dismissed L-1B Case: Software Development

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice of Administrative Appeals 
Washington, DC 20529-2090 
U. l. Citizenship 
and Immigration 
Services 
File: WAC 08 100 5 1923 Office: CALIFORNIA SERVICE CENTER Date: APR 0 2,2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 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. 
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. $ 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). 
Acting Chief, Administrative Appeals Office 
WAC 08 100 51923 
Page 2 
DISCUSSION: The Director, California 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, a Michigan corporation, filed this nonimmigrant visa petition to employ the beneficiary in the 
position of technical programmer as an L-1B intracompany transferee with specialized knowledge pursuant to 
section 101(a)(15)(L) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. 5 1101(a)(15)(L). The 
petitioner claims to be an affiliate of the beneficiary's foreign employer in India. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary possesses 
specialized knowledge or that he has been or will be employed in a capacity involving specialized knowledge. 
On appeal, counsel asserts that the petitioner has satisfied the criteria for establishing that the beneficiary has 
been and will be employed in a specialized knowledge capacity. Specifically, the petitioner argues that the 
beneficiary has specialized knowledge of Miracle Software Development Methodology (MSDM) and the 
Business Value Assessment (BVA) process. In support, the petitioner submits additional evidence pertaining 
to MSDM. 
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 
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. 
WAC 08 100 51923 
Page 3 
The primary issue in this proceeding is whether the petitioner has established that the beneficiary has been or 
will be employed in a specialized knowledge capacity and whether the beneficiary possesses specialized 
knowledge. 8 C.F.R. $9 214.2(1)(3)(ii) and (iv). 
Section 2 14(c)(2)(B) of the Act, 8 U.S.C. 4 1 184(c)(2)(B), provides: 
For purposes of section lOl(a)(lS)(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. 5 214.2(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 petitioner describes the beneficiary's duties and claimed specialized knowledge in a letter dated February 12, 
2008. The petitioner claims that the beneficiary's knowledge of the MSDM and the BVA process is special or 
advanced. MSDM is described in the February 12,2008 as follows: 
[The petitioning organization] has developed a unique software development methodology 
called MSDM and the said methodology is used on certain IT projects. MSDM methodology 
process has its own architecture. MSDM methodology is a framework for software 
engineering that promotes development iterations through the life cycle of the project. The 
methodology has the following core segments: 
Process principles and practices; 
Process Model and associated content library; and 
The underlying process definition language. 
Process Principles and Practices: The principles, core practices and essential elements involved 
in MSDM methodology are the foundation on which the MSDM has been developed. Practice 
and implementation of these process principles significantly contributes to effective project 
management and cost effective solutions. As a result of effective project management and cost 
effective solutions, [the petitioning organization] has tremendous advantage in the IT market and 
plays a dominant role in competing with international market competition. 
Process Model and associated content library: MSDM's process model and associated content 
library is modified annually to be dynamic to the ever changing technological processes. 
The underlying process definition lanwe: Underlying it all is a process meta-model. This 
model provides a language of process definition elements for describing software engineering 
process. 
WAC 08 100 51923 
Page 4 
MSDM methodology has four phase processes including inception, elaboration, construction and 
transition. 
The petitioner claims that the beneficiary acquired her knowledge of the MSDM and the BVA process through 
on-the-job training received during her 26 months of employment abroad. The beneficiary allegedly received 
classroom training and worked on five projects, which required the application of her purported specialized 
knowledge of the MSDM and the BVA process. The petitioner summarizes the beneficiary's acquisition and 
application of her knowledge as follows: 
As a result of employment with [the foreign employer] and specialized knowledge in [the 
MSDM] and BVA process by virtue of classroom training and on-the-job training having 
worked on 5 projects spreading in 2 years and 1% months utilizing MSDM methodology & 
BVA process, the beneficiary gained invaluable experience in [the petitioning organization's] 
MSDM methodology & BVA process and their application to the company's sohare 
development projects. 
Finally, the petitioner claims that the beneficiary's purported specialized knowledge is necessary to perform the 
duties of the proffered position in the United States. The petitioner describes the beneficiary's proposed duties as 
a "technical programmer" working "on several software development projects" as follows: 
Use and implement WSDM] on several projects; 
Use and implement [the BVA] process; 
Use Electronic data interchange procedures and various standards like ANSI X-12, 
EDIFACT, and IDOC also with several file formats like positional and delimited; 
Develop specifications for software development using [the MSDM] methodology; 
Develop maps per specifications and work on different kinds of maps like Application to 
application, Application to standard and standard to standard using [the MSDM] 
methodology; 
Prepare and implement the code 1istJsynonym list; 
Create Trading partners in the Gentran Server; 
Involve in Testing of Maps by generating different test cases; 
Create several Business Process with GPM in GIs using [the BVA] process; 
Create inbound and outbound envelopes in GIs; and 
Generate Functional Acknowledgements for maps. 
On March 5, 2008, the director requested additional evidence. The director requested, inter alia, an explanation 
addressing how the beneficiary's duties, experience, and training differ by some unusual quality fiom those of 
other workers employed by the petitioning organization or in the industry at-large and how the knowledge is not 
generally known by workers in the beneficiary's field of endeavor. 
In response, counsel submitted a letter dated May 23, 2008 in which he claims the beneficiary acquired her 
specialized knowledge through on-the-job experience over a two-year period and by attending six training 
sessions, lasting a total of 9 weeks, pertaining to MSDM. Counsel also claims that the beneficiary attended three 
BVA process training sessions, although the length of this training was not established. The substance of any of 
WAC 08 100 51923 
Page 5 
this training, or the number of workers who participated in the training, was also not established. Counsel 
summarizes the petitioner's claim that the beneficiary has acquired specialized knowledge, which differs from 
similarly employed and educated software professionals, as follows: 
The special and/or advanced andlor uncommon knowledge possessed by the beneficiary is 
different and unique and is 
 generally found in the IT industry. In that the beneficiary's 
knowledge in [the MSDM] & BVA process is not available to other software professionals in the 
IT industry. The other software professionals in the IT industry mostly have general software 
development skills which are no where [sic] close to the advanceduncommon specialized 
knowledge acquired and possessed by this beneficiary. This specialized knowledge professional 
possess[es] knowledge that is different from what is generally available in the area of her 
endeavor. 
It is clearly evident that combining her 6 class-room trainings on [the MSDM] & BVA process 
over the last 2 and '/z years and employment experience in handling critical IT projects utilizing 
[the MSDM] & BVA process, the beneficiary possesses advanced and uncommon specialized 
knowledge in [the petitioning organization's] technologies and domain expertise. 
Please note that in all the [described] 4 IT projects [abroad], the beneficiary extensively utilized 
[the MSDM] & BVA process. Also note that over 2 and !h hears of employment duration, [the 
petitioning organization's] higher management and project managers advised, closely interacted 
with and guided the beneficiary with regard to [the MSDM] and BVA process. These inputs 
from the higher management are invaluable to the beneficiary as far as the specialized 
knowledge goes. These inputs and guidance strength[en]s the depths of the specialized 
knowledge gained through 6 classroom trainings received on [the MSDM] & BVA process. 
Whereas general software professionals in the IT market or other software professionals within 
the vetitioner company are no where [sic] close to this beneficiarv/specialized knowledge 
professional as they were not given the above said extensive class-room training and on-the-lob 
training for over 2 years. The general software professionals neither possess petitioner's domain 
expertise nor in depth knowledge in petitioner's technologies or tools such as [the MSDMl & 
BVA process. 
On June 6,2008, the director denied the petition. The director concluded that the petitioner failed to establish 
that the beneficiary possesses specialized knowledge or that the beneficiary has been or will be employed in a 
capacity involving specialized knowledge. 
On appeal, the petitioner asserts that the petitioner has satisfied the criteria for establishing that the beneficiary 
has been and will be employed in a specialized knowledge capacity. Specifically, the petitioner argues that 
the beneficiary has specialized knowledge of the MSDM and the BVA process. In support, the petitioner 
submits, for the first time, additional technical evidence pertaining to MSDM. The "overview" of MSDM 
indicates that the foundation of the petitioning organization's "framework for software engineering" is IBM's 
"Rational Unified Process." 
WAC 08 100 51923 
Page 6 
Upon review, the petitioner's assertions are not persuasive in demonstrating that the beneficiary has 
specialized knowledge or that she has been or will be employed in a specialized knowledge capacity as 
defined at 8 C.F.R. $ 214.2(1)(l)(ii)(D). 
The L-1B specialized knowledge classification requires U.S. Citizenship and Immigration Services (USCIS) to 
distinguish between those employees who possess specialized knowledge from those who do not possess such 
knowledge. Exactly where USCIS should draw that line is the question before the AAO. On one end of the 
spectrum, one may find an employee with the minimum one-year of experience but only the basic job-related 
skill or knowledge that was acquired through that employment. Such a person would not be deemed to possess 
specialized knowledge under section 101(a)(15)(L) of the Act. On the other end of the spectrum, one may find an 
employee with ten years of experience and advanced training who developed a product or process that is narrowly 
understood by a few people within the company. That individual would clearly meet the statutory standard for 
specialized knowledge. In between these two extremes would fall, however, the whole range of experience and 
knowledge that may be found within a workplace. 
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 orw 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. CJ: 
Westen, The Empty Idea of Equality, 95 Harv.L.Rev. 537 (1 982). 
1 756, Inc. v. Attorney General, 745 F.Supp. 9,14-15 (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 INSv. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207,94 L.Ed.2d 434 (1987)). 
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 
I 
 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. 
WAC 08 100 51923 
Page 7 
(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 101(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 
1756, 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- 
85 1 (1 970), reprinted in 1970 U.S.C.C.A.N. 2750,2754,1970 WL 581 5. 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" Cong. 210,218,223,240,248 (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 -85 1 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-IB specialized knowledge visas. Pub.L. No. 101-649, 5 206(b)(2), 104 Stat. 4978, 5023 (1 990). Instead, 
the legislative history indicates that Congress created the statutory definition of specialized knowledge for the 
express purpose of clarifjrlng 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 cadi@ the "proprietary knowledge" and "United 
States labor market" references that had existed in the previous agency definition found at 8 C.F.R. 
WAC 08 100 51923 
Page 8 
5 214.2(1)(l)(ii)@) (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 fiom 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 Wer 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. CJ: Ponce-Leiva v. Ashcroft, 33 1 F.3d 
369,377 (3d Cir. 2003) (quoting Baires v. INS, 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. 5 1184(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 to others in the petitioner's workforce or relative to similarly employed workers in the petitioner's 
specific industry. 
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. 
$5 214.2(1)(3)(ii) and (iv). The petitioner must submit a detailed job description of the services to be performed 
sufficient to establish specialized knowledge. At a minimum, the petitioner must articulate with specificity the 
WAC 08 100 51923 
Page 9 
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 or abroad requires an employee with specialized knowledge or that the beneficiary has 
specialized knowledge. Although the petitioner repeatedly asserts that the beneficiary has been and will be 
employed in a "specialized knowledge" capacity, the petitioner has not adequately articulated any basis to 
support this claim. The petitioner has failed to identify any special or advanced body of knowledge which 
would distinguish the beneficiary's role from that of other similarly experienced technical programmers 
employed by the petitioning organization or in the industry at-large. Going on record without documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 
22 I&N Dec. 158, 165 (Comrn. 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 41 (2d. 
Cir. 1990). 
The petitioner asserts that the beneficiary has approximately 26 months of experience abroad where she 
allegedly acquired "specialized knowledge" of the BVA process and MSDM, "a framework for software 
engineering that promotes development iterations through the life cycle of the project." The petitioner also 
asserts that this knowledge was necessary to perform the beneficiary's duties abroad and will be necessary to 
perform the duties of the proffered position in the United States. The beneficiary is claimed to have acquired this 
knowledge through nine weeks of classroom training and approximately two years of work experience during 
which "higher management and project managers advised, closely interacted with and guided the beneficiary." 
Counsel argues that the beneficiary's knowledge of the MSDM and the BVA process is "different and unique," 
that such knowledge in unavailable to other sohare professionals in the IT industry, and that "other software 
professionals in the IT industry mostly have general software development skills which are no where [sic] close 
to the advancedluncommon specialized knowledge acquired and possessed by this beneficiary." As previously 
indicated, counsel submits on appeal an "overview" of MSDM, which indicates that its foundation is IBM's 
"Rational Unified Process." 
Accordingly, despite the petitioner's claim, the record does not establish how, exactly, this knowledge 
materially differs from knowledge possessed by other workers employed by the petitioning organization or by 
technical programmers in the industry at-large. The record does not establish what qualities of the MSDM or 
the BVA process are of such complexity that the impartation of this knowledge amounts to the acquisition of 
special or advanced knowledge. Importantly, the record is not persuasive in establishing why, exactly, any of 
the beneficiary's knowledge cannot be imparted to a similarly experienced and educated technical 
programmer in a relatively short period of time. Again, going on record without documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJi, 22 I&N Dec. at 
165 (citing Matter of Treasure Craft of California, 14 I&N Dec. 190). To the contrary, as the claimed 
specialized knowledge is based upon IBM's "Rational Unified Process," the record is not persuasive in 
establishing that knowledge of the MSDM and the BVA process differs materially from knowledge 
commonly held throughout the computer software development industry. Finally, the record is not persuasive 
in establishing that the beneficiary's claimed nine weeks of classroom training, combined with her work 
experience, truly imparted to her knowledge that could reasonably be considered "special" or "advanced." 
WAC08 10051923 
Page 10 
Not only is the record devoid of evidence establishing the nature or substance of this "training," it does not 
appear that knowledge of a process or methodology that can be imparted to a worker in nine weeks, absence 
evidence to contrary, could be considered to be specialized knowledge. 
Overall, the record does not establish that the beneficiary's knowledge is substantially different fiom the 
knowledge possessed by technical programmers generally throughout the industry or by other employees of 
the petitioning organization. The fact that few other workers possess very specific knowledge of certain 
aspects of the petitioning organization's processes or methodologies does not alone establish that the 
beneficiary's knowledge is indeed advanced or special. All employees can be said to possess uncommon and 
unparalleled skill sets to some degree; however, a skill set that can be easily imparted to another similarly 
educated and generally experienced technical programmer is not "specialized knowledge." Moreover, the 
proprietary or unique qualities of the MSDM or the BVA process do not establish that any knowledge of this 
methodology or process is "special" or "advanced" simply by being proprietary or unique. Rather, the 
petitioner must establish that qualities of the methodology or process require this employee to have 
knowledge beyond what is common in the industry or within the organization itself. This has not been 
established in this matter. For example, the fact that other workers outside of the petitioning organization 
may not have very specific knowledge regarding the petitioner's methodology or process is not relevant to 
these proceedings if this knowledge gap could be closed by the petitioner by simply revealing the information 
to a newly hired, generally experienced and educated computer worker. 
The AAO does not discount the likelihood that the beneficiary is a skilled and experienced computer worker. 
There is no indication, however, that the beneficiary has any knowledge that exceeds that of any experienced 
technical programmer, or that she has received special training in the company's methodologies or processes 
which would separate her from other similarly experienced and educated workers employed within the 
petitioner's organization or in the industry at-large. 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. 
Based on the evidence presented, the petitioner has not established that the beneficiary has specialized 
knowledge or that she was or will be employed in a capacity involving specialized knowledge. For this 
reason, the appeal will be dismi~sed.~ 
2 
 It is noted that counsel relies on three USCIS memoranda in arguing that the petitioner has established that 
the beneficiary will be employed in the United States in a specialized knowledge capacity. Memo. From 
James A. Puleo, Acting Executive Assoc. Cornm., Immigration and Naturalization Service, Interpretation of 
Specialized Knowledge (March 9, 1994); Memo. From Fujie 0. Ohata, Associate Commissioner, Immigration 
and Naturalization Service, Interpretation of Specialized Knowledge (Dec. 20, 2002); and Memo. From 
Richard E. Norton, Assoc. Comm., Immigration and Naturalization Service, Interpretation of Specialized 
Knowledge Under the L Classz~cation (Oct 27, 1 988). 
However, it is noted that these memoranda articulate internal guidelines for agency personnel; they do not 
establish judicially enforceable standards. Agency interpretations that are not arrived at through precedent 
decision or notice-and-comment rulemaking - such as those in opinion letters, policy statements, agency 
manuals, and enforcement guidelines - lack the force of law and do not warrant Chevron-style deference. 
Christensen v. Harris County, 529 U.S. 576, 587 (2000). An agency's internal guidelines "neither confer 
WAC 08 100 5 1923 
Page 11 
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. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed. 
upon [plaintiffs] substantive rights nor provide procedures upon which [they] may rely." Loa-Herrera v. 
Trominski, 231 F.3d 984, 989 (5' Cir. 2000) (quoting Fano v. O'Neill, 806 F.2d 1262, 1264 (5' Cir. 1987)). 
Agency policy memoranda and unpublished decisions do not confer substantive legal benefits upon aliens or 
bind USCIS. Romeiro de Silva v. Smith, 773 F.2d 1021, 1024 (9' Cir. 1985); see also Prokopenko v. 
Ashcroft, 372 F.3d 941,944 (8' Cir. 2004). 
Upon review, the director did not contravene any of the cited policy memoranda and did not commit any 
prejudicial error. Regardless, counsel's reliance on these memoranda as legally binding, to the exclusion of 
existing legacy Immigration and Naturalization Service precedent, is misplaced.