dismissed L-1B Case: Information Technology

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u.s.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
PUBLICCOpy
File: EAC 02 025 51805
IN RE: Petitioner:
Beneficia
Office: VERMONT SERVICE CENTER Date: FEB 0! 2008
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.
~-,<::~/"' ...'" .
Robert . iemann, Chief
Administrative Appeals Office
www.uscis.gov
EAC 02 025 51805
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)(lS)(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 two 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)(15)(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 02 025 51805
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 kriowledge 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 SE1­
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 SE1-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 October 12,2001 as follows:
• Conduct Software Configuration Management activities as per SCM Plan established
by Project Leader
• Perform changes to all configurable items as per [the petitioning organization's]
Change Control Procedure, which is established by the Project Leader
• Ensure that all enhancement development, maintenance, testing, implementation, etc.
activities are done as per guidelines established in [the petitioning organization's]
Quality Management System
• Ensure that all work done meets project operational process requirements and
Software Project Plan as established by the Project Leader 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, etc. web-based
systems
• Participate in Final Inspections, which are conducted before software work items are
released to client
• Prepare specifications for offshore development
• Upload specifications for offshore development
EAC 02 025 51805
Page 4
• Provide technical guidance to offshore resources as required
• Participate in Defects Prevention Activities: Peer Reviews, 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
• Participate in Quantitative Process Management as per QPM established by the
Project Leader
• 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 in the letter dated October 12,
2001 as follows:
[The beneficiary] participated in [the petitioning organization's] In-House Training Program
where he was exposed to and acquired highly specialized knowledge of the company's
internally developed, SEI-CMM assessed (Level 5) software development and maintenance
process.
On November 19, 2001, the director requested additional evidence. The director requested, inter alia, the
following: evidence establishing that the beneficiary's knowledge is uncommon, noteworthy, or distinguished
by some unusual quality and is not generally known by practitioners in the beneficiary's field of endeavor;
evidence establishing that the beneficiary's advanced level of knowledge distinguishes him from those with
only elementary or basic knowledge; and evidence addressing the minimum amount of time required to train a
person to work in the proffered position.
In response, counsel submitted a letter dated January 31, 2002 in which he describes the beneficiary's training
regimen and the ubiquity of the beneficiary's knowledge as follows:
[The petitioning organization] currently employs just over 19,000 IT professionals of
which approximately 9,500 have received training in and possess experience with the
company's SEI-CMM (Level 5) software development and maintenance process [citation
omitted]. As these facts suggest. not only is !the beneficiary'sl knowledge advanced within
the company. but. as demonstrated herein. such knowledge is also clearly advanced
throughout the industry. [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 of [the petitioning organization's] internally designed and developed,
SEI-CMM assessed (Level 5) software development and maintenance process including its
full cycle software development methodologies, software development and maintenance
tools, and quality maintenance system. During this training period, he also received training
in a number of third-party Mainframe software and hardware systems. [The beneficiary]
received a total of 720 hours of classroom training in this program.
EAC 02 025 51805
Page 5
Since completing [the petitioning organization's] Internal Training Program, [the beneficiary]
has been utilized in a specialized knowledge capacity on significant assignments involving
the development and maintenance of mainframe-based software application systems for [the
petitioning organization's] international clients in Europe and the United States. On these
significant projects, [the beneficiary] gained four years of highly specialized practical
knowledge and experience of [the petitioning organization's] internally developed, SEI-CMM
Assessed (Level 5) software development and maintenance process as it is customized to
meet the operational and quality requirements of Mainframe development and maintenance
projects in the international marketplace.
Counsel further asserts that, while a comparable new employee would need to receive, at a minimum, 144
hours of training in the petitioning organization's SEI-CMM Level 5 software development and maintenance
process to perform the beneficiary's duties, such an employee would still lack the beneficiary's "level of
practical experience and knowledge."
On April 22, 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.
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(1)(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 organization or in the industry at large. Going on record
without documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings. Matter of 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
EAC 02 025 51805
Page 6
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),
ajf'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 implemented nor utilized throughout the
industry" and that the beneficiary is one of only 9,500 employees, out of a total of 19,000, to have received
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
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 vaguely described 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
EAC 02 025 51805
Page 7
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 ofSofjici, 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(1)(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,
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
personne1." See generally, H.R. REP. No. 91-851, 1970 U.S.C.C.A.N. 2750. The term "key personnel"
denotes a position within the petitioning company that is "of crucial importance." Webster's II New College
Dictionary 605 (Houghton Mifflin Co. 2001). In general, all employees can reasonably be considered
"important" to a petitioner's enterprise. If an employee did not contribute to the overall economic success of
an enterprise, there would be no rational economic reason to employ that person. An employee of "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 personne1."
EAC 02 025 51805
Page 8
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, 9I st 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
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
EAC 02 025 51805
Page 9
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.
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 Dar 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.