dismissed L-1B Case: Information Technology Consulting

U.S. Department of fromeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
FILE: WAC 05 246 52498 Office: CALIFORNIA SERVICE CENTER Date: f'IAR 1 1 2000 
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. 
/+ "2 "/" 
Robert iemann, Chief 
Administrative Appeals Office 
WAC 05 246 52498 
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. 3 103.4(a). Upon review, the decision of the director will be affirmed, and the petition will be 
denied. 
The petitioner filed this nonirnmigrant petition seeking to employ the beneficiary as an application 
analystlprogrammer as an L-1B nonimmigrant intracompany transferee with specialized lmowledge 
pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 
1 10 1 (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 network and 
system specialist 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.* 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 
employer, Bank of America (hereinafter "the unaffiliated employer"). The director further determined 
1 
The AAO notes that Citizenship and Immigration Services (CIS) records indicate that the petitioner has 
filed a total of 16,429 L-lB 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. $3 214.2(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 nonirnrnigrant 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. 
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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 10 1 (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. 9 214.2(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 himlher 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 2 14(c)(2)(B) of the Act, 8 U.S.C. 9 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. fj 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. 
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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. 
1 184(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 10 1(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 1 101 (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 22143105 (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. fj 1361; see also 8 C.F.R. tj 
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: (I) 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 Soffici, 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, Citizenship and Immigration Services (CIS) must examine 
whether the beneficiary will be stationed primarily at the worksite of the unaffiliated company. Section 
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2 14(c)(2)(F) of the Act. 
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 
Concord, California. The petitioner also stated in its letter of support, dated August 3 1, 2005, that it wishes 
for the beneficiary to enter the United States for a period of three years as an application analyst/programmer 
for a project at the unaffiliated employer. Accordingly, the AAO concludes that the beneficiary will be 
primarily employed as a application analyst/programmer 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 214(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 "meetings and weekly status reports." However, no 
evidence was submitted in support of this statement. The petitioner does not provide evidence to 
document how, exactly, the beneficiary is 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 Soflci, 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 September 24, 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 
statement of work (hereinafter "statement of work") between the petitioner and the unaffiliated company. 
The instant petition was filed on September 13,2005, and the statement of work was produced and signed 
two years earlier in April 2003. The statement of work states that the effective date is December 23,2002 
and the expiration date is December 22, 2005. The statement of work also states that it will expire on the 
expiration date "unless mutually extended in writing by Parties with an attachment hereto." Since the 
statement of work does not have an attachment to extend the expiration date, it is impossible to determine 
if the petitioner will continue to provide services to the unaffiliated employer for the entire time requested 
on the Form 1-129 for an L-1B classification, until September 2008. Thus, the petitioner's statement of 
work is not probative and fails to document who actually supervises and controls the beneficiary. 
Specifically, the AAO notes that at least one section in the statement of work provides for projects that 
WAC 05 246 52498 
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are led by the unaffiliated employer using the petitioner's personnel. According to Section 4. Project 
Management/Project Communication, it states that the petitioner will provide an "onsite team" and 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. This provision of 
the statement of work raises unanswered questions as to which entity manages and controls the personnel 
that are committed to projects led by the unaffiliated employer. 
The statement of work 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 section 2.2. Scope, of the Statement of Work submitted by 
the petitioner, the petitioner shall provide the unaffiliated employer "production [slupport and 
[mlaintenance of the COIN RSA system." Section 2.2. states that the petitioner will provide corrective 
maintenance, adaptive maintenance and preventive maintenance. Since the beneficiary will primarily 
provide support and maintenance of the unaffiliated employer's systems, the AAO cannot determine who 
actually supervises and controls the beneficiary. 
Finally, despite the director's specific request for documents relating to the services to be provided by the 
beneficiary, the Statement of Work fails to provide evidence of the beneficiary's specific work 
assignment and services the beneficiary will provide to the unaffiliated employer. The Statement of Work 
does not address the beneficiary's assignment or duties. The petitioner did not submit any documents that 
list the beneficiary as a key personnel assigned to this project. The petitioner declined to submit a 
statement of work or a work order with the beneficiary's itinerary. 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. 5 103.2(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 reason. 
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 
August 3 1, 2005 as follows (with emphasis deleted): 
The [unaffiliated employer's] project is specialized in nature because it involves expertise 
with [the petitioner's] banking and financial services, and insurance (BFSI) industry 
practice group tools, procedures, and methodologies. [The petitioner's] BFSI industry 
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practice offerings span the entire gamut of the banking and financial services and 
insurance. [The petitioner] offers unparalleled breadth and depth of domain knowledge 
in terms of both processes and technology, services suited for all stages of the 
information technology life cycle from planning to maintenance and enhancement, well- 
defined and time-tested methodologies, flexible and scalable niche products and 
partnerships with leading product vendors. 
The ATM Deposit, Automation Process, ADAP, captures information about all deposits 
and payments may at any ATM via BASE24, ADAP produces a deposit slip, called 
ASAP Ticket, in the RDVUs for every deposit made at [the unaffiliated employer's] 
depository ATMs. ADAP also provides administrative functions for use by the RDVUs. 
The functions supported are Reprint, Force Clear, AMIPM split maintenance, Inquiry on 
RDVU to ATM Associa[tion]. The efficient development, support, and maintenance of 
[the unaffiliated employer's] applications require specialized knowledge of [the 
petitioner's] proprietary tools including Integrated Relationship Information System 
(IRIS), Revine, Test Coverage Analyzer (TCA), Assent, and Automated Standards 
Analyzer (ASA). IRIS is used for tracking the project status. It is effective in analysis of 
various project metrics and generation of various reports. Revine aids in program 
understanding through the extraction of business rules, ER models, process models, and 
reports from a legacy applications [sic]. TCA is used to find out the testing coverage of 
the system after each enhancement. TCA will give the percentage of code that has been 
tested and the flows that are not covered. This will ensure that the testing is complete in 
all aspects thereby ensuring the quality of the software developed. . . Assent automates 
the code review process. It improves the quality of the standards checking and reduces 
the cost of software development and enhancement. ASA is used for checking the 
standards of a program. This helps to follow a certain level of standards consistently. 
[The beneficiary] will utilize her specialized knowledge of IRIS, Revine, TCA, Assent, 
and ASA, as well as [the petitioner's] BFSI 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 September 24, 2005. The director 
requested, inter alia, 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 
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 a copy of the Statement of Work, signed in April 2003, between the 
petitioner and the unaffiliated employer. The petitioner also submitted an addendum explaining that the 
beneficiary worked for the unaffiliated employer for four months while working abroad. 
On November 16, 2005, the director denied the petition. The director concluded that the beneficiary, who 
WAC 05 246 52498 
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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. Specifically, the director concluded as follows: 
It appears from the record that the placement of the beneficiary outside the Petitioning 
organization is essentially an arrangement to provide labor for hire rather than the 
placement in connection with the provision of a product or service. The service the 
petitioner is providing is, essentially, programmers for hire to change the petitioner's 
client's already existing system andlor software rather than develop their own software. 
The specialized knowledge the beneficiary possesses is that of the petitioner's tools, 
procedures, and methodologies to be applied to the client's existing program. As seen in 
the Description of Services mentioned above, the product that the beneficiary will be 
working on primarily control and is unique to the client and not to the petitioner. 
Therefore, the beneficiary's knowledge is only tangentially related to the performance of 
the proposed offsite activity. 
In essence, the beneficiary will be working on a product that is used to conform with the 
client's specifications and needs, rather than a product unique to the specifications and 
needs of the petitioner. In this case, the specialized knowledge is not specific to the 
petitioner. 
As such, the petitioner has not established that the placement of the beneficiary at the 
worksite of the unaffiliated employer is not merely labor for hire. 
Reviewing the petitioner's claims, the petitioner 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 IRIS, Revine, TCA, Assent, and ADA. Further, the petitioner asserted that the 
beneficiary will use her specialized knowledge of these tools in her 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 specialized 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 her 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 her 
work abroad where she 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 
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unaffiliated employer. 
As previously noted, the Statement of Work submitted by the petitioner asserts in Section 2.2. Scope, that 
the petitioner shall provide the unaffiliated employer "production support and maintenance for the COIN 
RSA system." The scope of the project will include corrective maintenance, adaptive maintenance and 
preventive maintenance. Thus, the petitioner will provide services in order to correct and maintain the 
unaffiliated employer's systems. 
Regardless, the Statement of Work was signed in April 2003, and it states the expiration date as 
December 22, 2005. The petitioner did not provide evidence that the unaffiliated employer will extend 
the contract and continue to utilize the petitioner to provide the services outlined in the Statement of 
Work beyond December 22, 2005. The petitioner is requesting three years of L-1B classification on 
behalf of the beneficiary, until September 2008. However, the expiration date of the statement of work is 
December 22, 2005, and the petitioner submitted an attachment to the Form 1-129 stating that the 
expected duration of the project is 12 months. As such, even if the proposed position involved 
specialized knowledge, the petitioner has not established that it has three years' worth of L-1B-level work 
for the beneficiary to perform. The petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 
(Reg. Comm. 1978). 
The submitted Statement of Work fails to provide evidence of the beneficiary's specific work assignment 
and services the beneficiary will provide to the unaffiliated employer. The Statement of Work does not 
address the beneficiary's actual assignment or duties or otherwise detail the beneficiary's itinerary. The 
petitioner failed to provide any attached documents that list the beneficiary as key personnel for the 
assignment with 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 Soffici, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
The Statement of Work under section 2.1 lists the project description and the applications, hardware and 
software environment utilized for this assignment. In reviewing the applications and hardware, none of 
them are the petitioner's proprietary tools listed in its support letter dated August 31, 2005.~ Other than 
the unsupported assertions of the petitioner, there is nothing in the record to support the claim that the 
beneficiary's placement with the unaffiliated employer is related to the provision of a product or service 
for which specialized knowledge specific to the petitioning employer is necessary. As the record does not 
contain any documentation of the specific duties the beneficiary would perform for the petitioner's client, 
the AAO cannot analyze whether her placement is related to the provision of a product or service for 
3 
 It is noted that experience with a proprietary product or procedure, while not required, does not serve as 
prima facie evidence that the beneficiary possesses specialized knowledge. However, when a petitioner 
asserts 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. tj 214.2(1)(l)(ii)(D). 
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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. CJ: Defensor v. Meissner, 201 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 Soffici, 22 I&N Dec. 158, 165 (Comrn. 1998). 
Accordingly, the beneficiary is ineligible under section 214(c)(2)(F)(ii) for classification as an L-1B 
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 she 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 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 rea~on.~ 
11. Specialized Knowledge 
Beyond the decision of 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 
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. 8 
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. 
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defined at 8 C.F.R. 8 214.2(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. $5 214.2(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 
this claim. The petitioner has provided a detailea description of the beneficiary's proposed responsibilities as 
a application analyst/programmer; 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 
analyst/prograrnrners employed by the petitioner or the information technology or banlung 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 Sofici, 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. 2 14.2(1)(l)(ii)(D). 
The petitioner has repeatedly asserted that the beneficiary will be utilizing the petitioner's proprietary tools 
including IRIS, Revine, TCA, Assent, and ADA; 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. 
Despite the petitioner's assertions, the petitioner has not established that the beneficiary's knowledge of 
programming for the banking and financial services industry, either in the context of the ongoing project 
being perfomed 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 banking 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 
SofJici, 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 application analysts/programmers employed by the 
WAC 05 246 52498 
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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 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 banking and customization client project team within the petitioner's 
organization would be considered to possess "specialized knowledge." 
The petitioner further stated that the beneficiary has "undergone various technical training sessions and 
process orientated training sessions." However, the petitioner did not submit any documentation to 
corroborate this claim such as certificates of completion of training courses or a letter from the human 
resources development outlining the training courses. The petitioner did not submit any information of 
the training courses, including the subject material, the length of the courses, and whether all of the 
petitioner's employees underwent these training courses or if the beneficiary was selected to participate in 
the additional training. 
The AAO does not discount the likelihood that the beneficiary is a skilled and experienced applications 
analyst/programmer 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. 117, 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. 8 16 
(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, "[slimply 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 N New College Dictionary 605 (Houghton Mifflin Co. 2001). In general, all 
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employees can reasonably be considered "important" to a petitioner's enterprise. If an employee did not 
contribute to the overall economic success of an enterprise, there would be no rational economic reason to 
employ that person. An employee of "crucial importance" or "key personnel" must rise above the level of 
the petitioner's average employee. Accordingly, based on the definition of "specialized knowledge" and 
the congressional record related to that term, the AAO must make comparisons not only between the 
claimed specialized knowledge employee and the general labor market, but also between the employee 
and the remainder of the petitioner's workforce. While it may be correct to say that the beneficiary in the 
instant case is a highly skilled and productive employee, this fact alone is not enough to bring the 
beneficiary to the level of "key personnel." 
Moreover, in Matter of Penner, the Commissioner discussed the legislative intent behind the creation of 
the specialized knowledge category. 18 I&N Dec. 49 (Comm. 1982). The decision noted that the 1970 
House Report, H.R. REP. NO. 91-851, stated that the number of admissions under the L-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 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 of Penner, id. at 50 (citing H.R. Subcomm. No. 1 of the Jud. 
Comm., Immigration Act of 1970: Hearings on H.R. 445,91" Cong. 210,218,223,240,248 (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 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 119. 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 
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 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, 
C 
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Page 14 
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 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 
application analysts/programmers with experience with banking programming tools and implementation, 
or that she has received special training in the company's methodologies or processes which would 
separate her from other persons employed with the petitioner's organization or in the industry at large. 
Counsel's 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. fj 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 reason, the appeal will be dismissed. 
The initial approval of an L-1B petition does not preclude CIS from denying an extension of the original 
visa based on a reassessment of petitioner's qualifications. See Texas AM 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. 
 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 
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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 appeal will 
be dismissed. 
ORDER: The appeal is dismissed.