesting that the beneficiary will not be employed at the 
worksite of an unaffiliated employer. 
Based on these responses and statements, the AAO concludes that the beneficiary will be primarily employed 
at the worksite of an unaffiliated employer, thereby triggering the provisions of the L-1 Visa Reform Act. 
The petitioner has not established through the submission of evidence the claimed affiliate relationship 
between the U.S. entity and the client, Cummins, Inc. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofzci, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
The petitioner therefore must establish both: (1) that the beneficiary will be controlled and supervised 
principally by the petitioner, and (2) that the placement is related to the provision of a product or service for 
which specialized knowledge specific to the petitioning employer is necessary. Section 214(c)(2)(F) of the 
Act. 
B. Control and Supervision of Beneficiary 
Under section 214(c)(2)(F)(i) of the Act, the petitioner must establish that the beneficiary will be controlled 
and supervised principally by the petitioner, and not by the unaffiliated employer. The petitioner stated in its 
letter dated February 29, 2008, the petitioner stated that it has "several teams stationed at Cummins, Inc." and 
that the beneficiary will be "reporting to and working directly under the supervision of the on-site manager." 
In the RFE issued on May 6, 2008, the director requested a copy of the contract for services between the 
petitioner and Cummins, Inc. for the services or products to be provided. The director emphasized that if the 
contract does not address the terms and conditions of the beneficiary's employment, then the petitioner should 
provide a statement in the form of a contract addendum signed by a company representative and the offsite 
EAC 08 124 51192 
Page 19 
employer, which establishes: who retains authority to hire and fire the person performing the duties of the 
position; who is responsible for administering the alien's time and pay; to what degree the beneficiary will be 
controlled and supervised by the offsite employer; and by what means the petitioner will supervise and 
control the beneficiary and the work he performs for the client. 
In its letter dated July 28, 2008, the petitioner stated: 
Since we have a team stationed at Cummins facilities and the transferees are all professionals, 
the transferees take ownership of their work product and its quality, however, the professional 
reporting relationship will be with the local [petitioning company's] Supervisor at Cummins 
and the Engagement Manager based at [the foreign entity]. The supervisor Mr. Suresh 
Thiruthani will also have the authority to review, hire & fire [the beneficiary]. In addition, 
Mr. Vikas Sharrna, Manager HR, is based out of our office in Columbus, Indiana. 
' 
The petitioner provided a list of over 150 H-1B and L-1B workers based at Cummins, Inc. facilities in 
Indiana. 
The director did not specifically discuss the issue of whether the petitioner established that the beneficiary 
will be principally controlled by the petitioning company and not by the client company. On appeal, the 
petitioner emphasizes that it has "supervisors, team leaders, project managers, account managers, etc. 
stationed at Cummins," and states that the beneficiary will continue to report to its own employees. 
Upon review, the AAO finds that the petitioner has not established this element of eligibility. 
Despite the director's specific request for evidence, the petitioner did not provide sufficient documentation to 
establish whether the beneficiary will be controlled and supervised principally by the petitioner or by the 
unaffiliated employer. The director specifically requested a copy of the contract for services, or an addendum 
to the contract signed by both the petitioner and the client company, specifically addressing the terms and 
conditions of the beneficiary's employment. The petitioner's failure to submit the requested evidence 
precludes a material line of inquiry; accordingly, the petition must be denied. 8 C.F.R. 5 103.2(b)(14). 
Furthermore, the petitioner initially indicated that the beneficiary would report to and be directly supervised 
by "the on-site manager," but did not identify this person by name. The petitioner later stated that the 
beneficiary would "take ownership" of his own work product but report to a "supervisor" of the petitioning 
company located at the client site. The petitioner did not clearly indicate the beneficiary's relationship with 
employees of the client company, nor did it clearly identify the extent of the supervision and control its own 
employees will have over the beneficiary's work. Moreover, the petitioner submitted no evidence or 
explanation regarding the beneficiary's reporting relationships for the proposed Minnesota work site. 
Therefore, the petitioner has not submitted sufficient evidence to establish that the beneficiary would be 
controlled and supervised principally by the petitioning company and has not satisfied the requirements of 
Section 214(c)(2)(F)(i) of the Act. Going on record without supporting evidence will not satisfy the burden of 
proof in these proceedings. Matter of Sofici, 22 I&N Dec. at 165. For this additional reason, the petition 
must be denied. 
EAC 08 124 51 192 
Page 20 
C. Necessity of Specialized Knowledge Specific to the Petitioning Employer 
The second issue under the L-1 Visa Reform Act analysis is whether the petitioner has established that the 
beneficiary's placement is related to the provision of a product or service for which specialized knowledge 
specific to the petitioning employer is necessary. Section 214(c)(2)(F)(ii) of the Act. As discussed below, the 
petition also fails to meet the requirements of this section of the Act. 
In denying the petition, the director concluded that the placement of the beneficiary at the worksite of the 
unaffiliated employer is essentially an arrangement to provide labor for hire for the unaffiliated employer, 
rather than a placement in connection with the provision of a product or service for which specialized 
knowledge specific to the petitioning employer is necessary. The director observed that "the majority of the 
beneficiary's work will be centered on the development of Cummins' systems, not for any project which 
specifically benefits the processes and procedures of [the petitioning] entity." The director noted that this 
conclusion is "bolstered by the fact that . . .the purpose of the Core I1 project is to develop an application that 
provided software support to the current ECMIECU product customers of Cummins." The director further 
found that the beneficiary's value to the Core I1 Tier 4 project "appears directly and primarily related to his 
acquiring knowledge of Cummins, Inc.'s internal processes and methodologies." 
On appeal, counsel objects to the conclusion that the beneficiary's services constitute an arrangement to 
provide "labor for hire" for the unaffiliated employer. First, counsel asserts that the director erred in finding 
that specialized knowledge cannot be met when the beneficiary's work product benefits the end-client as 
opposed to the petitioning entity. Counsel emphasizes that the beneficiary's successful performance of his 
duties contributes to the economic viability of the petitioning organization. Counsel asserts that any employee 
of an IT consulting firm will be required to possess knowledge of both the firm's own methodologies and 
processes, but also the client's software and processes, and the fact that the beneficiary's knowledge 
encompasses both the petitioner's processes and those of the client should not be a basis for denial. 
Counsel's argument on appeal is based upon the claimed affiliate relationship between the petitioner and 
Cummins, Inc. Counsel claims that the beneficiary's specialized and advanced knowledge derives from his 
experience with the Core I1 Tier 4 project, and that the project involves support and enhancement of software 
which is proprietary to Cummins and, indirectly, to the petitioner. 
The petitioner's assertions are not persuasive. 
 The petitioner has not established that the beneficiary's 
placement at the unaffiliated employer's worksite is related to the provision of a product or service for which 
specialized knowledge specific to the petitioning employer is necessary. Section 214(c)(2)(F)(ii) of the Act. 
The petitioner must demonstrate in the first instance that the beneficiary's offsite employment is connected 
with the provision of the petitioner's product or service which necessitates specialized knowledge that is 
speciJic to the petitioning employer. If the petitioner fails to prove this element, the beneficiary's employment 
will be deemed an impermissible arrangement to provide "labor for hire" under the terms of the L-1 Visa 
Reform Act. 
As discussed above, the petitioner has not submitted a complete copy of the contract governing the work to be 
done by the beneficiary at the client's worksite. Nor has the petitioner established that the support and 
EAC 08 124 51 192 
Page 21 
enhancement of Cummins, Inc. systems requires knowledge that is specific to the petitioning company. As 
discussed above, the two companies are not affiliates for the purpose of the visa classification. 
The petitioner has not shown that any of the products or services to be supported or enhanced will require the 
application of the petitioner's own technologies. The evidence of record does not support a conclusion that the 
beneficiary will be implementing, developing, maintaining, or supporting systems or software developed by 
the petitioning company, or providing a service that other information technology companies with comparable 
capabilities could not provide. The primary purpose of the assignment is for the beneficiary to support, 
enhance and modify the client's own software and systems. 
While it is possible that the beneficiary here possesses knowledge that is directly related to both the petitioner 
and the unaffiliated employer's product or service, it is incumbent upon the petitioner to establish that the 
position for which the beneficiary's services are sought is one that requires knowledge specific to the 
petitioner. Here, the petitioner has failed to provide corroborating evidence demonstrating that the 
beneficiary's placement with the unaffiliated employer is related to the provision of a product or service for 
which specialized knowledge specific to the petitioning employer is necessary. 
Counsel suggests that the proposed position does not involve labor for hire because the petitioner has been 
retained to provide specific project-related work and not merely general IT or programming services. 
However, if the "project related work" involves the unaffiliated employer essentially outsourcing its entire IT 
support function to the petitioner, then the employees assigned to the "project related work" are not providing 
a product or service which necessitates specialized knowledge that is speczfic to the petitioning employer. 
In conclusion, there is no evidence that the petitioner is providing the beneficiary's services in connection 
with the sale of any technology products or that the beneficiary's offsite employment requires any specialized 
knowledge specific to the petitioner's operations. Instead, the limited evidence in the record related to the 
nature of the contract indicates that the petitioner is providing general IT services to the unaffiliated employer. 
The fact that such services appear to be delivered on a large-scale "project" basis is insufficient to preclude a 
finding that such services essentially constitute "labor for hire." 
Accordingly, the petitioner has failed to meet its burden of establishing that the beneficiary's placement is 
related to the provision of a product or service for which specialized knowledge specific to the petitioning 
employer is necessary, and the petition may not be approved. The petition will be denied and the appeal will 
be dismissed for the above stated reasons, with each considered as an independent and alternative basis for the 
decision. When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if he or she shows that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. 4 136 1. Here, that burden has not been met. 
'ORDER: The appeal is dismissed.