dismissed L-1B Case: Software

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prevent clearly unw-d 
invasion of @ privacy 
PmAC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. 3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: SRC 03 046 5 1723 Office: TEXAS SERVICE CENTER Date: 2 8 7nl16 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
IN 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. 
Administrative Appeals Office 
SRC 03 046 5 1723 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to temporarily employ the beneficiary as an L-1B 
nonimrnigrant intracompany transferee with specialized knowledge pursuant to section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. $ 1101(a)(15)(L). The petitioner, a Texas c 
of telemarketing and customer communication solutions. It claims to be a subsidiary o 
and an affiliate of the beneficiary's foreign employer, 
Mumbai, India. The petitioner seeks to employ the beneficiary as a software consultant for a period of three 
years. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary possesses 
specialized knowledge or that the prospective position requires an individual with specialized knowledge. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion, and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that additional 
evidence submitted on appeal establishes that the beneficiary will be employed in a capacity involving 
specialized knowledge. Specifically, counsel asserts that the beneficiary possesses knowledge of a 
"customized and proprietary software application" unique to the foreign entity. Counsel submits a brief and 
additional evidence in support of the appeal. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 4 1101(a)(15)(L). Specifically, within three years 
preceding the beneficiary's application for admission into the United States, 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. 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. 
SRC 03 046 5 1723 
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(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
This matter presents two related, but distinct, issues: (1) whether the beneficiary possesses specialized 
knowledge; and, (2) whether the proposed employment is in a capacity that requires specialized knowledge. 
Section 214(c)(2)(B) of the Act, 8 U.S.C. 9 1184(c)(2)(B), provides the following: 
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. $ 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. 
The nonirnrnigrant petition was filed on or about December 4, 2002. In a November 22, 2002 letter, the 
petitioner described the beneficiary's proposed position as a software consultant as follows: 
In this capacity, his services will include, but not be limited to design, development / 
maintenance and implementation of software applications. Job responsibilities will include 
but not be limited to the following: 
Service user and system Problem Issues s [sic] 
Perform standards work around as required 
Provide data & emergency bug fixes as required 
Resolve procedural issues 
Install application patches as required 
Perform route cause analysis as required 
He will also be responsible for handling the complete SAS and EIS functions for [the 
petitioner] He will design, analyze statistical data to forecast future trends in the industry, 
father data on competitors, analyze pricing. [The beneficiary] will be instrumental in leading 
the company to expand operations in international markets and help [the petitioner] analyze 
them to identify emerging trends and opportunities to carve a niche in the global market. 
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The requirement for this position is 4 years relevant work experience in the field of software 
consultancy, with an equivalent functional experience. Academically, the incumbent should 
be with a Bachelor's degree in Computer Science or related field. 
The petitioner indicated that the beneficiary's qualifications include a bachelor of computer science degree, a 
Sun certification in Java Platform 2 from Sun Microsystems, India, and work experience as an information 
technology professional since 1997. The petitioner noted that the beneficiary had led a team of four people to 
create software to implement a company wide Internet system for the petitioner's group in India. 
The petitioner failed to specifically address the beneficiary's qualifications as a nonimmigrant intracompany 
transferee with specialized knowledge. 
The petitioner also submitted a November 14, 2002 letter signed by the chief operating officer of the 
beneficiary's foreign employer, who stated that the beneficiary joined the foreign entity on December 23, 
2000. He indicated that the beneficiary was being transferred to the U.S. entity to undertake "various 
assignments" and provided the following information regarding the beneficiary's foreign employment: 
[The beneficiary] has entered [the foreign entity] with a background as a Sun Certified 
Consultant for E-Business related Application Development. He has been responsible for the 
following: 
1. Customer Relationship Management Portal of Essar Steel 
2. Web based Distribution Centre Business Application Development 
3. Executive Information system of the mySAP site 
The petitioner also provided the beneficiary's detailed resume, which includes a description of six projects 
undertaken by him as a team member and team leader with the foreign entity. According to the resume, the 
beneficiary's most recent project, commenced in July 2002, was as team leader for a Web Conferencing 
project, using SQL Server 7.0, Windows Media Technologies, Windows Media Encoder 7.1, Visual Basic 6.0 
with OCXNinsock technology. The beneficiary indicated that his responsibilities included design, 
technology decision and Web Conferencing Module Development. The beneficiary described the project and 
its cunent status as follows: 
This is web based web conferencing where user can view 5 web cams at once in single 
browser window. There is a general as well as private chat with voice capabilities. Advanced 
windows media technology is used. User just have to install Windows Media Player 
separately. This can be used in any version of IE. 
Using windows media technology, the development is over. Currently we are transferring it 
into Java using Java Media Framework for better performance and platform independence. 
Java Media Framework is a set of classes released by Sun Microsystems recently. It supports 
all the standards (H.263, H.261) of AudioNideo Conferencing over IP. Moreover it uses RTP 
(Real Time Protocol) to transmit data over the net. 
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According to the beneficiary's resumes, his proficiencies include C, C++, Java, 
Visual Basic 6.0, ABAP14, HTML, JavaScript, VBScript, Dreamweaver 4.0, Visual Studio 6.0, Jbuilder 4.0, 
Microsoft Access, Microsoft SQL Server 7.0, Oracle 7.118.018.01, ASP, JSP, Servlets, JavaBeans, Java Media 
Framework, COMIOCX, JavaRFC, JDBC, Socket Programming, SAS-Base 7.0, SASIACCESS 7.0, and 
EISICPS 5.2. 
The director subsequently issued requests for additional evidence on June 19, 2003 and on September 16, 
2003', instructing the petitioner to submit a definitive statement describing the beneficiary's job duties and 
evidence of how the beneficiary meets the requirements for employment in a specialized knowledge capacity. 
In an August 12, 2003 letter, the petitioner stated that the beneficiary's "specialized experience and 
knowledge" includes: 
Sun Certified Java Professional 
Development of CRM solutions in a call center environment 
Development of custom interface to bridge more than one applications with different 
platform 
Telecommunication background specializing in data transmissions 
5 years of project management experience 
The petitioner explained that it operates three large call centers in the United States and India, and 
emphasized the beneficiary's ability "to effectively communicate and manage projects across two very 
diverse cultures." Specifically, the petitioner explained the beneficiary's proposed duties as follows: 
His primary job responsibility is to oversee the design, development and implementation 
efforts of 3 software developers located in both the US and in India. 
These development efforts include but are not limited to proprietary web-based CRM 
solutions, on-time reporting applications, Visual Basic scripts, and hostlclient connectivity 
across all three call center locations. 
[The beneficiary's] past experience in developing software applications with [the foreign 
entity], an Indian based company specializing in web-based CRM solutions, uniquely 
qualifies him for his current position with [the petitioner] in several ways. First, [the 
beneficiary] comprehends the software development lifecycle differences between the two 
cultures, which in turn enables him to deploy cultural based applications for our US and 
Indian based call centers. Secondly, his experience in managing projects and staff members in 
both the US and India enables him to effectively delegate and assign projects based on skills 
1 
The AAO notes that the record, which is a re-constructed file, does not contain a copy of the June 19, 2003 
request for evidence referenced by the petitioner. However, the responses to both requests for evidence, dated 
September 16, 2003 and October 15, 2003, respectively, are identical and address the same issues, thereby 
suggesting that the same request for evidence was issued twice. 
SRC 03 046 5 1723 
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sets, abilities and the end user. As being a Sun Certified Java Professional along with 4 years 
of extensive experience in developing Web Based Application using Java makes him the 
most suitable candidate for the current position offered to him. 
[The beneficiary] played an integral role in the development of external clientfserver web- 
based applications designed to interface with third party software such as SAP. These 
applications not only reduced the cost of operations dramatically but also provided a robust 
interface between multiple application platforms. [The beneficiary] will lead a team of 4 
software developers to design and implement similar applications that could be ultimately 
integrated with the existing application used in India. 
[The beneficiary] will also play an integral role in the integration efforts for our new 200-seat 
call center located in Bangalore, India. A major development task will be the seamless 
integration of the US and India operations. This integration is essential for the overall 
management and business model designed for [the petitioner]. [The beneficiary's] experience 
in developing applications in India and his unique ability of designing interfaces for both the 
US and Indian end-user is a key point for his selection. 
Finally, the petitioner outlined the following duties to be performed by the beneficiary as a "senior software 
developer": 
Migration of outbound campaigns to new dialing platform CONCERTO 
Design & Development of Reporting tool 
Design & Development of Web Interface for Online Reporting 
Manage a team of 3 software developer 
Carry out daily report and return files transmission 
Design and Development of process for new outbound/inbound campaign creation. 
The petitioner also outlined the job duties of one India-based and two U.S.-based software developers who 
would assist the beneficiary with these responsibilities. 
The director denied the petition on December 23, 2004, concluding that the petitioner failed to establish that 
the beneficiary possesses specialized knowledge or that the prospective position requires an individual with 
specialized knowledge. The director observed that the proposed duties outlined by the petitioner do not 
appear to be significantly different from those of any software developer and therefore do not appear to 
warrant the expertise of someone possessing truly specialized knowledge. The director acknowledged that the 
beneficiary appears to be well versed in various software systems, but found the beneficiary's experience to be 
common among those who are similarly employed in the petitioner's industry. 
In an appeal filed on January 21, 2005, counsel for the petitioner asserts that the director erred in concluding 
that the beneficiary lacks the requisite specialized knowledge for this visa classification and claims that the 
beneficiary "developed the unique software utilized by [the petitioner] and is needed to help implement its use 
within the company." Counsel contends that new evidence submitted on appeal establishes that the 
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beneficiary will be employed in a capacity that involves specialized knowledge. In support of the appeal, the 
petitioner submits a letter from its chief executive officer, a letter from its chief technology officer, a letter 
from the foreign entity's chief technology officer, and an overview of "Tele Web Conferencing" prepared by 
the beneficiary. Counsel claims that the submitted exhibits demonstrate: (1) that the Tele Web Conferencing 
software systems is a customized and proprietary software application unique to the foreign entity; (2) that the 
foreign entity holds copyrights to the software system and there is no comparable software system in the 
United States; (3) that the beneficiary conceptualized and developed the Tele Web Conferencing software 
system in India and his "special knowledge" of the system is required to integrate and implement the system 
into the petitioner's U.S. operations; and (4) the beneficiary therefore has "specialized knowledge" of a 
technique, interest or process of the Petitioner's organization. Counsel asserts that the beneficiary is required 
to enter the United States to lead the development and integration of the Tele Web Conferencing software 
system into the petitioner's operations and concludes that the beneficiary is qualified for the benefit sought. 
A January 3, 2005 letter from the foreign entity's chief technology officer describes some of the features of 
the Tele Web Conferencing software application, noting that the foreign entity registered coppghts of the 
product in India and planned to launch similar support to external clients. The chief technology officer 
emphasizes the beneficiary's "major role in designing and developing, Remote Desktop sharing and Webcast 
of live webcam to online customer," his software development skills, and his knowledge of web based 
applications, dialer and communication media. In a January 3 1, 2005 letter, the petitioner's chief executive 
officer notes that the beneficiary was invited to the United States to demonstrate the Tele Web Conferencing 
software that he implemented in the foreign entity's helpdesk center. The petitioner's chief executive officer 
notes that the software system was so well received, the petitioner decided to integrate the system and 
requires the beneficiary's services in the United States to implement it. Finally, in a January 3 1, 2005 letter, 
the petitioner's chief technology officer states that the beneficiary conceptualized the Tele Web Conferencing 
application and notes that it has "unique features" which will enhance the petitioner's telemarketing support 
services. He states that he has "never seen such a complete product developed keeping Customer Support 
requirements in mind." He emphasizes that the product is "solely conceptualized and designed" by the 
beneficiary, and states that it "would be next to impossible to implement this product in [the petitioning 
company] without the hands on work and Project Management skills of [the beneficiary]. 
Finally, the petitioner submits a five-page overview of the Tele Web Conferencing application prepared by 
the beneficiary, which describes its features as follows: 
Tele Web Conferencing is a web based web conferencing system. It has a capability to 
communicate with Inbound/Outbound dialer in order to provide a Live Telemarketing 
Support through web conferencing. It has a unique feature of Remote Desktop Monitoring. 
That enables Telemarketing Agent to share his desktop with online customer or take a control 
of customer's desktop with the customer's permission. 
The document indicates that the product is based on Java on Unix and .NET for Windows, with a Java 2 
Platform for Unix Server and a .NET Framework for Windows Server, and requires clients to have an Internet 
connection and Internet Explorer. 
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On review, the petitioner has not demonstrated that the beneficiary's prospective position requires 
"specialized knowledge" as defined in section 214(c)(2)(B) of the Act, 8 U.S.C. 5 1184(c)(2)(B), and the 
regulation at 8 C.F.R. 214.2(1)(l)(ii)(D). Instead, the petitioner consistently describes the position as one 
requiring an experienced and skilled software developer, rather than someone who possesses specialized 
knowledge. 
In examining the specialized knowledge capacity of the beneficiary, the MO will look to the petitioner's 
description of the job duties and the weight of the evidence supporting any asserted specialized knowledge. 
See 8 C.F.R. 5 214.2(1)(3)(ii). The petitioner must submit a detailed description of the services to be performed 
sufficient to establish that it involves specialized knowledge. Id. It is also appropriate for the MO 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. See Matter of Colley, 18 I&N Dec. 
11 7, 120 (Comm. 1981) (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, 18 I&N Dec. 49, 52 
(Comm. 1982), 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." 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' operation. 
Id. at 53. In the present matter, the evidence of record demonstrates that the beneficiary is more ahn to an 
employee whose skills and experience enable him to provide a specialized service, rather than an employee 
who has unusual duties, skills or knowledge beyond that of a skilled worker. 
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. No. 91-85 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 
2 
 Although the cited precedents pre-date the current statutory definition of "specialized knowledge," the AAO 
finds them instructive. Other than deleting the former requirement that specialized knowledge had to be 
"proprietary," the 1990 Act did not significantly alter the definition of "specialized knowledge" from the prior 
INS interpretation of the term. The 1990 Committee Report does not reject, criticize, or even refer to any 
specific INS regulation or precedent decision interpreting the term. The Committee Report simply states that 
the Committee was recommending a statutory definition because of "[vlarying [i.e., not specifically incorrect] 
interpretations by INS," H.R. Rep. No. 101-723(I), at 69, 1990 U.S.C.C.A.N. at 6749. Beyond that, the 
Committee Report simply restates the tautology that became section 214(c)(2)(B) of the Act. Id. The AAO 
concludes, therefore, that the cited cases, as well as Matter of Penner, remain useful guidance concerning the 
intended scope of the "specialized knowledge" L-1B classification. 
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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. Comrn., Immigration Act of 1970: Hearings on H.R. 445, 91st 
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, "[mlost 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. 1 17, 119 (Comm. 1981). 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., 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.") 
Thus, based on the intent of Congress in its creation of the L-1B visa category, as discussed in Matter of 
Penner, even showing that a beneficiary possesses specialized knowledge does not necessarily establish 
eligibility for the L-1B intracompany transferee classification. The petitioner should also submit evidence to 
show that the beneficiary is being transferred to the United States as a crucial employee. As discussed below, 
the beneficiary's job description does not distinguish his knowledge as more advanced or distinct among 
software developers employed by the foreign or U.S. entities or by other unrelated companies who design 
similar types of products based on common industry standards. 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. Rp. No. 91-851, 1970 U.S.C.C.A.N. 2750. The term "key personnel" denotes a position 
within the petitioning company that is "of crucial importance." Webster's II New College Dictionaly 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 
SRC 03 046 5 1723 
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comparisons not only between the claimed specialized knowledge employee and the general labor market, but 
also between that employee and the remainder of the petitioner's workforce. 
In the present matter, the petitioner has provided only general descriptions of the beneficiary's current and 
proposed roles as a software developer or consultant that convey little understanding of the type or extent of 
specialized knowledge that would be required to successfully perform the purported job duties. For example, 
the petitioner initially indicated that the beneficiary would service user and system problem issues, perform 
"standard work around" as required, provide data and emergency bug fixes, resolve procedural issues, install 
application patches, perform route cause analysis, and "handle the complete SAS and EIS functions." This 
description does not identify the need for the services of an individual with specialized knowledge of the 
petitioner's products, or an advanced knowledge of the petitioner's processes. In fact, the petitioner stated 
that the position requires a bachelor's degree in computer science and four years of relevant work experience 
in software consultancy, without making reference to the need for previous experience with the petitioner's 
group of companies. 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)). Specifics are clearly an 
important indication of whether a beneficiary's duties involve specialized knowledge, otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. See Fedin Bros. Co., Ltd. v. Suva, 724 F. 
Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 4 1 (2d. Cir. 1990). 
With respect to the beneficiary's claimed employment abroad in a position involving specialized knowledge, 
the petitioner submitted a letter from the foreign entity emphasizing that he is qualified as a Sun Certified 
Consultant for e-business application development, and has worked on three projects, a Customer 
Relationship Management Portal, a web based distribution centre business application, and an "Executive 
Information System." The petitioner provided no fiu-ther clarification of the beneficiary's function within 
these various projects, no clear explanation of what the beneficiary actually developed, the complexity 
involved, or the knowledge required to perform the vaguely described tasks. Due to the lack of detail in the 
petitioner's description of the beneficiary's foreign and proposed employment, it is unclear exactly what role 
the beneficiary has played in the foreign entity, what applicability his foreign assignments have to the 
proposed U.S. position, what specialized knowledge the beneficiary possesses, how this knowledge would be 
applied in the proffered position, or what actual duties he would be performing in the United States. 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 
provided the beneficiary's resume, which provides more detail regarding his specific assignments with the 
foreign entity, his duties and technical proficiencies, as described in the resume, do not appear to be unusual 
for a software professional hired to develop software applications built on industry-standard technologies. 
Without further explanation, the job descriptions provided for the beneficiary's current and proposed roles 
could describe any software developer trained in web-enabled database technologies. 
Upon review of the limited descriptions and evidence submitted in support of the initial filing, the director 
requested a definitive description of the beneficiary's duties and evidence to establish that the beneficiary's 
current and proposed positions require the services of an individual possessing specialized knowledge. 
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In response, the petitioner provided a different, but almost equally vague, description of the beneficiary's 
proposed duties, indicating that he would be responsible for migrating "outbound campaigns" to a new dialing 
platform, designing and developing a "reporting tool," designing and developing a "Web Interface for Online 
Reporting," managing three software developers, carrying out "daily report and return files transmission," and 
designing and developing a process for "new outbound/inbound campaign creation." The petitioner did not 
identify what specific tasks he would perform or identify how the performance of these duties requires 
specialized knowledge of the petitioner's products, techniques or processes. The petitioner also stated that the 
beneficiary would oversee the development of "proprietary web-based CRM solutions," on-line reporting 
applications, Visual Basic Scripts, and host / client connectivity across the petitioner's three call center 
locations. The petitioner provided no further explanation or documentation regarding its "proprietary" 
solutions, no description of the types of tools and applications to be developed by the beneficiary, their 
complexity, their relevance to the petitioning organization, or whether these duties would require the 
beneficiary to utilize knowledge and experience specific to the petitioner's group of companies. The 
petitioner's blanket assertion regarding the beneficiary's "proprietary" knowledge will not satisfy its burden 
of proof. 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. 
Rather than providing the requested detailed description of the beneficiary's duties and the claimed 
specialized knowledge, the petitioner emphasized the beneficiary's ability to "comprehend the software 
development lifecycle differences between the two cultures, which in turn enables him to deploy cultural 
based applications for our US and Indian based call centers." The petitioner also referred to the beneficiary's 
"unique ability of designing interfaces for both the US and Indian end-user" as a "key point for his selection." 
The petitioner did not, however, explain the claimed "cultural" differences in the software development 
lifecycle, provide evidence that the beneficiary actually had prior experience in designing applications for 
U.S.-based users, or indicate how knowledge of these differences would constitute specialized knowledge of 
the petitioner's products or processes for purposes of this visa classification. The petitioner also emphasized 
the beneficiary's project management experience and Sun Certified Java Professional qualification as 
qualifying him for his current position, which further supports a conclusion that any experienced software 
developer with a background in Java and related web technologies, and perhaps some international 
experience, could perform the duties of the proposed position. In sum, the petitioner's response to the request 
for evidence was insufficient to establish that the beneficiary possesses special knowledge of the company 
product and its application in international markets or an advanced level of knowledge of the processes and 
procedures of the company. See section 214(c)(2)(B) of the Act, 8 U.S.C. 5 1184(c)(2)(B). 
On appeal, counsel offers no specific objections to the director's findings, but simply disagrees with the 
director's decision and asserts that the additional evidence offered on appeal establishes that the beneficiary 
will be employed in a position requiring specialized knowledge. The evidence submitted on appeal makes a 
new case for the beneficiary's claimed specialized knowledge based upon his "conceptualization and 
development" of the Tele Web Conferencing software application, and identifies the implementation of this 
application as the primary reason for his transfer to the United States. The AAO notes that, other than a 
reference in the beneficiary's resume, none of the letters or supporting documents submitted with the initial 
petition or in response to the director's request for evidence make any reference to "Tele Web Conferencing." 
Considering that the petitioner now claims that the beneficiary's specialized knowledge of this software alone 
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qualifies him for the benefit sought, and is in fact the sole purpose for his transfer to the United States, the 
AAO finds the petitioner's earlier omission of this "specialized knowledge" to be highly conspicuous and 
questions the validity of the arguments and evidence submitted on appeal. Where, as here, a petitioner has 
been put on notice of a deficiency in the evidence and has been given an opportunity to respond to that 
deficiency, the AAO need not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 
I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had 
wanted the submitted evidence to be considered, it should have submitted the documents in response to the 
director's request for evidence. Id. Under the circumstances, the AAO will give limited weight to the new 
letters submitted by the petitioner and the foreign entity on appeal. 
Counsel's and the petitioner's assertions that the beneficiary's specialized knowledge is based on his 
conceptualization and development of the "Tele Web Conferencing" software application that will be 
implemented in the United States are not persuasive for several reasons. First, as discussed above, the 
petitioner had two previous opportunities to provide a detailed description of the beneficiary's duties, the 
reasons for his transfer to the United States, and an explanation regarding his claimed specialized knowledge. 
When describing his duties with the foreign entity and his proposed duties in the United States, the petitioner 
described a generic software developer position that appeared to require experience in web and database 
technologies that are common in the industry rather than specific to the petitioner's organization. The 
petitioner failed to describe any specific assignment or purpose for the transfer of the beneficiary to the 
United States, or any specific experience that prepared him for the U.S. assignment, and instead emphasized 
his formal education, project management experience, and his ability to understand "cultural" software 
requirements. Notably, neither the petitioner nor the foreign entity mentioned the "Tele Web Conferencing" 
system, and in fact stated that he would assume "various assignments" in the United States. However, the 
petitioner now states that the petitioner's desire to implement this system in the United States was the primary 
reason for seeking the beneficiary's transfer to the United States. It is incumbent upon the petitioner to resolve 
any inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Second, even if the AAO accepted that the purpose of the beneficiary's transfer was to implement the Tele 
Web Conferencing System, the petitioner has not established that knowledge of this system would constitute 
"specialized knowledge" or that the beneficiary actually possessed such knowledge at the time the petition 
was filed. According to the beneficiary's resume and the product overview provided, the system itself is 
based on standard Java and Windows Media technologies. Although the petitioner states that the system has 
some unique features, the petitioner has not adequately described how this system differs from any other web 
conferencing system, such that a similarly trained software specialist would be unable to implement it without 
having participated in its development. The petitioner also failed to provide evidence that the system has been 
copyrighted, nor did it provide any evidence to support its statements that no other system of its kind is 
available in the United States. Again, going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sof3ci, 22 I&N Dec. at 
165. Further, at the time of filing, it appears that the system had not been fully developed or implemented by 
the foreign entity. According to the beneficiary's resume, he began working on the project on or about July 
15, 2002. He was admitted to the United States in B-1 status on September 4, 2002 and was still in the United 
SRC 03 046 5 1723 
Page 13 
States when the petition was filed in December 2004. While it is possible that he later returned to India to 
complete development of the system, 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 petitioner has not submitted evidence on appeal to overcome the director's well-founded 
conclusions. 
Overall, the record does not distinguish the beneficiary's knowledge as different or more advanced than the 
knowledge possessed by other similarly employed software developers or consultants supporting 
development of the same types of products for similar companies in the petitioner's industry. By itself, work 
experience and knowledge of a firm's technically complex products will not equal "specialized knowledge." 
See Matter of Penner, 18 I&N Dec. at 53. Moreover, the petitioner offered no information regarding other 
employees working for the foreign company, such that the director or the AAO could make a meaningful 
comparison between the beneficiary's claimed "specialized knowledge" and the knowledge possessed by 
other workers within the petitioner's organization. Although knowledge need not be narrowly held within an 
organization in order to be specialized knowledge, the L-1B visa category was not created in order to allow 
the transfer of employees with any degree of knowledge of a company's products and processes. The 
petitioner identifies the beneficiary as a member and leader of various teams of software developers working 
on specific product enhancement projects, but offered no information regarding the number of software 
developers working for the Indian company in similar assignments. The lack of evidence in the record makes 
it impossible to classify the beneficiary's knowledge of the petitioner's products or procedures as advanced, 
and precludes a finding that the beneficiary's role is "of crucial importance" to the organization. While it may 
be correct to say that the beneficiary is a skilled and experienced employee, the petitioner has not established 
that the beneficiary rises to the level of a specialized knowledge or "key7' employee, as contemplated by the 
statute. See Matter of Penner, 18 I&N Dec. at 53. 
Finally, even if the petitioner had established that the beneficiary possesses specialized knowledge, the record 
contains a minimal description of the duties to be performed by him in the United States and is insufficient to 
establish that the petitioner would employ him in a specialized knowledge capacity. Based on the record, it is 
impossible to classify the beneficiary's knowledge of the petitioner's software products and systems as 
advanced or special or to find the beneficiary's role is of crucial importance to the organization. As stated 
previously, simply going on record without supporting documentary evidence is not sufficient for the purpose 
of meeting the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. at 165. 
The legislative history for the term "specialized knowledge" provides ample support for a restrictive 
interpretation of the term. In the present matter, the petitioner has not demonstrated that the beneficiary 
should be considered a member of the "narrowly drawn" class of individuals possessing specialized 
knowledge. 
 See 1756, Inc. v. Attorney General, supra at 16. 
 The record does not establish that the 
beneficiary has specialized knowledge or that the position offered with the United States entity requires 
specialized knowledge. For this reason, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that the U.S. company and the 
beneficiary's foreign employer have a qualifying relationship as required by 8 C.F.R. 9 214.2(1)(3)(i). In the 
SRC 03 046 5 1723 
Page 14 
initial petition filing, the petitioner claimed to be a wholly-owned subsidiary ofut 
initially failed to identify how the U.S. comvany is related to the Indian comvanv that em~loys the 
a - . - . . 
benefiEiary, Accordingly, the director requested evidence of the current 
ownership and control of the beneficiary's foreign employer. In response, the petitioner indicated that 
Information T 
4imhmi 
by 'which is in turn owned by the ' 
Family," whil 
 the petitioner's parent company is also owned by the Family." 
While such an ownership structure could establish an affiliate relationship between the petitloner and- 
pursuant to 8 C.F.R. § 214.2(1)(l)(ii)(L), the supporting documentation 
submitted does not support a determination that the two companies have a qualifying relationship. 
In response to the director's request for evidence, the petitioner submitted an incorporation certificate for its 
ng that it is 100 percent owned by 
1 out of 5 14,717 shares of 
which indicates that seven 
individuals, all of whom have the surname own the 55,000 issued shares of that company. According 
to the director's statement,olds only 1,309 of 55,000 shares, or a 2.38 percent interest in the 
company. Accordingly, the U.S. entity and the beneficiary's foreign employer are not owned and controlled 
by the same parent or individual, or by the same group of individuals, each individual owning and controlling 
approximately the same share 
 ortion of each entity. 8 C.F.R. $9 214.2(1)(1)(ii)(L)(I) and (2). 
Although counsel claims that the 
 family" ultimately owns the petitioning company and the overseas 
company this familial relationship does not constitute a qualifying relationship under the regulations. For this 
reason, the petition may not be approved. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. In visa petition proceedings, the burden of proving 
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 3 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.