dismissed L-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF TPFS- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN.J9,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology service provider, seeks to temporarily employ the 
Beneficiary in the position of technical lead under the L-1 B nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section !Ol(a)(15)(L). 
8 U.S.C. § 110J(a)(l5)(L). The L-IB classification allows a corporation or other legal entity 
(including its affiliate or subsidiary) to transfer a qualifying foreign employee with "specialized 
knowledge" to work temporarily in the United States. 
The Director of the California Service Center denied the petition concluding that the Petitioner did 
not establish, as required, that the Beneficiary (I) was employed abroad in a managerial, executive, 
or specialized knowledge capacity, or (2) would be employed in a specialized knowledge capacity. 
Additionally, the Director concluded that placement of the Beneficiary at the worksite of the 
unaffiliated employer is essentially an arrangement to provide labor for hire. 
On appeal, the Petitioner disputes the denial, asserting that the Director misapplied the applicable 
law when she did not recognize the Beneficiary's specialized knowledge in the use of the 
Petitioner's proprietary software tooL The Petitioner argues that the Beneficiary was employed 
abroad and would be employed in the United States in a specialized knowledge capacity. 
Upon de novo review, we find that the Petitioner did not overcome the Director's chief basis for the 
denial and will therefore dismiss the appeal. In addition, we find that the record lacks sufficient 
evidence of a qualifying relationship between the Petitioner and the Beneficiary's foreign employer. 
As the existence of a qualifying relationship is a fundamental element of eligibility and the Petitioner 
has not met its burden with respect to this threshold issue, the petition could not be approved even if 
the Petitioner had provided sufficient evidence to overcome the basis for the Director's decision. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 B nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section JOI(a)(J5)(L) of the Act. In addition, the beneficiary 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
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Matrer ojTPFS-Jnc. 
employer or a subsidiary or affiliate thereof in a specialized knowledge capacity. !d. The petitioner 
must also establish that the beneficiary's prior education, training, and employment qualifies him or 
her to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
A beneficiary is considered to be serving in a capacity involving specialized knowledge with respect to 
a company if the beneficiary 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 . Section 214(c)(2)(B) ofthe Act, 8 U.S.C. § 1184(c)(2)(8). 
Specialized knowledge is defined as 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. 8 C.F.R. § 214.2(l)(l)(ii)(D). 
II. BACKGROUND 
The Petitioner is an 11-employee IT firm that provides software services to clients in the travel, 
hospitality, and credit card industries. The Petitioner explained that it uses software tools that have 
been developed in-house to analyze, design, and test software applications that are then implemented 
at client locations . The Petitioner identified as the proprietary software customization tool 
that is and will continue to be the focal point of the Beneficiary's employment abroad and her 
proposed position in the United States. The Petitioner further stated that the position requires a 
specialized knowledge of "both proprietary product and client infrastructure" to "help enable the 
customization of for the needs of its client , The Petitioner 
stated that has "licensed the rights to use the software 
suite.'· 
The Petitioner describes the Beneficiary's proposed position as ''almost identical" to her current 
position abroad where she 
is "involved in the architectural design , development and customization of 
solution for business infrastructure - The Development Life Cycle ." The Petitioner 
described as a "software suite" that includes "a collection of sub-products that work 
together to form a comprehensive test management system. " The Petitioner stated that the 
Beneficiary's position requires specialized knowledge of and indicated that a number of her 
duties are directly associated with her knowledge of the software tool, including assisting in the 
customization of reviewing the software requirements, using to develop 
applications that will best serve the client, providing training and support for the users of 
and monitoring and resolving issues related to The Petitioner provided a copy of 
the Beneficiary's resume showing that she has worked with the client 
·since August 2011 when she assumed her position as a "Tech Lead" with the foreign affiliate. 
While the resume indicates that the Beneficiary is a professional with 15 Years of 
Experience'' and lists as one of her "Technical Skill, " it is not entirely consistent with the 
Beneficiary's list of duties , as it does not reference in the Beneficiary's list of 
responsibilities or indicate that this tool is significant to her position as the Tech Lead. 
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Matter o.fTPFS- Inc. 
III. SPECIALIZED KNOWLEDGE 
The first issue to be addressed is whether the Petitioner established that the Beneficiary possesses 
specialized knowledge and whether she has been employed abroad and will be employed in the 
United States in a specialized knowledge capacity. If the evidence is insut1icient to establish that the 
Beneficiary possesses specialized knowledge, then we cannot conclude that she has been employed 
abroad in a specialized knowledge capacity. 
A beneficiary is deemed to have specialized knowledge if he or she has: ( 1) a "special" knowledge 
of the company product and its application in international markets; or (2) an "advanced" level of 
knowledge of the processes and procedures of the company. Section 214(c)(2)(B) of the Act. A 
petitioner may establish eligibility by submitting evidence that the beneficiary and the proffered 
position satisfy either prong of the statutory definition. 
Once a 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. We cannot make a factual determination regarding a given beneficiary's specialized 
knowledge if the petitioner does not, at a minimum, articulate with specificity the nature of its 
products and services or processes and procedures, the nature of the specific industry or field 
involved, and the nature of the beneficiary's knowledge. The petitioner should also describe how 
such knowledge is typically gained within the organization, and explain how and when the 
individual beneficiary gained such knowledge. 
In the denial decision, the Director determined that the Beneficiary's duties are the "same or similar·· 
to others employed in the occupation of "Computer Systems Analyst" as described in the 
Department of Labor's Occupational Outlook Handbook (OOH). While the Director acknowledged 
the Petitioner's claims that the Beneficiary possesses knowledge of the Petitioner's products, tools, 
and processes, she determined that the Petitioner did not describe how the Beneficiary's claimed 
specialized knowledge is typically gained within the organization. The Director concluded that the 
Petitioner did not demonstrate that the Beneficiary's foreign and proposed positions require either 
special knowledge of the company's products that is uncommon in the industry and could not be 
easily transferred , or an advanced level of knowledge or expertise of the organization ' s processes 
and procedures. 
On appeal, the Petitioner distinguishes the Beneficiary's positions abroad and in the United States 
from those of other technical leads, contending that the Beneficiary's positions, unlike those of other 
technical leads, require specialized knowledge. The Petitioner also claims that the Beneficiary "was 
part of the core team in India involved in product development and maintenance' ' and 
deems the Beneficiary to be a "key employee" who has "been given specific assignments and 
trainings" within the foreign organization. The Petitioner states that the Beneficiary has specialized 
knowledge because she: (1) is 1 of only 12 employees within the U.S. and foreign organizations 
who possesses knowledge that is required to work with the proprietary tool; and (2) ''is one 
of the only employees" who has "extensive experience" working with their client, In sum. 
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Malter of TP FS- Inc. 
the Petitioner contends that the Beneficiary is "unique in her ability to utilize and customize[], 
design and implement the tool for the most effective use by 
For the reasons explained below, we find that the Petitioner did not provide sufficient evidence to 
establish that the Beneficiary possesses specialized knowledge. Although the Beneficiary's resume 
indicates that she has multiple years of experience in the IT industry and has been working with the 
Petitioner's proprietary tool since assuming her position with the foreign entity, the Petitioner has 
not established that the Beneficiary's knowledge is either special or advanced. 
A. Special Knowledge 
The Petitioner's primary claim is that the Beneficiary possesses special knowledge of its proprietary 
product suite. The Petitioner claims that this knowledge was "attained in [sic] the job while 
employed at The Petitioner states that only someone with the Beneficiar y's unique 
knowledge of both the proprietary product and the client's infrastructure can carry out her assigned 
duties, which could not be executed by someone outside the organization. 
Determining whether a beneficiary has "special knowledge " requires review of a given beneficiary's 
knowledge of how the petitioning organization manufactures , produces, or develops its products. 
services , research , equipment , techniques, management, or other interests . Because "special 
knowledge" concerns knowledge of the petitioning organization's products or services and its 
application in international markets, a petitioner may meet its burden through evidence that the 
beneficiary has knowledge that is distinct or uncommon in comparison to the knowledge of other 
similarly employed workers in the particular industr y. Knowledge that is commonl y held throughout 
a petitioner's industry or that can be easily imparted from one person to another is not considered 
specialized. 
Here, the Petitioner relies heavily on the Beneficiary's ability to use a proprietary tool and apply it 
within the infrastructure to meet that client's business needs. When asked to establish how 
the Beneficiary acquired special knowledge , the Petitioner responded by referrin g to the 
Beneficiary 's master 's degree in computer applications and emphasizing her employment history, 
which includes 15 years of IT experience and more than four years of experience in the "use and 
implementation of its software suite with the client since August of 2011." We note that 
determining whether a beneficiary 's knowledge is "special " requires a comparison of that knowledg e 
to the knowledge of others who hold comparable positions in the Petitioner 's industry. The 
Petitioner bears the burden of showing that the Beneficiary holds knowledge that is noteworthy or 
uncommon compared to her colleagues outside the organization. Despite claiming that the 
Beneficiary's duties are "at a much higher level" because her work involves developing and 
customizing the foreign entity's proprietary software , the Petitioner did not clarify how the 
Beneficiary ' s duties compared to those of other employees or explain how developin g and 
customizing software within the context of the foreign entity is different from the work of other IT 
professionals at other organizations. Likewise, the Petitioner did not establish that the Beneficiar y's 
educational credentials and years of experience outside the foreign organization are sufficient to 
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Matter ofTPFS-Jnc . 
qualify the Beneficiary to perform duties that "are at a much higher level" such that they require the 
Beneficiary to possess knowledge that is uncommon in comparison to the knowledge of similar 
products held by other IT professionals within the industry. 
According to the Petitioner, the Beneficiary has been serving in the position of technical lead since 
commencing her employment with the foreign affiliate in August of 2011. While the Beneficiary 
did not claim any prior experience with the foreign employer or with an affiliated entity, the 
Petitioner claims that the Beneficiary was selected for, and began employment in, the foreign 
position because she has knowledge of a proprietary product and experience working with the 
client. The Petitioner does not explain how the Beneficiary obtained such in-house 
knowledge prior to any experience with the company , nor does it explain how the Beneficiary 
received training that it alleges can only be acquired by in-house employees. According to the 
Petitioner, the Beneficiary commenced a specialized knowledge position with the foreign entity, 
even though she was not previously employed by that entity. It does not appear that she had prior 
exposure to or training in that entity's proprietary product, which is at the heart of the 
Petitioner's specialized knowledge claim. The Petitioner has not provided a credible explanation for 
claiming that the Beneficiary had "special knowledge" of its proprietary tool prior to commencing 
her employment with the foreign entity . 
As the Petitioner acknowledged , the Beneficiary began performing the duties of her current position 
with the foreign employer on day one of her employment. Consequently, the Beneficiary could not 
have acquired "special knowledge " prior to commencing her position as technical lead, nor could 
such knowledge have been necessary if the Beneficiary was able to execute her assigned duties 
without prior experience or training in the foreign entity 's proprietary software tool. The 
Petitioner's claim is severely undercut if the Beneficiary was able to fulfill the basic job 
requirements without having first completed the minimum time of on-the-job experience , as required 
by the Petitioner. The amount and type of training, work experience, and education required to 
develop the knowledge that is claimed to be "special'' is one factor that may be used to determine 
whether a beneficiary possesses specialized knowledge. See 8 C.F.R. § 214.2(1)(3)(iv). The 
potential combination of training , work experience , and education is infinitely variable and there is 
no specific amount of time or type of training required to establish that the beneficiary possesses 
specialized knowledge. The petitioner , however, must submit consistent and credible evidence to 
establish eligibility. Matter ofChawathe, 25 l&N Dec . 369, 376 (AAO 20 I 0). 
Here, the Petitioner has not provided such evidence or outlined a specific path for gaining "special 
knowledge" of the foreign employer's software product. Instead , the Petitioner provided a statement 
in which it pointed to the Beneficiary's 15 years of experience and vaguely indicated that the 
Beneficiary "obtained the required education credentials," which included a Master of Computer 
Applications 
degree. The Petitioner did not establish a nexus between either of these factors and the 
"special knowledge" of the foreign entity's proprietary software tool the Beneficiary is claimed to 
have gained . The record also does not include evidence that the Beneficiary was promoted or 
assigned to a new position with the foreign employer at any time or that her duties have otherwise 
changed in nature or complexity. As discussed above , the record indicates that the Beneficiary 
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Matter ofTPFS-lnc. 
started performing her assigned duties as soon as her employment with the foreign entity 
commenced. As such, the Beneficiary could not have gained "special knowledge" of the foreign 
entity ' s proprietary product and its application within the infrastructure prior to assuming 
her position as technical lead. While we acknowledge that the Petitioner now claims that the 
Beneficiary "was part of the core team in India involved in product development and 
maintenance," the Petitioner does not point to any specific contributions the Beneficiary made to the 
product's development or explain why the Petitioner did not make this claim earlier. The record 
shows that the Petitioner's primary focus has been the Beneficiary's knowledge in the use and 
implementation of the proprietary product, rather than the creation or development of that product. 
A petitioner may not make material changes to a petition in an eflort to make a deficient petition 
conform to U.S. Citizenship and Immigration Services (USCTS) requirements. See Maller l?{ 
Izummi, 22 T&N Dec. 169, 176 (Assoc. Comm 'r 1998). 
The Petitioner also pointed out that the Beneficiary was one of "few of our employees" who was 
allowed "the opportunity to train on and gain experience with" the foreign entity's proprietary 
product. However, the record lacks evidence to show that any on-the-job or formal training was 
required or that the Beneficiary actually obtained such training in order to execute the assigned 
duties of her position. This lack of evidence is problematic for two reasons . First, it precludes us 
from being able to affirmatively verify the Petitioner ' s reference to "the opportunity to train'" and 
second , it precludes an understanding of precisely how and when the Beneficiary gained the 
knowledge that is claimed to be " special. " Further , the foreign entity's organizational chart shows 
that of the 12 employees who were claimed to have specialized knowledge of its proprietary product , 
five were trainees. The Petitioner did not clarify what was "special" about the knowledge 
possessed 
by the trainees or distinguish their "trainee" level of knowledge from the level of knowledge 
possessed by the Beneficiary . The Petitioner also did not establish how the 11 employees who were 
grouped with the Beneficiary acquired their knowledge of the foreign entity's proprietary software 
product. As noted above, the Petitioner did not establish a prescribed means for obtaining "special 
knowledge" of the proprietary product through formal or on-the-job training. Thus, the 
claim that the Beneficiary's knowledge is exclusively held by a relatively small group of people is 
not, by itself: sufficient to establish that the knowledge qualities as being "special;· particularly 
when considered in light of the fact that the Beneficiary had no prior knowledge of the foreign entit y 
or its proprietary software tool before commencing her position as its technical lead. 
In sum, the Petitioner has not established that special knowledge is required to perform the 
Beneficiary's assigned duties , nor has the Petitioner established that her knowledge is distinct from 
that of others who are similarly employed within the IT industry and can be taught only through 
prior experience with the organization. The Petitioner has not established that the Beneficiary ' s 
educational credentials and employment history are uncommon in the IT industry or that either 
factor resulted in the Beneficiary's "special knowledge" of the foreign entity's proprietary software 
tool. Thus, the record does not establish that the Beneficiary's knowledge is distinct or uncommon 
within the industry. The Petitioner has not provided sufficient evidence to allow an understanding of 
what is special about the Beneficiary's knowledge or how she gained that knowledge. While the 
Beneficiary may be a valuable employee of the company and an experienced IT professional. the 
Matter ofTPFS- Inc. 
record lacks sufficient evidence to establish that her knowledge is "special,'' as defined in the Act 
and regulations. The Petitioner submitted little evidence to set the Beneficiary's knowledge apart or 
to demonstrate that it is uncommon, noteworthy, or distinguished by some unusual quality. Due to 
these evidentiary deficiencies, the record does not establish that she possesses "special'' knowledge. 
B. Advanced Knowledge 
The Petitioner has not established, m the alternative, that the Beneficiary possesses advanced 
knowledge. 
Determinations concerning "advanced knowledge" require review of a beneficiary's knowledge of 
the petitioning organization's processes and procedures. A petitioner may meet its burden through 
evidence that a given beneficiary has knowledge of or expertise in the organization's processes and 
procedures that is greatly developed or further along in progress, complexity and understanding in 
comparison to other workers in the employer's operations. Such advanced knowledge must be 
supported by evidence setting that knowledge apart from the elementary or basic knowledge 
possessed by others. Also, as with special knowledge, the petitioner ordinarily must demonstrate 
that a beneficiary's knowledge is not commonly held throughout the particular industry and cannot 
be easily imparted from one person to another. 
Here, the Petitioner has neither claimed nor documented that the Beneficiary has advanced 
knowledge of company-specific processes or procedures. Rather, its claims have been focused on 
the Beneficiary's knowledge of the company's products and services and industry-based 
comparisons. The Petitioner has not provided information that would allow us to compare the 
Beneficiary's knowledge of company processes and procedures to that of others within the 
petitioning company and its foreign subsidiary and therefore has not supported a claim that her 
knowledge is "advanced." 1 
IV. QUALIFYING RELATIONSHIP 
In addition to the ground cited for denial in the Director's decision, the Petitioner has not 
established, as required, that it has a qualifying relationship with the Beneficiary's foreign employer. 
To establish a "qualifying relationship," the Petitioner must show that the Beneficiary's foreign 
employer and the proposed U.S. employer are the same employer (i.e. one entity with "branch" 
offices), or related as a "parent and subsidiary" or as "affiliates." See section 10l(a)(l5)(L) of the 
Act; see also 8 C.F.R. § 214.2(1)(1 )(ii) (providing definitions of the terms "parent," "branch," 
"subsidiary," and "affiliate''). 
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Because the Petitioner has not demonstrated that the Beneficiary possesses special or advanced knowledge, we need not 
address whether the Beneficiary has been employed abroad in a position involving specialized knowledge or would be 
employed in the United States in a specialized knowledge capacity. 
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Matter ofTPFS-lnc. 
The Petitioner claims that it is an affiliate of the 
Beneficiary's foreign employer. The term "affiliate" is defined in relevant part , as (1) one of two 
subsidiaries both of which are owned and controlled by the same parent or individual , or (2) one of 
two legal entities owned by the same group of individuals, each individual owning and controlling 
approximately the same share or proportion of each entity. 8 C.F.R. § 214.2(l)(l)(ii)(K). 
In the present matter, the Petitioner provided stock certificates showing that its ownership is evenly 
split between two individuals - and - each owning 500 
shares of the Petitioner's stock. The ownership scheme of the Beneficiary 's employer is 
considerably different. In the L Classification Supplement to the petition the Petitioner indicated 
that and who own 1 00% of its stock, own 96% of the 
foreign entity's stock, claiming that the same two individuals together own the majority of the stock 
of both entities. As proof of the foreign entity's ownership, the Petitioner provided a document titled 
"Detai ls of Allotment of Equity Shares," which indicates that and 
each owns 12,000 shares ofthat entity. However, the foreign entity's Memorandum of 
Association shows that the company issued a total of 25,000 shares of stock and that the remaining 
1,000 shares was evenly divided among two other individuals, thereby giving 
and each 48% of the foreign entity's stock, rather than 50% as with 
their respective ownership shares of the Petitioner. Therefore, while and 
each maintain nega tive control of the Petitioner by virtue of their respecti ve 
ownership of 50% of the Petitioner 's stoc k, the same cannot be said of their respective ownership 
shares ofthe foreign entity where neither individual owns at least 50% of the company's stock . 
users does not accept a combination of individual shareholders as a single entity so that the group 
may claim majority owner ship, unless the group members have been shown to be legally bound 
together as a unit within the company by voting agreements or proxies. Here, there is no evidence to 
show that and are bound together through voting 
agreements or proxies so that they meet the first part of the definition of "affiliate." The Petitioner 
also does not meet the second part of the definition , given that the U.S. petitioner has only two 
owners who control the entity , while the foreign entity has four owners where no one owner controls 
that entity . 
In light of the above , the record does not establish that the Petitioner and the Beneficiar y's foreign 
employer are commonly owned and controlled and therefore we cannot conclude that a qualifying 
affiliate relationship exists between these two entities. For this additional reason, the petition may 
not be approved. 
V. VISA REFORM ACT 
If a specialized knowledge beneficiary will be primarily stationed at the worksitc of an unaffiliat ed 
employer, the statute mandates that the petitioner establish both: (1) that the beneficiary will be 
controlled and supervised principally by the petitioner , and (2) that the placement is related to the 
provision of a product or service for which specialized knowledge specific to the petitioning 
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Matter o(TPFS-Inc. 
employer is necessary. Section 214(c)(2)(F) of the Act. These two questions of fact must be 
established for the record by documentary evidence; neither the unsupported assertions of counsel 
nor the employer will suffice to establish eligibility. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm'r 1998); Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 
I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 l&N Dec. 503, 506 (BIA 1980). If the 
petitioner does not establish both of these elements, the beneficiary will be deemed ineligible for 
classification as an L-1 B intracompany transferee. 
Although the Director discussed the Beneficiary's placement at a client site, we need only evaluate 
the Beneficiary's worksite placement when the Petitioner has met its burden to establish that the 
Beneficiary will be employed in the United States in a specialized knowledge position. In this case, 
the Petitioner has not demonstrated that the Beneficiary will be employed in a specialized knowledge 
position or that a qualifying relationship exists between the Petitioner and the Beneficiary's foreign 
employer. As such, we will not make a finding with regard to the Beneficiary's worksite placement 
at this time. However, if the Petitioner were to overcome the issues cited above in the future, the 
Petitioner would then need to establish that the Beneficiary's employment and worksite placement 
were in compliance with the applicable law. 
VI. CONCLUSION 
For the reasons discussed above, the evidence submitted does not establish that the Beneficiary 
possesses knowledge that is either special or advanced. Because the Petitioner has not met this 
fundamental threshold, we need not address whether the Beneficiary has been employed abroad in a 
position involving specialized knowledge or would be employed in the United States in a specialized 
knowledge capacity. In addition, even if the Petitioner were able to overcome the original basis for 
denial, the Petitioner has not established that it has a qualifying relationship with the Beneficiary's 
employer abroad and on the basis of this additional finding this petition cannot be approved. 
ORDER: The appeal is dismissed. 
Cite as Matter ofTPFS- Inc., ID# 106839 (AAO Jan. 19, 2018) 
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