dismissed L-1B Case: Information Technology

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
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 Office of ~dmlnistratlve ~Geals MS 2090 
Washington, DC 20529-2090 
icvssion of pe;;ozal privacy 
U.S. Citizenship 
and Immigration 
File: EAC 08 077 5 1548 Office: VERMONT SERVICE CENTER Date: MA, 2 9 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1 10 1 (a)(15)(L) 
IN 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. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
F. Grissom 
Acting Chief, Administrative Appeals Office 
EAC 08 077 5 1548 
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, a U.S. branch of a foreign entity and provider of information technology services 
worldwide, filed this nonimmigrant visa petition to employ the beneficiary in the position of a SAP 
consultant as an L-1B intracompany transferee with specialized knowledge pursuant to section 
101 (a)(lS)(L) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. tj 1 101(a)(l5)(L). 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary 
possesses specialized knowledge or that he has been or will be employed in a capacity involving 
specialized knowledge. Specifically, the director determined that the beneficiary's knowledge of 
certain tools and processes is readily accessible and, therefore, cannot be deemed as specialized. 
On appeal, counsel disputes the director's conclusions and submits a brief explaining his various 
objections to the director's findings. 
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 himher 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. 
EAC 08 077 51 548 
Page 3 
The primary issues in this proceeding are whether the petitioner has established that the beneficiary 
possesses specialized knowledge and whether he has been or will be employed in a specialized 
knowledge capacity. 8 C.F.R. $§ 214.2(1)(3)(ii) and (iv). 
Section 2 14(c)(2)(B) of the Act, 8 U.S.C. fj 1 184(c)(2)(B), provides: 
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. $ 214.2(1)(l)(ii)(D) defines "specialized knowledge" as: 
[Slpecial knowledge possessed by an individual of the petitioning organization's 
product, service, research, equipment, techniques, management or other interests and 
its application in international markets, or an advanced level of knowledge or 
expertise in the organization's processes and procedures. 
In support of the Form 1-129, the petitioner provided a letter dated January 14, 2008 in which the 
beneficiary's foreign and proposed positions were described. With regard to the beneficiary's 
employment abroad, the petitioner stated that the beneficiary was assigned to work with Agilent 
Technologies, one of the petitioner's client companies. In the course of his employment, the beneficiary 
was trained in the petitioner's core methodologies and internal tools. The petitioner claimed that the 
beneficiary was selected for the Agilent project because of his high level of knowledge. The petitioner 
emphasized the beneficiary's training in its quality management system. The following responsibilities 
were assigned to the beneficiary during his employment abroad: 
Overall responsibility for support delivery 
Single point contact for all issues pertaining to Support 
All customer cornrnunications, routine or exceptional 
All communications with other parties involved, including other Service Providers, 
relevant teams within Agilent, etc. 
Resolution of critical and urgent problems 
Execute support tasks. Eg. Master Data upload, Job Error Handling, etc. 
Monitor InterfacesIJobs and error handling 
Resolve OVSD Tickets assigned to the respective module 
Provide Additional support to Business leads 
Provide support to the Offshore ABAP Team in development 
Perform Testing on enhancements developed in the module 
Interact with Business Users for resolution of OVSD Tickets 
Execute support tasks. Eg. Master Data upload, Job Error Handling 
Configuration changes 
EAC 08 077 5 1548 
Page 4 
With regard to the beneficiary's proposed employment with the client company in the United States, the 
following proposed list of responsibilities was provided: 
Analyze the issue reported by the user and monitor the Ticketing system. 
Configuration changes as per the business requirement. 
Documentation of the new business process and update the knowledge portal. 
Carry out the Quality system testing and obtain the user sign off to move it to 
production. 
Monitor the various interfaces. 
Track the request in ECMS and update the system. 
Fill timesheets and other relevant information by providing Periodic updates to higher 
management in [the petitioning entity]. 
Identify the areas for business process improvement. 
On March 18, 2008, the director issued a request for additional evidence (WE), instructing the 
petitioner to provide, inter alia, a more detailed description of the proprietary nature of the procedures 
used by the beneficiary, explaining how the beneficiary's knowledge is special or advanced compared to 
others in the industry or within the petitioner's organization. The petitioner was asked to provide 
documentation to support its response. The petitioner was also asked to explain how it has functioned 
thus far without the beneficiary's presence in the United States and why the beneficiary's U.S. presence 
is now required. 
In response, the petitioner submitted a letter dated June 12, 2008 in which a number of the director's 
concerns were addressed. The petitioner explained that the beneficiary is trained in the company's 
quality management system (QMS), which is a tool used to track a project's progress through the 
application of the petitioner's methodologies, including the six-sigma methodology. The petitioner 
focused on its SEI-CMM Level 5 status as a company that has attained the highest level of quality 
assurance standard, which applies to a limited number of consulting companies industry-wide. The 
petitioner stated that not all of its employees are trained under the CMM advanced level, as not all of the 
projects undertaken by the petitioner require such knowledge. The petitioner described the beneficiary's 
job duties as follows: 
[The beneficiary] uses QMS++ Methodology that includes CMM and IS0 based Quality 
Procedures. He obtains and maintains a complete understanding of the Agilent 
Technologies project design in detail and determines that the client's requirements are 
fully understood and translated into design specifications, user manuals, technical 
manuals, and description of application as per [the petitionerl's QMS++.. [sic] (Quality 
Management System for Six Sigma Methodology) tool. By using QMS++ 
Methodology, [the beneficiary] performs the following specific tasks: 
Coordinating, facilitating, and Architectural design, discussion, and Modularization into 
coherent work packages, by driving the technical design process using QMS++-Failure 
Mode and Effect Analysis (FMEA) and CMM Level 5 Risk Identification. Verifying 
and ensuring that the design document's approach taken is in line with the Cpetitionerl's 
architectural guidelines by QMS++ Design Analysis-Pugh Metric. 
EAC 08 077 51548 
Page 5 
Reviewing the version controls of documentation such as design specifications, user 
manuals, technical manuals, description of application operation, and methodology 
documentation as per QMS++ guidelines. Ownershp of the integrated Project Planning 
& Tracking, following the CMM level 3. Monitoring the QMS++ four block tools 
(Executive Project Review Tool) to adhere .to high level Project status[.] 
Responsible for capturing and tracking Software Change Request (SCR) as per [the 
petitionerl's QMS++. Identify the effort required and possibility to include some SCR in 
the ongoing development life cycle and track SCR that are to be taken up in the next 
release plan of the design phase. 
The petitioner focused on the beneficiary's prior experience with the Agilent Technologies project 
during his employment overseas and stressed that the beneficiary's experience and understanding of the 
petitioner's proprietary quality control tools make hm essential for the proposed position in the United 
States. The AAO notes that the petitioner did not respond to the director's request for an explanation as 
to why the beneficiary must now report to the U.S. entity to cany out his job duties, how the petitioner 
managed while the beneficiary was employed overseas, and how the beneficiary's proposed duties differ 
from those performed by the petitioner's other U.S. employees. Furthermore, the petitioner did not 
provide documentary evidence to support any of the claims made regarding the beneficiary's claimed 
knowledge of proprietary tools and procedures. Failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. fj 103.2(b)(14). 
On July 22, 2008, the director denied the petition, concluding that the petitioner failed to establish 
that the beneficiary possesses specialized knowledge or that the beneficiary has been or will be 
employed in a specialized knowledge capacity. 
On appeal, counsel asserts that the petitioner has satisfied the criteria for establishing that the 
beneficiary has been and will be employed in a specialized knowledge capacity. Specifically, the 
petitioner argues that the beneficiary has specialized knowledge of proprietary development tools 
and methodologies. In support of this claim, counsel refers to the petitioner's achievement of a 
rating of 5 under the Capability Maturity Model for Software (CMM), which the Software 
Engineering Institute (SEI) administers. In turn, counsel argues that, because the petitioner trained 
the beneficiary to function at SEI-CMM Level 5, the beneficiary qualifies as a specialized 
knowledge worker. 
Upon review, the petitioner's assertions are not persuasive in demonstrating that the beneficiary has 
specialized knowledge or that he has been or will be employed in a specialized knowledge capacity 
as defined at 8 C.F.R. fj 214.2(1)(l)(ii)(D). 
Looking to the language of the statutory definition, Congress has provided U.S. Citizenship and 
Immigration Services (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: 
EAC 08 077 5 1548 
Page 6 
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-IB 
specialized knowledge category. NLRB v. United Food & Commercial Workers Union, Local 23, 484 
U.S. 112, 123 (1987) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 
(1987)). 
First, the MO 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 the context of the term withn the statute, the MO therefore would 
expect a specialized knowledge employee to occupy an elevated position withn 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)(l5)(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 58 15. The legislative lvstory 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 
-- -- 
' 
 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 08 077 5 1548 
Page 7 
term "key personnel" denotes a position within the petitioning company that is "[olf crucial 
importance." Webster S New College Dictionary 620 (3rd 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, 91St 
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. 91-851 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-IB 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 214(c)(2)(B), it would be based on the nature of the Congressional clarification itself. By not 
including any strict 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. Cf: Ponce-Leiva v. Ashcroft, 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 
EAC 08 077 51548 
Page 8 
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 USCIS1s, burden to 
articulate and prove that the beneficiary possesses "special" or "advanced" knowledge. Section 
214(c)(2)(B) of the Act, 8 U.S.C. 5 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 submitted that 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. 
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. § 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. 
In the present matter, the petitioner 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 
a 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 
SAP consultants 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 Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure 
EAC 08 077 5 1548 
Page 9 
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. 1103 (E.D.N.Y. 1989), aff'd, 905, F.2d 41 (2d. Cir. 1990). 
In reviewing the petitioner's response to the RFE, the petitioner's numerous references to proprietary 
tools are not accompanied by the actual names of such tools or an explanation of what these tools do 
and how the beneficiary will apply them at the client's job site. Both the petitioner's and counsel's 
primary focus is on the beneficiary's prior experience in working with the client abroad and the 
training the beneficiary has purportedly received in various proprietary methodologies. However, as 
previously discussed, work experience and knowledge of a firm's technically complex products will 
not equal "special knowledge." See Matter of Penner, 18 I&N Dec. at 53. 
According to both the petitioner and counsel, the beneficiary's knowledge of SEI-CMM Level 5 
assessment tools qualifies the beneficiary as a specialized knowledge worker. The petitioner 
specifically states that it is one of a handful of companies which has achieved an SEI-CMM Level 5 
assessment and further asserts that only 16% of its employees receive such training. Counsel argues 
that, given these facts, the beneficiary must be a specialized knowledge worker. 
There is, however, no evidence in the record, such as a course certification or company training 
records, to establish that the beneficiary actually received SEI-CMM level 5 training or attended any 
of the in-house training courses that were named in the petitioner's previously submitted documents. 
Counsel merely asserts that the beneficiary is one of a group of information technology professionals 
to have received the SEI-CMM Level 5 training. Without documentary evidence to support the 
claim, the assertion of counsel will not satisfy the petitioner's burden of proof. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 
(BIA 1980). As stated earlier, simply going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure 
Craft of California, 14 I&N Dec. 190. Despite the RFE's specific request for corroborating 
evidence, the petitioner has failed to document that the beneficiary has actually received the 
petitioner's SEI-CMM Level 5 training or the seven other training sessions through which the 
beneficiary's specialized knowledge was purportedly obtained. For this reason alone, the petition 
may not be approved. 
Counsel also refers to a 1994 Immigration and Naturalization Service (INS) memorandum as a guide 
for interpreting the statutory definition of specialized knowledge. Memorandum from James A. 
Puleo, Acting Associate Commissioner, Immigration and Naturalization Service, Interpretation of 
Specialized Knowledge, CO 214L-P (March 9, 1994). 
 In the memorandum, the Associate 
Commissioner noted that specialized knowledge is not limited to knowledge that is proprietary, 
exclusive or unique, but also includes knowledge that is "different from that generally found in [a] 
particular industry." Counsel argues that the beneficiary's training in the petitioner's SEI-CMM 
Level 5 assessed software development and maintenance process puts the beneficiary in the 
specialized knowledge category. However, the AAO finds that the beneficiary's ability to execute 
Level 5 assessed software development and maintenance processes does not by itself establish that 
his knowledge is different from that generally found in the industry. 
EAC 08 077 5 1548 
Page 10 
The Software Engineering Institute is a research and development center that offers, among other 
things, education and training classes organized to aid companies in determining their ability to 
develop and maintain their software products. See About the SEI, http://www.sei.cmu.edu. Because 
SEI is a voluntary training facility, any software company can purchase a report on how to perform 
software process assessments and train its employees in order to receive a Level 5 rating. Although 
it may be difficult for an organization to achieve Level 5 status, the knowledge to gain that status is 
widely available and can be "generally found in the industry." Counsel disputes this finding, 
claiming that such logic is absurd. To further his point, counsel refers to a certified public 
accountant's (CPA) certification as an example of something that is also widely available. Counsel's 
point, however, is lost, as he fails to clarify how being able to obtain CPA certification can deem 
someone as having specialized knowledge. Contrary to counsel's misinterpretation of the director's 
explanation, the mere fact that Level 5 training is widely available is not indicative of how easy or 
difficult it is to achieve the necessary certification. However, the high degree of difficulty in 
obtaining Level 5 certification does not lead to the conclusion that anyone who is able to get 
certified at this level possesses specialized knowledge. 
Furthermore, while counsel stresses the petitioner's quality management system that has been 
devised in-house to ensure customer satisfaction, the petitioner has provided little information as to 
what this means in terms of the beneficiary's actual job duties versus the job duties of others who 
arguably are not employed in specialized knowledge capacities. As discussed above, in order to 
determine what is specialized, the petitioner must provide information about the knowledge 
possessed by other SAP consultants within its organization so that a comparison can be made 
between the beneficiary, an individual alleged to have specialized knowledge, and other employees 
within the petitioning entity who do not have the same level of knowledge. Here, despite having 
been requested to do so, the petitioner has not provided this necessary information. 
Finally, with regard to counsel's reliance on the 1994 Associate Commissioner's memorandum, it is 
noted that the memorandum was intended solely as a guide for employees and will not supersede the 
plain language of the statute or the regulations. Although the memorandum may be useful as a 
statement of policy and as an aid in interpreting the law, it was intended to serve as guidance and 
merely reflects the writer's analysis of the issue. Counsel also acknowledges such in his appellate 
brief, where he states that the 1994 memorandum was "intended to provide Service Centers, field 
offices, and the AAO with guidance in interpreting the statutory dejinition of specialized knowledge 
. . . ." (emphasis added). Therefore, by itself, counsel's assertion that the beneficiary's qualifications 
are analogous to the examples outlined in the memorandum is insufficient to establish the 
beneficiary's qualification for classification as a specialized knowledge professional. Moreover, 
USCIS memoranda do not establish judicially enforceable rights. An agency's internal personnel 
guidelines "neither confer upon [plaintiffs] substantive rights nor provide procedures upon which 
[they] may rely." Lou-Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir. 2000)(quoting Fano v. 
OINeill, 806 F.2d 1262, 1264 (5th Cir. 1987)). 
Overall, the record does not establish that the beneficiary's knowledge is substantially different from 
the knowledge possessed by computer programmers generally throughout the industry or by other 
employees of the petitioning organization. The fact that few other workers possess very specific 
EAC 08 077 51548 
Page 11 
knowledge of certain aspects of the petitioning organization's processes or products does not alone 
establish that the beneficiary's knowledge is indeed advanced or special. All employees can be said 
to possess uncommon and unparalleled skill sets to some degree; however, a skill set that can be 
imparted to another similarly educated and generally experienced computer programmer with 
relative ease is not "specialized knowledge." Moreover, the proprietary or unique qualities of vista 
web do not establish that any knowledge of this development tool is "special" or "advanced." 
Rather, the petitioner must establish that qualities of the petitioner's processes, procedures, and 
technologies require this employee to have knowledge beyond what is common in the industry. This 
has not been established in the present matter. The fact that other workers outside of the petitioning 
organization may not have very specific knowledge regarding the petitioner's enterprise is not 
relevant to these proceedings if this knowledge gap could be closed by the petitioner simply 
revealing the information to a newly hired, generally experienced and educated worker. , 
The AAO does not discount the likelihood that the beneficiary is a skilled and experienced SAP 
consultant. There is no indication, however, that the beneficiary has any knowledge of the 
petitioning company that exceeds that of any experienced SAP consultant, or that he has received 
special training in the company's methodologies or processes which would separate him from any 
other worker employed within the petitioner's organization or in the industry at-large. 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. 
Based on the evidence presented, the petitioner has not established that the beneficiary has 
specialized knowledge or that he was or will be employed in a capacity involving specialized 
knowledge. For this reason, the appeal will be dismissed. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a 
plaintiff can succeed on a challenge only if it is shown that the AAO abused its discretion with 
respect to all of the AAO's enumerated grounds. See Spencer Enterprises, lnc., 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 291 of the Act, 8 U.S.C. $ 1361. Here, that burden has not been met. 
Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.