dismissed L-1B Case: Information Technology

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PUBUCCQPY
u.s.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
FILE: LIN 0525251475 Office: TEXAS SERVICE CENTER Date: "AY 012007
IN RE: 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)(15)(L)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
SELF-REPRESENTED
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.
~~
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
LIN 05 252 51475
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 appeal will be dismissed .
. The petitioner appears to be an Indian corporation registered to do business in the State of Illinois and claims
to be engaged in the business of information processing, manufacturing, sales and service. It seeks to
temporarily employ the beneficiary asa BaaN consultant at a "location" in Rolling Meadows, Illinois and
filed a petition to classify the beneficiary as a nonimmigrant intracompany transferee with specialized
knowledge. The director determined that the petitioner had not established that (1) the beneficiary had been
employed abroad in a specialized knowledge position; or (2) the intended employment in the United States
required specialized knowledge.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, the petitioner 'asserts that as a result of his
experience in the information technology industry, both inside and outside the foreign entity, the beneficiary
has gained the critical knowledge necessary to perform the duties of the proffered position. In support of this
contention, the petitioner resubmits the previously-submitted evidence and offers additional details regarding
the beneficiary's position and qualifications.
To establish L-I eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.c. § 1101(a)(15)(L). Specifically, within three years
preceding the beneficiary's application for admission into the United States, a qualifying organization must
have employed the beneficiary in a qualifying managerial or executive capacity, or in a specialized
knowledge capacity, for one continuous year. In addition, the beneficiary must seek to enter the United States'
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate thereof
in a managerial, executive, or specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) further states that an individual petition filed on Form 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)(1)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year' of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies him/her to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
This matter presents two related, but distinct, issues: (1) whether the beneficiary gained specialized
knowledge during his employment abroad and was employed in a specialized knowledge position; and (2)
whether the proposed employment is in a capacity that requires specialized knowledge.
LIN 05 25251475
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Section 2l4(c)(2)(B) ofthe Act, 8 U.S.C. § 1184(c)(2)(B), providesthe following:
For purposes of section 101(a)(l 5)(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. § 2l4.2(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.
In a letter dated August 29, 2005, the petitioner explained that the purpose of the beneficiary's transfer to the
United States was to assist the petitioner's on-site team with the support and development of an application
identified as BaaN IV (Enterprise Resource Planning), which was outsourced by a U.S. company,
International Trucks and Engines, to the foreign entity. The petitioner noted that the team would interface
with the U.S. team and would coordinate activities with the Indian company for the successful execution of
the project and the eventual transfer of the BaaN IV application to India.
With regard to the beneficiary's qualifications and experience, the petitioner explained that he had obtained a
Bachelor of Engineering from Osmania University and subsequently obtained a Master's in Production
Engineering from Mysore University. Further, prior to. his employment with the Indian entity which
commenced on March 1, 2004, the petitioner stated that the beneficiary worked as a
for two different entities from December 2000 to December 2003.
The first issue to examine in this matter is whether the beneficiary was employed abroad in a specialized
knowledge capacity for one full year out of the three years immediately preceding the filing of this petition.
With regard to the beneficiary's employment abroad and his specialized knowledge gained therein, the
petitioner stated:
[The beneficiary] has the specialized knowledge that is needed for the proposed position. He
has advanced knowledge of the BaaN IV (ERP) application. This advanced knowledge
includes:
• 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 International implement ERP [sic] in such activities,
such as order training, inventory control, manufacturing and customer service. The
BaaN IV ERP application combines each department'~ 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, finance, manufacturing and warehouse and each
department can have access to information in other departments. The ultimate goal
of this application system [is] to help management be establishing better business
practices and equipping them with the right information to make time[ly] decisions.
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• Waterfall 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.
,
The petitioner further stated that the beneficiary uses the above-referenced methodologies in his current daily
job duties. It further stated that the beneficiary utilized this knowledge through his daily work and
involvement in projects as well as the training he received with regard to BaaN Tools. Finally, the petitioner
claims that his direct involvement in the BaaN ERP application "clearly distinguishes himself from most
people in the IT industry and helps to establish his specialized knowledge of this ERP system."
The director found the initial evidence submitted with the petition insufficient to warrant a finding that the
beneficiary possessed the required specialized knowledge and was thus employed abroad in a qualifying
specialized knowledge position. Consequently, a detailed request for evidence was issued on October 11,
2005, which requested evidence that the beneficiary possesses specialized knowledge that was uncommon,
noteworthy or distinguished by some unusual quality and not generally' known by practitioners in the field.
Specifically, the director requested documentary evidence of the training the beneficiary received while
employed by the petitioner, as well as a definitive estimate of when the beneficiary actually acquired this
specialized knowledge.
The petitioner responded on November 17,2005. In response to the director's request, the petitioner provided
a lengthy but vague restatement of the beneficiary's duties, qualifications, and involvement with the
previously-identified methodologies. The petitioner emphasized that the beneficiary's five years of
employment in the IT industry, nineteen months of which was spent working for the foreign entity, gave him
specialized knowledge. The petitioner claims specifically that his involvement in the upgrade and migration
of the BaaN ERP system for various clients imputed in him the required specialized knowledge, and
concludes by stating that "[i]t could be fairly stated that the [beneficiary] [had] specialized kriowledge of the
company at the time of filing of this petition." The petitioner also claimed that the beneficiary received
classroom training and possessed specialized knowledge of QMS and AMS, two proprietary and intemal-use­
only business systems of the petitioner. No documentation was submitted in support of these contentions.
The director determined that the record failed to establish that the beneficiary possesses specialized
knowledge, and therefore found that he had not been employed abroad in a specialized knowledge capacity.
The director specifically noted that the petitioner had failed to show that the beneficiary's duties and training
were significantly different from other similarly-qualified persons, or that the beneficiary's knowledge gained
as a result thereof was uncommon or noteworthy in comparison. The director noted that despite the claims of
the petitioner that the beneficiary received classroom training, no documentation of such training was
submitted. On appeal, the petitioner requests reconsideration of the beneficiary's qualifications and submits a
synopsis of the statements previously submitted prior to adjudication.
On review, the record does not contain sufficient evidence to establish that the beneficiary was employed
abroad in a specialized knowledge capacity.
When examining the specialized knowledge capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). As required in the regulations, the
petitioner must submit a detailed description of the services to be performed sufficient to establish specialized
knowledge. Id.
UN 0525251475
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In the present matter, the petitioner provided a lengthy but vague description of the beneficiary's employment
in the foreign office and his responsibilities as a BaaN consultant. Despite specific requests by the director,
namely, what exactly set apart the beneficiary's knowledge from other similarly trained programmers in the
field, the petitioner failed to provide such information. The petitioner has not sufficiently documented how
the beneficiary's performance of his daily duties distinguishes his knowledge as specialized. Despite the
petitioner's detailed discussion of the (ERP) applications, the record contains no
definitive evidence supporting the contention that the beneficiary's knowledge is uncommon and more
advanced than similarly trained professionals in the field.
For example, in response t<;> the director's request for evidence, the petitioner re-submitted much of the same
information that was submitted in the initial letter of support. The letter states that the beneficiary's five years
of experience in the IT industry, and more specifiGally his nineteen months working for the petitioner, has
established his knowledge of the petitioner's processes and application as specialized. However, although the
petitioner contends that the beneficiary received classroom training, the petitioner provides no evidence of
any training received by the beneficiary. More importantly, however, is the fact that no specific information
regarding the nature of this alleged training was provided. The petitioner contends that the beneficiary is
skilled in QMSand AMS, two proprietary applications of the petitioner. This claim, however, is not
persuasive for two reasons. First, the petitioner provides no documentation of any training or hands-on
experience the beneficiary has had in these areas. Second, and most importantly, the petitioner's focus is on
the BaaN and BaaN IV applications, and makes no mention or connection of why knowledge of QMS or
AMS would distinguish the beneficiary from other similarly employed persons with the petitioner or in the
industry. As emphasized by the petitioner, the crucial application is BaaN. Although the bel)eficiary has
worked as a BaaN consultant for five years and for three different companies, there is no evidence to show
that his training in BaaN tools differs from any other consultant with five years of experience in BaaN tools.
The regulation at 8 C.F.R. § 214.2(l)(3)(viii) states that the director may request additional evidence in
appropriate cases. Although specifically and clearly requested by the director, the petitioner failed to provide
documentary evidence to support its claims that the beneficiary obtained a specialized level of knowledge
through his work with the petitioner abroad, and that this knowledge was uncommon and distinctive from the
knowledge and training of his colleagues. No documentation was submitted that distinguishes the beneficiary
from other BaaN consultants in the industry. Also, the petitioner failed to submit any evidence of what other
BaaN consultants under its employ do on a daily basis. Finally, no evidence of training exclusively offered to
the beneficiary and other key personnel was provided, thereby rendering it unlikely that the beneficiary is one
of only a few consultants that is capable of working on the BaaN IV application.
The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying
the petition. See 8 C.F.R. § 103.2(b)(14). In this case, the petitioner relies on the AAO to accept its
uncorroborated assertions, both prior to adjudication' and again on appeal, that the beneficiary possessed
. specialized knowledge at the time of filing and thus was employed in a qualifying capacity abroad. However,
these assertions do not constitute evidence. Merely asserting that "[i]t could be fairly stated that the
[beneficiary] [had] specialized knowledge of the company at the time of filing of this petition" is insufficient
to show that the beneficiary in fact possessed specialized knowledge and was employed in a qualifying
capacity abroad. 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)).
It is also 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
LIN 0525251475
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process. Matter of Colley, 18 I&N Dec. 117, 120 (Comm. 1981) (citing Matter 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 ofPenner, 18 I&N Dec. 49, 52 (Comm. 1982), 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." Rather, the beneficiaries were considered to have
unusual duties, skills, or knowledge beyond that of a skilled worker. Id. The Commissioner also provided the
following clarification:
A distinction can be made between a person whose skills and knowledge enable him or her to
produce a product through physical or skilled labor and the person who is employed primarily
for his ability to carry out a key process or function which is important or essential to the
business firm's operation.
Id. at 53~
In the present matter, the evidence of record demonstrates that the beneficiary is more akin to an employee
whose skills and experience enable him to provide a specialized serVice, rather than an employee who has
unusual duties, skills, or knowledge beyond' that of an educated and/or skilled worker. Moreover, the
petitioner's failure to submit a more detailed discussion of the beneficiary's day-to-day duties or the nature of
the training he received creates a presumption of ineligibility. What remains unclear is why the beneficiary's
knowledge is so specialized and unique, as alleged by the petitioner, despite the fact that his colleagues and
fellow team members appear to have the same skills and background in BaaN as the beneficiary. It is not
. unreasonable, therefore, to conclude that other similarly trained consultants have achieved or would achieve
the same level of knowledge ,as the beneficiary by simply working in the industry for five years.
It should be noted that the statutory definition of specialized knowledge requires the AAO to make
comparisons in order to determine what constitutes specialized knowledge. The term "specialized
knowledge" is not an absolute concept and cannot be clearly defined. As observed in 1756, Inc. v. Attorney
General, "[s]imply put, specialized knowledge is a relative ... idea which cannot have a plain meaning." 745
F. Supp. 9, 15 (D.D.C. 1990). The Congressional record specifically states that the L-1 category was intended
for "key personne1." See generally H.R. Rep. No. 91-851, 1970 U.S.C.C.A.N. 2750. The term "key
personnel" denotes a position within the petitioning company that is "of crucial importance." Webster's II New
College Dictionary 605 (Houghton Mifflin Co. 2001). 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
1 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, the cited cases, as well as Matter of Penner, remain useful guidance concerning the
intended scope of the "specialized knowledge" L-1B classification.
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"crucial importance" or "key personnel" must rise above the level of the petitioner's average employee.
Accordingly, based on the definition of "specialized knowledge" and the congressional record related to that"
term, the AAO must make comparisons not only between the claimed specialized knowledge employee and
the general labor market, but also between that employee and the remainder of the petitioner's workforce.
Here, the petitioner's main argument that the beneficiary's knowledge is more advanced than other
programmers in the field is based on the beneficiary's experience, specifically his nineteen months working
for the petitioner and his total of five years of experience in the IT industry. Again, the petitioner has not
provided any information pertaining to the exact day-to-day duties of the beneficiary as compared to the daily
duties of other consultants, both working for the petitioner and in the industry in general. Nor did the
petitioner distinguish the beneficiary's knowledge, work· experience, or training from those of its other
employees. Moreover, there is no independent evidence corroborating the claims Of the petitioner. There is
no evidence in the record to suggest that a similarly-education person with five years of experience in the IT
industry and a background in BaaN could not perform the position offered to the beneficiary. This lack of
tangible evidence makes it impossible to classify the beneficiary's knowledge of the petitioner's processes,
and more specifically the BaaN IV application, as advanced and precludes a finding that the beneficiary's role
is of crucial importance to the organization. As previously stated, simply going on record without supporting
documentary evidence is not sufficient for the purpose of meeting the burden of proof in these proceedings.
Matter ofSoffici, 22 I&N Dec. at 165.
The claim that the beneficiary has specialized knowledge remains unsupported due to the failure to submit
any documentation that the training he received combined with his on-the-job experience essentially made
him a specialist in the'petitioner's applications and particularly the BaaN IV application and project within a
period of seven months, such that he could have been employed in a position involving specialized
knowledge for the requisite one-year period. In addition, although a: limited discussion of the petitioner's
products and services is submitted, it is somewhat hard to understand, thereby precluding the AAO from
clearly understanding the actual role of the beneficiary in the petitiorier's organization. While the
beneficiary's skills and knowledge may contribute to the successfulness of the petitioning organization, this
factor, by itself, does not constitute the possession of specialized knowledge. Therefore,· while the
beneficiary's contribution to the economic success of the corporation may be considered, the regulations
specifically require that the beneficiary possess an "advanced level of knowledge" of the organization's
process and procedures or a "special knowledge" of the petitioner's pr<.>duct, service, research, equipment,
techniques, or management. 8 C.F.R. § 214.2(l)(l)(ii)(D). As determined above, the beneficiary does not
satisfy the requirements for possessing specialized knowledge and cannot be found to have been employed
abroad in a specialized knowledge capacity.
The second issue in this matter is whether the proposed position in the United States requires specialized
knowledge. .
In the petitioner's letter of support dated August 29, 2005, the petitioner stated the following with regard to
his proposed U.S. position:
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 [sic]. 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
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India. He will analyze the system requirements documents. [The beneficiary1will 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 testing of the overall application, including writing and executing test
cases and test plans.
In order to qualify for this position, the individual must have professional knowledge in a
specific field of the 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, and Upgradation and Migration. Further, this position
requires the spec'ialized knowledge of the Waterfall SDLC Methodology so that future
development of the application continues to follow this methodology .
. The proposed U.S. possession, as claimed above, requires an individual with "professional knowledge" in the
field of BaaN ERP applications. As addressed previously in this decision, the petitioner has provided no
eVidence to distinguish the beneficiary from any other similarly-trained consultant with experience in BaaN.
Nor has the petitioner submitted evidence to show that the BaaN project is an application that only a key
employee of the petitioner would understand and that the petitioner would suffer significant economic
inconvenience to train. and/or teach someone the specialized knowledge apparently possessed by the
beneficiary. As previously stated, going on record without supporting documentary evidence is not sufficient
. for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165.
The petitioner's appeal essentially claims that the previously-submitted evidence clearly outlines the
beneficiary's unique and uncommon knowledge, and thus qualifies the beneficiary as an intracompany
transferee with specialized knowledge. Once again, the petitioner overlooks the fact that"the beneficiary is
undoubtedly one of many consultants in the workforce today. It is fair to conclude that most people·
employed in this line of work must also have an understanding of the basic premise of computer applications
and engineering despite specializing in different areas. The petitioner does not, however, offer any evidence
that the beneficiary has uncommon; advanced, or proprietary knowledge of the petitioner's unique processes
or procedures. 2
Merely claiming that the beneficiary has specialized knowledge without distinguishing the beneficiary from
other BaaN consultants in the field is insufficient for satisfying the burden of proof in this matter. It appears
that at best, the beneficiary is akin to a professional or skilled worker as opposed to an employee possessing
specialized knowledge.
Additionally, in Matter of Penner, the Commissioner discussed the legislative intent behind the creation of
the specialized knowledge category. 18 I&N Dec. 49. 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 no~immigrant visas is narrowly drawn and will be carefully regulated
2 While a beneficiary is no longer required to have proprietary knowledge, such knowledge can still be a basis
f~r this determination. Thus, although experience with a proprietary product or. procedure does not serve as
prima facie evidence that the beneficiary possesses specialized knowledge, when such a claim is made,
Citizenship and Immigration Services (CIS) must carefully evaluate the claimed knowledge and the depth of
the beneficiary's experience in order to determine whether it rises to the level of specialized knowledge as
contemplated by 8 C.F.R. § 2l4.2(l)(1)(ii)(D).
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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." Id. at 50 (citing H.R.
Subcomm. No.1 'of the Jud. Comm., Immigration Act of 1970: Hearings on HR. 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 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 conciuded 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., 745 F. Supp. at 15 (concluding that
Congress did not intend for the specialized knowledge capacity to extend to all employees with spe"cialized
knowledge, but rather to "key personnel" and "executives.").
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., 745 F. Supp. at 16. Based on the evidence presented, it is concluded that the
beneficiary does not possess specialized knowledge; nor would the beneficiary be employed in a capacity
requiring specialized knowledge. For this reason, the appeal will be dismissed.
Beyond the decision of the director, the petitioner has also failed to establish that the beneficiary will be
controlled and supervised principally by the petitioner during his employment at the workplace of the
unaffiliated employer. Section 214(c)(2)(F)(i) of the Act, 8 U.S.c. § 1 184(c)(2)(F)(i). In this matter, it
appears that the beneficiary will be working directly for the foreign entity at a client site in Illinois. The
petitioner. does not identify the beneficiary's current 'manager or explain how, exactly, the beneficiary is
managed and controlled while offsite at the unaffiliated employer's workplace. 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 of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Therefore, since the record indicates that the beneficiary
will be managed by the foreign entity, and will not have any employment relationship with the U.S. office, the
beneficiary cannot be deemed an intra-company transferee because he will not be rendering his services to a
subsidiary or affiliate of the foreign entity in the United States. See Matter ofPenner, 18 I&N at 54 (holding
that a Canadian corporation could not petition for L-1B employees who were directly employed by the
Canadian office rather than a United States office). Since the beneficiary in this matter will be directly
employed by the Indian company at a client worksite in Illinois, he is ineligible for classification as an L-l B
intracompany transferee with specialized knowledge.
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Moreover, section 214(c)(2)(F) of the Act, 8 U.S.c. § 1184(c)(2)(F) provides that a beneficiary purported to
have specialized knowledge will be ineligible for classification as an L-1B intracompany transferee if the
beneficiary will be stationed primarily at the worksite of an employer other than the petitioner and if the
placement of the beneficiary will be "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." (emphasis added). This section was
added by the L-1 Visa Reform Act of 2004, which was enacted on December 8, 2004 as part of the Omnibus
Appropriations Act for FY 2005, and is applicable to all L-1B petitions filed after June 6, 2005,. including
extensions and amendments involving individuals currently in L-1 status. See Pub. L. No. 108-447, Div. I,
Title IV, 118 Stat. 2809 (Dec. 8, 2004); see also United States Citizenship and Immigration Services, Press
Release, June 23, 2005, "USCIS Implements L-1 Visa Reform Act of 2004," available at
www.uscis.gov/files/pressrelease/Ll_ VisaRefom1A.ct_062305.pdf (accessed on March 9, 2007). A primary
purpose of this 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 Congo Rec. sl1686 (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?ido:=878&wit_ido:=3355(accessed on March 9, 2007).
In this matter, the record indicates that the beneficiary will be stationed primarily at a workplace of
International Trucks and Engines. The beneficiary, therefore, is ineligible under section 214(c)(2)(F)(ii) for
classification as an L-1B intracompany transferee having specialized knowledge, because in order for an
offsite specialized knowledge worker to be eligible for L-1B classification, the petitioner must establish that
the beneficiary is not being employed as "labor for hire" for the unaffiliated employer. The petitioner
contends that the purpose of the beneficiary's transfer was to assist the petitioner's on-site team with the
support and development of an application identified as BaaN IV (Enterprise Resource Planning), which was
outsourced by International Trucks and Engines, and claims that his primary responsibilities will be to create
and implement technical specifications set forth by th~ client. Thus, the beneficiary would fall squarely
within the prohibition imposed by the L-1 Visa Reform Act of 2004 on the "outsourcing" of L-1B
nonimmigrants who do not have specialized knowledge related to the provision of a product or service
specific to a petitioner.
Moreover, a review of the facts of this petition reveal that this is exactly the type of employment relationship
the L-1 Visa Reform Act of 2004 was adopted to prohibit. A~ explained above, this legislation was proposed
to primarily prevent the "outsourcing" of L-1B intracompany transferees to 'unaffiliated employers to work
with "widely available" computer software. In this matter, the petitioner has indicated that the project on
which the beneficiary has been working involves professional knowledge of BaaN ERP applications, which is
undoubtedly an application that other BaaN consultants in the United States could provide.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), ajJ'd. 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on a de novo basis).
LIN 0525251475
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In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 ofthe Act, 8 U.S.c. § 1361. Here, that burden has not been met
ORDER: The appeal is dismissed.