dismissed L-1B Case: Software Development

identifyilzg d~+a dsleted to 
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" . . 
US. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
OfJice ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
ifivaslon ot ~~rcoa?al privacy 
 U.S. Citizenship 
and Immigration 
PUBLIC COPY 
Services 
File: WAC 08 147 5508 1 
 Office: CALIFORNIA SERVICE CENTER 
 Date: 
 JUN 3 0 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 8 103.5 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. fj 103.5(a)(l)(i). 
Acting Chief, Administrative Appeals Office 
WAC 08 147 55081 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa and 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 to employ the beneficiary as an L-I B 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, a Massachusetts corporation, is engaged in software development and 
consulting services. It states that is the parent company of the beneficiary's foreign employer in India. The 
petitioner seeks to employ the beneficiary as a software engineer for a period of three years, and indicates that he 
will be assigned to the worksite of Connecture, Inc. (hereinafter "the unaffiliated employer") in Waukesha, 
Wisconsin. 
The director denied the petition on October 20, 2008 on two independent and alternative grounds. First, the 
director determined that the petitioner had failed to establish that the beneficiary possesses specialized 
knowledge or that he has been and would be employed in a capacity requiring specialized knowledge. 
Second, citing to the anti-"job shop" provisions of section 214(c)(2)(F) of the Act, as created by the L-1 Visa 
Reform Act of 2004, the director denied the petition as an impermissible arrangement to provide labor for 
hire.' 
On appeal, the petitioner asserts that the beneficiary possesses specialized knowledge of the petitioner's 
proprietary systems, best practices and infrastructure, and that his placement at the worksite of the unaffiliated 
employer is not an arrangement to provide labor for hire. The petitioner submits a detailed letter and additional 
documentary evidence 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 
- - 
The term "job shop" is commonly used to describe a firm that petitions for aliens in L-1B status to contract 
their services to other companies, often at wages that undercut the salaries paid to United States workers. 
Upon introducing the L-1 Visa Reform Act of 2004, Senator Saxby Chambliss described the abuse as follows: 
The situation in question arises when a company with both foreign and U.S.-based operations 
obtains an L-1 visa to transfer a foreign employee who has "specialized knowledge" of the 
company's product or processes. The problem occurs only when an employee with 
specialized knowledge is placed offsite at the business location of a third party company. In 
this context, if the L-1 employee does not bring anything more than generic knowledge of the 
third party company's operations, the foreign worker is acting more like an H-1B professional 
than a true intracompany transferee. Outsourcing an L-1 worker in this way has resulted in 
American workers being displaced at the third party company. 
149 Cong. Rec. S11649, *S11686, 2003 WL 22143 105 (September 17, 2003). In general, the L-1B visa 
classification does not include the same U.S. worker protection provisions as the H-1B visa classification. 
See generally 8 C.F.R. 5 5 2 14.2(h) and (1). 
WAC 08 147 55081 
Page 3 
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 himlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
I. Relevant Law 
Under section lOl(a)(lS)(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 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. 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. 
Section 2 14(c)(2)(F) of the Act, 8 U.S.C. 5 1 184(c)(2)(F) (the "L-1 Visa Reform Act"), in turn, provides: 
WAC 08 147 55081 
Page 4 
An alien who will serve in a capacity involving specialized knowledge with respect to an 
employer for purposes of section 101(a)(15)(L) and will be stationed primarily at the worksite of 
an employer other than the petitioning employer or its affiliate, subsidiary, or parent shall not be 
eligible for classification under section 10 1 (a)(15)(L) if - 
(i) 
 the alien will be controlled and supervised principally by such unaffiliated 
employer; or 
(ii) 
 the placement of the alien at the worksite of the unaffiliated employer is 
essentially an arrangement to provide labor for hire for the unaffiliated 
employer, rather than a placement in connection with the provision of a product 
or service for which specialized knowledge specific to the petitioning employer 
is necessary. 
Section 214(c)(2)(F) of the Act is applicable to all L-1B petitions filed after June 6, 2005, including petition 
extensions and amendments for individuals that are currently in L-1B status. See Pub. L. No. 108-447, Div. I, 
Title IV, 5 412, 118 Stat. 2809,3352 (Dec. 8,2004). 
Due to the nature of the L- 1 Visa Reform Act, the two issues raised by the director - whether the petitioner has 
established that the beneficiary possesses the requisite "specialized knowledge" and whether the requirements of 
the L-1 Visa Reform Act have been satisfied - are independent but legally intertwined. Prior to evaluating 
whether the L-1 Visa Reform Act applies, an adjudicator must determine whether the beneficiary is employed in 
a specialized knowledge capacity. If the beneficiary is not employed in this capacity, the petition may be denied 
on this basis and there is no need to address the requirements of the L- 1 Visa Reform Act. Because the director 
reviewed both issues in a thorough and well-considered decision, and because counsel objects to both 
determinations, the AAO will nevertheless discuss both specialized knowledge and the elements of the L-1 Visa 
Reform Act. Upon review, the AAO concurs with the director's decision to deny the petition. 
11. Specialized Knowledge 
The first issue to be addressed 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 April 23, 2008. The petitioner 
indicated that the beneficiary has been employed by its Indian subsidiary since June 2005. In a letter dated 
April 21, 2008, the petitioner described the beneficiary's proposed duties as follows: 
In the capacity of software engineer, [the beneficiary] shall participate in analysis and design 
as it pertains to specifications and development of applications for the Internet. This entails 
meeting with management to determine requirements and assisting in refinement of 
requirements leading to the development of technically feasible specifications. From 
specifications, he will participate in the difficult development, testing and documentation of 
the required Internet software. 
WAC 08 147 55081 
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Specifically, the duties would include, but not necessarily be limited to: 
Development of project plans 
Requirement and systems specifications 
Systems Design 
Performance Benchmark testing 
Development/coding 
The petitioner emphasized the complex and professional nature of the duties and noted that the beneficiary is 
offered the position "by virtue of the combination of his formal education," which includes a master of 
computer applications degree from Uttar Pradesh Technical University, and "over four years of directly 
related experience." 
The petitioner explained that the company solicits and manages major software and systems development 
efforts for United States corporate clients, and forwards development work to its Indian subsidiary which 
performs design, development, testing and documentation before returning software to the United States for 
installation and user acceptance. The petitioner noted that it requires the presence of key staff in the United 
States to support major client accounts. 
In a second letter, also dated April 21, 2008, the petitioner explained that the unaffiliated employer is "the 
leading provider of enterprise sales automation systems to the healthcare insurance industry in the U.S.," and 
one of the petitioner's major accounts. The petitioner noted that, in 2007, the unaffiliated employer launched a 
market thrust to offer its products and services to mid-market providers, an effort which has required 
"significant repackaging enhancements to their base offerings and a new implementation approach." The 
petitioner stated that it has been engaged to assist the unaffiliated employer with this work and will require an 
onsite software engineer to provide liaison and direction to the offshore team. 
The petitioner further described the beneficiary's role as the onsite software engineer for this client account as 
follows: 
[The beneficiary] will be interacting with various employees of [the unaffiliated employer] in 
their Wisconsin engineering center to understand the new mid-market business requirements, 
analyze and estimate the entire development process, propose an architecture and design for 
the same in consultation with [the unaffiliated employer's] technical team and further manage 
the development and deployment of the product. 
[The beneficiary] will also be responsible for determining the project estimates, which is very 
important and critical because that gives a clear direction to the remaining team members and 
also channels the complete development effort. While the estimation process is extremely 
complex, it is important that it is done correctly. . . . 
[The beneficiary] will not only be actively involved with the client team, but also 
coordinating the development tasks with the offshore team. It is also important to mentor the 
offshore team as per the business scenarios existing at the client site. [The beneficiary] is 
WAC 08 147 55081 
Page 6 
perfectly suited to this job because [he] has gained the requisite knowledge of client's 
business and understands the dynamics of distributed development. 
The petitioner emphasized that the beneficiary currently leads a team of nine people assigned to the 
unaffiliated employer's account and has a good understanding of the unaffiliated employer's product. The 
petitioner noted that the unaffiliated employer has requested an increase in the size of the Indian development 
team and therefore the petitioner deems it necessary to assign the beneficiary to the United States to service 
the account. The petitioner indicated that the beneficiary will be responsible "to maintain the satisfaction level 
of the existing relationship with our client by assuring we deliver schedule compliance and high levels of 
sofhvare code quality." Finally, the petitioner emphasized that the beneficiary's assignment to the client site 
was "not because of [the unaffiliated employer's] demand but for our own purposes." 
The petitioner submitted a copy of the beneficiary's resume, in which he summarizes his technical skills 
related to Java technologies (Java, RMI, Swing, JDBC, JDO, EJB, XML, JAXB); Web technologies (JSP, 
Servlets, Java Script); Windows operating systems; Database (SQL Server 2000, MS Access); IDE (Jbuilder, 
Eclipse, Power Designer); and Webserver (JBoss, WebLogic, Websphere). The resume highlights the 
beneficiary's years of experience in ERP solution development using Java technologies. 
According to the beneficiary's resume, he has worked on two different projects for the unaffiliated employer 
during his tenure with the foreign entity. For one project, he implemented "Quoting, Requoting and 
Enrollment" components of the unaffiliated employer's "InsureConnect" insurance product suite for a "Small 
Group" client of the unaffiliated employer. The other project involved automating insurance functions for 
another "Small and Large Group" client of the unaffiliated employer. 
The director issued a request for additional evidence (RFE) on June 4, 2008. The director requested, inter 
alia, a more detailed description of the beneficiary's duties abroad, and an explanation as to how the 
beneficiary's duties have been and will be different from those performed by the petitioner's other employees 
or by similarly employed workers outside the petitioning organization. The director also requested that the 
petitioner explain any special or advanced training completed by the beneficiary. The director advised that the 
initial evidence did not adequately demonstrate exactly what constitutes the beneficiary's specialized 
knowledge. 
In a letter dated June 13, 2008, the petitioner further described the beneficiary's duties with the foreign entity 
as follows: 
[The beneficiary] is a Software Engineer in India. He has been a very integral part of the 
offshore team and has provided valuable insight as a technologist on the [unaffiliated 
employer's] Account. He has been liaising with the business teams of [the unaffiliated 
employer's] Waukesha, Wisconsin engineering center to understand requirements, translating 
them into technical specifications and working with [the petitioner's] Indian based developers 
to implement the functionality. He has in-depth knowledge of [the unaffiliated employer's] 
business domain, proprietary framework and tools used. 
WAC 08 147 55081 
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The petitioner emphasized that the beneficiary has been managing a module of one of the unaffiliated 
employer's projects and "has gained tremendous knowledge of our customer's proprietary software 
technology, tools used." The petitioner explained that the beneficiary manages nine engineers responsible for 
UI Design, Databases, Workflow, Quality Assurance and Web Services, and is personally involved in high- 
level design, review of low-level design, implementation of complex functionalities, client interaction, team 
management and system administration. The petitioner further noted that the beneficiary not only 
understands the unaffiliated employer's product very well, but also has the skill to interact with its business 
representatives to understand and analyze their requirements. 
In response to the director's request for an explanation regarding what distinguishes the beneficiary's training 
and experience, the petitioner noted that the beneficiary has a Master's degree in computer science, over four 
years of software development experience, extensive experience with the onsite offshore model of software 
product development, in-depth knowledge related to different Software Development Life Cycle 
Methodologies and processes, and strong technological/functionaVprocess experience. The petitioner further 
noted that the beneficiary is an expert in software development using J2EE technologies, and has good to 
expert level knowledge in Java, Struts, RMI, Swing, JDO, EJBIJDBC, SQL Server and Oracle technologies, 
as well expertise in development and tracking tools, and knowledge of deploying transactional web 
applications. Finally, the petitioner stated that the beneficiary has gained "functional knowledge of [the 
unaffiliated employer's] suite of products. 
The petitioner noted that it has two other employees assigned to the unaffiliated company's worksite in 
Wisconsin, but stated that they are assigned to different modules and do not have the knowledge of the core 
product that the beneficiary possesses. The petitioner once again emphasized that it is assigning the 
beneficiary to the client's site to "take care of our software development not because of our customer's 
demand but for our own purposes." 
The petitioner's response included a copy of its consulting agreement with the unaffiliated employer, as well 
as a copy of the "project assignment appendix" specific to the beneficiary's assignment under the agreement, 
which was signed in June 2008. 
The director denied the petition on October 20, 2008, concluding that the petitioner failed to establish that the 
beneficiary will be employed in a capacity involving specialized knowledge of the petitioner's products or any 
other specialized knowledge that is particular to the petitioning company. 
On appeal, the petitioner asserts that the position offered "requires intimate understanding and experience 
with [the company's] offshore delivery model, the offshore team members and their respective capabilities as 
well as the [petitioner's] systems and best practices that are the basis for the success that our client's . . . 
products and services are seeing in the marketplace." The petitioner indicates that it has invested thousands 
of man hours in developing its own proprietary systems, best practices and infrastructure, and that the 
beneficiary's effectiveness is dependent on his knowledge of these proprietary assets and processes. The 
petitioner states that such assets "are not licensed or sold to [the unaffiliated employer] but are bundled into 
the technology services [the beneficiary] will be providing." 
WAC 08 147 55081 
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The petitioner indicates that these proprietary assets include "ProjectWorks" a "toolkit of customized 
templates, processes and procedures that are used to guide a software development effort." The petitioner 
stated that it has developed a "Software Product Development Maturity Model (SPDMM)" to "identify and 
address all significant dimensions of software product development." The petitioner indicated that SPDMM 
"defines design principles in 16 critical areas of enterprise software product architecture," and is used by the 
company as a roadmap for developing enterprise class software products. 
The petitioner further stated that the beneficiary "will be supported while on-site by a very comprehensive set 
of . . . proprietary operational support applications called PIVOT." PIVOT includes applications for 
requirements management, changeldefectlrisk management, schedulingltask management, resource 
management, document management, test case management, collaboration, reporting and support. 
Finally, the petitioner states that the unaffiliated employer has made use of the petitioner's proprietary 
product, Sandstorm, to assist in the evaluation of the scalability and performance of its insurance industry 
product. The petitioner described the product as follows: 
Sandstorm is a proprietary software tool designed to provide web application load testing. 
Sandstorm is an automated load testing tool that helps predict system behavior and 
performance. It exercises an entire enterprise infrastructure by emulating thousands of users 
to identify and isolate problems. Sandstorm is written in Java, and is available to our clients 
under a unique usage based licensing arrangement. 
The petitioner stated that the beneficiary "is expressly familiar with the systems, tools and [company] 
software products mentioned above, as well as the [unaffiliated employer's] products and clients, and the 
[petitioner's] offshore team he will be working so closely with." The petitioner further stated: 
[The beneficiary] is critical and uniquely valuable to our ability to provide the support 
required for the client to be able to handle the volume of business growth they are 
experiencing. [The beneficiary] has been working with them since August, 2005 and has 
acquired a deep working knowledge of their complex health insurance industry, which is 
difficult and hard to find in the marketplace, and possesses sound software technology 
experience that makes him a uniquely qualified resource for this assignment. If compared to 
[the unaffiliated employer's] own employees, [the beneficiary] would be ranked among the 
most knowledgeable about our client's business. 
The petitioner emphasizes that it has 70 engineers devoted to the unaffiliated employer's project, which 
generates close to $3 million in revenues annually, and notes that it does not currently have anyone in the 
United States with the beneficiary's level of knowledge of the unaffiliated employer's software and the work 
that has been done by the Indian team. The petitioner asserts that it will be difficult for it to manage the 
client's expectations without the beneficiary's contribntions. 
Upon review, 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 2 14.2(l)(I)(ii)(D), 
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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. CJ: 
Westen, The Empty Idea of Equality, 95 Harv.L.Rev. 537 (1982). 
1756, 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. 1 12, 123 (1 987) 
(citing ZiVSv. 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 
(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 
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-IB category. Specifically, the original 
drafters of section 101(a)(15)(L) of the Act intended that the class of persons eligible for the L-1 classification 
- -- 
* 
 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 08 147 55081 
Page 10 
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. 445,9lS 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. 91-851 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, 9 206(b)(2), 104 Stat. 4978, 5023 (1990). Instead, 
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 codify the "proprietary knowledge" and "United 
States labor market" references that had existed in the previous agency definition found at 8 C.F.R. 
9 214.2(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. 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)). 
WAC 08 147 5508 1 
Page 11 
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 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 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. 
9 214.2(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 engineer working with ERP solutions, and require him to use knowledge and 
technical skills which are widely available in the information technology industry, such as Java, web and 
database technologies. The petitioner asserts, however, that some aspects of the position require client- 
WAC 08 147 55081 
Page 12 
specific knowledge that the beneficiary gained while employed by the foreign entity in India, and therefore 
cannot be performed by the typical skilled worker. The petitioner did not explain, however, how knowledge 
of an unaffiliated employer's proprietary products could be consider specialized knowledge related to the 
petitioner's organization. While such knowledge may be valuable to the petitioner in fulfilling its contractual 
obligations to the client, it does not fall within the statutory or regulatory definitions of specialized 
knowledge. 
In addition, on appeal, the petitioner asserts for the first time that the beneficiary possesses, and the proffered 
position requires, specialized knowledge of the petitioner's own proprietary processes, systems and best 
practices. The petitioner, however, offers no explanation as to why these "proprietary assets," which include 
"ProjectWorks," "PIVOT," "SPDMM" and "Sandstorm," were not mentioned when describing the 
beneficiary's claimed specialized knowledge either at the time the petition was filed or when responding to the 
director's request for evidence, and the beneficiary makes no mention of such processes or systems in his 
resume. While the AAO does not doubt that the petitioner has developed internal methodologies and tools for 
carrying out software development projects, the petitioner's failure to mention these processes prior to the 
denial of the petition reasonably raises questions regarding their relative importance. If such proprietary 
knowledge is absolutely required to carry out the proposed job duties, then USCIS would expect it to be 
mentioned as a pre-requisite for the position and not revealed for the first time on appeal. Instead, the 
petitioner stated at the time of the filing that the beneficiary is qualified for the position based on his master's 
degree in computer science, his expertise in common software development tools, and his four years of 
related work experience. Furthermore, there is no evidence that the beneficiary has actually received training 
on or utilized the four "proprietary assets" mentioned while employed by the foreign entity. Going on record 
without supporting 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 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Even assuming, arguendo, that knowledge of the petitioner's proprietary tools, processes and methodologies 
is required to perform the proposed job duties and that the beneficiary has such knowledge, the AAO must 
determine whether 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." 
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- 1 B specialized knowledge petitions. In 198 1, 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 
intracompany transferees. The House Report indicates the employee must be a "key" person 
and associates this employee with "managerial personnel." 
WAC 08 147 55081 
Page 13 
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 of 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-IB classification. 
The proprietary specialized knowledge in this matter is stated to include proprietary tools and methodologies 
developed by the petitioner for the management of the company's software and systems development projects. 
However, all IT consulting firms develop internal tools, methodologies, procedures and best practices for 
documenting project management, technical life cycle and software qualify assurance activities. 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 customized standard software development 
practices. The petitioner has not specified the amount or type of training its technical staff members receive 
in the company's tools and procedures and therefore it cannot be concluded that processes are 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. Again, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of SofJici, 22 I&N Dec. at 165. 
To the contrary, when the petitioner was asked to distinguish the beneficiary's training from that of similarly 
employed workers within the company and in the industry at large, it highlighted the beneficiary's educational 
qualifications, industry experience, domain knowledge, expertise in J2EE and other common technologies, 
and functional knowledge of the unaffiliated employer's suite of products. The petitioner did not indicate that 
the beneficiary possesses relatively advanced knowledge of the petitioner's internal proprietary processes and 
procedures, and, as stated above, made no mention of any proprietary knowledge until after the petition was 
WAC 08 147 55081 
Page 14 
denied. Furthermore, the petitioner has not articulated or documented how specialized knowledge is typically 
gained within the organization, or explained how and when the beneficiary gained such knowledge. 
Based on the petitioner's representations, its proprietary 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 and appropriate functional background for the project to which they will 
be assigned. For this reason, the petitioner has not established that knowledge of its processes and procedures 
alone would constitute specialized knowledge. 
The petitioner argues that the second, and most important, component of the beneficiary's purported 
specialized knowledge is his existing knowledge of the unaffiliated employer's suite of products for the 
healthcare insurance industry. Specifically, .the petitioner indicates that the beneficiary's involvement with the 
unaffiliated employer's projects for approximately three years is indicative of his knowledge of the petitioner's 
products, services and techniques and their application in international markets. However, as stated above, 
the beneficiary's familiarity with the unaffiliated employer's systems and requirements, while valuable to the 
petitioner, cannot be considered knowledge specific to the petitioning organization and cannot form the basis 
of a determination that he possesses specialized knowledge. All software development employees within the 
petitioning organization would reasonably be familiar with its proprietary internal processes and 
methodologies for carrying out client projects. Similarly, most employees would also possess project-specific 
knowledge relative to one or more international clients, which the petitioner would equate to knowledge of 
the application of the petitioner's methodologies and processes in international markets. However, the fact 
that the beneficiary possesses very specific experience with a particular international client project does not 
establish that the beneficiary's knowledge is indeed special or advanced. 
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. 
WAC 08 147 55081 
Page 15 
The petitioner has not successfully demonstrated that the beneficiary's knowledge of the petitioner's processes 
and procedures gained during employment with the foreign entity is advanced compared to other similarly 
employed workers within the organization. As noted above, the petitioner's attempts to distinguish the 
beneficiary's knowledge as advanced relative to a specific client project are unpersuasive. All of the foreign 
entity's technical employees would reasonably have client-specific knowledge in addition to knowledge of the 
company's internal tools and processes for implementing projects. By this logic, any of them would qualify 
for L-1B classification if offered a position working on the same project in the United States. 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 computer programmer is not 
"specialized knowledge." The petitioner must establish that qualities of the processes, procedures, and 
technologies require this employee to have knowledge beyond what is common in the industry. This has not 
been established in this matter. 
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, while impressive, 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. 
3 
 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-1B 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). 
WAC 08 147 55081 
Page 16 
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 appeal will be dismissed. 
111. L-1 Visa Reform Act 
Assuming arguendo that the petitioner had established that the beneficiary possesses specialized knowledge, 
the terms of the L-1 Visa Reform Act would still mandate the denial of this petition. One of the main 
purposes of the L-1 Visa Reform Act amendment was to prohibit the outsourcing of L-1B intracompany 
transferees to unaffiliated employers to work with "widely available" computer software and, thus, help 
prevent the displacement of United States workers by foreign labor. See 149 Cong. Rec. S 1 1649, *S 1 1686, 
2003 WL 22143105 (September 17, 2003); see also Sen. Jud. Comm., Sub. on Immigration, Statement for 
Chairman Senator Saxby Chambliss, July 29, 2003, available at 
<http://judiciary.senate.gov/member-statement. cfm?id =878&wit_id=3355> (accessed on September 5, 
2008). 
If a specialized knowledge beneficiary will be primarily stationed at the worksite of an unaffiliated employer, 
the statute mandates that the petitioner establish both: (1) that the beneficiary will be controlled and 
supervised principally by the petitioner, and (2) that the placement is related to the provision of a product or 
service for which specialized knowledge specific to the petitioning employer is necessary. Section 
214(c)(2)(F) of the Act. These two questions of fact must be established for the record by documentary 
evidence; neither the unsupported assertions of counsel or the employer will suffice to establish eligibility. 
Matter ofSoflci, 22 I&N Dec. 158, 165 (Comm. 1998); Matter of Obaigbena, 19 I&N Dec. at 534. 
If the petitioner fails to establish both of these elements, the beneficiary will be deemed ineligible for 
classification as an L-1B intracompany transferee. As with all nonimmigrant petitions, the petitioner bears 
the burden of proving eligibility. Section 291 of the Act, 8 U.S.C. 
 1361; see also 8 C.F.R. tj 103.2(b)(l). 
A. Threshold Question: Worksite of Beneficiary 
As a threshold question in the analysis, USCIS must examine whether the beneficiary will be stationed 
primarily at the worksite of the client/unaffiliated company. Section 214(c)(2)(F) of the Act. The petitioner 
indicated on the Form 1-129 petition that the beneficiary will be employed in Waukesha, Wisconsin. In 
response to Question 13 on the Form 1-129 Supplement L, the petitioner answered "Yes" when asked: "Will 
the beneficiary be stationed primarily offsite (at the worksite of an employer other than the petitioner or its 
affiliate, subsidiary, or parent)?" 
The record also contains a consulting agreement and project assignment appendix confirming the 
beneficiary's off-site employment at the unaffiliated employer's facility in Waukesha, Wisconsin. 
Based on the petitioner's statements and the evidence of record, the AAO concludes that the beneficiary will 
WAC 08 147 55081 
Page 17 
be primarily employed as a consultant at the worksite of an unaffiliated employer, thereby triggering the 
provisions of the L-1 Visa Reform Act. The petitioner therefore must establish both: (1) that the beneficiary 
will be controlled and supervised principally by the petitioner, and (2) that the placement is related to the 
provision of a product or service for which specialized knowledge specific to the petitioning employer is 
necessary. Section 2 14(c)(2)(F) of the Act. 
B. Control and Supervision of Beneficiary 
Under section 214(c)(2)(F)(i) of the Act, the petitioner must establish that the beneficiary will be controlled 
and supervised principally by the petitioner, and not by the unaffiliated employer. The petitioner stated the 
following on Form 1-129: 
[The beneficiary] will remain our employee and will report to us. We will be responsible for 
paying, hiring, firing, supervising and controlling the work of [the beneficiary]. 
The petitioner stated in its letter dated July 2 1, 2008 that the beneficiary is coming to work for the petitioner's 
own interests and not as a consultant for the unaffiliated employer. The petitioner emphasized that it has a 
development contract with the unaffiliated employer under which it will provide a finished product, as 
opposed to a consulting agreement. 
The petitioner submitted a copy of a consulting agreement entered with the unaffiliated employer in July 
2005, under which the petitioner was retained as an independent contractor "to perform consulting services 
with respect to software development" for the unaffiliated employer. The agreement indicates that the 
petitioner "shall perform the Services under the general direction of [the unaffiliated employer]," but shall 
determine the manner and means in which the services are accomplished. 
In the RFE issued on June 4, 2008, the director requested, inter alia, evidence that establishes that the 
beneficiary will be controlled and supervised principally by the petitioner. The director advised that such 
evidence should include but is not limited to copies of contracts, statements of work, work orders, and service 
agreements between the petitioner and the unaffiliated employer for the services or products to be provided by 
the beneficiary. 
In its letter dated June 13, 2008, the petitioner stated that the beneficiary will be controlled and supervised 
principally by the petitioning company and not by the unaffiliated employer, but did not further address this 
issue in its letter. The petitioner re-submitted a copy of its consulting agreement with the unaffiliated 
employer and attached a "Project Assignment Appendix" which addresses the beneficiary specifically. The 
agreement states: 
[The petitioner is] to provide an onsite Software Engineer who will be responsible for 
specialized software engineering services and coordination of offshore work activities that 
will be under the direction of [the unaffiliated employer's] implementation services project 
director. Work will be performed on a time & materials basis according to [the unaffiliated 
employer's] defined assignments. 
' WAC 08 147 55081 
Page 18 
The beneficiary is to provide "periodic software engineering deliverables as mutually agreed by the parties." 
The unaffiliated employer will reimburse the petitioner for the beneficiary's services at a rate of $65.00 per 
hour, and will be responsible for paying the beneficiary's relevant business expenses. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be 
principally controlled by the petitioner and not by the unaffiliated employer. The director acknowledged the 
petitioner's claim that the beneficiary would be principally supervised by an employee of the petitioner, but 
observed that there was no evidence in the record to substantiate this claim. 
On appeal, the petitioner asserts that the beneficiary will be controlled and supervised principally by the 
petitioning organization and not by the unaffiliated employer. Specifically, the petitioner states that the 
beneficiary will be supervised by the foreign entity's Manager of Software Engineering, who is stated to 
supervise the entire offshore engineering team allocated to the unaffiliated employer's projects. The petitioner 
indicates that she and the beneficiary will communicate via formal status emails and conference calls. The 
petitioner indicates that the beneficiary will also be supervised by the U.S. company's Area Vice President 
who also serves as account manager for the unaffiliated employer. 
Upon review, the petitioner has not submitted sufficient evidence to establish that the beneficiary will be 
principally controlled by the petitioning company. 
The Form 1-129 specifically requests that the petitioner "describe how and by whom the beneficiary's work 
will be controlled and supervised." The petitioner was also instructed to "[ilnclude a description of the 
amount of time each supervisor is expected to control and supervise the work." Despite the request for 
additional, specific evidence to establish this element of eligibility, the petitioner never provided these details 
or otherwise corroborated its statement that the beneficiary would report principally to the petitioning 
company prior to the adjudication of the petition. The petitioner's failure to submit the requested evidence 
precludes a material line of inquiry, and is grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
Going on record without supporting evidence will not satisfy the petitioner's burden of proof in these 
proceedings. Matter of Soflci, 22 I&N Dec. at 165. The AAO does not doubt that the petitioner maintains 
control over personnel issues such as salary and performance reviews, but the petitioner must still establish 
that the beneficiary's day-to-day work will be directly supervised and controlled by the petitioning company 
while he is based at the unaffiliated employer's worksite. 
The only relevant documentary evidence submitted prior to the adjudication of the petition is the above- 
referenced "Project Assignment Appendix," which states that the beneficiary will work "under the direction of 
[the unaffiliated employer's] implementation services project director," and complete assignments that are 
defined by the unaffiliated employer. While the petitioner now identifies the names of the beneficiary's 
supervisors on appeal, one supervisor is located in India and the other is primarily a sales executive who 
appears to be based in California. It is evident that the beneficiary will not be supervised by an employee of 
the petitioning company at the unaffiliated employer's Wisconsin worksite. 
Furthermore, the petitioner has not addressed the documentary evidence in the record which clearly states that 
the beneficiary will work under the supervision of the unaffiliated employer's implementation services project 
' WAC 08 147 55081 
Page 19 
director. We conclude, therefore, that the petitioner has failed to meet its burden of establishing that the 
beneficiary would be controlled and supervised principally by the petitioning company and has not satisfied 
the requirements of section 214(c)(2)(F)(i) of the Act. On this basis, the petition must be denied. 
C. Necessity of Specialized Knowledge Specific to the Petitioning Employer 
The second issue under the L-1 Visa Reform Act analysis is whether the petitioner has established that the 
beneficiary's placement is related to the provision of a product or service for which specialized knowledge 
specific to the petitioning employer is necessary. Section 214(c)(2)(F)(ii) of the Act. As discussed below, the 
petition also fails to meet the requirements of this section of the Act. 
Question 13 on the Form 1-129 Supplement L asks the petitioner to "describe the reasons why placement at 
another worksite outside the petitioner, subsidiary, or parent is needed." In answering question 13, the 
petitioner is also instructed to "[ilnclude a description of how the beneficiary's duties at another worksite 
relate to the need for the specialized knowledge he or she possesses." In response to this question, the 
petitioner stated: 
Participate in defininglidentifying the solutions, better understand and communicate the 
requirements of the engagement to the team. Coordinate the development work and business unit 
liaison. 
In denying the petition, the director concluded that the placement of the beneficiary at the worksite of the 
unaffiliated employer is essentially an arrangement to provide labor for hire for the unaffiliated employer, 
rather than a placement in connection with the provision of a product or service for which specialized 
knowledge specific to the petitioning employer is necessary. The director observed that "the service the 
petitioner is providing is essentially consultant/project managers for hire to modify the petitioner's client's IT 
system and/or [third]-party software and then communicate with offshore lead in modifyinglfixing them." 
The director noted that "the beneficiary will be utilizing standard, and IT sector essential, project management 
tools and techniques so as to conform to the client's requirements, specifications and needs, rather than a 
unique sofhvare, firmware or hardware product that waslis conceptualized, designed, published, sold, 
maintained by the petitioner." The director concluded that "the specialized knowledge is not specific to the 
petitioner." 
On appeal, the petitioner emphasizes that it does not provide individual engineers for hire or contract labor, 
and asserts that "all of our engineers remain as [company] employees, leveraging our infrastructure, our 
proprietary, repeatable 'ProjectWorks' process and best practices, and are supported by [the petitioner's] 
management system." The petitioner indicates that it provides clients with software product development 
work "under a strategic partnership." As discussed above, the petitioner has identified various internal 
processes, tools and methodologies on appeal, including SPDMM, PIVOT, ProjectWorks and Sandstorm. The 
petitioner states that the beneficiary's effectiveness in the offered position "is dependent on his knowledge of 
these proprietary . . . assets and processes," and that such processes will be "bundled into the technology 
services he will be providing." 
The petitioner's assertions are not persuasive. 
 The petitioner has not established that the beneficiary's 
' WAC 08 147 55081 
Page 20 
placement at the unaffiliated employer's worksite is related to the provision of a product or service for which 
specialized knowledge specific to the petitioning employer is necessary. Section 214(c)(2)(F)(ii) of the Act. 
The petitioner must demonstrate in the first instance that the beneficiary's offsite employment is connected 
with the provision of the petitioner's product or service which necessitates specialized knowledge that is 
speczjic to the petitioning employer. If the petitioner fails to prove this element, the beneficiary's employment 
will be deemed an impermissible arrangement to provide "labor for hire" under the terms of the L-1 Visa 
Reform Act. 
As previously discussed, the petitioner has failed to establish this element. With regard to the beneficiary's 
claimed knowledge, the petitioner has failed to describe with any clarity what constitutes the beneficiary's 
specialized knowledge, how such knowledge relates specifically to the petitioning company, or how this 
knowledge would be applied by the beneficiary in the course of fulfilling his assigned duties at the worksite 
of the unaffiliated employer. Rather, prior to the denial of the petition, the petitioner repeatedly emphasized 
the beneficiary's technical skills, formal education, and familiarity with the unaffiliated employer's own 
systems, processes, clients and personnel as being critical to his successful performance of the job duties. 
The fact that the beneficiary would liaise with the petitioner's offshore team while assigned to the unaffiliated 
employer does not change the fact that the services he will provide do not require the application of 
specialized knowledge specific to the petitioning company. Based on the unaffiliated employer's 
requirements, the beneficiary is expected to rely on his understanding of the unaffiliated employer's core 
software products, interact with the client's users to understand requirements related to its products, 
understand the needs of the unaffiliated employer's clients, and make enhancements to the client's product. 
The petitioner has not shown that any of the products or services to be developed or supported will require the 
application of the petitioner's own technologies. The beneficiary will not be implementing, developing, 
maintaining, or supporting systems or software developed by the petitioning company, or providing a service 
that other information technology companies with comparable capabilities could not provide. 
As discussed above, the petitioner's claims regarding the importance of the petitioner's proprietary internal 
processes and methodologies were introduced for the first time on appeal and are not persuasive. While it is 
possible that the beneficiary here possesses knowledge that is directly related to both the petitioner and the 
unaffiliated employer's product or service, it is incumbent upon the petitioner to establish that the position for 
which the beneficiary's services are sought is one that primarily requires knowledge specific to the petitioner. 
Here, the petitioner has failed to provide corroborating evidence demonstrating that the beneficiary's 
placement with the unaffiliated employer is related to the provision of a product or service for which 
specialized knowledge specific to the petitioning employer is necessary. There is no evidence that the 
petitioner is providing the beneficiary's services in connection with the sale of any technology products or 
that the beneficiary's offsite employment requires any specialized knowledge specific to the petitioner's 
operations. The primary purpose of the assignment is for the beneficiary to support, enhance and modify the 
unaffiliated employer's software products. Any IT consulting company could likely provide an employee to 
deliver the exact same services, using its own internal project delivery tools and methodologies, and achieve 
the same results for the unaffiliated employer. 
The petitioner suggests that the position does not involve labor for hire because the petitioner has been 
WAC 08 147 5508 1 
Page 2 1 
retained to provide specific project work and not simply engineers for hire. However, if the "project related 
work" involves the unaffiliated employer essentially outsourcing entire software or IT support functions to the 
petitioner, then the employees assigned to the "project related work" are not providing a product or service 
which necessitates specialized knowledge that is specific to the petitioning employer. The consulting 
agreement submitted indicates that "All Work Product shall be deemed 'works made for hire" of which [the 
unaffiliated employer] shall be deemed the author." 
In conclusion, the limited evidence in the record related to the nature of the contract indicates that the 
petitioner is providing software development services to the unaffiliated employer and that the beneficiary 
was chosen for the assignment because of his familiarity with the unaffiliated employer's products and 
personnel. The fact that such services appear to be delivered on a large-scale "project" basis is insufficient to 
preclude a finding that such services essentially constitute "labor for hire." 
Accordingly, the petitioner has failed to meet its burden of establishing that the beneficiary's placement is 
related to the provision of a product or service for which specialized knowledge specific to the petitioning 
employer is necessary, and the petition may not be approved. 
The petition will be denied and the appeal will be dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. When the AAO denies a petition on 
multiple alternative grounds, a plaintiff can succeed on a challenge only if he or she shows that the AAO 
abused its discretion with respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Znc. v. 
United States, 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.