dismissed L-1B Case: Information Technology Consulting

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 05 221 50556 Office: CALIFORNIA SERVICE CENTER Date: APR 0 3 2Q(lb 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. § 1 10 1(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
Robe 
Administrative Appeals Office 
WAC 05 221 50556 
Page 2 
DISCUSSION: The nonimrnigrant visa petition was denied by the Director, California Service Center, and 
certified to the Administrative Appeals Office (AAO) for affirmation or withdrawal pursuant to 
8 C.F.R. tj 103.4(a). Upon review, the decision of the director will be affirmed, and the petition will be 
denied. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as a system analyst as 
an L-1B nonimmigrant intracompany transferee with specialized knowledge pursuant to section 
101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 1101(a)(15)(L). The 
petitioner is a business information technology consulting firm that "provides product development and 
consulting services in all aspects of systems and software engineering to companies throughout the 
world." The petitioner seeks to employ the beneficiary as a system analyst for a period of three years. 
1 
Citing to the anti "job shop" provisions of the L-1 Visa Reform Act of 2004, the director denied the 
petition as an impermissible arrangement to provide labor for hire.2 Specifically, the director concluded 
that the beneficiary, who will be stationed primarily at a worksite of an unaffiliated employer, will be 
employed in a position which is essentially an arrangement to provide labor for hire for the unaffiliated 
- 
 - - 
I 
 The AAO notes that Citizenship and Immigration Services (CIS) records indicate that the petitioner has 
filed a total of 16,429 L-1B petitions, with more than 3,979 petitions filed during fiscal year 2006. 
2 
The term "job shop" is commonly used to describe a firm that petitions for aliens in L-1B status to 
contract their services to other companies, often at wages that undercut the salaries paid to U.S. workers. 
Upon introducing the L-1 Visa Reform Act, Senator Saxby Chambliss described the abuse as follows: 
The situation in question arises when a company with both foreign and U.S.-based 
operations obtains an L-1 visa to transfer a foreign employee who has "specialized 
knowledge" of the company's product or processes. The problem occurs only when an 
employee with specialized knowledge is placed offsite at the business location of a third 
party company. In this context, if the L-1 employee does not bring anything more than 
generic knowledge of the third party company's operations, the foreign worker is acting 
more like an H-1B professional than a true intracompany transferee. Outsourcing an L-1 
worker in this way has resulted in American workers being displaced at the third party 
company. 
149 Cong. Rec. S11649, *S11686,2003 WL 22143 105 (September 17,2003). 
In general, the L-1B visa classification does not currently include the same U.S. worker protection 
provisions as the H-1B visa classification. See generally, 8 C.F.R. $9 2 14.2(h) and (1). The L-1B visa 
classification is not subject to a numerical cap, does not require the employer to certify that the alien will 
be paid the "prevailing wage," and does not require the employer to pay for the return transportation costs 
if the alien is dismissed from employment. Additionally, an employer who files a petition to classify an 
alien as an L-1B nonimmigrant would not pay the $1,500 fee that is currently required for each new H-1B 
petition and which funds job training and low-income scholarships for U.S. workers. See Section 
2 14(c)(9) of the Act. 
WAC 05 221 50556 
Page 3 
employer, Prudential Financial (hereinafter "the unaffiliated employer"). The director further determined 
that the beneficiary does not have specialized knowledge of a product or service specific to the petitioner. 
To establish eligibility for the L-1 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. 4 214.2(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 hider 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. 
Section 214(c)(2)(B) of the Act, 8 U.S.C. 5 11 84(c)(2)(B), provides: 
For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity 
involving specialized knowledge with respect to a company if the alien has a special 
knowledge of the company product and its application in international markets or has an 
advanced level of knowledge of processes and procedures of the company. 
Furthermore, the regulation at 8 C.F.R. €j 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. 
WAC 05 221 50556 
Page 4 
I. L-1 Visa Reform Act 
As amended by the L-1 Visa Reform Act of 2004, section 214(c)(2)(F) of the Act, 8 U.S.C. 
1 1 84(c)(2)(F), provides: 
An alien who will serve in a capacity involving specialized knowledge with respect to an 
employer for purposes of section 1 101(a)(15)(L) and will be stationed primarily at the 
worksite of an employer other than the petitioning employer or its affiliate, subsidiary, or 
parent shall not be eligible for classification under section 1 10 1 (a)(15)(L) if - 
(i) 
 the alien will be controlled and supervised principally by such unaffiliated 
employer; or 
(ii) the placement of the alien at the worksite of the unaffiliated employer is 
essentially an arrangement to provide labor for hire for the unaffiliated 
employer, rather than a placement in connection with the provision of a 
product or service for which specialized knowledge specific to the 
petitioning employer is necessary. 
Section 214(c)(2)(F) of the Act was created by the L-1 Visa Reform Act of 2004 and is applicable to all 
L-1B petitions filed after June 6, 2005, including extensions and amendments involving individuals 
currently in L-1 status. See Pub. L. No. 108-447, Div. I, Title N, 118 Stat. 2809 (Dec. 8, 2004). The 
primary purpose of the L-1 Visa Reform Act amendment was to prohibit the "outsourcing" of L-1B 
intracompany transferees to unaffiliated employers to work with "widely available" computer software 
and, thus, help prevent the displacement of United States workers by foreign labor. See 149 Cong. Rec. 
S11649, *S11686, 2003 WL 22143 105 (September 17, 2003); see also Sen. Jud. Comm., Sub. on 
Immigration, Statement for Chairman Senator Saxby Chambliss, July 29, 2003, available at 
<http://judiciary.senate.gov/member~statement.cfm?id =878&wit_id=3355> (accessed on July 16,2007). 
In evaluating a petition subject to the terms of the L-1 Visa Reform Act, the AAO must emphasize that 
the petitioner bears the burden of proof. Section 291 of the Act, 8 U.S.C. $ 1361; see also 8 C.F.R. $ 
103.2(b)(l). If a specialized knowledge beneficiary will be primarily stationed at the worksite of an 
unaffiliated employer, the statute mandates that the petitioner establish both: (1) that the alien 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 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 or the employer will 
suffice to establish eligibility. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998); Matter of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988). If the petitioner fails to establish both of these elements, 
the beneficiary will be deemed ineligible for classification as an L-1B intracompany transferee. 
A. Threshold Question: Worksite of Beneficiary 
As a threshold question in the analysis, CIS must examine whether the beneficiary will be stationed 
primarily at the worksite of the unaffiliated company. Section 214(c)(2)(F) of the Act. 
WAC 05 221 50556 
Page 5 
As noted on page 3 of the Form 1-129, in the field entitled "Address where the person(s) will work," the 
petitioner stated that the work location for the beneficiary will be at the unaffiliated employer located in 
Scottsdale, Anzona. The petitioner also stated in its letter of support, dated July 26, 2005, that it wishes for 
the beneficiary to enter the United States for a period of three years as a system analyst for a project at the 
unaffiliated employer. Accordingly, the AAO concludes that the beneficiary will be primarily employed 
as an application software analyst at the worksite of the unaffiliated employer. 
Therefore, under the terms of the L-1 Visa Reform Act, the petitioner must establish both: (1) that the 
alien 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 
employer is necessary. Section 2 14(c)(2)(F) of the Act. 
B. Control and Supervision of Beneficiary 
The first issue under the L-1 Visa Reform Act analysis is whether the petitioner has established that the 
alien will be controlled and supervised principally by the petitioner, and not by the unaffiliated employer. 
Section 2 14(c)(2)(F)(i) of the Act. 
Notwithstanding the director's finding to the contrary, the petitioner has not satisfied this prong of the L-1 
Visa Reform Act test. The petitioner asserted on the Form 1-129 that the beneficiary will be supervised 
by the Business Relationship Manager, an employee of the petitioner. The petitioner further explained 
that the beneficiary will be supervised through "conference calls, status reports, emails and meetings." 
However, no evidence was submitted in support of this statement. The petitioner does not provide 
evidence to document how, exactly, the beneficiary will be managed and controlled while offsite at the 
unaffiliated employer's workplace. Going on record without supporting evidence will not satisfy the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. 
Furthermore, despite the director's specific request for evidence, the petitioner did not provide sufficient 
documentation to establish whether the beneficiary will be controlled and supervised principally by the 
petitioner. On August 18, 2005, the director requested copies of contracts, statements of work, work 
orders, and service agreements between the petitioner and the unaffiliated employer, describing 
specifically the services to be provided by the beneficiary. In response, the petitioner submitted a 
document entitled, "Engagement Schedule No. Prers- 12" (hereinafter "engagement schedule"); a letter 
from the Group Leader of the petitioner's offshore office; a letter from the Project Manager of the 
petitioner's offshore office; a letter from the petitioner's offshore human resources outlining the 
beneficiary's work history with the petitioner; and, a project role description of the beneficiary's duties 
outlined by the petitioner. 
In the letter from the petitioner's Group Leader located at the offshore office in India, he states that the 
beneficiary will "be involved in the maintenance/enhancement activities of [the unaffiliated employer's] 
HSA Center application." The letter also explained that the beneficiary's work assignment with the 
unaffiliated employer will run from January 2006 until April 2008. Thus, the petitioner is responsible for 
managing projects that are assigned by the unaffiliated employer and also obligated to commit personnel 
to projects led or managed by the unaffiliated employer. 
WAC 05 221 50556 
Page 6 
The documentation submitted by the petitioner raises additional questions. As concluded by the director, 
the beneficiary appears to be serving as a "programmer for hire" who will, at most, make changes to the 
unaffiliated employer's existing systems and software. According to the letter submitted by the Group 
Leader, the beneficiary will be "involved in the maintenancelenhancement activities." Since the 
beneficiary will primarily provide support and maintenance of the unaffiliated employer's systems, the 
AAO cannot determine who will actually supervise and control the beneficiary. 
In reviewing the "engagement schedule" submitted by the petitioner, it states that this document is 
"[s]ubject to the terms of the Master Services Agreement dated April 2003," between the petitioner and 
the unaffiliated employer. In addition, Section 5. states that the petitioner "will perform the Services and 
deliver the Deliverables set forth in the document 'Proposal for Maintenance of Relo Application of 
PRERS' dated December, 2004." However, the petitioner failed to submit a copy of these two documents 
as referenced on the "engagement schedule." 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. at 165 (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Finally, despite the director's request for documents relating to the specific services to be provided by the 
beneficiary, the documentation provided by the petitioner in response to the director's request fails to 
provide evidence of the beneficiary's specific work assignment and services the beneficiary will provide 
to the unaffiliated employer. The "engagement schedule" fails to provide evidence of the beneficiary's 
specific work assignment and services the beneficiary will provide to the unaffiliated employer. The 
"engagement schedule" does not address the beneficiary's assignment or duties. According to Section 6, 
scope of work, the documentation states that the scope of work is set forth in Section 2.1 of the Proposal 
which the petitioner did not submit with the instant petition. The petitioner does not explain why it did 
not submit the two additional documents discussed in the "engagement schedule." Again, going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Sofici, 22 I&N Dec. at 165. 
Although the petitioner provides a brief description of the proposed job duties, it does not address the 
beneficiary's assignment or duties in detail. The petitioner did not submit any documents that list the 
beneficiary as a key personnel assigned to this project. In addition, the engagement schedule indicates 
that the project will commence on January 1, 2005 and terminate on December 3 1, 2005. The petitioner 
requested three years of L-1B status, until August 2008, on behalf of the beneficiary. The petitioner also 
failed to submit a contract, work order or purchase order between the petitioner and the unaffiliated 
employer. Absent such information, the petitioner has not established that it will principally control and 
supervise the alien beneficiary or even that the beneficiary will be employed at the claimed worksite. 
Accordingly, the petitioner's failure to fully respond to the director's request for evidence is fatal to its 
claimed eligibility. The petitioner's failure to submit the requested evidence precluded a material line of 
inquiry and shall be grounds for denying this petition. 8 C.F.R. 8 103.2(b)(14). 
Moreover, as the petitioner has not established that the beneficiary will be controlled and supervised by 
the petitioner during his employment at the unaffiliated employer's workplace, the petition may not be 
approved for this additional reason. 
WAC 05 221 50556 
Page 7 
C. Necessity of Specialized Knowledge Specific to the Petitioning Employer 
The second issue under the L-1 Visa Reform Act analysis is whether the petitioner has established that the 
beneficiary's placement is related to the provision of a product or service for which specialized knowledge 
specific to the petitioning employer is necessary. Section 214(c)(2)(F)(ii) of the Act. 
The petitioner described the beneficiary's job duties and purported specialized knowledge in a letter dated 
July 26, 2005 as follows (with emphasis deleted): 
The [unaffiliated employer's] project is specialized in nature because it involves expertise 
with [the petitioner's] Real Estate industry group tools, procedures, and methodologies. 
[The petitioner's] real estate industry practice offerings span the entire range of the Real 
Estate spectrum. [The petitioner] offers unparalleled breadth and depth of domain 
knowledge in terms of both process and technology, services suited for all stages of the 
information technology life cycle from planning to maintenance, well defined and time 
set methodologies, flexible and scalable niche products, and partnerships with leading 
product vendors. 
[The unaffiliated employer's] Home Sale Application (HAS) environment consists of 60+ 
applications in IDMS, FOCUS, and Client server platforms. It provides online 
transaction processing and batch processing to interact with other applications for updates 
to IDMS and to feed external system such as DocProd, Smartstream and Relo Center. 
[The unaffiliated employer] has engaged [the petitioner] to execute this project. The 
efficient development, support, and maintenance of [the petitioner's] applications require 
specialized knowledge of [the petitioner's] proprietary tools including Revine, Infrez, and 
TDG-Yantra. Revine is used to assist in the reverse engineering process. Reverse 
Engineering involves program understanding with the aim of re-structuring and/or re- 
writing the programs. It also helps in creating documentation of the program to enable 
writing black-box test specifications for testing the program. Infrex allows end-users of 
an application to manage changes in their business environments by introducing new 
rules of modifying existing rules, through a simple rule language. TDG-Yantra is used to 
check if the software meets the business requirements specification. It is a suite of tools 
aimed at alleviating some of the problems in the area of black-box testing by providing 
tool supported automation. 
[The beneficiary] will utilize her specialized knowledge of Revine, Infrez, and TDG- 
Yantra, as well as [the petitioner's] Real Estate Industry practice group tools, procedures, 
and methodologies to ensure the successful completion of the proposed project. 
As previously noted, the director requested additional evidence on November 5, 2005. The director 
requested, inter aha, further evidence establishing that the beneficiary has specialized knowledge; 
evidence that he will be controlled and supervised by the petitioner; a description of where the beneficiary 
will work; and evidence that the placement of the beneficiary at the unaffiliated employer's worksite is 
not an arrangement to provide labor for hire. The director specifically requested copies of contracts, 
statements of work, work orders, and service agreements between the petitioner and the unaffiliated 
WAC 05 221 50556 
Page 8 
employer for the services to be provided by the beneficiary. The director also requested copies of the 
petitioner's human resource records that would provide the beneficiary's job description and worksite 
location. 
In response, the petitioner submitted the "engagement schedule;" a letter from the Group Leader of the 
petitioner's offshore office; a letter from the Project Manager of the petitioner's offshore office; a letter 
from the petitioner's offshore human resources outlining the beneficiary's work history with the 
petitioner; and, a project role description of the beneficiary's duties outlined by the petitioner. 
In the letter from the petitioner's Group Leader located at the offshore office in India, he states that the 
beneficiary will "be involved in the maintenancelenhancement activities of [the unaffiliated employer's] 
HSA Center application." The letter also explained that the beneficiary's work assignment with the 
unaffiliated employer will run from January 2006 until April 2008. Thus, the petitioner is responsible for 
managing projects that are assigned by the unaffiliated employer and also obligated to commit personnel 
to projects led or managed by the unaffiliated employer. 
In reviewing the "engagement schedule" submitted by the petitioner, it states that this document is 
"subject to the terms of the Master Services Agreement dated April 2003," between the petitioner and the 
unaffiliated employer. In addition, Section 5. states that the petitioner "will perform the Services and 
deliver the Deliverables set forth in the document 'Proposal for Maintenance of Relo Application of 
PRERS' dated December , 2004." However, the petitioner failed to submit a copy of these two 
documents as referenced on the "engagement schedule." Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. at 165 (citing Matter of Treasure Craft of California, 14 I&N Dec. 190). 
Finally, despite the director's request for documents relating to the specific services to be provided by the 
beneficiary, the documentation provided by the petitioner in response to the director's request fails to 
provide evidence of the beneficiary's specific work assignment and services the beneficiary will provide 
to the unaffiliated employer. The "engagement schedule" fails to provide evidence of the beneficiary's 
specific work assignment and services the beneficiary will provide to the unaffiliated employer. The 
"engagement schedule" also fails to address the beneficiary's assignment or duties. According to Section 
6, scope of work, the documentation states that the scope of work is set forth in Section 2.1 of the 
Proposal which the petitioner did not submit with the instant petition. The petitioner does not explain 
why it did not submit the two additional documents discussed in the "engagement schedule." Again, 
going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. 
Although the petitioner provides a brief description of the proposed job duties, it does not address the 
beneficiary's assignment or duties in detail. The petitioner did not submit any documents that list the 
beneficiary as a key personnel assigned to this project. In addition, the engagement schedule indicates 
that the project will commence on January 1, 2005 and terminate on December 3 1, 2005. The petitioner 
requested three years of L-1B status, until August 2008, on behalf of the beneficiary. The petitioner also 
failed to submit a contract, work order or purchase order between the petitioner and the unaffiliated 
employer. 
WAC 05 221 50556 
Page 9 
On September 30,2005, the director denied the petition. The director concluded that the beneficiary, who 
will be stationed primarily at a worksite of an unaffiliated employer, will be employed in a position which 
is essentially an arrangement to provide labor for hire for the unaffiliated employer. The director further 
determined that the beneficiary does not have specialized knowledge of a product or service specific to 
the petitioner. 
Reviewing the petitioner's claims, it asserts that the beneficiary has specialized knowledge of the 
petitioner's processes and procedures. In particular, the petitioner stated in its response to the director's 
request for evidence that the beneficiary has specialized knowledge of the petitioner's proprietary tools 
including Revine, Infrez, and TDG-Yantra. Further, the petitioner asserted that the beneficiary will use 
his specialized knowledge of these tools in his capacity as an employee of the petitioner, which has been 
hired by the unaffiliated employer to implement the tools and redesign the organization's systems. 
Overall, the petitioner described the beneficiary as having knowledge "of [the petitioner's] proprietary 
development procedures, methodologies, and tools" that will be integral components used for the project 
with the unaffiliated employer. The petitioner further explained that the beneficiary has been working on 
the same project abroad and that the beneficiary's specialized knowledge of the unaffiliated employer's 
requirements permits him to work more efficiently. The petitioner stated that with "over 40,000 
employees to choose from," the beneficiary was identified as the ideal candidate based on his work 
abroad where he gained experience with the petitioner's tools. 
Upon review, the petitioner's assertions are not persuasive. The petitioner has not established that the 
beneficiary's placement is related to the provision of a product or service for which specialized knowledge 
specific to the petitioning employer is necessary. Section 214(c)(2)(F)(ii) of the Act. To the contrary, the 
petitioner has described the beneficiary as having knowledge of the processes and procedures of the 
unaffiliated employer. 
As previously noted, the letter from the unaffiliated employer asserts that the beneficiary shall provide the 
systems development and support for the unaffiliated employer by maintenance and enhancement 
activities for its applications. The documentation fails to provide evidence of the beneficiary's specific 
work assignment and services the beneficiary will provide to the unaffiliated employer. Other than the 
unsupported assertions of the petitioner, the record does not contain any documentation of the specific 
duties the beneficiary would perform for the petitioner's client. As such, the AAO cannot analyze 
whether his placement is related to the provision of a product or service for which specialized knowledge 
specific to the petitioning employer is necessary. 
CIS must examine the ultimate employment of the alien to determine whether the position requires 
specialized knowledge specific to the petitioning employer. Cf. Defensor v. Meissner, 20 1 F.3d 384, 388 
(5th Cir. 2000)(determining that the final employer of contract nurses was the "more relevant employer" 
for purposes of determining immigration eligibility). In the present matter, the petitioner has failed to 
submit evidence of the alien's ultimate employment at the worksite of the unaffiliated employer. 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. at 165. 
Accordingly, the beneficiary is ineligible under section 214(c)(2)(F)(ii) for classification as an L-1B 
WAC 05 221 50556 
Page 10 
intracompany transferee having specialized knowledge specific to the petitioning employer. In order for 
an offsite specialized knowledge worker to be eligible for L-1B classification, the petitioner must 
establish that the beneficiary is not being employed as "labor for hire" for the unaffiliated employer. 
Finally, the petitioner asserts that the beneficiary was selected for this project because he has worked on 
the same project abroad and because the beneficiary has specialized knowledge of the unaffiliated 
employer's requirements. Although the petitioner repeatedly asserts that the beneficiary has specialized 
knowledge of the petitioner's proprietary tools, the petitioner notes that these tools are utilized to monitor, 
test, and improve the quality of the unaffiliated employer's existing systems. In this matter, as the 
petitioner has asserted that the beneficiary's knowledge is related to the unaffiliated employer's processes 
and procedures, the beneficiary falls squarely within the prohibition imposed by the L-1 Visa Reform Act 
of 2004 on the "outsourcing" of L-1B nonimmigrants who do not have specialized knowledge related to 
the provision of a product or service specific to a petitioner. 
Accordingly, the petitioner failed to establish that the beneficiary's placement is related to the provision of 
a product or service for which specialized knowledge specific to the petitioning employer is necessary, 
and the petition may not be approved for that reas~n.~ 
11. Specialized Knowledge 
Beyond the decision of the director, and contrary to the conclusion reached by the director, even if the 
beneficiary's knowledge were proven to be specific to the petitioning employer, the petitioner has also 
failed to establish that this knowledge is specialized as defined at 8 C.F.R. 5 214.2(1)(l)(ii)(D) and that 
the beneficiary has been or will be employed in a specialized knowledge capacity. 
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)(ii) and (iv). The petitioner must submit a 
detailed job description of the services to be performed sufficient to establish specialized knowledge. In 
this case, the petitioner fails to establish that the beneficiary's position in the United States requires an 
employee with specialized knowledge or that the beneficiary has specialized knowledge. 
Although the petitioner repeatedly asserts that the beneficiary's proposed position in the United States 
will require "specialized knowledge," the petitioner has not adequately articulated any basis to support 
3 
 It is noted that, as the beneficiary is not required to possess knowledge of proprietary products or 
processes in order to be deemed to have specialized knowledge, the director's use of the word "unique" 
may not be entirely appropriate. At the same time and as noted above, when the petitioner claims that the 
beneficiary has experience with a proprietary product or procedure, this does not serve as prima facie 
evidence that the beneficiary possesses specialized knowledge. As such, when the petitioner asserts, as it 
has in this matter, that a beneficiary has experience with proprietary products or procedures, CIS must 
carefully evaluate the claimed knowledge and the depth of the beneficiary's experience in order to 
determine whether it rises to the level of specialized knowledge as contemplated by 8 C.F.R. $ 
214.2(1)(l)(ii)(D). Regardless, given that the director's decision does not clearly address this issue, the 
director's use of the word "unique" and his decision to deny the petition on this basis is withdrawn to the 
extent that any proprietary knowledge requirement was imposed. 
WAC 05 221 50556 
Page 11 
this claim. The petitioner has provided a detailed description of the beneficiary's proposed responsibilities as 
a system analyst; however, the description does not mention the application of any special or advanced body 
of knowledge which would distinguish the beneficiary's role from that of other application software analysts 
employed by the petitioner or the information technology or real estate industry at large. Going on record 
without documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soflci, 22 I&N Dec. at 165. Based upon the lack of supporting evidence, the AAO 
cannot determine whether the U.S. position requires someone who possesses knowledge that rises to the level 
of specialized knowledge as defined at 8 C.F.R. 8 2 14.2(1)(l)(ii)(D). 
The petitioner has repeatedly asserted that the beneficiary will be utilizing the petitioner's proprietary tools 
including Revine, Infrez, and TDG-Yantra; however, the petitioner did not submit evidence to demonstrate 
that the petitioning company is the only company, or one of the few, that utilize these tools or similar tools. 
There is no evidence in the record that the beneficiary actually participated in the development of such 
methodologies and processes that might lead to the conclusion that his level of knowledge is comparatively 
"advanced." Although there is no requirement that the beneficiary must develop the internal methodologies 
and processes, this may be evidence of an advanced knowledge of the petitioner's internal processes that will 
demonstrate that the beneficiary possesses a specialized knowledge. Furthermore, according to the 
beneficiary's resume, it appears that the beneficiary within two months after starting his employment with the 
petitioner abroad, he started worlung on a project with the unaffiliated employer and utilized the above- 
mentioned tools. Thus, there is no evidence on record to suggest that the processes and technology 
pertaining to the application software analyst positions for the petitioner are different from those applied 
by other companies providing software consulting services to the real estate industry. While individual 
companies will develop a computer system tailored to its own needs and internal quality processes, it has 
not been established that there would be substantial differences such that knowledge of the petitioning 
company's processes and quality standards would amount to "specialized knowledge." 
Despite the petitioner's assertions, the petitioner has not established that the beneficiary's knowledge of 
programming for the real estate industry, either in the context of the ongoing project being performed for 
the unaffiliated employer or in connection with his employment with the petitioner, constitutes 
"specialized knowledge." The record does not reveal the material difference between the beneficiary's 
knowledge of the real estate industry programming tools and the ongoing implementation project and the 
knowledge possessed by similarly experienced programmers in the industry or in the petitioner's own 
organization. Without producing evidence that the petitioner's programming services are different in 
some material way from similar services offered on the market by similarly experienced software 
professionals, the petitioner cannot establish that the beneficiary's knowledge is noteworthy, uncommon, 
or distinguished by some unusual quality that is not generally known by similarly experienced personnel 
engaged within the beneficiary's field of endeavor. Again, going on record without documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Sof$ci, 22 I&N Dec. at 165. 
In addition, the petitioner did not submit any documentation to evidence that the beneficiary received 
additional training that was not provided to other system analysts employed by the foreign company. The 
petitioner did note that it has over 40,000 employees and that the project managers have the "opportunity 
to select a candidate that fulfills the requisite skills set." The petitioner also explained that the beneficiary 
worked abroad on a similar assignment for the unaffiliated employer. Knowledge related to a specific 
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clients' project cannot be considered "specialized knowledge" specific to the petitioning company. The 
beneficiary's familiarity with the U.S. clients' project requirements is undoubtedly valuable to the 
petitioner, but this knowledge alone is insufficient to establish employment in a specialized knowledge 
capacity. If the AAO were to follow the petitioner's logic, any technical consultant who had worked on a 
real estate and customization client project team within the petitioner's organization would be considered 
to possess "specialized knowledge." 
The AAO does not discount the likelihood that the beneficiary is a slulled and experienced system analyst 
who has been, and would be, a valuable asset to the petitioner's organization and to the unaffiliated 
employer. 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. 1 17, 120 (Comm. 198 l)(citing Matter of 
Raulin, 13 I&N Dec. 61 8(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. 49, 52 (Comm. 1982). 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-1 
category was intended for "key personnel." See generally, H.R. REP. NO. 91-851, 1970 U.S.C.C.A.N. 
2750. The term "key personnel" denotes a position within the petitioning company that is "of crucial 
importance." Webster's 11 New College Dictionary 605 (Houghton Mifflin Co. 2001). In general, all 
employees can reasonably be considered "important" to a petitioner's enterprise. If an employee did not 
contribute to the overall economic success of an enterprise, there would be no rational economic reason to 
employ that person. An employee of "crucial importance" or "key personnel" must rise above the level of 
the petitioner's average employee. Accordingly, based on the definition of "specialized knowledge" and 
the congressional record related to that term, the AAO must make comparisons not only between the 
claimed specialized knowledge employee and the general labor market, but also between the employee 
and the remainder of the petitioner's workforce. While it may be correct to say that the beneficiary in the 
instant case is a highly skilled and productive employee, this fact alone is not enough to bring the 
beneficiary to the level of "key personnel." 
Moreover, in Matter of Penner, the Commissioner discussed the legislative intent behind the creation of 
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the specialized knowledge category. 18 I&N Dec. 49 (Comm. 1982). The decision noted that the 1970 
House Report, H.R. REP. NO. 9 1-85 1, stated that the number of admissions under the L-1 classification 
"will not be large" and that "[tlhe class of persons eligible for such nonimmigrant visas is narrowly drawn 
and will be carefully regulated by the Immigration and Naturalization Service." Id. at 5 1. 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 of Penner, id. at 50 (citing H.R. Subcomm. No. 1 of the Jud. 
Comm., Immigration Act of 1970: Hearings on H.R. 445, 9 lSt Cong. 2 10,2 18, 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 slulled 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 of 
Penner, 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 1 19. According to Matter of 
Penner, "[sluch a conclusion would permit extremely large numbers of persons to qualify for the 'L-1 ' 
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 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 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. 
The record does not distinguish the beneficiary's knowledge as more special or advanced than the 
knowledge possessed by other programmer analysts within the petitioning company or within the 
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information technology industry. As noted above, based on the fact that the beneficiary began working 
on assignments with the petitioning company utilizing its real estate products shortly after being hired, it 
appears that any individual with similar experience in the information technology industry may work with 
the petitioner's products and learn its specific requirements fairly quickly. Thus, it appears that the 
petitioner's products are based on information technology systems that are common in the industry. In 
addition, the petitioner stated that the beneficiary completed specific training courses; however, the 
petitioner did not explain in detail the training provided to the beneficiary and if all system analysts 
completed the same training program. Since the petitioner did not indicate a specific training program or 
the minimum requirements to fill the position of system analyst, the petitioner failed to demonstrate that 
the beneficiary's knowledge is any different than the knowledge held by a trained technician or a skilled 
worker. See Matter of Penner, 18 I&N Dec. at 52. If the AAO were to follow the petitioner's reasoning, 
then any employee who has worked with the petitioning company possesses specialized knowledge. 
However, based on the intent of Congress in its creation of the L-1B visa category, as discussed in Matter 
of Penner, the petitioner should also submit evidence to show that the beneficiary is being transferred to 
the United States as a crucial key employee. 
As explained above, the record does not distinguish the beneficiary's knowledge as more special or 
advanced than the knowledge possessed by other similarly experienced persons employed by the 
petitioner's organization or in the industry generally. As the petitioner has failed to document any 
materially special or advanced qualities to the petitioner's product, processes or procedures, the 
petitioner's claims are not persuasive in establishing that the beneficiary, while highly skilled, would be a 
"key" employee. There is no indication that the beneficiary has knowledge that exceeds that of other 
programmer analysts with experience with banking programming tools and implementation, or that he has 
 , 
received special training in the company's methodologies or processes which would separate him from 
other persons employed with the petitioner's organization or in the industry at large. 
Furthermore, counsel's extensive reliance on the Puleo memorandum is misplaced. It is noted that the 
memorandum was intended solely as a guide for employees and will not supersede the plain language of 
the statute or regulations. Therefore, by itself, counsel's assertion that the beneficiary's qualifications are 
analogous to the examples outlined in the memorandum is insufficient to establish the beneficiary's 
qualification for classification as a specialized knowledge professional. While the factors discussed in the 
memorandum may be considered, the regulations specifically require that the beneficiary possess an 
"advanced level of knowledge" of the organization's processes and procedures, or a "special knowledge" 
of the petitioner's product, service, research, equipment, techniques or management. 8 C.F.R. tj 
214.2(1)(l)(ii)(D). As discussed above, the petitioner has not established that the beneficiary's knowledge 
rises to the level of specialized knowledge contemplated by the statute or the regulations. 
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, supra at 16. Based on the evidence presented, it is 
concluded that the beneficiary has not been employed abroad, and would not be employed in the United 
States, in a capacity involving specialized knowledge. For this additional reason, the petition will be 
denied. 
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The initial approval of an k-1B petition does not preclude CIS from denying an extension of the original 
visa based on a reassessment of petitioner's qualifications. See Texas A&7M Univ., 99 Fed. Appx. 556, 
2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not 
have any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof 
in a subsequent petition. See section 291 of the Act, 8 U.S.C. 5 1361. 
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), 
afd, 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting 
that the AAO reviews appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff 
can succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the 
AAO's enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with 
the petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the director's 
decision will be affirmed, and the petition will be denied. 
ORDER: 
 The director's decision is affirmed. The petition is denied.