dismissed L-1B Case: Software Consulting

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
OfJice ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
File: WAC 08 232 5 135 1 Office: CALIFORNIA SERVICE CENTER Date: ~m8d 0 5 2010 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
verry Rhew 
Chief, Administrative Appeals Office 
WAC08232 51351 
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DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office ("AAO") on appeal. The AAO will dismiss the 
appeal. 
The petitioner filed this nonimmigrant visa petition seeking to employ the beneficiary as an L-1 B intracompany 
transferee with specialized knowledge pursuant to section I Ol(a)(15)(L) of the Immigration and Nationality Act 
("the Act"), 8 U.S.C. 8 1101(a)(15)(L). The petitioner, a software consulting company, states that it is a 
subsidiary of, located in Mexico. The beneficiary was granted one year in L-1B status in order to 
work in the petitioner's new United States office as a software architect and project leader, and the petitioner now 
seeks to extend his status for two additional years. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary possesses 
specialized knowledge or that he has been or would be employed in a position requiring 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 the beneficiary possesses an 
advanced knowledge of the petitioner's processes and procedures and is required to apply such knowledge in the 
proffered position. Counsel contends that the denial of the petition is based on a misapplication of the law and is 
contrary to the relevant statute and regulations defining "specialized knowledge." Counsel submits a brief in 
support of the appeal. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Act, the petitioner must demonstrate that the 
beneficiary, within three years preceding the beneficiary's application for admission into the United States, has 
been employed abroad in a qualifying managerial or executive capacity, or in a capacity involving specialized 
knowledge, for one continuous year by a qualifying organization. The petitioner must also demonstrate that the 
beneficiary seeks to enter the United States temporarily in order to continue to render services to the same 
employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized 
knowledge. 
The regulation at 8 C.F.R. 5 214.2(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 
WAC08232 51351 
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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. 
Under section 101(a)(15)(L) of the Act, an alien is eligible for classification as a nonimmigrant if the alien, 
among other things, will be rendering services to the petitioning employer "in a capacity that is managerial, 
executive, or involves specialized knowledge." Section 214(c)(2)(B) of the Act, 8 U.S.C. tj 1184(c)(2)(B), 
provides the statutory definition of specialized knowledge: 
For purposes of section 10l(a)(lj)(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. tj 213.2(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 sole issue addressed by the director is whether the petitioner established that the beneficiary possesses 
specialized knowledge and that he has been and will be employed in a capacity requiring specialized 
knowledge. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on August 26, 2008. In a letter 
dated August 2 1, 2008, the petitioner described its "unique technologies" as follows: 
[The petitioner] is recognized for its outstanding quality assurance processes based on 
enhancements to the Capability Maturity Model@ Integration ("CMMI"), an innovative 
process improvement approach created by Carnegie Mellon University's Software 
Engineering Institute ("SEI"). . . . The company created its proprietary Quarksoft Software 
Development Process ("QSSDP") based on CMMI-based project management approach, 
which features the use of Personal Software ProcessTM ("PSP") and Team Software ProcessTM 
("TSP"). The PSP and TSP methods were originally developed by SEI and specifically 
modified and adopted by [the petitioner] for its project management and software 
development purposes. 
The petitioner stated that the beneficiary, in his role as software architect and project leader, "will draw upon 
his specialized knowledge of [the petitioner's] unique software development protocols, methods and processes 
to perform software design and implementation, and technical analysis of our products and systems." 
Specifically, the petitioner described the beneficiary's specialized knowledge and claimed duties as follows: 
WAC 08 232 5 135 1 
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[The beneficiary] will apply his specialized knowledge of intellectual resources, analytical 
and problem-solving methods developed by [the petitioner] to provide client consultation and 
develop technical solutions. Drawing upon his knowledge of QSSDP, PSP and TSP-based 
software estimation practices in use at [the company], [the beneficiary] will lead application 
design and implementation efforts. He will manage [the petitioner's] development teams in 
Mexico for IT projects, ensuring adherence to the company's processes, standards, and 
policies. 
His specific responsibilities will include the following: 
Developing software architecture and defining High Level Design for complex systems 
and/or services. In doing so, [the beneficiary] will draw upon his expertise in the 
specialized tools, techniques and methods developed by [the petitioner] for enterprise 
application development; 
Ensuring that the architectural design fulfills all client requirements while meeting [the 
petitioner's] technical and quality standards and requirements. 
Communicating technical specifications and architectural solution with customers; 
Ensuring the timely and within budget completion of the projects through effective 
team management, customer interaction, and use of [the petitioner's] unique software 
estimation and project management tools; 
Developing project budget estimates in accordance with corporate protocols using 
specialized analytical tools and methods; 
Scheduling work priority for programmers to meet project deadlines and establish 
priorities to accommodate customer needs; 
Ensuring that all the processes required by QSSDP are followed by the team. 
Proposing enhancements to the QSSDP process to increase the productivity, quality 
and revenue of the organization. 
Controlling all the changes requested for the client following control management 
process to ensure project revenue; 
Making the team management efficient by tracking individual and team needs to get 
more cohesion that guarantees the success of the project; and 
Developing new business opportunities with the current customers by identifying 
enhancements and new requirements. 
The petitioner stated that the position requires experience with the company's TSP, PSP and QSSDP 
processes, programming tools, and standards for functional and detailed design specifications. The petitioner 
indicated that there are no U.S. workers qualified to fill the role "due to the fact that our operations are based 
on unique methods and protocols developed by [the petitioner] in Mexico." 
The petitioner indicated that the beneficiary has gained approximately four years of specialized knowledge 
experience with the petitioner and its parent company in the positions of software engineer, software architect 
and project leader, and that through his employment, he has "developed a deep understanding of QSSDP, PSP 
and TSP," and specialized knowledge of the company's "unique software estimation practices, protocols, and 
procedures relating to software design, development and enhancements." The petitioner noted that the 
WAC 08 232 51351 
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beneficiary has a computer engineering degree, holds certifications as a Sun Certified Programmer for the 
Java 2 Platform 1.4, and has completed an in-depth training course in Linux. Finally, the petitioner stated that 
he has received company-provided training in CMMI, Spring, Hibernate, Java, and J2EE, and obtained 
certifications in PSP and TSP. 
The director issued a request for additional evidence (RFE) on September 2, 2008. The director instructed the 
petitioner to submit, inter alia, the following: (1) a more detailed description of the beneficiary's duties in the 
United States; (2) an explanation regarding any special or advanced duties performed by the beneficiary; (3) a 
detailed explanation regarding exactly what is the equipment, system, product, technique or service of which 
the beneficiary has specialized knowledge and whether it is used by other employers; (4) an explanation 
regarding the beneficiary's training or experience in comparison to others employed in the field; (5) a detailed 
description of a specific project in which the beneficiary has been involved. 
In a letter dated October 1, 2008, the petitioner emphasized that the company utilizes a suite of unique and 
proprietary methods, QSSDP, to provide project estimation for clients, develop defect-free software and 
systems, and to manage development projects. The petitioner stated that its "unique approach enables its 
software teams to work more productive at a higher quality level," because it enables better design and 
implementation practices. The petitioner noted that QSSDP is based on modifications made to the 
trademarked PSP, TSP and CMMI methodologies developed by SEI. The petitioner emphasized that "[the 
company's] uniqueness is marked by its reliance on QSSDP in every phase of its software/system 
development work, offered in conjunction with its 'Near-Shore' consulting advantages, wherein the 
programming work is conducted in Mexico." 
The petitioner indicated the "QSSDP methodologies and technologies, developed and continually refined at 
[the petitioner's] main office in Mexico City, are closely guarded industrial secrets." The petitioner further 
stated: 
The services offered by [the petitioning company] are unique within the industry. We note 
that CMMI is an approach most commonly used in complex high-end manufacturing 
contexts, such as defense, aerospace and automobiles. While there are a few major 
software/system development consultants who are CMMI certified and utilize the 
CMMVPSPITSP approach (such as Tata Infosys of India), our work is based on QSSDP. . . . 
QSSDP is a proprietary and comprehensive approach based on [the petitioner's] own 
adaptation of the CMMIITSPIPSP approaches and specifically engineering to match our 
particular line of business, which makes QSSDP unique and proprietary. Also, to our 
knowledge there are no similar businesses that offer "Near-Shore" development services as 
we do. 
QSSDP is so unique and specialized, that all of [the petitioner's] employees engaged in 
development duties are required to undergo an extensive training program. [The petitioner] 
invests a significant amount of resources to provide this training, which lasts 6 weeks at a 
cost of $9,000 to $1 1,000 per person for its new employees. 
WAC 08 232 5 135 1 
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The petitioner further stated that the duties the beneficiary will perform in the United States are unique within 
the industry, and that he is the only member of the U.S. entity's two-person staff with QSSDP expertise. The 
petitioner emphasized that the beneficiary's position requires "formal training in CMMI/TSP/PSP, an in-depth 
instruction in how these approaches have been modified to form QSSDP, and several years of hands-on 
professional experience in system/software development at [the foreign entity] to attain the level of 
specialized expertise required." The petitioner indicated that U.S. workers could not be trained "without 
significant economic inconvenience." Rather, the petitioner stated that, if it is not feasible to continue 
employing the beneficiary in L-1 status it will "explore the possibility of transferring other, similarly qualified 
personnel from [the foreign entity]. 
The petitioner also outlined the beneficiary's training and experience, stating that his "expertise in QSSDP is 
not knowledge possessed by other practitioners in the field," and not possessed by other employees of the 
U.S. company. 
In support of the RFE response, the petitioner submitted: information regarding SEI's CMMI process 
improvement approach from the SEI web site; client success stories obtained from the petitioner's web site; a 
proposal for a client project; a document describing the petitioner's TSP and PSP methodologies; and copies 
of project documentation, including invoices and internal correspondence to which the beneficiary was a 
Party. 
The director denied the petition on October 20, 2008, concluding that the petitioner failed to establish that the 
beneficiary possesses specialized knowledge or that he will be employed in a capacity requiring specialized 
knowledge. In denying the petition, the director noted that the petitioner conceded that other software 
consulting companies utilize the Software Engineering Institute's CMMI, TSP and PSP processes, and failed 
to explain how its adaptations to these processes set the petitioning company apart from its competitors. The 
director found that the beneficiary's knowledge is similar to that of many software engineering consultants 
working in the field and that such knowledge, while likely highly technical, is not specialized within the 
petitioner's industry. 
The director further found that the petitioner had failed to establish that the beneficiary's knowledge is 
specialized in comparison to the petitioner's own employees, emphasizing that the petitioner indicated that all 
of its software development employees must undergo a six-week training program. The director 
acknowledged the petitioner's argument that the beneficiary is the only employee based in the United States 
with the claimed specialized knowledge, but noted that the petitioner also indicated that it could transfer 
another employee from Mexico to replace him if necessary. The director observed that "the purpose of the 
intracompany transferee category is to allow multinational companies to transfer key personnel, not for 
companies to avoid the economic inconvenience of hiring skilled personnel in the United States or avoid 
using other categories for skilled workers." The director concluded that the beneficiary had not been shown 
to possess knowledge beyond that possessed by a skilled worker. 
On appeal, counsel for the petitioner objects to the director's finding that the petitioner failed to explain how 
its software development and project management methodologies differ from those utilized by other 
companies in the industry. Counsel states: 
WAC 08 232 51351 
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In fact, the petitioner has explained the uniqueness in its application of these methodologies 
in the response to the Service's Request for Evidence stating, "[The petitioner] adapted the 
CMMI, PSP and TSP methodologies as QSSDP to support their software and system 
development activities." 
[The petitioner] also explains that the unique and highly proprietary QSSDP methodology 
provides project management techniques and quality assurance processes to give clients 
reliable and timely delivery of software solutions that enhance their operations. QSSDP 
methodology is different from CMMIJPSPJTSP methodologies in that it takes into account all 
aspects of softwarelsystem development processes and governs not only the company's 
internal sofhvareJsystem development and project management process, but in the company's 
understanding of client operations and requirements as well. The QSSDP approach involves 
highly scientific methods to determine the number of lines of codes required to complete the 
project, and utilizes a proprietary estimation model (based on [the petitioner's] historical 
project database) to produce detailed project estimates. While CMMI may be used 
independently of TSP and PSP, [the petitioner] has determined through rigorous analysis and 
testing that the combination of CMMI, TSP and PSP as QSSDP provides optimal framework 
to support its consulting activities for the company management and project members. 
Counsel further emphasizes that the petitioner explained that its service differs from its competitors in that it 
offers QSSDP in conjunction with near-shore consulting advantages. Counsel states that "while few major 
software and systems development consultants are CMMI-certified and utilize the CMMVPSPJTSP approach, 
this knowledge and type of work is different than the petitioner's QSSDP-based approach," and that, as such, 
"[the beneficiary's] knowledge of QSSDP methodologies is not commonly known by others in the field, even 
including those who may possess knowledge in CMMVPSPJTSP." 
Counsel further objects to the director's conclusion that since all of the petitioner's development employees 
complete the company's six-week training program, the beneficiary's knowledge cannot be distinguished from 
that possessed by the petitioner's similarly-employed workers. Counsel emphasizes that the petitioner need 
not establish that the beneficiary is the only person who may possess the claimed specialized knowledge. 
Counsel asserts that "[the petitioner's] employees specifically involved in the development of QSSDP who 
have received the intensive training, including the beneficiary, may all possess knowledge that is beyond the 
average in the given field of software architecture." 
Nevertheless, counsel asserts that the beneficiary's role as a software architect and team leader is one in which 
he is employed primarily to carry out a key processes or function which is essential to the firm's operation, as 
contemplated in Matter of Penner, 18 I&N Dec. 49 (Comm. 1982). Counsel emphasizes that the beneficiary 
is charged with overseeing relations with U.S. clients, including overall project framework and requirements, 
in-person client consultations and coordination of programming and testing activities, as well as high level 
design for complex systems. 
Counsel concludes his argument as follows: 
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[The beneficiary] is directly involved in developing the U.S. business, designing software 
architecture with the proprietary QSSDP methodology and communicating technical 
specifications with customers. Furthermore, the specialized knowledge involved is unique 
and not commonly known by others in the industry because [the petitioner] has adapted the 
more common CMMVPSPITSP approach into its proprietary QSSDP methodology. 
The Service has misapplied the definition of specialized knowledge to impose on the 
beneficiary a more burdensome obligation, where none of the petitioner's other employees 
may possess the same specialized knowledge. The petitioner's proof of the unique and 
advanced nature of the knowledge in QSSDP is also overlooked when the Service broadly 
concludes that the beneficiary's knowledge is "essentially similar" to the knowledge of many 
other software consultants. QSSDP is not the same as similar technology in the industry and 
therefore, [the beneficiary's] advanced knowledge of [the petitioner's] processes and 
procedures is specialized when compared to others in his field. 
Upon review, counsel's and the petitioner's assertions are not persuasive in demonstrating that the beneficiary 
has specialized knowledge or that he will be employed in a specialized knowledge capacity as defined at 8 
C.F.R. 5 214.2(1)(l)(ii)(D). 
Standard for Specialized Knowledge 
Looking to the language of the statutory definition, Congress has provided USCIS with an ambiguous definition 
of specialized knowledge. In this regard, one Federal district court explained the infeasibility of applying a 
bright-line test to define what constitutes specialized knowledge: 
This ambiguity is not merely the result of an unfortunate choice of dictionaries. It reflects the 
relativistic nature of the concept special. An item is special only in the sense that it is not 
ordinary; to define special one must first define what is ordinary. . . . There is no logical or 
principled way to determine which baseline of ordinary knowledge is a more appropriate reading 
of the statute, and there are countless other baselines which are equally plausible. Simply put, 
specialized knowledge is a relative and empty idea which cannot have a plain meaning. C. 
Westen, The Empty Idea of Equality, 95 Harv.L.Rev. 537 (1982). 
1756, Inc. v. Attorney General, 745 F.Supp. 9, 14-1 5 (D.D.C., 1990).' 
While Congress did not provide explicit guidance for what should be considered ordinary knowledge, the 
principles of statutory interpretation provide some clue as to the intended scope of the L-1B specialized 
knowledge category. NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 123 (1987) 
(citing LVS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207,94 L.Ed.2d 434 (1987)). 
Although 1756, Inc. v. Attorney General was decided prior to enactment of the statutory definition of 
specialized knowledge by the Immigration Act of 1990, the court's discussion of the ambiguity in the legacy 
Immigration and Naturalization Service (INS) definition is equally illuminating when applied to the definition 
created by Congress. 
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First, the AAO must look to the language of section 214(c)(2)(B) itself, that is, the terms "special" and 
"advanced." Like the courts, the AAO customarily turns to dictionaries for help in determining whether a word in 
a statute has a plain or common meaning. See, e.g., In re A.H Robins Co., 109 F.3d 965, 967-68 (4th Cir. 1997) 
(using Webster's Dictionary for "therefore"). According to Webster's New College Dictionary, the word "special" 
is commonly found to mean "surpassing the usual" or "exceptional." Webster's New College Dictionary, 1084 
(3rd Ed. 2008). The dictionary defines the word "advanced" as "highly developed or complex" or "at a higher 
level than others." Id. at 17. 
Second, looking at the term's placement within the text of section 1 Ol(a)(15)(L) of the Act, the AAO notes that 
specialized knowledge is used to describe the nature of a person's employment and that the term is listed among 
the higher levels of the employment hierarchy together with "managerial" and "executive" employees. Based on 
the context of the term within the statute, the AAO therefore would expect a specialized knowledge employee to 
occupy an elevated position within a company that rises above that of an ordinary or average employee. See 
1 756, Inc. v. Attorney General, 745 F. Supp. at 14. 
Third, a review of the legislative history for both the original 1970 statute and the subsequent 1990 statute 
indicates that Congress intended for USCIS to closely administer the L-1B category. Specifically, the original 
drafters of section 10 1(a)(15)(L) of the Act intended that the class of persons eligible for the L-1 classification 
would be "narrowly drawn" and "carefully regulated and monitored" by USCIS. See generally H.R. Rep. No. 91- 
851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750, 2754, 1970 WL 5815. The legislative history of the 1970 Act 
plainly states that "the number of temporary admissions under the proposed 'L' category will not be large." Id. In 
addition, the Congressional record specifically states that the L-1 category was intended for "key personnel." 
See generally, id. The term "key personnel" denotes a position within the petitioning company that is "[olf 
crucial importance." Webster's New College Dictionary 620 (3rd ed., Houghton Mifflin Harcourt Publishing 
Co. 2008). Moreover, 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." See H.R. Subcomm. No. 1 of the Jud. Comm., Immigration 
Act of 1970: Hearings on H.R. 445,91 st Cong. 2 10,2 18,223,240,248 (Nov. 12, 1969). 
Neither in 1970 nor in 1990 did Congress provide a controlling, unambiguous definition of "specialized 
knowledge," and a narrow interpretation is consistent with so much of the legislative intent as it is possible to 
determine. H. Rep. No. 91-851 at 6, 1970 U.S.C.C.A.N. at 2754. This interpretation is consistent with legislative 
history, which has been largely supportive of a narrow reading of the definition of specialized knowledge and the 
L-1 visa classification in general. See 1756, Inc. v. Attorney General, 745 F.Supp. at 15-16; Boi Na Braza 
Atlanta, LLC v. Upchurch, Not Reported in F.Supp.2d, 2005 WL 2372846 at *4 (N.D.Tex., 2005), affd 194 
Fed.Appx. 248 (5th Cir. 2006); Fibermaster, Ltd. v. I.N.S., Not Reported in F.Supp., 1990 WL 99327 (D.D.C., 
1990); Delta Airlines, Inc. v. Dept. of Justice, Civ. Action 00-2977-LFO (D.D.C. April 6, 2001)(on file with 
AAO). 
Further, although the Immigration Act of 1990 provided a statutory definition of the term "specialized 
knowledge" in section 214(c)(2) of the Act, the definition did not generally expand the class of persons eligible 
for L-1B specialized knowledge visas. Pub.L. No. 101-649, 5 206(b)(2), 104 Stat. 4978, 5023 (1990). Instead, 
WAC08232 51351 
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the legislative history indicates that Congress created the statutory definition of specialized knowledge for the 
express purpose of clarifying a previously undefined term from the Immigration Act of 1970. H.R. Rep. 101- 
723(I) (1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6749, 1990 WL 200418 ("One area within the L visa that 
requires more specificity relates to the term 'specialized knowledge.' Varying interpretations by INS have 
exacerbated the problem."). While the 1990 Act declined to codifL the "proprietary knowledge" and "United 
States labor market" references that had existed in the previous agency definition found at 8 C.F.R. 
§ 214.2(1)(l)(ii)(D) (1988), there is no indication that Congress intended to liberalize its own 1970 definition of 
the L-1 visa classification. 
If any conclusion can be drawn from the enactment of the statutory definition of specialized knowledge in section 
2 14(c)(2)(B), it would be based on the nature of the Congressional clarification itself. By not including any strict 
criterion in the ultimate statutory definition and further emphasizing the relativistic aspect of "special knowledge," 
Congress created a standard that requires USCIS to make a factual determination that can only be determined on a 
case-by-case basis, based on the agency's expertise and discretion. Rather than a bright-line standard that would 
support a more rigid application of the law, Congress gave the INS a more flexible standard that requires an 
adjudication based on the facts and circumstances of each individual case. C$ Ponce-Leiva v. Ashcroft, 33 1 F.3d 
369, 377 (3d Cir. 2003) (quoting Baires v. hVS, 856 F.2d 89,91 (9th Cir. 1988)). 
To determine what is special or advanced, USCIS must first determine the baseline of ordinary. As a 
baseline, the terms "special" or "advanced" must mean more than simply "skilled" or "experienced." By 
itself, work experience and knowledge of a firm's technically complex products will not equal "special 
knowledge." See Matter of Penner, 18 I&N Dec. 49, 53 (Comm. 1982). 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. In other words, specialized knowledge generally requires more than a short period of experience; 
otherwise special or advanced knowledge would include every employee in an organization with the 
exception of trainees and entry-level staff. If everyone in an organization is specialized, then no one can be 
considered truly specialized. Such an interpretation strips the statutory language of any efficacy and cannot 
have been what Congress intended. 
Considering the definition of specialized knowledge, it is the petitioner's, not USCIS's, burden to articulate 
and prove that the beneficiary possesses "special" or "advanced" knowledge. Section 214(c)(2)(B) of the Act, 
8 U.S.C. 9 1 184(c)(2)(B). USCIS cannot make a factual determination regarding the beneficiary's specialized 
knowledge if the petitioner does not, at a minimum, articulate with specificity the nature of the claimed 
specialized knowledge, describe how such knowledge is typically gained within the organization, and explain 
how and when the beneficiary gained such knowledge. 
Once the petitioner articulates the nature of the claimed specialized knowledge, it is the weight and type of 
evidence which establishes whether or not the beneficiary actually possesses specialized knowledge. A 
petitioner's assertion that the beneficiary possesses advanced knowledge of the processes and procedures of 
the company must be supported by evidence describing and distinguishing that knowledge from the 
elementary or basic knowledge possessed by others. Because "special" and "advanced" are comparative 
terms, the petitioner should provide evidence that allows USCIS to assess the beneficiary's knowledge relative 
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to others in the petitioner's workforce or relative to similarly employed workers in the petitioner's specific 
industry. 
Analysis 
In examining the specialized knowledge of the beneficiary, the AAO 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. 
$ 2 14.2(1)(3)(ii). The petitioner must submit a detailed job description of the services to be performed sufficient to 
establish specialized knowledge. At a minimum, the petitioner must articulate with specificity the nature of the 
claimed specialized knowledge. Merely asserting that the beneficiary possesses "special" or "advanced" 
knowledge will not suffice to meet the petitioner's burden of proof. 
Upon review, the petitioner in this case has failed to establish either that the beneficiary's position in the 
United States requires an employee with specialized knowledge or that the beneficiary has specialized 
knowledge. While the petitioner has provided a detailed description of the beneficiary's duties, such duties 
are typical of a software architect or engineer performing project-related work for a software consulting 
company. According to the evidence submitted, the petitioning company provides enterprise application 
development services to the finance, insurance, banking, retail, government, health care, manufacturing and 
mobile communications industries, and its technological capabilities include .NET, J2EE, AjadWeb 2.0, 
SAP, C++, C#, LAMP, Oracle, SQL Sewer, Struts, XML and other common technologies. Therefore, it is 
evident that the petitioner's domain expertise and technological capabilities are widely available in the 
software consulting industry. The beneficiary's exact area of technical expertise has not been described in 
detail, although the petitioner mentioned that he is a Sun Certified Programmer for the Java 2 Platform 1.4 
and has received in-depth training in Java, J2EE, Spring and Hibernate. Counsel and the petitioner assert, 
however, that the beneficiary possesses specialized knowledge not based on his software engineering or 
technical skills, but based on his knowledge of and experience with the petitioner's software engineering and 
development methods and standards, including QSSDP, TSP, PSP and CMMI. 
Therefore, the first question before the AAO is whether the beneficiary's knowledge of and experience with 
the petitioner's proprietary tools, processes and methodologies alone constitutes specialized knowledge. While 
the current statutory and regulatory definitions of "specialized knowledge" do not include a requirement that 
the beneficiary's knowledge be proprietary, the petitioner cannot satisfy the current standard merely by 
establishing that the beneficiary's purported specialized knowledge is proprietary. The knowledge must still 
be either "special" or "advanced." As discussed above, the elimination of the bright-line "proprietary" 
standard did not, in fact, significantly liberalize the standards for the L-1B visa classification. 
Reviewing the precedent decisions that preceded the Immigration Act of 1990, there are a number of 
conclusions that were not based on the superseded regulatory definition, and therefore continue to apply to the 
adjudication of L-1B specialized knowledge petitions. In 1981, the INS recognized that "[tlhe modem 
workplace requires a high proportion of technicians and specialists." The agency concluded that: 
Most employees today are specialists and have been trained and given specialized knowledge. 
However, in view of the [legislative history], it can not be concluded that all employees with 
specialized knowledge or performing highly technical duties are eligible for classification as 
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intracompany transferees. The House Report indicates the employee must be a "key" person 
and associates this employee with "managerial personnel." 
Matter of Colley, 18 I&N Dec. at 1 19-20. 
In a subsequent decision, the INS looked to the legislative history of the 1970 Act and concluded that a "broad 
definition which would include skilled workers and technicians was not discussed, thus the limited legislative 
history available therefore indicates that an expansive reading of the 'specialized knowledge' provision is not 
warranted." Matter of Penner, 18 I&N Dec. at 5 1. The decision continued: 
[I]n view of the House Report, it cannot be concluded that all employees with any level of 
specialized knowledge or performing highly technical duties are eligible for classification as 
intra-company transferees. Such a conclusion would permit extremely large numbers of 
persons to qualify for the "L-1" visa. The House Report indicates that the employee must be 
a "key" person and "the numbers will not be large." 
Id. at 53. 
According to the reasoning of Matter oJ Penner, work experience and knowledge of a firm's technically 
complex products, by itself, will not equal "special knowledge." USCIS must interpret specialized knowledge 
to require more than fundamental job skills or a short period of experience. An expansive interpretation of 
specialized knowledge in which any experienced employee would qualify as having special or advanced 
knowledge would be untenable, since it would allow a petitioner to transfer any experienced employee to the 
United States in the L- 1 B classification. 
The proprietary specialized knowledge in this matter is "QSSDP," which is described as "a suite of unique 
and proprietary methods to: provide project estimation for clients; develop defect-free software and systems; 
and manage development projects." While the petitioner relies on its development of QSSDP as the 
cornerstone of its claim that the beneficiary possesses specialized knowledge, the record contains minimal 
evidence to document or otherwise describe this methodology. For example, the petitioner submitted a 13- 
page document titled "Our Methodology." The document indicates that the petitioner's methodology includes 
the Personal Software Process (PSP) and the Team Software Process (TSP), and notes that these terms are 
registered trademarks of Carnegie Mellon University. Notably, there is no mention in any of the petitioner's 
documentation of a process known as "QSSDP." The petitioner also submitted an article published in the 
March 2004 issue of Crosstalk magazine, which discusses the petitioner's implementation of the SEI's 
Capability Maturity Model with the PSP and the TSP. The petitioner stated that the company "adapted the 
CMMI, PSP and TSP methodologies as QSSDP to support their software and system development activities." 
As noted by the director, the petitioner has neither described nor documented what adaptations were made to 
the SEI CMMI, PSP or TSP methodologies or what sets QSSDP apart from other companies' methodologies 
that rely on the same combination of SEI standards. 
The petitioner stated in response to the RFE that "the combination of PSP, TSP and CMMI approaches in the 
softwarelsystem context has benefited [the company] immensely." The petitioner further acknowledged that 
there are major softwarelsystem development consultants that use the CMMVPSPITSP approach, but noted 
WAC 08 232 51351 
Page 13 
that the petitioner uses the "unique and comprehensive" QSSDP approach which is "specifically engineered to 
match our particular line of business." Since the petitioner's line of business is software/systems development, 
it remains unclear how its approach differs from its competitors. The petitioner has not explained exactly what 
QSSDP entails, beyond combining these SEI processes. Referring to the approach as "unique," "proprietary," 
and "comprehensive," without more, is not sufficient to acknowledge that any level of familiarity with 
QSSDP constitutes specialized knowledge. 
All IT consulting firms develop internal tools, methodologies, procedures and best practices for documenting 
project management, technical life cycle and software qualify assurance activities. It is also industry standard 
practice for such companies to seek SEI assessment of their processes and methodologies. CMMI, TSP and 
PSP are not particular to the petitioning organization. The fact that the petitioner combined these 
methodologies, modified them in some unidentified way to meet the particular needs of the company, and 
named the resulting process "QSSDP" is not sufficient to warrant a finding that the petitioner's processes for 
software development and project management differ significantly from those developed by other companies 
following SEI models. The petitioner's claim that its operations are distinguished by its ability to offer "Near- 
Shore" as opposed to offshore project capabilities is not relevant to a determination as to whether the 
beneficiary possesses specialized knowledge. 
Furthermore, while the petitioner emphasizes that its processes and methodologies are highly effective, the 
petitioner did not attempt to explain how its processes and methodologies differ significantly from those 
utilized by other IT companies who have also adopted and followed the SEI's CMMI, TSP and PSP 
approaches to software development. The petitioner indicates that all of its development employees receive 
six weeks of training in QSSDP immediately upon hiring, but the petitioner has not documented or described 
exactly what this training entails, and therefore it cannot be concluded that the training process is particularly 
complex or different compared to those utilized by other companies in the industry, or that it would take a 
significant amount of time to train an experienced information technology consultant who had no prior 
experience with the petitioner's family 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 Sofici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
In addition, the claimed six-week period of training in QSSDP is not particularly lengthy, and the AAO 
cannot affirmatively determine that this amount of training in company procedures would be unusual or 
uncommon within the industry. The AAO notes that the petitioner, in its initial letter, indicated that the 
beneficiary's company provided training included CMMI, Spring, Hibernate, Java, J2EE and certifications in 
PSP and TSP, none of which are specific to the petitioning organization. In response to the RFE, the 
petitioner added that the beneficiary's training included QSSDP. According to information in the petitioner's 
sample customer proposal, all of its newly hired engineers are "given a six week course on sound software 
engineering practices, such as the Personal Software Process (PSP) and Team Software Processes (TSP) 
family of processes." Again, it is notable that the petitioner does not mention QSSDP in its own company 
materials. 
Overall, the minimal evidence submitted suggests that the petitioner's employees are not required to undergo 
any extensive training in the company's own processes and methodologies. The petitioner has not articulated 
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Page 14 
or documented how specialized knowledge is typically gained within the organization, beyond mentioning the 
six-week introductory training course. Based on the petitioner's representations, its internal processes and 
tools, while highly effective and valuable to the petitioner, are simply customized versions of standard 
practices used in the industry that can be readily learned on-the-job by employees who otherwise possess the 
requisite technical background in software and systems development, after a brief training period. For this 
reason, the petitioner has not established that knowledge of its processes and procedures alone constitutes 
specialized knowledge. 
All employees can be said to possess unique skills or experience to some degree. Moreover, the proprietary 
qualities of the petitioner's process or product do not establish that any knowledge of this process is 
"specialized." Rather, the petitioner must establish that qualities of the unique process or product require this 
employee to have knowledge beyond what is common in the industry. This has not been established in this 
matter. It is appropriate for USCIS 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. at 120 (citing Matter of Raulin, 13 I&N Dec. at 618 and Matter of 
LeBlanc, 13 I&N Dec. at 816). As stated by the Commissioner in Matter of Penner, when considering 
whether the beneficiaries possessed specialized knowledge, "the LeBlanc and Raulin decisions did not find 
that the occupations inherently qualified the beneficiaries for the classifications sought." 18 I&N Dec. at 52. 
Rather, the beneficiaries were considered to have unusual duties, skills, or knowledge beyond that of a skilled 
worker. Id. 
The AAO acknowledges that the specialized knowledge need not be narrowly held within the organization in 
order to be considered "advanced." However, it is equally true to state that knowledge will not be considered 
"special" or "advanced" if it is universally or even widely held throughout a company. If all similarly 
employed workers within the petitioner's organization receive essentially the same training, then mere 
possession of knowledge of the petitioner's processes and methodologies does not rise to the level of 
specialized knowledge. The L-1B visa category was not created in order to allow the transfer of all 
employees with any degree of knowledge of a company's processes. If all employees are deemed to possess 
"special" or "advanced" knowledge, then that knowledge would necessarily be ordinary and commonplace. 
The petitioner has not successfully demonstrated that the beneficiary's knowledge of the company's processes 
and procedures gained during his employment with the foreign entity is advanced compared to other similarly 
employed workers within the organization. Counsel emphasizes on appeal that the beneficiary is employed in 
the United States "primarily for his ability to carry out a key process or function which is essential to the 
business firm's operation." Counsel notes that as a software architect and team leader, the beneficiary has 
responsibility for overseeing relations with U.S. clients that is not possessed by other employees within the 
company. However, upon review of the project documentation submitted, it is evident that the beneficiary is 
also involved in performing technical project-related work along with the Mexican staff, and indicates his job 
title as "software engineer" on company correspondence. There is no persuasive explanation as to why the 
beneficiary was chosen for the US.-based position and the AAO will not assume that it was because he is 
deemed to have advanced knowledge of the company's processes and procedures. The fact that the beneficiary 
is the only technical staff member currently located in the United States is not sufficient to establish that he 
his knowledge is specialized or advanced, as the petitioner has simply opted to operate an office with only 
WAC 08 232 51351 
Page 15 
two employees at this time. The petitioner acknowledges that the beneficiary could be replaced with a 
similarly-qualified worker from Mexico. 
All of the foreign entity's technical employees would reasonably have knowledge of the company's 
methodologies and processes for implementing projects. By this logic, any of them would qualify for L-1B 
classification if offered a position working in the United States as long as they were working for the foreign 
entity for over one year. According to the reasoning of Matter of Penner, work experience and knowledge of a 
firm's technically complex products, by itself will not equal "special kn~wledge."~ An expansive interpretation of 
specialized knowledge in which any experienced employee would qualify as having special or advanced 
knowledge would be untenable, since it would allow a petitioner to transfer any experienced employee to the 
United States in L-1B classification. The term "special" or "advanced" must mean more than experienced or 
skilled. In other terms, specialized knowledge requires more than a short period of experience, otherwise, 
"special" or "advanced" knowledge would include every employee with the exception of trainees and recent 
recruits. 
The AAO does not dispute the possibility that the beneficiary is a skilled and experienced employee who has 
been, and would be, a valuable asset to the petitioner. However, as explained above, the record does not 
distinguish the beneficiary's knowledge as more advanced than the knowledge possessed by other people 
employed by the petitioning organization or by workers employed elsewhere. The beneficiary's duties and 
technical skills demonstrate that he possesses knowledge that is common among software engineers in the 
information technology consulting field. Furthermore, it is not clear that the performance of the beneficiary's 
duties would require more than basic proficiency with the company's internal processes and methodologies. 
The petitioner has failed to demonstrate that the beneficiary's training, work experience, or knowledge of the 
company's processes is more advanced than the knowledge possessed by others employed by the petitioner, or 
that the processes used by the petitioner are substantially different from those used by other technology 
consulting companies. The petitioner has failed to demonstrate that the beneficiary's knowledge is any more 
advanced or special than the knowledge held by a skilled worker. See Matter of Penner, 18 I&N Dec. at 52. 
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. Accordingly, the petition will be denied. 
As observed above, the AAO notes that the precedent decisions that predate the 1990 Act are not categorically 
superseded by the statutory definition of specialized knowledge, and the general issues and case facts themselves 
remain cogent as examples of how the INS applied the law to the real world facts of individual adjudications. 
USCIS must distinguish between skilled workers and specialized knowledge workers when making a 
determination on an L-1B visa petition. The distinction between skilled and specialized workers has been a 
recurring issue in the L-1 B program and is discussed at length in the INS precedent decisions, including Matter of 
Penner. See 18 I&N Dec. at 50-53. (discussing the legislative history and prior precedents as they relate to the 
distinction between skilled and specialized knowledge workers). 
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Page 16 
The AAO acknowledges that USCIS previously approved an L-IB nonimmigrant petition filed on behalf of 
the beneficiary. In matters relating to an extension of nonimmigrant visa petition validity involving the same 
petitioner, beneficiary, and underlying facts, USCIS will generally give deference to a prior determination of 
eligibility. However, the mere fact that USCIS, by mistake or oversight, approved a visa petition on one 
occasion does not create an automatic entitlement to the approval of a subsequent petition for renewal of that 
visa. Royal Siam Corp. v. Chertoff, 448 F.3d 139, 148 (1st Cir 2007); see also Matter of Church Scientology 
Int'l., 19 I&N Dec. 593, 597 (Comm. 1988). For example, if USCIS determines that there was material error, 
changed circumstances, or new material information that adversely impacts eligibility, USCIS may question 
the prior approval and decline to give the decision any deference. 
Each nonimmigrant petition filing is a separate proceeding with a separate record and a separate burden of 
proof. See 8 C.F.R. 5 103.8(d). In making a determination of statutory eligibility, USCIS is limited to the 
information contained in that individual record of proceeding. See 8 C.F.R. 3 103.2(b)(16)(ii). 
In the present matter, the director reviewed the record of proceeding and concluded that the petitioner was 
ineligible for an extension of the nonimmigrant visa petition's validity. As articulated by the director, there is 
a clear basis to question the prior approval and find it erroneous. If the previous nonimmigrant petition was 
approved based on the same unsupported assertions that are contained in the current record, the approval 
would constitute material and gross error on the part of the director. Despite any number of previously 
approved petitions, USCIS 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. 
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. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.