dismissed L-1B Case: Information Technology

identifyingdatadeletedto
preventclearlyunwarranted
invasionofpersonalprivacy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
PUBLIC COpy
File: EAC 02 143 53504
IN RE: Petitioner:
Beneficiary:
Office: VERMONT SERVICE CENTER Date: FEB 012008
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(l5)(L)
IN BEHALF OF BENEFICIARY:
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.
R::~~hief
Administrative Appeals Office
www.uscis.gov
EAC 02 143 53504
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The
petitioner appealed this denial to the Administrative Appeals Office (AAO). The AAO will dismiss the
appeal.
The petitioner filed this nonimmigrant petition seeking to extend the employment of the beneficiary in the
position of applications software analyst/programmer as an L-IB nonimmigrant intracompany transferee with
specialized knowledge pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8
U.S.C. § 1101(a)(l5)(L). The petitioner describes its business as being an "information technology consulting
firm." The petitioner seeks to employ the beneficiary for a period of three years.
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be
employed in the United States in a capacity involving specialized knowledge.
On appeal, counsel for the petitioner asserts that the petitioner has satisfied the criteria for establishing that
the beneficiary will be employed in the United States in a specialized knowledge capacity.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(L) of the Act. Specifically, 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 within three years preceding the beneficiary's application for admission into the United
States. 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)(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 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.
EAC 02 143 53504
Page 3
Section 214(c)(2)(B) of the Act, 8 U.S.C. § 1184(c)(2)(B), provides:
For purposes of section 101(a)(l5)(L), an alien is considered to be serving in a capacity
involving specialized knowledge with respect to a company if the alien has a special
knowledge of the company product and its application in international markets or has an
advanced level of knowledge of processes and procedures of the company.
Furthermore, the regulation at 8 C.F.R. § 214.2(l)(l)(ii)(D) defines "specialized knowledge" as:
[S]pecial knowledge possessed by an individual of the petitioning organization's product,
service, research, equipment, techniques, management or other interests and its application in
international markets, or an advanced level of knowledge or expertise in the organization's
processes and procedures.
The primary issue in this proceeding is whether the petitioner has established that the beneficiary will be
employed in a capacity involving specialized knowledge. 8 C.F.R. § 214.2(l)(3)(ii).
The petitioner asserts that the beneficiary has specialized knowledge of the petitioning organization's SEI­
CMM Level 5 assessed software development and maintenance process as it pertains to the design and
development of software application systems across business applications and technology domains for clients.
Generally, the SEI-CMM Level 5 assessed software development and maintenance process is described as a
set of processes, procedures, or methodologies used by the petitioning organization in providing software
project services to its clients.
The petitioner described the beneficiary's proposed duties in the letter dated March 19, 2002 as follows:
• Conduct Software Configuration Management activities as per SCM Plan[.] Perform changes
to all configurable items as per [the petitioning organization's] Change Control Procedure.
• Ensure that all testing design, development, and implementation, activities are done as per
guidelines established in [the petitioning organization's] Quality Management System.
• Ensure that all work of [sic] meets project operational process requirements and Software
Project Plan which is established using Project Planning Guidelines, Project Plan Template,
Software Development Life Cycle Models document, Guidelines for Software Estimation,
quality manual, etc., which are all available via [the petitioning organization's] PAL, BAL,
IPMS, software development and maintenance systems.
• Participate in Final Inspections, which are conducted before software work items are released
to client.
• Prepare specifications for offshore development.
EAC 02 143 53504
Page 4
• Upload specifications for offshore development.
• Provide technical guidance to offshore resources as required.
• Participate in Defects Prevention Activities: Peer Reviews, Causal Analyses Sessions,
Inspections, etc., as per IPMS, DP checklist, guidelines for software product quality, project
plan template, etc., of work product produced onsite and offshore.
• Participate in Quantitative Process Management.
• Participate in fortnightly Defects Prevention meetings, as well as on a need basis as required.
• As may be required, participate with team to develop software process improvements for
areas of concern.
Finally, the petitioner described the beneficiary's purported traInIng regimen and the ubiquity of the
beneficiary's knowledge across the petition's organization in the letter dated February 25, 2002 as follows:
[The beneficiary] was selected to participate in [the petitioning organization's] In-House
Training Program where he was exposed to and acquired highly specialized knowledge ofthe
company's internally developed, SEI-CMM assessed (Level 5) software development process,
a process that is not commonly known or generally utilized in the international software
development and maintenance sector. [The beneficiary] received training in such Key
Process Areas of [the petitioning organization's] SEI-CMM Level 5 Software Development
and Maintenance Process as: Requirements Management, Software Configuration
Management, Peer Reviews, Intergroup Coordination, Technology Change Management,
Software Project Engineering, Process Change Management, Software Project Tracking and
Oversight, and Software Quality Assurance. [The beneficiary] is one of only 9,500 of some
19,000 [petitioning organizationl IT professionals to have received training in the company's
SEI-CMM Level 5 software development and maintenance process. He has also received
training in EDS-PLM's (formerly Unigraphics) proprietary software application products
including iMAN.
On May 8, 2002, the director requested additional evidence. The director requested evidence that the
beneficiary possesses knowledge above what is normally possessed by other similarly employed workers.
In response, the petitioner submitted a letter dated June 3, 2002 in which it describes the beneficiary's training
regimen as follows:
[The beneficiary] has undergone traInIng in such Key Process Areas of [the petitioning
organization's] SEI-CMM Level 5 software development and maintenance process as:
• Defects Prevention (Software Reviews, Inspections, and Walkthoughs)
EAC 02 143 53504
Page 5
• Peer Reviews
• Software Quality Management Procedures
• Software Project Planning and Oversight
• Requirements Management
• Software Product Engineering
• Software Metrics and Measurement
• Software Maintenance Management
• Software Configuration Management
• Software Testing
• Software Process Improvement and Assessment
• Software Estimation
• Software Quality Assurance
• Inter-group Coordination
• Quantitative Process Management
[The beneficiary] has also received tralmng in [the petItIoning organization's] software
development and maintenance tools including IPMS, PAL, and BAL, Quality and Knowledge
Management Systems that facilitate the customization, implementation, and management of
the company's SEI-CMM Level 5 software development and maintenance.
[The beneficiary's] knowledge is different from that ordinarily encountered in the field by
virtue of the fact that he has been specifically trained in the processes and procedures that
[the petitioning organization] wishes to be employed in each of its projects, consistent with its
SEI-CMM Level 5 quality assurance methodologies. In his tenure with [the petitioning
organization], [the beneficiary] has well over three and a half years of practical, advanced,
highly specialized knowledge of [the petitioning organization's] SEI-CMM Level 5 software
development and maintenance process as it is customized to meet the quality and operational
requirements of projects involving systems administration support for [a third party client
project]. [The beneficiary] also has knowledge of [the petitioning organization's] onsite­
offshore software development process, which utilizes high-speed satellite data links, as well
as voice and video communications, that allow our onsite and offshore project teams to work
together to provide [the third party client] with high quality, timely, and cost-effective
software services. He also has significant knowledge of [the third party client's project].
The petitioner also further described the beneficiary's proposed duties in the United States as follows:
The following is a detailed description of the [b]eneficiary's duties on this assignment:
• Utilize [the petitioning organization's] IPMS, PAL, BAL (Quality and Knowledge
management Systems) to customize the company's internally developed, SEI-CMM assessed
(level 5) software development and maintenance process to meet project operational process
requirements
EAC 02 143 53504
Page 6
• Use Project Planning Guidelines, Project Plan Template, Software Development Life Cycle
Models document, Guidelines for Software Estimation, etc. (all available in IPMS, PAL,
BAL) to develop Software Project Plan
• Establish Software Project Tracking and Oversight as per outlines In [the petitioning
organization's] Quality Manual
• Ensure that onsite and offshore teams fully understand the quality goals of all projects
• Implement and Coordinate Software Configuration Management (SCM) activities as outlined
in [the petitioning organization's] Quality Manual
• Ensure that changes to all configurable items are done as per [the petitioning organization's]
Change Control Procedure
• Conduct Final Inspections to ensure compliance with the project's SQA plan
• Develop scripts in Tcl/TK, Perl, C, and Java Scripting to automate code integration and build
processes
• Configure and troubleshoot Unigraphics iMan Portal
• Develop Code Integrations for Unigraphics Computer Aided Manufacturing (CAM) solutions
• Design and develop patches/fixes for Unigraphics CAM
• Test Unigraphics CAM code and fix errors
• Provide version control support for Unigraphics CAM and Unigraphics iMan
• Identify and allocate work for offshore development
• Provide technical guidance to offshore resources as required
• Review Defect Prevention activities fortnightly
• Review and Monitor Defects Prevention activities: Peer Reviews, Code Walkthroughs,
Casual Analyses Sessions, Inspections, etc. as per IPMS, DP Checklist, guidelines for
software product quality, project plan template, etc., of work product produced onsite and
offshore
On August 13, 2002, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary will be employed in a capacity involving specialized knowledge.
EAC 02 143 53504
Page 7
On appeal, counsel for the petitioner asserts that the petitioner has satisfied the criteria for establishing that
the beneficiary will be employed in the United States in a specialized knowledge capacity.
Upon review, the petitioner's assertions are not persuasive in demonstrating that the beneficiary will be
employed in a position involving specialized knowledge as defined at 8 C.F.R. § 214.2(l)(l)(ii)(D) or that the
beneficiary possesses specialized knowledge. Beyond the decision of the director, the record is also not
persuasive in establishing that the beneficiary was employed abroad in a capacity involving specialized
knowledge for the requisite one-year period.
In examining the specialized knowledge capacity of the beneficiary, the AAO will look to the petitioner's
description of the job duties. See 8 C.F.R. § 214.2(1)(3). The petitioner must submit a detailed job
description of the services to be performed sufficient to establish specialized knowledge. In this matter, the
petitioner fails to establish that this position requires an employee with specialized knowledge or that the
beneficiary has been employed in a specialized knowledge capacity for the requisite one-year period abroad.
The petitioner also fails to establish that the beneficiary's knowledge is specialized.
Although the petitioner repeatedly asserts that the beneficiary's proposed position in the United States
requires specialized knowledge, that the beneficiary possesses specialized knowledge, and that the beneficiary
has been employed abroad in a position involving specialized knowledge, 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 workers employed by the petitioning <;>rganizationor 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 Soffici, 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. 1103 (E.D.N.Y. 1989),
aff'd, 905, F.2d 41 (2d. Cir. 1990).
The petitioner asserts that the beneficiary possesses specialized knowledge of the petitioning organization's
SEI-CMM Level 5 assessed software development and maintenance process as it pertains to the design and
development of software application systems across business applications and technology domains for clients.
The petitioner asserts that this knowledge "is not commonly known or generally utilized in the international
software development and maintenance sector" and that the beneficiary is "one of only 9,500 of some 19,000
[petitioning organization] IT professionals" to receive the training which imparted this purported specialized
knowledge. However, despite these assertions, the record does not establish how, exactly, the SEI-CMM
Level 5 assessed software development and maintenance process is so materially different from similar
software development and maintenance processes that a similarly experienced and educated software
professional could not perform the duties of the position.
Overall, the record does not establish that the beneficiary's knowledge is substantially different from the
knowledge possessed by software professionals generally throughout the industry or by other employees of
the petitioning organization. The assertion that the beneficiary and a select group of workers possess a very
EAC 02 143 53504
Page 8
specific set of skills related to the SEI-CMM Level 5 assessed software development and maintenance
process does not by itself establish that the beneficiary's knowledge is indeed uncommon or noteworthy.
First, the mere claim that almost half of the petitioning organization's similarly employer workers possesses
the same purported "specialized knowledge" undermines counsel's claim that this knowledge is uncommon,
noteworthy, or distinguished by some unusual quality and is not generally known by practitioners in the
beneficiary's field of endeavor. To the contrary, it is quite apparent that the beneficiary's knowledge is both
common and generally known by a large number of similarly employed workers.
Second, the petitioner has not established that the beneficiary's knowledge would be difficult to impart to
another similarly educated worker without suffering significant economic inconvenience. All employees can
be said to possess unique and unparalleled skill sets to some degree; however, a unique skill set that can be
imparted to another similarly experienced and educated employee without significant economic
inconvenience is not "specialized knowledge." Moreover, the proprietary or unique qualities of the
petitioner's process do not establish that any knowledge of this process is "specialized." Rather, the petitioner
must establish that qualities of the unique or proprietary process 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
professionals may not have very specific, proprietary knowledge regarding the petitioner's process is not
relevant to these proceedings if this knowledge gap could be closed by the petitioner by simply revealing the
information to a newly hired, similarly educated or experienced employee.
Furthermore, while the petitioner asserts that the beneficiary received training which imparted the claimed
specialized knowledge to him, the record is devoid of evidence addressing the length or substance of this
training. The petitioner only submitted a list of topics covered by the purported training which, apparently, is
provided in whole or in part to thousands of similarly employed workers. Absent detailed information
addressing the length and substance of the training and its availability to the petitioning organization's
workforce, it is impossible to conclude that the purported specialized knowledge would be significantly
economically inconvenient to impart to similar workers. Once again, going on record without documentary
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici,
22 I&N Dec. at 165 (citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190).
Finally, and for the same reasons articulated above, the petitioner has failed to establish that the beneficiary
has specialized knowledge or that he was employed abroad in a capacity involving specialized knowledge.
Beyond the decision of the director, the petition will be denied for these additional reasons. 8 C.F.R. §
214.2(l)(3)(iv).
The AAO does not dispute the possibility that the beneficiary is a skilled and experienced employee who has
been, and would be, a valuable asset to the petitioner. However, it is appropriate for the AAO to look beyond
the stated job duties and consider the importance of the beneficiary's knowledge of the business's product or
service, management operations, or decision-making process. Matter of Colley, 18 I&N Dec. 117, 120
(Comm. 1981) (citing Matter of Raulin, 13 I&N Dec. 618(R.C. 1970) and Matter of LeBlanc, 13 I&N Dec.
816 (R.C. 1971)). 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,
EAC 02 143 53504
Page 9
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.
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-l category was intended for "key
personnel." 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 "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 the employee and the remainder of the petitioner's workforce. While it may be
correct to say that the beneficiary in the instant case is a highly skilled and productive employee, this fact
alone is not enough to bring the beneficiary to the level of "key personnel."
Moreover, in Matter of Penner, the Commissioner discussed the legislative intent behind the creation of the
specialized knowledge category. 18 I&N Dec. 49 (Comm. 1982). The decision noted that the 1970 House
Report, H.R. REP. No. 91-851, stated that the number of admissions under the L-l classification "will not be
large" and that "[t]he class of persons eligible for such nonimmigrant visas is narrowly drawn and will be
carefully regulated by the Immigration and Naturalization Service." Id. at 51. The decision further noted that
the House Report was silent on the subject of specialized knowledge, but that during the course of the sub­
committee hearings on the bill, the Chairman specifically questioned witnesses on the level of skill necessary
to qualify under the proposed "L" category. In response to the Chairman's questions, various witnesses
responded that they understood the legislation would allow "high-level people," "experts," individuals with
"unique" skills, and that it would not include "lower categories" of workers or "skilled craft workers." Matter
ofPenner, 18 I&N at 50 (citing H.R. Subcomm. No.1 of the Jud. Comm., Immigration Act of 1970: Hearings
on H.R. 445, 91st Congo 210,218,223,240,248 (November 12,1969)).
Reviewing the Congressional record, the Commissioner concluded in Matter of Penner that an expansive
reading of the specialized knowledge provision, such that it would include skilled workers and technicians, is
not warranted. The Commissioner emphasized that the specialized knowledge worker classification was not
EAC 02 143 53504
Page 10
intended for "all employees with any level of specialized knowledge." Matter ofPenner, 18 I&N Dec. at 53.
Or, as noted in Matter of Colley, "[m]ost employees today are specialists and have been trained and given
specialized knowledge. However, in view of the House Report, it can not be concluded that all employees
with specialized knowledge or performing highly technical duties are eligible for classification as
intracompany transferees." 18 I&N Dec. at 119. According to Matter ofPenner, "[s]uch a conclusion would
permit extremely large numbers of persons to qualify for the 'L-l ' visa" rather than the "key personnel" that
Congress specifically intended. 18 I&N Dec. at 53; see also 1756, Inc. v. Attorney General, 745 F. Supp. at
15 (concluding that Congress did not intend for the specialized knowledge capacity to extend to all employees
with specialized knowledge, but rather to "key personnel" and "executives.")
A 1994 Immigration and Naturalization Service (now Citizenship and Immigration Services (CIS»
memorandum written by the then Acting Executive Associate Commissioner also directs CIS to compare the
beneficiary's knowledge to the general United States labor market and the petitioner's workforce in order to
distinguish between specialized and general knowledge. The Executive Associate Commissioner notes in the
memorandum that "officers adjudicating petitions involving specialized knowledge must ensure that the
knowledge possessed by the beneficiary is not general knowledge held commonly throughout the industry but
that it is truly specialized." Memorandum from James A. Puleo, Acting Executive Associate Commissioner,
Immigration and Naturalization Service, Interpretation of Specialized Knowledge, CO 214L-P (March 9,
1994). A comparison of the beneficiary's knowledge to the knowledge possessed by others in the field is
therefore necessary in order to determine the level of the beneficiary's skills and knowledge and to ascertain
whether the beneficiary's knowledge is advanced. In other words, absent an outside group to which to
compare the beneficiary's knowledge, CIS would not be able to "ensure that the knowledge possessed by the
beneficiary is truly specialized." Id. The analysis for specialized knowledge therefore requires a test of the
knowledge possessed by the United States labor market, but does not consider whether workers are available
in the United States to perform the beneficiary's job duties.
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 software professionals
employed elsewhere. As the petitioner has failed to document any materially unique qualities to the
beneficiary's knowledge, the petitioner's claims are not persuasive in establishing that the beneficiary, while
perhaps highly skilled, would be a "key" employee. There is no indication that the beneficiary has any
knowledge that exceeds that of any other similarly experienced professional or that he has received special
training in the company's methodologies or processes which would separate him from other professionals
employed with the foreign entity or elsewhere. It is simply not reasonable to classify this employee as a key
employee of crucial importance to the organization.
The legislative history of the term "specialized knowledge" provides ample support for a restrIctIve
interpretation of the term. In the present matter, the petitioner has not demonstrated that the beneficiary
should be considered a member of the "narrowly drawn" class of individuals possessing specialized
knowledge. See 1756, Inc. v. Attorney General, 745 F. Supp. at 16. Based on the evidence presented, it is
concluded that the beneficiary will not be employed in the United States, and was not employed abroad, in a
capacity involving specialized knowledge. For these reasons, the appeal will be dismissed.
EAC 02 143 53504
Page 11
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), affd, 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).
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, Inc., 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.