dismissed L-1B Case: Software Development

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : MAR. 28, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner , a company engaged in geophysical software development , seeks to temporarily 
employ the Beneficiary as a software developer under the L-1 B nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section l01(a)(l5)(L). 
8 U.S.C. § 110l(a)(15)(L). The L-1B classification allows a corporation or other legal entity 
(including its affiliate or subsidiary) to transfer a qualifying foreign employee with "specialized 
knowledge " to work temporarily in the United States . 
The Director of the Vermont Service Center denied the petition, concluding that the Petitionerdid not 
establish that the Beneficiary possesses specialized knowledge and that he has been employed abroad 
and will be employed in the United States in a specialized knowledge capacity . 
The matter is now before us on appeal. In its appeal, the Petitioner states that the Director applied a 
higher burden of proof than that required by the regulations and asserts that it submitted suHicient 
evidence to establish that the Beneficiary qualities for L-1 B classification. 
Upon de novo review, we ~ill dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qt.talifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a position involving 
specialized knowledge , for one continuous year within three years preceding the Beneficiary's 
application for admission into the United States. Section I 01 (a)( 15)( L) of the Act. In addition , the 
Beneficiary must seek to enter the United States temporarily to continue rendering his or her services 
~ to the same employer or a subsidiary or atliliate thereof in a managerial, executive, or specialized 
knowledge capacity. !d. 
A beneficiary "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 
intemational markets or has an advanced level of knowledge of processes and procedures of the 
company." Section 214(c)(2)(B) ofthe Act, 8 U.S.C. § 1184(c)(2)(B) . 
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Specialized knowledge is fm1her defined as "special 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." 8 C.F.R. § 214.2(1)(1)(ii)(D). 
An L-1 B classification petition must be accompanied by evidence establishing that: the beneficiary 
has been employed abroad in a position that was managerial , executive , or involved specialized 
knowledge for at least one continuous year in the three years preceding the tiling of the petition; the 
beneficiary is coming to work in the United States in a specialized knowledge capacity for the same 
employer or a subsidiary or affiliate of the foreign employer: and, the beneficiary's prior education. 
training and employment qualifies him or her to perform the intended services in the United States . 
8 C.F.R. § 214.2(1)(3). 
II. SPECIALIZED KNOWLEDGE 
The purpose of this proceeding is to determine whether the Director properly denied the petition 
based on the finding that the Petitioner did not establish that the Beneficiary possesses specialized 
knowledge or that he has been employed abroad and would be employed in the United States in a 
specialized knowledge capacity. 
A. Evidence of Record 
The Petitioner is a software development firm with 45 employees and a gross annual income of 
$10.7 million. It seeks to employ the Beneficiary as a software developer. The Petitioner's initial 
evidence included a letter from the Petitioner , a copy of the Beneficiary's resume and master of 
science degree in computer science awarded in December 2009 , evidence of the Petitioner's 
ownership and corporate status, and product and service information from the company's website. 
In its support letter, the Petitioner described itself as "a leading provider of high performance 
software components for visualization and analysis of complex data" and further stated that it 
provides IT solutions that "enable software engineers to reduce development times and ongoing 
costs while enhancing the performance and functionality of their graphics applications.'· The 
Petitioner stated that the Beneficiary has been employed as a senior software developer with its 
French subsidiary for over three years and described his current duties as follows: 
[The Beneficiary] performs software development and research for specialized 
JavaScript, 2D, and 3D interactive graphics and cross platform visualization packages 
to build unique client web-based applications to run across various web browsers and 
different devices without any additional plug-ins utilizing WebGL and HTML5. He 
assists in the development of a graphic library for one of our major clients. This 
library is proprietary to [its organization] and specifically customized for the client 
[The Beneficiary] is one of a few employees who possesses a technical and detailed 
understanding of the library ' s functionality and is currently responsible for 
development requests pertaining to this product. He stores, retrieves, and manipulates 
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data for analysis of system capabilities and requirements. [He] creates architecture 
and writes code of the applications and libraries, which will be used by geophysicists, 
geologists, and petroleum engineers globally to view dynamic reports, actual drilling 
status, logs, and seismic data on multiple devices. He tests and supp011s HTML5 
Toolkit. 
The Petitioner restated the above information in its description of the Beneficiary's proposed 
position in the United States and claimed that the Beneficiary "is well qualified for the o1Tered 
position" based on his educational credentials and years of work experience, including three years of 
experience exclusively with the Petitioner's foreign organization. The Petitioner's statement did not 
specifically identify the Beneficiary's claimep specialized knowledge. 
The Beneficiary's resume indicates that, prior to joining the foreign entity in 2013, he was employed 
as· a postgraduate intern and software developer with in the United Kingdom and France from 
2009 until 2012, working on the development of software. The Beneficiary 
indicates that since joining the Petitioner ' s French subsidiary , he has worked with on 
components, tools and application management using Eclipse and .Java. l.n addition, he states that he 
has performed web application development work tor tor the monitoring of micro 
seismic events using HTML5, jQuery, Node.js, Bootstrap and Backbone.js. The Beneficiary 
indicates that he used the Petitioner's to display 3D views and charts and to manipulate 
large amounts of data provided by 
Following a review of the record, the Director issued a request for evidence (RFE) advising the 
Petitioner that the initial evidence did not establish that the Beneficiary's duties abroad involved 
knowledge that is special or advanced and further noting that the Beneficiary ' s knowledge of the 
employer's operations, systems, and methodologies does not automatically lead to the conclusion 
that his knowledge is "special" or "advanced." The Director requested that the Petitioner identify 
the nature of the Beneficiary's knowledge with more specificity and explain how his knowledge or 
expertise is "special" or "advanced" as compared to employees within the same organization and 
within the industry. The Director also asked the Petitioner to state the minimum time required to 
gain the specialized knowledge, including formal training and post-training experience , and to 
establish that the Beneficiary has knowledge that can normally be gained only through prior 
experience or training within the organization . Further , the Director requested more detailed 
information regarding the specitic nature of the industry , the nature of the products and services 
involved, the nature of the specialized knowledge, and the need tor the Beneficiary's specific 
specialized knowledge. The Director provided a list of other evidence that would assist in 
establishing that the Beneficiary possesses specialized knowledge. 
In response, the Petitioner and foreign entity provided statements that addressed the Beneficiary ' s 
claimed specialized knowledge. Regarding the Beneticiary's employment abroad, the foreign 
entity's representative , discussed the positive attributes and wide application of 
the company's products within various industries and noted that the Beneficiary "helped in different 
development tasks " and was " involved in testing and support of the library" tor the proprietary 
product. He emphasized that the Beneficiary is "particularly knowledgeable in the 
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30 visualization part (optimization of reservoir displays in particular) as well as the modeling of the 
data on the server side to minimize the transfer of data from the server to the client browser." 
further explained: 
One key project for [the Beneficiary] was his involvement in the development of a 
graphic library for which is one of our major clients. This project relates to the 
efficient visualization of unstructured giga cell reservoir simulations and [the 
Beneficiary] has developed unique expertise that is important for the success o[t] our 
next development effort. Specifically , [the Beneficiary 's] assignment was to 
develop a new data format to enable on-the-fly level-of-detail rendering 
and filtering of the reservoir cell data. 
The development of the visualization techniques and data format was structured as a 
shared IP development. The project was initially developed for local analysis and 
visualization of the reservoir data but [the Petitioner] would like to extend this 
research into a commercial otJering for web-based visualization of ultra-large 
reservoir grids into its product line. [The Beneficiary] was the 
primary developer for this project over the last two years and he is the employee 
from [the Petitioner's group] that has the most intimate knowledge about the 
technology development during this project. Just one additional employee for [the 
foreign entity] has been involved with this project. 
noted that out of 72 company employees worldwide, the Beneticiary is one of a few 
who possess "a technical and detailed understanding of the library's functionality." 
In a separate letter, the Petitioner 's operations manager , stated that the Beneficiary 
will serve as "the lead developer of a new generation of [company] products'' for the oil and gas 
industry, using his knowledge of "specialized .JavaScript, 20 and 30 interactive graphics combined 
with extensive knowledge and understanding of the Exploration & Production specific 
requirements" of its oil and gas industry clients. made claims about the capabilities 
ofthe Petitioner's proprietary and stated the Beneficiary was involved in developing the 
tool. She asserted that the Beneficiary ' s transfer to the U.S. office would help in "ramping up the 
development team" and "transfer some of the knowledge and expertise " to its based oftice. 
She reiterated that the Beneficiary "is one of the few employees who possesses a technical and 
detailed understanding" of the and stated that while similar technologies exist "in a 
handful of industrial or research labs across the world,'' hiring someone with the Beneficiary's skill 
level "would be extremely difticulf' and would otherwise take "at least 2 years to train someone to 
perform [the Beneficiary's] extensive responsibilities. '' 
She further stated that the Beneficiary will report to the director of the development 
team , which will include two developers and a tester. The Beneficiary is expected to transfer his 
knowledge and train the team members in parallel with the development effort. 
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The Petitioner also provided organizational charts depicting its own and the foreign entity's 
respective statling hierarchies. The foreign entity's organizational chart depicts the Beneficiary as 
part of a two-person team within ' a term which is not defined either in the chart or in any 
of the other documents. The ' department is shown as consisting of a project manager 
overseeing the Beneficiary in his position as senior software developer. The Petitioner's 
organizational chart depicts the Beneficiary as part of an eight-person team, which is 
subject to the direction of a "VP Development." The chart does not identify any of the employees in 
the Beneficiary's team or provide their respective position titles. 
The Director denied the petition after concluding that the Petitioner's response did not overcome the 
deficiencies identified in the RFE. On appeal, the Petitioner asserts that the Director applied a 
higher burden of proof than that required by the regulations and contends that the Beneticiary 
qualities for the L-1 B classification. The Petitioner also contends that the Beneficiary was "the 
primary developer" of several of the Petitioner's proprietary products, including the 
specialized library, which the Petitioner now seeks to expand as a commercial offering. The 
Petitioner claims to have a total of six employees, including the Beneticiary, who are "at the same 
level" among 15 other senior developers and further states that the Beneficiary's role within the 
organization "is to develop new capabilities for the proprietary digital libraries related to advanced 
3D visualization." 
B. Analysis 
In order to establish eligibility, a petltwner must show that the individual beneficiary will be 
employed in a specialized knowledge capacity. 8 C.F.R. § 214.2(1)(3)(ii). The statutory definition 
of specialized knowledge at Section 214(c)(2)(B) of the Act is comprised of two equal but distinct 
subpmis. First, an individual is considered to be employed in a capacity involving specialized 
knowledge if that person "has a special knowledge of the company product and its application in 
international markets." Second, an individual is considered to be serving in a capacity involving 
specialized knowledge if that person "has an advanced level of knowledge of processes and 
procedures of the company." See also 8 C.F.R. § 214.2(l)(l)(ii)(D). A petitioner may establish 
eligibility by submitting evidence that the beneficiary and the p;·otJered position satisfy either prong 
ofthe definition. 
Once a petitioner articulates the nature of the claimed specialized knowledge, it is the \Veight and 
type of evidence that establishes whether or not the beneficiary actually possesses specialized 
knowledge. USCIS cannot make a factual determination regarding a given beneficiary's specialized 
knowledge if the petitioner does not, at a minimum. articulate \vith specificity the nature of its 
products and services or processes and procedures, the nature of the specific industry or field 
involved, and the nature of the beneficiary's knovdedge. The petitioner should also describe how 
such knowledge is typically gained within the organization, and explain how and when the 
individual beneficiary gained such knowledge. 
As both "special" and ''advanced" are relative terms, determining whether a given beneficiary's 
knowledge is "special" or "advanced" inherently requires a comparison of the beneficiary's 
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knowledge against that of others. With respect to either special or advanced knowledge, the 
petitioner ordinarily must demonstrate that a beneficiary's knowledge is not commonly held 
throughout the particular industry and cannot be easily imparted from one person to another. The 
ultimate question is whether the petitioner bas met its burden of demonstrating by a preponderance 
of the evidence that the beneficiary's knowledge or expertise is advanced or special, and that the 
beneficiary's position requires such knowledge. 
In the instant matter , the Petitioner states that the Beneficiary has special and advanced knowledge 
of its proprietary product, which is customized to tit the needs of individual clients. 
Because "special knowledge" concerns knowledge of the petitiOning organization's products or 
services and its application in international markets, a petitioner may meet its burden through 
evidence that the beneficiary has knowledge that is distinct or uncommon in comparison to the 
knowledge of other similarly employed workers in the particular industry. Knowledge that is 
commonly held throughout a petitioner's industry or that can be easily imparted from one person to 
another is not considered specialized. 
Here, the Petitioner's claim rests on broad statements about the Beneficiary's experience and level of 
understanding of the complexities involved in the development and application of the Petitioner's 
proprietary tool, which is customized to fit individual clients' needs. We note, however, despite 
claiming on appeal that the Beneficiary had a "lead" role in developing the product, 
the Petitioner did not consistently maintain this claim throughout this proceeding. While the 
Petitioner has consistently stated that the Beneficiary is a senior sottware developer with "a technical 
and detailed understanding" of the functions of a graphic library tor a key client , its initial support 
letter indicates that the Beneticiary "assists in the development " of the library , which detracts from 
the claim that the Beneficiary was the lead developer in a project involving a proprietary product. 
The Petitioner did not initially claim that the Beneticiary was involved and had a primary role in 
developing the proprietary product. In fact, it did not mention m Its 
initial letter. Likewise, while generally referred to the Beneficiary's involvement in 
development of his Jetter suggested that the Beneficiary had developed a web-based 
visualization capability in conjunction with a client that the company would now like to incorporate 
into the existing product. He did not state that the Beneficiary was the lead or 
primary developer of 
Further, the information provided in the Beneficiary's resume does not support the Petitioner ' s claim 
that he was the primary developer of one of the company's key products. The Beneticiary indicates 
that he worked with the Petitioner's client, on the development of components and 
applications tor software product using his skills in Eclipse and Java, and that he 
developed a web application tool tor using the Petitioner's along with his 
skills in HTMLS , jQuery, Node.js , Bootstrap and Backbone.js, none of which are the Petitioner's 
technologies. He does not indicate that he developed during his tenure with the 
foreign entity or list any in-house research and development assignments . 
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In addition, the Petitioner has not provided a detailed description of the Beneficiary's assignments 
with the foreign entity sufficient to corroborate its claims regarding his role in developing its 
proprietary product, as it has not explained when or how he actually developed 
Given the fact that the Petitioner did not mention this claimed lead development role at the time of 
filing, we find the Petitioner's statements alone insufficient to establish that the Beneficiary did in 
fact develop its proprietary product. A petitioner must establish that it meets each eligibility 
requirement of the benefit sought by a preponderance of the evidence. Matter (~jChawathe , 25 I& N 
Dec. 369, 375-76 (AAO 2010). In other words, a petitioner must show that what it claims is "more 
likely than not" or "probably" true. To determine whether a petitioner has met its burden under the 
preponderance standard, we consider not only the quantity, but also the quality (including relevance, 
probative value, and credibility) of the evidence. !d. at 376; Matter ofE-M-, 20 I&N Dec. 77, 79-80 
(Comm 'r 1989). A Petitioner's statement may be persuasive evidence if it is detailed, specific, and 
credible. However, in this case, the· Petitioner's statements regarding the claimed speciali zed 
knowledge appear to have evolved since the petition was tiled and the only independent supporting 
evidence, the Beneficiary 's resume, does not appear to support the claims the Petitioner now makes 
on appeal. 
The Director provided a list of documentation that would have assisted in corroborating its 
statements regarding the claimed specialized knowledge, but the Petitioner opted to establish the 
claimed specialized knowledge through submission of statements alone. As such, the record does 
not include documentation that would tend to support the Petitioner's claims, such as information 
regarding the product's initial release date or any internal reports or documentation 
demonstrating the Beneficiary 's role in the development of the product. 
The current statutory and regulator y definitions of "s pecialized knowledge" do not include a 
requirement that a beneficiary's knowledge be proprietary. However , a petitioner might satisfy the 
current standard by establishing that a beneficiary's purported speciali zed knowledge is proprietary , 
as long as the petitioner demonstrates that the knowledge is either "special" or "advanced.'' By 
itself~ simply claiming that knowledge is proprietary will not satisfy the statutory standard. 
Although we cannot conclude that the Petitioner established that the Beneficiary actually played a 
substantial role in the development of its product , we do not doubt that the Benefici ary 
possesses proprietary ·knowledge of the product based on his employment with the foreign entity. 
However, the Petitioner has not provided a sufficient explanation or evidence to support its claim 
that the Beneficiary's proprietary knowledge is truly distinct or uncommon. The Petitioner 's 
evidence includes job postings for other graphics software development positions within its 
Texas office that require a bachelor's degree in computer science and three years of experience in 
HTML5, JavaScript, Java or C# languages , and an understanding of object oriented programming 
and design patterns. The Petitioner's various versions of are built in these environments 
and the Petitioner has not indicated that the Beneficiary completed, or that its newly hired developers 
generally complete , extensive training once hired in order to work with the company's products . 
While the Petitioner develops software tools with scientific applications tor the oil and gas indu stry, 
it does not appear to require new hires to have experience in this field or particular skills beyond an 
intermediate amount of software development experience using common programming languages. 
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Therefore, while the Petitioner offers information about the application and 
capabilities, such information does not establish that the claimed proprietary knowledge could be 
characterized as distinct or uncommon when compared to knowledge generally held by other 
software developers working in the Petitioner's industry, despite the Petitioner's reference to the 
Beneficiary as having "unique expertise." As previously stated, the Petitioner has neither 
consistently claimed nor provided sunicient evidence to suppot1 the claim that the Beneficiary was a 
lead developer of the proprietary The Petitioner has stated that it would take two years 
to train another developer to the Beneficiary's level of expertise, but has not provided further details 
or explanation of the type of training that would be involved and has not stated that the Beneficiary 
himself completed any training upon joining the foreign entity. 
We have also considered whether the evidence establishes that the Beneficiary possesses advanced 
knowledge. Because "advanced knowledge" concerns knowledge of an organization's processes and 
procedures, the Petitioner may meet its burden through evidence that the Beneficiary has knowledge 
of or expertise in the organization's processes and procedures that is greatly developed or further 
along in progress, complexity and understanding in comparison to other workers in the employer's 
operations. Such advanced knowledge must be supported by evidence setting that knowledge apart 
from the elementary or basic knowledge possessed by others. 
Despite claiming that the Beneficiary is one of few employees who possesses knowledge in the use 
and functionality of the product, the foreign entity's organizational chart does not 
support the claim that the Beneficiary is at the "top tier" of senior software developers. As 
previously stated, while the chart depicts the Beneficiary and one other employee (a 
project manager 
who oversees the beneficiary) as part of the ' department, the Petitioner does not provide 
an explanation as to what' stands for or explain how the Beneficiary's knowledge differs 
from that of software developers within other departments. Similarly, the Petitioner's own 
organizational chart broadly places the Beneficiary in a group of 8 employees who are part of the 
team. However, the chart does not distinguish the Beneficiary and other members of the 
team as being "top tier" of senior software developers. 
While the Petitioner claims that the Beneficiary possesses an advanced level of knowledge, its main 
focus in this petition is on the Beneficiary's knowledge of a proprietary product rather than the 
organization's processes or procedures. In fact, the Petitioner does not define or describe any of its 
processes or procedures with any specificity or provide information regarding the training, 
professional background, and length of experience of other software developers within the 
Petitioner's organization that would allow us to make comparisons between their knowledge and that 
of the Beneficiary. 
Further, despite stating that the Beneficiary is a senior software develop~r the Petitioner did not 
provide evidence to establish that the Beneficiary's knowledge is advanced in relation to the 
Petitioner's other employees, as we have. no information regarding those employees' relative 
knowledge and experience. The Petitioner did not provide evidence of any training the Beneficiary 
completed in company processes upon being hired by the foreign entity or explain the processes or 
procedures in which he possesses advanced knowledge. In reviewing the job criteria provided in the 
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Petitioner's job listings, it does not appear that the Beneticiary's knowledge or experience surpasses 
that of other Java-based software developers. We find that the evidence is insufficient to establish 
that the Beneficiary's expertise in the organization's processes and procedures is greatly developed 
or further along in progress, complexity, and understanding in comparison to other workers in the 
organization. The Petitioner's claims are not supported by evidence setting the Beneficiary's 
knowledge of company processes apart from the elementary or basic knowledge possessed by others. 
Finally, we acknowledge the Petitioner's claim that the Beneficiary possesses various characteristics 
of a worker with qualifying specialized knowledge as set forth in users Policy Memorandum PM-
602-0111, L-1 B Adjudications Policy (Aug. 17, 2015), https://www.uscis.gov/laws/policy­
memoranda. For the reasons discussed above, the Petitioner has not submitted sufficient evidence to 
establish that the Beneficiary possesses knowledge that is either special or advanced. While the 
Beneficiary may be tilling a role that may be beneficial to the Petitioner's competitiveness in the 
marketplace, this characteristic alone is not probative of his specialized knowledge. As noted in the 
memorandum, the "characteristics" listed "by the Petitioner are only "factors that users may 
consider when determining whether a beneficiary's knowledge is specialized" and such factors must 
be supported by evidence. /d. The memorandum emphasizes that "ultimately, it is the weight and 
type of evidence that establishes whether the beneficiary possesses specialized knowledge." !d. at 
13. 
In sum, we find that the Petitioner has provided credible evidence which establishes that the 
Beneficiary's educational credentials and employment experi-ence make the Beneficiary a suitable 
candidate for the proposed U.S. position. However, the record does not establish that the 
Beneficiary has specialized knowledge or that his duties abroad or with the U.S. entity required and 
would require specialized knowledge. 
III. CONCLUSION 
For the reasons discussed above, the evidence submitted does not establish that the Beneficiary 
possesses specialized knowledge and that he was employed abroad, and will be employed in the 
U.S., in a specialized knowledge capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of . ID# 234810 (AAO Mar. 28, 2017) 
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