dismissed L-1B Case: Information Technology

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PUBLIC COPY 
US Department of Homeland Security 
U. S. Citizenship and Immigration Services 
OfJe of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
File: Office: CALIFORNIA SERVICE CENTER Date: AUG 2 0 zO" 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 1(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. 5 103.5. 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. Please be aware that 8 C.F.R. 5 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Urry Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonirnmigrant visa petition seeking to employ the beneficiary as an L-1B intracompany 
transferee with specialized knowledge pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act 
("the Act"), 8 U.S.C. 5 1 101(a)(15)(L). The petitioner is engaged in computing and imaging solutions and 
services. It states that it is the parent company of the beneficiary's foreign employer, located in India. The 
petitioner seeks to employ the beneficiary in the position of test consultant for a period of three years, based at its 
office in Farrnington Hills, Michigan. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary 
possesses specialized knowledge or that he would be employed in the United States in a capacity requiring 
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, counsel for the petitioner asserts that the director erred by making a 
relative comparison between the beneficiary and the remainder of the petitioner's workforce and instead should 
have confined her examination to the knowledge possessed by the beneficiary. Nevertheless, counsel asserts that 
the beneficiary possesses specialized knowledge in the field of test automation and that such knowledge is rarely 
held within the petitioner's organization. Counsel submits a brief and additional evidence in support of the 
appeal. 
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. 
I. Relevant Law 
Under section 101(a)(15)(L) of the Act, an alien is eligible for classification as a nonimmigrant if the alien, 
among other things, will be rendering services to the petitioning employer "in a capacity that is managerial, 
executive, or involves specialized knowledge." Section 214(c)(2)(B) of the Act, 8 U.S.C. 5 1184(c)(2)(B), 
provides the statutory definition of specialized knowledge: 
For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity 
involving specialized knowledge with respect to a company if the alien has a special knowledge 
of the company product and its application in international markets or has an advanced level of 
knowledge of processes and procedures of the company. 
Furthermore, the regulation at 8 C.F.R. 5 214.2(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. 
II. Specialized Knowledge 
The sole issue addressed by the director is whether the petitioner established that the beneficiary possesses 
specialized knowledge and that he would be employed in the United States in a capacity requiring specialized 
knowledge. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker on January 28, 2009. The 
petitioner stated that the beneficiary has been working for its Indian subsidiary since February 2005 and that 
he will serve in the position of test consultant in the United States. 
In a letter dated January 23, 2009, the petitioner stated that the beneficiary will be responsible for providing 
consulting services to internal company customers with regard to test automation. The petitioner described the 
petitioner's proposed duties as the following: 
Provide consultancy to internal [company] teams for test automation tools using HP 
Quick Test Professional (HP QTP), HP Quality Center and HP Load Runner; 
Design and develop Automation framework using HP Automation framework model; 
Develop Automation scripts using HP QTP and HP's Business Technology 
Optimization (BTO); 
Perform test projects using HP LoadRunner to develop Scripts; 
Page 4 
Prepare automated test cases/scripts using HP QTP, HP LoadRunner and HP Quality 
Center; 
Analyze application performance using HP LoadRunner and effectively 
communicate bottlenecks to [the petitioner's] development team; 
Implement HP Test process for new projects using HP Global Methods (GM) 
standards; 
Plan project activities, including the estimation effort and schedule required for 
performance testing using HP LoadRunner; and 
Develop customized HP software test cases using HP Quality Center. 
The petitioner indicated that the beneficiary is currently employed as a technology consultant with its Indian 
subsidiary, where he is responsible for developing module test plans and planning test executions. 
Specifically, the petitioner stated that the beneficiary currently performs the following duties: 
Design and develop automation framework by using HP QTP with Java add-in; 
Derive regression test cases from used cases and executed Functional Automation 
testing with HP QTP; 
Defect management by setting up an HP Quality Center to handle HP's software test 
management; 
Develop Functions using Open Test Architecture (OTA) to connect HP Quality 
Center to fetch the test data; 
Perform Load Testing using HP LoadRunner with Java Record and Replay Protocol; 
Perform estimation using wideband Delphi Sheet estimation method and support the 
generation of HP LoadRunner scripts; 
Develop new tool for Asynchronous transactions Automation by integrating Silk Test 
and Java Application Program Interface's (API); 
Develop automated system test scenarios using Silk Test Tool; 
Design system test approach and involved in system test planning; 
Report bugs through WESTAR; 
Coordinate with onsite development team and offshore test team; 
Prepare test plan documentation, test case reviews and test case executions; and 
Perform System Integration Testing. 
The petitioner stated that the beneficiary is qualified for the proposed position "[dlue to his specialized 
knowledge of [company] specific software testing strategies including [the company's] proprietary testing 
tools HP QTP, HP Service Test, HP Business Process Testing, HP Quality Center and HP Loadrunner." The 
petitioner further explained the beneficiary's specialized knowledge qualifications as follows: 
During his tenure with [the petitioning organization] he has developed a deep understanding 
of the complexities of [the petitioner's] suite of testing tools and with [the petitioner's] 
proprietary methods in project planning, site administration, requirement gathering, testing 
planning, test execution, defect tracking and software estimation techniques using HP Quality 
Center. [The beneficiary] has gained expertise in HP QTP which he uses for a functional test 
automation tools for Graphical User Interface (GUI) applications, framework design and 
Page 5 
implementation. And, he uses HP Business Process Testing to test web-based design 
solutions that bridge the quality gap between subject matter experts and quality engineers. 
[The beneficiary's] knowledge is uncommon in the industry because of his ability to 
implement the automation suite of HP tools along with [the company's] test process and 
methodologies. His expertise in [the petitioner's] tools usage has helped him successfully 
deliver quality products aligned with [company] testing process standards. [The beneficiary] 
possesses the requisite specialized knowledge and technical expertise to successfully provide 
high quality test consultancy to internal [company] customers. He has successfully utilized 
[the petitioner's] testing tools to automate software testing, per [the petitioner's] global 
delivery application services testing framework, and has mastered [the petitioner's] global 
methods in project planning, and software estimation techniques. 
The director issued a request for additional evidence ("RFE") on February 26, 2009, in which she requested, 
inter alia, the following: (1) an explanation as to how the duties the alien performed abroad and those he will 
perform in the United States are different from those of other workers employed by the petitioner or other 
U.S. employers in this type of position; (2) a detailed explanation of the equipment, system, product, 
technique or service of which the beneficiary has specialized knowledge, and information regarding whether 
it is used by other employers in the United States or abroad; and (3) an explanation regarding how the 
beneficiary's training or experience is uncommon, noteworthy, or distinguished by some unusual quality and 
not generally known by practitioner's in his field in comparison to others similarly employed by the petitioner. 
The director also requested organizational charts depicting the beneficiary's current and proposed positions, 
the number of employees currently working at his foreign and proposed U.S. worksites, the number of foreign 
workers assigned to the beneficiary's proposed worksite, and the number of persons holding the same or 
similar positions at the U.S. location. 
In response to the RFE, counsel for the petitioner submitted a detailed letter dated April 6, 2009. Counsel 
cited to the regulatory definition of specialized knowledge at 8 C.F.R. $ 214.2(1)(l)(ii)(D) and a 2002 legacy 
INS memorandum that provides guidance in the interpretation of the term "specialized knowledge." See 
Memorandum of Fujie Ohata, Assoc. Comm., INS, Interpretation of Specialized Knowledge (Dec. 20, 
2002)(hereinafter "Ohata memorandum"). 
Counsel noted that the beneficiary has been employed by the petitioner's Indian subsidiary for four years, and 
has "exceeded expectations in leading a number of test automation projects," resulting in his receipt of nine 
"eAwards." Counsel stated that the beneficiary will be "the sole expert on the relevant test automation" to be 
stationed at the petitioner's Michigan location. The petitioner stated that the beneficiary has specialized 
knowledge of the following proprietary products: 
HP Quick Test Professional 10.0 is advanced, automated testing software for building 
functional and regression test suites. . . . [The beneficiary] has undergone extensive 
training in QTP 10.0 and has also been providing training to other [company] team 
members. [The beneficiary] has extensive knowledge in the process of integrating 
HP QTP with other tools as part of designing the automation framework. 
Additionally, please note that HP QTP is a [company] proprietary product which is 
not used by other employers in the United States. 
Page 6 
HP Load Runner 9.2 is a performance and load testing product for examining system 
behavior and performance, while generating actual load. Load Runner can emulate 
hundreds or thousands of concurrent users to put the application through the rigors of 
real-life user loads, while collecting information from key infrastructure components. 
. . . The results are then analyzed in detail, to identify and eliminate performance 
bottlenecks during the software development lifecycle. This application is crucial in 
reducing production downtime and improving application performance. Again, HP 
Load Runner 9.2 is an [company] proprietary product which is not used by other 
employers in [the] United States. 
HP Quality Center 10.0 software is an industry-leading, global quality management 
software solution. It allows technicians to manage the quality process for delivering 
high-quality applications efficiently and effectively. This proprietary software also 
stores all testing related artifacts such as test requirements, test cases and automation 
scripts. This version of the HP Quality Center is very new and requires specialized 
knowledge to implement optimally for new projects. [The beneficiary] has highly 
developed expertise in configuring and implementing this version of HP Quality 
Center. HP Quality Center 10.0 is also [a company] proprietary product which is not 
used by other employers in the United States. 
In response to the director's request for information regarding any specialized or advanced duties performed 
by the beneficiary, counsel noted that the petitioner's Global Delivery Center has an "Independent 
Verification and Validation Practice which is mainly responsible for performing testing activities for various 
worldwide projects." Counsel indicated that the beneficiary is a "key member" of this team and has "highly- 
developed expertise in test automation" using the above-referenced core products for test management. 
Counsel stated that the beneficiary "will be responsible for the advanced duty of designing and developing an 
automation framework using [company] proprietary tools including HP Quality Center, HP Load Runner, and 
HP Quick Test Professional." 
Counsel indicated that there are currently no employees at the Michigan location at which the beneficiary will 
be placed who perform the same or similar job duties relating to test automation. Rather, counsel indicated 
that the beneficiary will be automating test processes that have been done manually in the past. Counsel 
further stated that the beneficiary is "rare among technical experts because of his leadership experience in 
managing the [company's] test automation development and execution process." Counsel hrther explained 
as follows: 
[The beneficiary] has worked for [the petitioning organization] for more than four years, and 
has been a dedicated software testing professional for more than six years. He has overseen 
and helped to build a wide range of testing regimes, including readiness testing for system 
configurations, as well as alpha, beta and acceptance testing. [The beneficiary] has undergone 
extensive classroom and job training in [the petitioner's] proprietary testing tools such as HP 
Quick test professional, HP Quality center and HP Load Runner. 
Page 7 
Counsel went on to discuss in more detail the beneficiary's role with the foreign entity as a Module Lead 
(Automation Test Engineer) from February 2005 to January 2007. Counsel indicated that the beneficiary 
developed a module test plan, planned cycle-wide test execution, designed the system test approach, and 
worked with the Silk Test Tool to develop and analyze various automated system test scenarios. Counsel 
stated that during the rest of 2007, the beneficiary worked on multiple test automation projects for both 
internal customers and a client, during which time he used QuickTest Professional and Quality Center to 
automate the customers testing, and developed functions using an Open Test Architecture to create the most 
efficient mechanism of retrieving test data. 
Counsel stated that more recently, the beneficiary served as a Test Automation Lead for a client project, in 
which he was responsible for preparing the automation test plan, the automation estimation document, and the 
automation process document, as well as the QuickTest Professional coding standards. Counsel indicated that 
the beneficiary trained his nine-member team on the QuickTest Professional tool. Finally, counsel stated that, 
most recently, the beneficiary served as Test Automation Specialist for another client project, where he was 
responsible for preparing the test plan document, test case execution, test case review, managing defects, and 
performing load testing using HP Load Runner. 
Referring to the Ohata memorandum, counsel stated that "[the beneficiary's] specialized knowledge of [the 
petitioner's] procedures, technologies and methods, in combination with his superb expertise in general testing 
standards, compel a finding that his knowledge is noteworthy and uncommon," and "different from that 
generally found in the particular U.S. industry." In addition, counsel indicated that the beneficiary has served 
as a corporate trainer for the petitioner's clients in India, and has provided training on "how to select the 
correct type of automation framework, how to formulate test data strategy, and how to integrate software 
systems with [the petitioner's] Quality Center." 
Counsel objected to the director's request for information regarding the job titles, types of visas held and 
number of foreign nationals working for the petitioner in the same location where the beneficiary will work, 
noting that the regulations governing L-1 petitions do not require "a showing that no other employees at the 
U.S. location are able, willing, qualified andor available to perform [the beneficiary's] job." Regardless, 
counsel emphasized that no other employee stationed in the United States "has [the beneficiary's] unique 
combination of expertise on [the petitioner's] proprietary tools and testing methodology." 
Finally, the petitioner submitted organizational charts for the U.S. and foreign entities which depict the 
beneficiary and his immediate line of command in each entity. 
The director denied the petition on June 3, 2009 concluding that the petitioner failed to establish that the 
beneficiary possesses specialized knowledge or that the beneficiary will be employed in a capacity involving 
specialized knowledge. The director determined that the petitioner failed to demonstrate that the beneficiary's 
duties require knowledge or expertise beyond what is commonly held in his field. The director noted that 
mere familiarity with the petitioner's products, such as Load Runner, Quick Test Professional and Quality 
Center, does not constitute specialized knowledge. 
The director further noted that the petitioner failed to provide information regarding the number of employees 
working at the beneficiary's current and proposed U.S. worksites, and the number of similarly employed 
Page 8 
workers in the organization. The director concluded that the duties as stated appear to be those of a skilled 
worker. 
On appeal, counsel asserts that the director's decision was based on an inappropriate application of law. 
Counsel, referring to the above-referenced Ohata memorandum and a 1994 legacy INS memorandum, 
emphasizes that the test for specialized knowledge involves only an examination of the knowledge possessed 
by the alien, not whether there are similarly employed workers in the United States." See Memorandum of 
Acting Exec. Assoc. Comm., INS, "Interpretation of Special Knowledge," (March 9, 1994). 
Counsel emphasizes that according to the guidance provided in these memoranda, the petitioner must 
establish that the beneficiary's knowledge is noteworthy or uncommon, and different from that generally 
found in the industry, but does not have to establish that there are no U.S. workers available to perform the 
duties. Counsel asserts that in view of legal guidance on determining "specialized knowledge," the director 
erroneously applied the law in denying this petition. 
Counsel emphasizes that the beneficiary "is one of very few employees within [the petitioner's] organization 
who possesses 'specialized knowledge' in test automation" and that such knowledge is "reflected by the 
proposed detailed job duties previously submitted to USCIS." Counsel states that the focus of USCIS' inquiry 
"should be on [the beneficiary's] knowledge solely." Counsel asserts that the petitioner established that the 
beneficiary is more than a mere skilled worker, and that "he will be employed for his ability to carry out a key 
process or function which is important to [the petitioner's] operation in serving its corporate clients." 
Counsel also contends that, "[elven if USCIS were to make a relative comparison between [the beneficiary] 
and the remainder of [the petitioner's] workforce for purposes of determining 'specialized knowledge,' we 
would respectfully point out that the availability of other 'specialized knowledge' employees at [the 
petitioning company] does not preclude a finding that [the beneficiary] has 'specialized knowledge' of [the 
petitioner's] same or different product(s), service(s), equipment, or techniques." Counsel acknowledges that 
specialized knowledge is not "special" if it is possessed by everyone within the petitioning company. 
However, counsel states that, in this case, "very few individuals within [the petitioner's] organization possess 
the same type of 'specialized knowledge' as the beneficiary." 
Counsel once again objects to the director's requests for information regarding the number of workers at the 
petitioner's U.S. and foreign locations, the number of foreign nationals employed at the U.S. location, and the 
number of similarly employed workers in the organization. Counsel asserts that "in using the line of inquiries 
to make the relative comparison between the beneficiary and the remainder of [the petitioner's] workforce, 
USCIS would necessarily presume that as long as there are other L-1B 'specialized knowledge' workers 
employed by [the petitioner] at the same U.S. location, and/or the fact that [the petitioner] employs other IT 
workers in both the U.S. location and India . . . [the beneficiary's] claimed 'specialized knowledge' in test 
automation is diminished or reduced to nil." Counsel contends that USCIS would also presume that other 
specialized knowledge workers must be working on the same company products and services, and would not 
allow that the beneficiary may be working on a different product of which he possesses specialized 
knowledge. 
Counsel nevertheless indicates that he will respond to the inquiries, noting that the Indian subsidiary that 
employs the beneficiary employs approximately 4,700 workers comprised mostly of IT workers. Counsel 
notes that such workers generally work in teams and specialize in different products, therefore, counsel asserts 
that "the number of workers does not diminish the fact that [the beneficiary] possesses 'specialized 
knowledge' in test automation - the type of knowledge rarely held by others within the [petitioner's] 
organization." Counsel notes that the petitioner has transferred a total of 128 L-1B workers to its Michigan 
office within the last five years, including 10 in the last twelve months who are still at the location. 
Counsel states that the "[the beneficiary's] test automation skills constitute noteworthy and uncommon 
'specialized knowledge' within [the petitioning] organization because he caters [the company's] proprietary 
products to different corporate clients (hence crating [sic] unique test automation solutions) for purposes of 
running test automation." Counsel asserts that the many advanced duties the beneficiary performed during his 
tenure with the foreign entity establish his specialized knowledge with the petitioner's test automation 
processes and proprietary testing software. Counsel reiterates much of the information that was contained in 
his response to the RFE, including a description of the petitioner's test automation products and descriptions 
regarding the duties the beneficiary performed while employed by the foreign entity. 
In support of the appeal, the petitioner submits copies of four eAward certificates awarded to the beneficiary 
"for his consistently excellent performance in test automation." The certificates are for: "conducting the QTP 
Webservices workshop for Symatec"; "successful delivery of CPGT Regression Testing project on time and 
with good quality, using HP Quick Test Professional; "successful completion of a Test Automation Project 
using HP Quick Test Professional and HP Quality Center"; and "for successful completion of Shaw Cable 
Test Automation using HP Quick-Test Professional." 
The petitioner also submits evidence of training completed by the beneficiary, including the following 
courses: 
CBT Download - QuickTest Professional 9.5 Web Services Add-in 
Exam HPO-M8 1 Implementing HP Quality Centre Software 
HP Equity (Stock) Program Basic Training 
Introduction to VuGen 9.0 Click and Script (WBT) 
Mercury - Business Process Testing 9.0 for Automation Engineers 
QuickTest Professional 9.5 Web Services Add-in (WBT) 
Using QuickTest Professional 9.2 (WBT) 
Web-based - QuickTest Professional 9.5 Web Services Add-in 
The records indicate that the beneficiary registered for these self-paced, web-based courses between October 
2007 and July 2009. The "date marked complete" for the various courses is April 25, 2009 for some courses 
and July 1, 2009 for others. The petitioner also submits course training materials for the QuickTest 
Professional 9.5 Web Services Add-in Overview. According to these materials, the course is intended for QA 
Testers and Business analysts with basic knowledge on QTP, XML and Web Services. 
Upon review, the petitioner has not established that the beneficiary has specialized knowledge or that he will 
be employed in a specialized knowledge capacity as defined at 8 C.F.R. fj 214.2(1)(l)(ii)(D). 
Standard for Specialized Knowledge 
Page 10 
Looking to the language of the statutory definition, Congress has provided USCIS with an ambiguous definition 
of specialized knowledge. In this regard, one Federal district court explained the infeasibility of applying a 
bright-line test to define what constitutes specialized knowledge: 
This ambiguity is not merely the result of an unfortunate choice of dictionaries. It reflects the 
relativistic nature of the concept special. An item is special only in the sense that it is not 
ordinary; to define special one must first define what is ordinary. . . . There is no logical or 
principled way to determine which baseline of ordinary knowledge is a more appropriate reading 
of the statute, and there are countless other baselines which are equally plausible. Simply put, 
specialized knowledge is a relative and empty idea which cannot have a plain meaning. CJ: 
Westen, The Empty Idea of Equality, 95 Harv.L.Rev. 537 (1982). 
1756, Inc. v. Attorney General, 745 F.Supp. 9, 14-1 5 (D.D.C., 1990).' 
While Congress did not provide explicit guidance for what should be considered ordinary knowledge, the 
principles of statutory interpretation provide some clue as to the intended scope of the L-1B specialized 
knowledge category. NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 123 (1987) 
(citing INSv. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207,94 L.Ed2d 434 (1987)). 
First, the AAO must look to the language of section 214(c)(2)(B) itself, that is, the terms "special" and 
"advanced." Like the courts, the AAO customarily turns to dictionaries for help in determining whether a word in 
a statute has a plain or common meaning. See, e.g., In re A.H. Robins Co., 109 F.3d 965,967-68 (4th Cir. 1997) 
(using Webster's Dictionary for "therefore"). According to Webster's New College Dictionary, the word "special" 
is commonly found to mean "surpassing the usual" or "exceptional." Webster's New College Dictionary, 1084 
(3rd Ed. 2008). The dictionary defines the word "advanced" as "highly developed or complex" or "at a higher 
level than others." Id. at 17. 
Second, looking at the term's placement within the text of section 101(a)(15)(L) of the Act, the AAO notes that 
specialized knowledge is used to describe the nature of a person's employment and that the term is listed among 
the higher levels of the employment hierarchy together with "managerial" and "executive" employees. Based on 
the context of the term within the statute, the AAO therefore would expect a specialized knowledge employee to 
occupy an elevated position within a company that rises above that of an ordinary or average employee. See 
1756, Inc. v. Attorney General, 745 F.Supp. at 14. 
Third, a review of the legislative history for both the original 1970 statute and the subsequent 1990 statute 
indicates that Congress intended for USCIS to closely administer the L-1B category. Specifically, the original 
drafters of section 101(a)(15)(L) of the Act intended that the class of persons eligible for the L-1 classification 
would be "narrowly drawn" and "carefully regulated and monitored" by USCIS. See generally H.R. Rep. No. 91- 
851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750,2754, 1970 WL 5815. The legislative history of the 1970 Act 
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. 
Page 11 
plainly states that "the number of temporary admissions under the proposed 'L' category will not be large." Id. In 
addition, the Congressional record specifically states that the L-1 category was intended for "key personnel." 
See generally, id. The term "key personnel" denotes a position within the petitioning company that is "[olf 
crucial importance." Webster 's New College Dictionary 620 (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. 445,91" 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), afSd 194 
Fed.Appx. 248 (5th Cir. 2006); Fibermaster, Ltd. v. INS., Not Reported in F.Supp., 1990 WL 99327 (D.D.C., 
1990); Delta Airlines, Inc. v. Dept. of Justice, Civ. Action 00-2977-LFO (D.D.C. April 6, 2001)(on file with 
AAO). 
Further, although the Immigration Act of 1990 provided a statutory definition of the term "specialized 
knowledge" in section 214(c)(2) of the Act, the definition did not generally expand the class of persons eligible 
for L-1B specialized knowledge visas. Pub.L. No. 101-649, 5 206(b)(2), 104 Stat. 4978, 5023 (1990). Instead, 
the legislative history indicates that Congress created the statutory definition of specialized knowledge for the 
express purpose of clarifying a previously undefined term from the Immigration Act of 1970. H.R. Rep. 101- 
723(I) (1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6749, 1990 WL 200418 ("One area within the L visa that 
requires more specificity relates to the term 'specialized knowledge.' Varying interpretations by INS have 
exacerbated the problem."). While the 1990 Act declined to codify the "proprietary knowledge" and "United 
States labor market" references that had existed in the previous agency definition found at 8 C.F.R. 
5 214.2(1)(l)(ii)(D) (1988), there is no indication that Congress intended to liberalize its own 1970 definition of 
the L-1 visa classification. 
If any conclusion can be drawn from the enactment of the statutory definition of specialized knowledge in section 
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. CJ 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 
Page 12 
itself, work experience and knowledge of a firm's technically complex products will not equal "special 
knowledge." See Matter of Penner, 18 I&N Dec. 49, 53 (Comm. 1982). In general, all employees can 
reasonably be considered "important" to a petitioner's enterprise. If an employee did not contribute to the 
overall economic success of an enterprise, there would be no rational economic reason to employ that person. 
An employee of "crucial importance" or "key personnel" must rise above the level of the petitioner's average 
employee. In other words, specialized knowledge generally requires more than a short period of experience; 
otherwise special or advanced knowledge would include every employee in an organization with the 
exception of trainees and entry-level staff. If everyone in an organization is specialized, then no one can be 
considered truly specialized. Such an interpretation strips the statutory language of any efficacy and cannot 
have been what Congress intended. 
Considering the definition of specialized knowledge, it is the petitioner's, not USCIS's, burden to articulate 
and 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 which establishes whether or not the beneficiary actually possesses specialized knowledge. A 
petitioner's assertion that the beneficiary possesses advanced knowledge of the processes and procedures of 
the company must be supported by evidence describing and distinguishing that knowledge from the 
elementary or basic knowledge possessed by others. Because "special" and "advanced" are comparative 
terms, the petitioner should provide evidence that allows USCIS to assess the beneficiary's knowledge 
relative to others in the petitioner's workforce or relative to similarly employed workers in the petitioner's 
specific industry. 
Analysis 
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. 
5 214.2(1)(3)(ii). The petitioner must submit a detailed description of the services to be performed sufficient to 
establish specialized knowledge. Id. At a minimum, the petitioner must articulate with specificity the nature of 
the claimed specialized knowledge. 
Upon review, the petitioner in this case has failed to establish either that the beneficiary's position in the 
United States requires an employee with specialized knowledge or that the beneficiary has specialized 
knowledge. The petitioner indicates that the beneficiary's duties as a test consultant specializing in 
automating testing will make extensive use of the petitioner's proprietary automated testing framework and 
proprietary products such as HP QuickTest Professional, HP LoadRunner and HP Quality Center, as well as 
the petitioner's internal processes and procedures for implementation of test automation projects, and 
therefore could not be performed by the typical skilled worker in the test automation or software quality 
assurance field. 
Page 13 
Therefore, the first question before the AAO is whether the beneficiary's knowledge of and experience with 
the petitioner's proprietary products alone constitutes specialized knowledge. While the current statutory and 
regulatory definitions of "specialized knowledge" do not include a requirement that the beneficiary's 
knowledge be proprietary, the petitioner cannot satisfL the current standard merely by establishing that the 
beneficiary's purported specialized knowledge is proprietary. The knowledge must still be either "special" or 
"advanced." As discussed above, the elimination of the bright-line "proprietary" standard did not, in fact, 
significantly liberalize the standards for the L-1B visa classification. 
Reviewing the precedent decisions that preceded the Immigration Act of 1990, there are a number of 
conclusions that were not based on the superseded regulatory definition, and therefore continue to apply to the 
adjudication of L- 1 B specialized knowledge petitions. In 198 1, the INS recognized that "[tlhe modem 
workplace requires a high proportion of technicians and specialists." The agency concluded that: 
Most employees today are specialists and have been trained and given specialized knowledge. 
However, in view of the [legislative history], it can not be concluded that all employees with 
specialized knowledge or performing highly technical duties are eligible for classification as 
intracompany transferees. The House Report indicates the employee must be a "key" person 
and associates this employee with "managerial personnel." 
Matter of Colley, 18 I&N Dec. at 119-20. 
In a subsequent decision, the INS looked to the legislative history of the 1970 Act and concluded that a "broad 
definition which would include skilled workers and technicians was not discussed, thus the limited legislative 
history available therefore indicates that an expansive reading of the 'specialized knowledge' provision is not 
warranted." Matter of Penner, 18 I&N Dec. at 5 1. The decision continued: 
[I]n view of the House Report, it cannot be concluded that all employees with any level of 
specialized knowledge or performing highly technical duties are eligible for classification as 
intra-company transferees. Such a conclusion would permit extremely large numbers of 
persons to qualify for the "L-1" visa. The House Report indicates that the employee must be 
a "key" person and "the numbers will not be large." 
Id. at 53. 
According to the reasoning of Matter of Penner, work experience and knowledge of a firm's technically 
complex products, by itself, will not equal "special knowledge." USCIS must interpret specialized knowledge 
to require more than fundamental job skills or a short period of experience. An expansive interpretation of 
specialized knowledge in which any experienced employee would qualify as having special or advanced 
knowledge would be untenable, since it would allow a petitioner to transfer any experienced employee to the 
United States in the L-1B classification. 
The proprietary specialized knowledge in this matter is stated to include the products HP QuickTest 
Professional, HP LoadRunner, and HP Quality Center, as well as "proprietary methods in project planning, 
site administration, requirement gathering, testing planning, test execution, defect tracking and software 
Page 14 
estimation techniques." While the AAO does not doubt the beneficiary's expertise with the above-referenced 
proprietary products, the petitioner has not established that such knowledge is "proprietary" in the sense that it 
is exclusive to the petitioner's organization, or that it is uncommon in the field of automated testing. The 
petitioner has not provided any corporate documentation or product information beyond the statements made 
in counsel's supporting letters. However, the AAO notes that the evidence of record indicates that the 
petitioning company offers training courses to persons outside the organization, as the beneficiary was 
recognized for delivering training in QTP Webservices to Symantec. The petitioner also describes its HP 
Quality Center software as "an industry-leading, global quality management software solution," thus 
suggesting that the software is in fact available outside the company and used and implemented by other 
organizations. 
A review of the petitioner's corporate web site reveals that it is possible for the petitioner's employees, 
partners, and customers to earn the technical certifications of Accredited Integration Specialist (AIS), 
Accredited Systems Engineer (ASE) and Master ASE. See "HP Certified Professional Program," 
http://www.hp.com/partnerlearning/certif 1 (accessed on August 12, 
20 10). These certifications include ASE - HP Load Testing using Load Runner v9, ASE - HP Quality Center 
v10 Implementation, and ASE - Functional Testing Using HP QuickTest Professional v10. See "Newest 
Certifications - North America," http://www.hp.com/partnerleaming/newest~certifications~na.html (accessed 
on August 12, 20 10). Counsel's statements that Load Runner, QTP and Quality Center are not used by other 
employers in the United States appear to be inaccurate as access to training and certification in such products 
is not restricted to the petitioner's company. The products themselves are available for download from the 
petitioner's website. See "HP LoadRunner Software - Prevent costly performance problems in production 
with integrated software performance testing tools," https:Nh10078.wwwl.hp.com/cda/hpms/display/main/ 
hpms-content.jsp?zn=bto&cp= 1 - 1 1 - 126- 17%5E8-4000-100- (accessed on August 12,20 10). 
While there are certainly other test automation and quality assurance products on the market, the petitioner 
has not established that the beneficiary's knowledge of the petitioner's testing and quality management 
products is uncommon or noteworthy among test automation experts. 
The petitioner also states that the beneficiary possesses knowledge of "proprietary methods in project 
planning, site administration, requirement gathering, testing planning, test execution, defect tracking and 
software estimation techniques." Although the petitioner names "Global Methods" and "Business Technology 
Optimization" processes or methods the beneficiary will use in carrying out his duties, the petitioner offers no 
additional explanation or evidence pertaining to these claimed proprietary methods. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
However, all IT consulting firms develop internal methodologies, procedures and best practices for 
documenting project management, and software quality assurance activities. The petitioner did not attempt to 
explain how its processes and methodologies differ significantly from those utilized by other IT companies. 
The petitioner has not specified the amount or type of training its technical staff members receive in the 
company's methods and procedures and therefore it cannot be concluded that the petitioner's processes are 
particularly complex or different compared to those utilized by other companies in the industry, or that it 
Page 15 
would take a significant amount of time to train an experienced information technology consultant who had 
no prior experience with the petitioner's family of companies. 
To the contrary, the minimal evidence submitted suggests that the petitioner's employees are not required to 
undergo any extensive training in the company's processes and methodologies. The petitioner has 
documented the beneficiary's completion of seven web-based courses in the implementation of products 
relevant to his job duties and completion of one exam in implementing Quality Center software. Although 
counsel refers to the beneficiary's extensive classroom and job training, only these few web-based, self-paced 
courses are documented in the record, and, based on the information provided, they were completed 
subsequent to the filing of the petition in January 2009. None of the beneficiary's documented training 
appears to have been concentrated on the company's internal methodologies or processes. The petitioner does 
not articulate or document how specialized knowledge is typically gained within the organization, or explain 
how and when the beneficiary gained such knowledge other than through his regular employment duties. 
Even assuming arguendo that the beneficiary's knowledge of the petitioner's QTP, LoadRunner and Quality 
Center products could be considered "specialized knowledge," it appears that the beneficiary did not even 
begin using these products until sometime in 2007 and it has not been established that his knowledge of the 
products is advanced within the petitioner's organization. The petitioner's description of the duties the 
beneficiary performed during his first two years with the foreign entity contains no reference to these 
products. Rather, the petitioner states that the beneficiary worked with Silk Test Tool in carrying out his 
automated test projects. While the petitioner indicates that the beneficiary has performed advanced duties 
involving QuickTest Professional and LoadRunner since the end of 2007 for two different client projects, the 
petitioner has provided little context regarding the team on which the beneficiary has worked or the size and 
scope of the Global Delivery Center's Independent Validation and Verification Practice sufficient to support 
its assertion that the beneficiary is a key member of such practice. As noted above, the organizational charts 
the petitioner submitted in response to the director's request for evidence show the beneficiary and his direct 
line of supervision, but provide no information regarding who else may be on his team or what positions they 
hold. 
All employees can be said to possess unique skill or experience to some degree. Moreover, the proprietary 
qualities of the petitioner's process or product do not establish that any knowledge of this process is 
"specialized." Rather, the petitioner must establish that qualities of the unique process or product require this 
employee to have knowledge beyond what is common in the industry. This has not been established in this 
matter. The fact that other workers may not have the same level of experience with the petitioner's 
methodologies as applied to one or more components of a specific client project is not enough to establish the 
beneficiary as an employee possessing specialized knowledge. 
It is appropriate for USCIS to look beyond the stated job duties and consider the importance of the 
beneficiary's knowledge of the business's product or service, management operations, or decision-making 
process. Matter of Colley, 18 I&N Dec. at 120 (citing Matter of Raulin, 13 I&N Dec. at 618 and Matter of 
LeBlanc, 13 I&N Dec. at 816). As stated by the Commissioner in Matter of Penner, when considering 
whether the beneficiaries possessed specialized knowledge, "the LeBlanc and Raulin decisions did not find 
that the occupations inherently qualified the beneficiaries for the classifications sought." 18 I&N Dec. at 52. 
Rather, the beneficiaries were considered to have unusual duties, skills, or knowledge beyond that of a skilled 
Page 16 
worker. Id. 
The AAO acknowledges that the specialized knowledge need not be narrowly held within the organization in 
order to be considered "advanced." However, it is equally true to state that knowledge will not be considered 
"special" or "advanced" if it is universally or even widely held throughout a company. If all similarly 
employed workers within the petitioner's organization receive essentially the same training and job 
assignments, then mere possession of knowledge of the petitioner's processes and methodologies does not 
rise to the level of specialized knowledge. The L-1B visa category was not created in order to allow the 
transfer of all employees with any degree of knowledge of a company's products and processes. If all 
employees are deemed to possess "special" or "advanced" knowledge, then that knowledge would necessarily 
be ordinary and commonplace. 
The petitioner has not successfilly supported counsel's assertions that the beneficiary's knowledge of HP 
QuickTest Professional, HP LoadRunner, or HP Quality Center, and the ability to implement these 
technologies on a project basis, "is rarely held by others within [the petitioner's] organization." The director 
specifically requested evidence establishing that the beneficiary's knowledge is "uncommon, noteworthy, or 
distinguished by some unusual quality" and is not generally possessed by others in the beneficiary's field of 
endeavor. The director also requested an explanation addressing how the beneficiary's training or experience 
distinguishes him from. others employed by the petitioner. The petitioner's response to the RFE barely 
addressed these specific requests. 
Given the nature of these products and their prevalence in the automated testing field at large, the AAO finds 
the petitioner's unsupported claims that such knowledge is "rarely held" within the company to be insufficient 
to establish that the beneficiary's knowledge should be considered specialized or advanced. As noted above, 
knowledge of the QTP, LoadRunner and Quality Center products alone has not been shown to constitute 
specialized knowledge. 
The petitioner has 172,000 employees worldwide, many of which are technical specialists with specific areas 
of expertise. All of the organization's technical employees would reasonably have product and project- 
specific knowledge which would set them apart from other employees who work in other departments or 
teams. By this logic, any of them would qualify for L-1B classification if offered a position working with the 
same products or types of projects in the United States. The fact that the beneficiary may have two years of 
experience with the above-referenced products, while another technical employee may have the same amount 
of experience with different company products in a different functional domain does not establish that both 
employees have "specialized knowledge" as contemplated by the statutory and regulatory definitions. 
Such a standard for specialized knowledge would be overbroad and untenable, since it would allow the 
petitioner to transfer any employee with one or two years of experience with a specific product to the United 
States in the L-1B classification. The petitioner has opted not to provide any information regarding the 
number of similarly employed workers with knowledge in the petitioner's automated test products, but does 
acknowledge that it has an entire practice within the foreign entity devoted to Independent Verification and 
Validation and indicates that the beneficiary is included in this practice. It is reasonable to believe, and has 
not been shown otherwise, that the beneficiary's knowledge is both common and generally known by a large 
number of similarly employed workers within that practice, notwithstanding his "lead" role in one project. 
Page 17 
Furthermore, as noted above, it is possible to become an accredited certified professional in the petitioner's 
products without working for the petitioning organization. 
By itself, work experience and knowledge of a firm's technically complex products will not equal "special 
knowledge." Matter of Penner, 18 I&N Dec. at 53. The terms "special" or "advanced" must mean more than 
experienced or skilled. Specialized knowledge requires more than a relatively short period of experience, 
such as two years, otherwise "special" or "advanced" knowledge would include every employee with the 
exception of trainees and recent recruits. If everyone is specialized, then no one can be considered truly 
specialized. 
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, as explained above, the record does not 
distinguish the beneficiary's knowledge as more advanced than the knowledge possessed by other people 
employed by the petitioning organization or by workers employed elsewhere. As the petitioner has failed to 
document any special or advanced qualities attributable to the beneficiary's knowledge beyond vague, 
unsupported statements regarding the relative rarity of the beneficiary's knowledge, the petitioner's claims are 
not persuasive in establishing that the beneficiary, while perhaps highly skilled, would be a "specialized 
knowledge" 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 any degree of special training in the 
company's methodologies, products, or processes which would separate him from other professionals 
employed with the foreign entity. It is simply not reasonable to classify this employee as an alien with special 
knowledge of the company product and its application in international markets or an advanced level of 
knowledge of the processes and procedures of the company. 
Finally, regarding the petitioner's reliance, in part, on the memorandum, it must be noted that in making 
a determination as to whether the knowledge possessed by a beneficiary is special or advanced, the AAO 
relies on the statute and regulations, legislative history and prior precedent. Although counsel suggests that 
USCIS is bound to base its decision on the above-referenced memorandum, the memorandum was 
issued as guidance to assist USCIS employees in interpreting a term that is not clearly defined in the statute, 
not as a replacement for the statute or the original intentions of Congress in creating the specialized 
knowledge classification, or to overturn prior precedent decisions that continue to prove instructive in 
adjudicating L-1B visa petitions. The AAO will weigh guidance outlined in the policy memoranda 
accordingly, but not to the exclusion of the statutory and regulatory definitions, legislative history or prior 
precedents.2 
USCIS memoranda articulate internal guidelines for agency personnel; they do not establish judicially 
enforceable standards. Agency interpretations that are not arrived at through precedent decision or notice- 
and-comment rulemaking - such as those in opinion letters, policy statements, agency manuals, and 
enforcement guidelines - lack the force of law and do not warrant Chevron-style deference. Christensen v. 
Harris County, 529 U.S. 576, 587 (2000). An agency's internal guidelines "neither confer upon [plaintiffs] 
substantive rights nor provide procedures upon which [they] may rely." Lou-Herrera v. Trominski, 23 1 F.3d 
984, 989 (5th Cir. 2000)(quoting Fano v. O'Neill, 806 F.2d 1262, 1264 (5th Cir. 1987)). Agency policy 
memorandum and unpublished decisions do not confer substantive legal benefits upon aliens or bind USCIS. 
Page 18 
The legislative history for the term "specialized knowledge" provides ample support for a restrictive 
interpretation of the term. In the present matter, the petitioner has not demonstrated that the beneficiary 
should be considered a member of the "narrowly drawn" class of individuals possessing specialized 
knowledge. See 1756, Inc. v. Attorney General, supra at 16. The record does not establish that the 
beneficiary has specialized knowledge or that the position offered with the United States entity requires 
specialized knowledge. Accordingly, the appeal will be dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed. 
Romeiro de Silva v. Smith, 773 F.2d 1021, 1024 (9th Cir. 1985); see also Prokopenko v. Ashcroft, 372 F.3d 
941,944 (8th Cir. 2004). 
In contrast to agency memoranda, a legacy INS or USCIS decision is binding as a precedent decision once it 
is published in accordance with 8 C.F.R. 5 103.3(c). The INS precedent decisions relating to L-1B 
specialized knowledge are considered "interpretive rules" under the APA. See Spencer Enterprises, Inc. v. 
US., 229 F.Supp.2d 1025, 1044 (E.D.Ca1. 2001), afd 345 F.3d 683 (9th Cir. 2003); see also R.L. Inv. Ltd. 
Partners v. INS, 86 F.Supp.2d 10 14 (D.Hawaii 2000).