dismissed L-1B Case: Software Development

U.S. Department of Homeland Security 
identifying dzta deleted to 
prevent c ie2rly unvi ~,1~2~t:2d 
invasion of pereasa! privacy 
U. S. citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
File: WAC 08 022 5013 1 
 Office: CALIFORNIA SERVICE CENTER 
 Date: 
IN RE: 
AUG 1 1 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 l(a)(15)(L) 
IN 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. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
k& F. Grissom 
Acting Chief, Administrative Appeals Office 
WAC 08 022 5013 1 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office ("AAO") on appeal. The AAO will dismiss the 
appeal. 
The petitioner, a California corporation, filed this nonimmigrant visa petition to employ the beneficiary as an L- 
1 B intracompany transferee with specialized knowledge pursuant to section 1 O 1 (a)( 15)(L) of the Immigration and 
Nationality Act ("the Act"), 8 U.S.C. 5 1 lOl(a)(lS)(L). The petitioner, a software development and consulting 
company, claims to be the parent company of the beneficiary's foreign employer in India. The petitioner seeks to 
employ the beneficiary in the position of programmer analyst for a period of three years. 
The director denied the petition based on two separate 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 it has satisfied the criteria for establishing that the beneficiary has been 
and will be employed in a specialized knowledge capacity. Specifically, the petitioner argues that the 
beneficiary has specialized knowledge of a proprietary tool called "Vista web development tool," which is 
necessary for the project on which the beneficiary will work in the United States. The petitioner also claims 
that there was a mistake made at the time of filing, as the petitioner submitted information pertaining to the 
wrong client project. The petitioner asserts that the beneficiary will be working on the "RightDB" project for 
Transglobal Ventures, Inc. and contends that the project does not involve labor for hire or supervision and 
control of the beneficiary by the client company. The petitioner submits a letter and additional documentation 
in support of the appeal. 
- 
I 
 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. S 1 1649, *S 1 1686, 2003 WL 22 143 105 (September 17, 2003). In general, the L- 1 B visa 
classification does not include the same U.S. worker protection provisions as the H-1B visa classification. 
See generally 8 C.F.R. $9 214.2(h) and (I). 
WAC 08 022 50 13 1 
Page 3 
To establish L-1 eligibility under section 101(a)(15)(L) of the Act, the petitioner must demonstrate that the 
beneficiary, within three years preceding the beneficiary's application for admission into the United States, has 
been employed abroad in a qualifying managerial or executive capacity, or in a capacity involving specialized 
knowledge, for one continuous year by a qualifying organization. The petitioner must also demonstrate that the 
beneficiary seeks to enter the United States temporarily in order to continue to render services to the same 
employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized 
knowledge. 
The regulation at 8 C.F.R. 9 214.2(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 101 (a)(15)(L) of the Act, an alien is eligible for classification as a nonimmigrant if the alien, 
among other things, will be rendering services to the petitioning employer "in a capacity that is managerial, 
executive, or involves specialized knowledge." Section 214(c)(2)(B) of the Act, 8 U.S.C. 5 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 
WAC 08 022 50 13 1 
Page 4 
international markets, or an advanced level of knowledge or expertise in the organization's 
processes and procedures. 
Section 214(c)(2)(F) of the Act, 8 U.S.C. 5 1184(c)(2)(F) (the "L-1 Visa Reform Act"), in turn, provides: 
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 addressed by the director is whether the petitioner established that the beneficiary possesses 
specialized knowledge and that he has been and will be employed in a capacity requiring specialized 
knowledge. 
The petitioner filed the Form 1-129, Petition for a Nonirnmigrant Worker, on October 30, 2007. The petitioner 
indicated that the beneficiary has been employed by its foreign subsidiary since August 1, 2006, performing the 
following duties: 
WAC 08 022 50 13 1 
Page 5 
Involved in complete Software Development Life Cycle (SDLC), Designing & developing 
applications using JAVA and J2EE technologies. Using the IDE like Eclipse, MyEclipse & Web 
Logic for developing enterprise applications, web services and database. Designing applications 
using MVC Architecture, OOAD (Object Oriented Analysis and Design), and UML. 
The petitioner describes the beneficiary's proposed duties in the United States in the Form 1-129 as follows: 
Implementing STRUTS Framework and MVC Design paradigm for web module. Designing 
applications using MVC Architecture, OOAD (Object Oriented Analysis and Design), and 
UML. Development [sic] Java Beans to store and retrieve the data entered by the user and 
display them in the respective JSP pages. 
The petitioner also submitted the beneficiary's resume. The resume confirms that the beneficiary began working 
for the foreign employer in August 2006, approximately 15 months prior to the filing of the instant petition. The 
resume also lists the beneficiary's "technical skills" and summarizes his work experience abroad. The beneficiary 
is describes as having a Master's degree in computer applications, over one year of experience in developing 
applications using Java and J2EE technologies, and expertise in using Eclipse and MyEclipse for developing 
enterprise applications, web services, and databases. The beneficiary indicates that he has knowledge of various 
computer programming and scripting languages, distributing technologies, database applications, design tools, 
Open Source frameworks, operating systems, Weblapplication servers, protocols and software package such as, 
inter alia, Java, J2EE, C, C++, Oracle, HTML, MS Visio, Rational Rose, Linux, Weblogic 8.1, Apache Tomcat 
5, etc. 
In a letter dated August 3 1, 2007, the petitioner reiterated the brief position description provided on the Form I- 
129. The petitioner emphasized that "[ilt is well established that the position of Programmer Analyst is a 
Specialty Occupation" and noted that "in as such as the Job involves [clomplex analysis, it clearly qualifies as a 
"Specialty Occupation." The petitioner stated that the beneficiary is qualified for the position based on his 
education and over one year of experience in the information technology industry. 
Although the petitioner made no specific reference in its letter to a client or the specific project to which the 
beneficiary would be assigned, it submitted a copy of a consulting services agreement made between the 
petitioner and Health Net, Inc. in March 2005, accompanied by an amendment and scope of work agreement 
executed in March 2007. The scope of work agreement states that "consultant will provide staff augmentation to 
Health Net's Corporate Systems department for the implementation of the following Procurement-centered SAP 
projects." The scope of work indicates that Health Net will be responsible for providing work space and 
applicable software applications, assigning development tasks, deliverables and deadlines, and reviewing all work 
performed by the petitioner's developers. 
On December 4, 2007, the director requested additional evidence. The director requested, inter alia, a more 
detailed description of the beneficiary's duties in the United States and abroad, an explanation addressing how the 
beneficiary's duties are different, special or advanced compared to those of other workers employed by the 
petitioner or in the industry at-large, and an explanation addressing how the beneficiary's training or experience 
differs from that provided to other workers in the field of endeavor. The director further requested that the 
petitioner explain exactly what is the equipment, system, product, technique, research or service of which the 
WAC 08 022 5013 1 
Page 6 
beneficiary has specialized knowledge, to describe any significant past assignments completed by the beneficiary, 
and to provide information regarding the number of similarly-employed workers in the foreign and U.S. entities. 
In response, the petitioner submitted an offer letter dated November 12, 2007, in which it further describes the 
project on which the beneficiary will work in the United States, Right DB-Job Portal, and his proposed duties. 
The "job portal" is described as a "career website for technology and engineering professionals and the companies 
that seek to employ them." The petitioner further described the beneficiary's proposed duties as follows: 
At the present time, we are in need of a Programmer Analyst to participate in this application 
development project we are performing. This project includes the use of generally accepted 
application development practices in the design, documentation and implementation areas of this 
service. 
Working with full life cycle software Development, which includes requirement & Object 
Oriented analysis, design, development, testing and documentation and writing Requirement 
Specification documents, design documents, Test cases and Analysis, User Training documents 
and Technical Help documents. Management of the work assignments, and handle the delivery 
and performance of a team, while personally taking part into [sic] the code writing, testing, bug 
fixing, technical support and documentation. 
Programmer Analyst working in applications or systems development analyze users' needs and 
design, construct, test, and maintain computer applications software or systems. Programmer 
Analyst can be involved in the design and development of many types of software, including 
software for operating systems and network distribution, and compilers, which convert programs 
for execution on a computer. In programming, or coding, Programmer Analyst instruct[s] a 
computer, line by line, how to perform a function. He also solves technical problems that arise. 
Programmer Analyst must possess strong programming skills, but are more concerned with 
developing algorithms and analyzing and solving programming problems than with actually 
writing code. Programmer Analyst often works as part of a team that designs new hardware, 
software, and systems. 
The petitioner stated that the beneficiary would be working as part of a 15-member project team, and would be 
involved in prototype designing, gathering user requirements, creating technical and user interface specifications, 
and using technologies such as Rational Rose, JSP, HTML, JavaScript, Ajax and JavaBeans. The petitioner also 
submitted a project introduction document, market analysis study and high-level design document pertaining to 
the RightDB project. 
In addition, the petitioner provided a letter from the foreign entity dated January 14,2008 in which the beneficiary 
is described as working abroad as a "programmer analyst." The beneficiary is described as working on three 
different projects during his approximately 15 months of employment - compliance system, multi-party video 
conferencing, and "TradeNet." In all these projects, the beneficiary is described as using computer skills relating 
to his knowledge of, inter alia, JDK 1.5, JSP, Struts 1.1, Java Script, and Microsoft Windows. 
With respect to the beneficiary's claimed specialized knowledge, the foreign entity stated: 
WAC 08 022 5013 1 
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[The beneficiary's] duties here and the part he will be handling in the USA office are unique and 
is apt for his abilities and skills. 
[The beneficiary] has accrued a training that is exclusive and significantly unique from the 
[foreign entity's] Indian Office, that is of international competency. His skills and computer 
proficiency is exclusively unique from the other employees holding the same position. 
The petitioner provided a list of the foreign entity's 157 employees by name and job title, which shows that the 
beneficiary is one of 1 14 workers who hold the position title "programmer analyst" within the company. 
The petitioner did not describe any "training" provided to the beneficiary other than his university education, 
which was completed prior to his employment by the foreign entity 15 months preceding the filing of the instant 
petition. The petitioner also did not explain how the beneficiary's knowledge differs from the knowledge 
possessed by the other 113 programmer analysts employed by the petitioning organization or in the industry at- 
large, or what makes such knowledge "exclusively unique." 
On July 2,2008, the director denied the petition. The director concluded that the petitioner failed to establish 
that the beneficiary possesses specialized knowledge or that the beneficiary has been or will be employed in a 
capacity involving specialized knowledge. The director emphasized that the beneficiary's duties and skills as a 
programmer analyst demonstrate knowledge that is common among similarly employed workers in the 
petitioner's industry. The director observed that the petitioner had not identified any aspect of the current or 
proposed position requiring or involving specialized knowledge of the petitioner's product, tools, processes or 
procedures, or documented that the beneficiary received any special or advanced training during his tenure 
with the foreign entity. 
On appeal, the petitioner asserts that the petitioner has satisfied the criteria for establishing that the beneficiary 
has been and will be employed in a specialized knowledge capacity. Specifically, the petitioner states: 
[The beneficiary's] one year work experience involved working on designing of the 
proprietary tool "Vista web development tool.'' Since [the beneficiary] had worked on 
designing a tool on the same technology previously he was assigned to work on this project. 
Also, his educational background He holds a Degree of Masters in Computer Applications 
from University of Calicut, India (One of the Best Universities in India) - contributed to him 
being assigned to this specific task. It is this work on the proprietary tool that makes the 
position he held one which requires specialized knowledge. 
The petitioner further states that "the RightDB project revolves around a technical tool called Vista web 
development tool, which includes Vista Tag Library, Vista DAO Builder and Vista Action Controller." The 
petitioner explains as follows: 
This specific proprietary tool has been designed by [the petitioner] for the Right DB Project. 
He is one of the few employees of [the petitioning company] who worked on the 
development of this tool. Extensive knowledge on this proprietary tool and involvement in 
WAC 08 022 50131 
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the RightDB project from inception make [the beneficiary] a very important resource to the 
client. An individual of such caliber is required for further implementation of the project at 
the clientsite [sic]. 
It is this reason that makes this position one which requires specialized knowledge. 
In support of the appeal, the petitioner submits: (1) a copy of the contract between Transglobal Ventures Inc. 
and the petitioner dated September 22, 2007, with attached statement of work for development of the 
RightDB-Jobs Portal dated October 4, 2007; (2) a letter dated July 22, 2008 from the client, Transglobal 
Ventures, Inc. confirming the beneficiary's role as a programmer analyst on the RightDB project since 
October 2007; and (3) a copy of the Software Requirement Specification document for the Right DB project. 
Upon review, the petitioner's assertions are not persuasive in demonstrating that the beneficiary has 
specialized knowledge or that he has been or will be employed in a specialized knowledge capacity as defined 
at 8 C.F.R. 5 214.2(1)(l)(ii)(D). 
Looking to the language of the statutory definition, Congress has provided USCIS with an ambiguous definition 
of specialized knowledge. In this regard, one Federal district court explained the infeasibility of applying a 
bright-line test to define what constitutes specialized knowledge: 
This ambiguity is not merely the result of an unfortunate choice of dictionaries. It reflects the 
relativistic nature of the concept special. An item is special only in the sense that it is not 
ordinary; to define special one must first define what is ordinary. . . . There is no logical or 
principled way to determine which baseline of ordinary knowledge is a more appropriate reading 
of the statute, and there are countless other baselines which are equally plausible. Simply put, 
specialized knowledge is a relative and empty idea which cannot have a plain meaning. C.' 
Westen, The Empty Idea of Equality, 95 Harv.L.Rev. 537 (1 982). 
1756, Inc. v. Attorney General, 745 F.Supp. 9, 14-1 5 (D.D.C., 1990).~ 
While Congress did not provide explicit guidance for what should be considered ordinary knowledge, the 
principles of statutory interpretation provide some clue as to the intended scope of the L-1B specialized 
knowledge category. NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 1 12, 123 (1987) 
(citing IXS v. 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" 
* 
 Although 1756, Inc, v. Attorney General was decided prior to enactment of the statutory definition of 
specialized knowledge by the Immigration Act of 1990, the court's discussion of the ambiguity in the legacy 
Immigration and Naturalization Service (INS) definition is equally illuminating when applied to the definition 
created by Congress. 
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is commonly found to mean "surpassing the usual" or "exceptional." Webster's New College Dictionaiy, 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 
1756, Inc. v. Attorney General, 745 F.Supp. at 14. 
Third, a review of the legislative history for both the original 1970 statute and the subsequent 1990 statute 
indicates that Congress intended for USCIS to closely administer the L-1B category. Specifically, the original 
drafters of section 101(a)(15)(L) of the Act intended that the class of persons eligible for the L-1 classification 
would be "narrowly drawn" and "carefully regulated and monitored" by USCIS. See generally H.R. Rep. No. 91- 
851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750,2754, 1970 WL 5815. The legislative history of the 1970 Act 
plainly states that "the number of temporary admissions under the proposed 'L' category will not be large." Id In 
addition, the Congressional record specifically states that the L-1 category was intended for "key personnel." 
See generally, id. The term "key personnel" denotes a position within the petitioning company that is "[olf 
crucial importance." Webster S New College Dictionary 620 (3'* 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. 445,919 Cong. 210,218,223,240,248 (Nov. 12, 1969). 
Neither in 1970 nor in 1990 did Congress provide a controlling, unambiguous definition of "specialized 
knowledge," and a narrow interpretation is consistent with so much of the legislative intent as it is possible to 
determine. H. Rep. No. 91-85 1 at 6, 1970 U.S.C.C.A.N. at 2754. This interpretation is consistent with legislative 
history, which has been largely supportive of a narrow reading of the definition of specialized knowledge and the 
L-1 visa classification in general. See 1756, Inc. v. Attorney General, 745 F.Supp. at 15-16; Boi Na Braza 
Atlanta, LLC v. Upchurch, Not Reported in F.Supp.2d, 2005 WL 2372846 at *4 (N.D.Tex., 2005), afSd 194 
Fed.Appx. 248 (5th Cir. 2006); Fibermaster, Ltd. v. I.N.S., Not Reported in F.Supp., 1990 WL 99327 (D.D.C., 
1990); Delta Airlines, Inc. v. Dept. of Justice, Civ. Action 00-2977-LFO (D.D.C. April 6, 2001)(on file with 
AAO). 
Further, although the Immigration Act of 1990 provided a statutory definition of the term "specialized 
knowledge" in section 214(c)(2) of the Act, the definition did not generally expand the class of persons eligible 
for L-1B specialized knowledge visas. Pub.L. No. 101-649, 5 206(b)(2), 104 Stat. 4978, 5023 (1990). Instead, 
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 
WAC 08 022 50131 
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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. 
5 214.2(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)). 
To determine what is special or advanced, USCIS must first determine the baseline of ordinary. 
 As a 
baseline, the terms "special" or "advanced" must mean more than simply "skilled" or "experienced." By 
itself, work experience and knowledge of a firm's technically complex products will not equal "special 
knowledge." See Matter of Penner, 18 I&N Dec. 49, 53 (Comm. 1982). In general, all employees can 
reasonably be considered "important" to a petitioner's enterprise. If an employee did not contribute to the 
overall economic success of an enterprise, there would be no rational economic reason to employ that person. 
An employee of "crucial importance" or "key personnel" must rise above the level of the petitioner's average 
employee. In other words, specialized knowledge generally requires more than a short period of experience; 
otherwise special or advanced knowledge would include every employee in an organization with the 
exception of trainees and entry-level staff. If everyone in an organization is specialized, then no one can be 
considered truly specialized. Such an interpretation strips the statutory language of any efficacy and cannot 
have been what Congress intended. 
Considering the definition of specialized knowledge, it is the petitioner's, not USCIS's, burden to articulate 
and prove that the beneficiary possesses "special" or "advanced" knowledge. Section 214(c)(2)(B) of the Act, 
8 U.S.C. 5 1184(c)(2)(B). USCIS cannot make a factual determination regarding the beneficiary's specialized 
knowledge if the petitioner does not, at a minimum, articulate with specificity the nature of the claimed 
specialized knowledge, describe how such knowledge is typically gained within the organization, and explain 
how and when the beneficiary gained such knowledge. 
Once the petitioner articulates the nature of the claimed specialized knowledge, it is the weight and type of 
evidence which establishes whether or not the beneficiary actually possesses specialized knowledge. A 
petitioner's assertion that the beneficiary possesses advanced knowledge of the processes and procedures of 
the company must be supported by evidence describing and distinguishing that knowledge from the 
elementary or basic knowledge possessed by others. Because "special" and "advanced" are comparative 
terms, the petitioner should provide evidence that allows USCIS to assess the beneficiary's knowledge 
relative to others in the petitioner's workforce or relative to similarly employed workers in the petitioner's 
specific industry. 
In examining the specialized knowledge of the beneficiary, the AAO will look to the petitioner's description of 
WAC 08 022 50 13 1 
Page 11 
the job duties and the weight of the evidence supporting any asserted specialized knowledge. See 8 C.F.R. 
(5 214.2(1)(3)(ii). The petitioner must submit a detailed 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 or abroad requires an employee with specialized knowledge or that the beneficiary has 
specialized knowledge. Although the petitioner repeatedly asserts that the beneficiary has been and will be 
employed in a "specialized knowledge" capacity, the petitioner has not adequately articulated any basis for 
this claim. The petitioner has failed to identify any special or advanced body of knowledge which would 
distinguish the beneficiary's role from that of other similarly experienced programmer analysts employed by 
the petitioning organization or in the industry at-large. Going on record without documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). Specifics are clearly an important indication of whether a beneficiary's duties involve specialized 
knowledge; otherwise, meeting the definitions would simply be a matter of reiterating the regulations. See 
Fedin Bros. Co., Ltd. v. Sava, 724, F. Supp. 1 103 (E.D.N.Y. 1989), aff'd, 905, F.2d 41 (2d. Cir. 1990). 
The petitioner asserts that the beneficiary has approximately one year of "IT Experience" and knowledge of 
various computer programming and scripting languages, distributing technologies, database applications, design 
tools, Open Source frameworks, operating systems, Weblapplication servers, protocols and software packages 
such as, inter alia, Java, J2EE, C, C++, Oracle, HTML, MS Visio, Rational Rose, Linux, Weblogic 8.1, Apache 
Tomcat 5, etc. The petitioner further asserts that the beneficiary, as a programmer analyst working on client 
projects, has used, and will use, this knowledge of "generally accepted application development practices" to 
design and develop software, and to program, or code, computers, which instructs "a computer, line by line, how 
to perform a function." On appeal, the petitioner asserts, for the first time, that the beneficiary also has 
specialized knowledge of a proprietary development tool called the "Vista web development tool" which is 
purportedly necessary for the project on which the beneficiary will work in the United States. The petitioner 
claims that the beneficiary directly participated in the development of the tool specifically for the Right DB 
project. However, even though requested by the director, the petitioner failed to explain how the beneficiary's 
knowledge of "vista web," and the various computer programming and scripting languages, design tools, 
operating systems, and software packages listed in the record, is different from or advanced compared to other 
workers employed by the petitioner or in the industry at-large. The petitioner also failed to address how the 
beneficiary's training differed from that provided to other workers in the field of endeavor. Failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
(5 103.2(b)(14). 
Accordingly, despite the petitioner's claim, the record does not establish how, exactly, this knowledge 
materially differs from knowledge possessed by other workers employed by the petitioning organization or by 
programmer analysts in the industry at-large. The record does not establish what qualities of the beneficiary's 
computer skills, as well as his claimed knowledge of the "Vista web" development tool, are of such 
complexity that this knowledge constitutes special or advanced knowledge. Importantly, the record is not 
persuasive in establishing why, exactly, any of the beneficiary's knowledge cannot be imparted to a similarly 
WAC 08 022 50131 
Page 12 
experienced and educated programmer analyst in a relatively short period of time. Again, going on record 
without documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soflci, 22 I&N Dec. at 165 (citing Matter of Treasure Craft of California, 14 I&N 
Dec. 190)). The petitioner does not articulate with specificity the nature of the claimed specialized knowledge, 
describe how such knowledge is typically gained within the organization, or explain how and when the 
beneficiary gained such knowledge. 
Furthermore, the AAO notes that prior to the appeal, there was no mention in the record of the Vista web 
development tool, and no mention of the beneficiary's prior experience working with the Right DB project 
overseas. The foreign entity did not mention the Right DB project when describing the beneficiary's 
assignments overseas in its letter dated January 14, 2008. Notably, the AAO can find no reference to "Vista 
web" in the beneficiary's resume or in the extensive documentation submitted with respect to the Right DB 
project. Prior to the denial of the petition, the petitioner claimed that the beneficiary is qualified for the U.S. 
position based on his education and one year of IT industry experience, and did not identify any body of 
knowledge that is specific to the petitioning organization. The petitioner merely stated that the beneficiary 
possesses skills and computer proficiency that are "exclusively unique.'' If the beneficiary's project experience 
and knowledge of Vista web form the foundation of the beneficiary's claimed specialized knowledge, it is not 
clear why the petitioner did not mention them previously. The petitioner was given ample opportunity to describe 
and document the beneficiary's specialized knowledge qualifications prior to adjudication of the petition. On 
appeal, the petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
Considering that the petitioner did not commence work on the RightDB project until October 2007, the instant 
petition was filed in October 2007, and the record contains a letter dated November 21, 2007 advising the 
beneficiary that he has been offered a position as a programmer analyst on the Right DB project, the AAO must 
assume that any relevant project experience he might possess was gained after the date the petition was filed. The 
petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may 
not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. 
Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
Moreover, given the beneficiary's relatively short tenure with the foreign entity, the record is not persuasive in 
establishing that the beneficiary has been or will be a "key" employee having special or advanced knowledge 
of a company product or service, the application of this product or service, or a process or procedure of the 
petitioning organization. As noted above, the beneficiary is one of 114 programmer analysts employed by the 
foreign entity. As the beneficiary has apparently received no special training in "Vista web" or any of the 
listed computer skills, the record is not persuasive in establishing that the beneficiary's knowledge is truly 
special or advanced. 
Overall, the record does not establish that the beneficiary's knowledge is substantially different from the 
knowledge possessed by programmer analysts generally throughout the industry or by other employees of the 
petitioning organization. The fact that few other workers possess very specific knowledge of certain aspects 
of the petitioning organization's internal tools or processes, e.g., Vista web, does not alone establish that the 
beneficiary's knowledge is indeed advanced or special. All employees can be said to possess unique skill sets 
to some degree; however, a skill set that can be easily imparted to another similarly educated and generally 
WAC 08 022 50131 
Page 13 
experienced programmer analyst is not "specialized knowledge." 
 Even assuming arguendo that the 
beneficiary actually possesses knowledge of the proprietary "Vista web" tool, the proprietary qualities alone 
do not establish that any knowledge of this development tool is "special" or "advanced." Rather, 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. The 
fact that other workers outside of the petitioning organization may not have very specific knowledge 
regarding the petitioner's enterprise is not relevant to these proceedings if this knowledge gap could be closed 
by the petitioner by simply revealing the information to a newly hired, generally experienced and educated 
worker. 
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 quali~ 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 discount the likelihood that the beneficiary is a skilled programmer analyst. There is no 
indication, however, that the beneficiary has any knowledge that exceeds that of any experienced programmer 
analyst specializing in web-based technologies, or that he has received special training in the company's 
methodologies or processes which would separate him from any other worker employed within the 
petitioner's organization or in the industry at-large. The petitioner has failed to demonstrate that the 
beneficiary's knowledge is any more advanced or special than the knowledge held by a skilled worker. See 
Matter of Pennev, 18 I&N Dec. at 52. 
The legislative history for the term "specialized knowledge" provides ample support for a restrictive 
interpretation of the term. In the present matter, the petitioner has not demonstrated that the beneficiary 
should be considered a member of the "narrowly drawn" class of individuals possessing specialized 
knowledge. See 1756, Inc. v. Attorney General, supra at 16. Based on the evidence presented, the petitioner 
has not established that the beneficiary has specialized knowledge or that he was or will be employed in a 
capacity involving specialized knowledge. For this reason, the appeal will be dismissed. 
111. L-1 Visa Reform Act 
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-IB 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 08 022 5013 1 
Page 14 
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. S11649, "S11686, 
2003 WL 22143 105 (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&witWid=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: (I) 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 of Soflci, 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. 5 1361; see also 8 C.F.R. 5 103.2(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 clientlunaffiliated company. Section 21 4(c)(2)(F) of the Act. The petitioner 
indicated on the Form I- 129 petition that the beneficiary will be employed at its Sunnyvale, California office. 
In response to Question 13 on the Form 1-129 Supplement L, the petitioner answered "No" 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)?" 
In its letter dated August 3 1, 2007, the petitioner stated that the petitioner would supervise and control the 
beneficiary from its office in Sunnyvale, and that the client would pay the company directly for his services. 
As noted above, at the time of filing, the petitioner submitted a consulting services agreement and statement 
of work referencing services to be provided by the petitioner to Health Net, Inc. The services were described 
as "staff augmentation" to the client's corporate systems department, with the work to take place at the client's 
premises. 
In the request for evidence issued on December 4,2007, the director cited to the relevant provisions of the L- 1 
Visa Reform Act and requested that the petitioner clarify the location where the beneficiary will work. 
In its response dated January 30, 2008, the petitioner indicated that the beneficiary would work at its 
Sunnyvale, California office, but also stated that "the placement of the beneficiary at the client's worksite is 
WAC 08 022 50 13 1 
Page 15 
not to provide labor for hire." The petitioner indicated that it was submitting a "copy of product description 
and technical specification of product that beneficiary would work on - for the client Health Net." However, 
the attached product description pertained to the RightDB project, not to Health Net's project. 
The director determined that the beneficiary will be stationed primarily at the worksite of the 
clienvunaffiliated employer, Health Net, Inc., and therefore the provisions of Section 214(c)(2)(F) are 
applicable. 
On appeal, the petitioner states: "This is to clarify that there was a mistake in the earlier petition when Health 
Net was given as the client. The client for this project is Transglobal Ventures Inc. and the project is called 
RightDB." 
The petitioner submits a copy of the contract made between Transglobal Ventures, Inc. and the petitioner on 
September 22, 2007. The statement of work pertaining to the RightDB-Jobs Portal project identifies the 
location of the work to be performed as 4403 lS%ve., SE, Ste 303B, 516, Cedar Rapids, Iowa 52402. The 
evidence submitted on appeal includes a letter from the client stating that the beneficiary will work at the 
petitioner's site. However, the petitioner states in its letter dated July 25, 2008 that "the objective of placing 
the beneficiary at the client site is to implement the remaining phases of the project at client site," and that 
"the beneficiary will be supervised and controlled by other representatives of the petitioner at the client site." 
Based on these responses and statements, the AGO concludes that the beneficiary will 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 has made a number of conflicting statements as to the actual worksite of the 
beneficiary and the project to which he will be assigned. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
 Regardless, on appeal, the petitioner 
does not specifically object to the director's conclusion that the beneficiary will work primarily at a client site. 
With respect to the petitioner's claim that the petitioner's contract with Health Net, Inc. was submitted in error, 
the AAO notes that petitioner referenced both Health Net and the RightDB project in response to the RFE. 
Given evidence in the record that the beneficiary was assigned to the RightDB project several weeks after the 
petition was filed, the AAO cannot discount the possibility that the petitioner originally intended to assign the 
beneficiary to the Health Net project and will not completely disregard this evidence. 
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 
WAC 08 022 50131 
Page 16 
following in its letter dated August 3 1, 2007: 
As an employer, [the petitioner] will be responsible for paying, hiring, firing, supervising, 
and controlling [the beneficiary] from our Office Located at Suite #lo, 528 Weddell Dr., 
Sunnyvale, CA-94089. The Client pays [the petitioner] directly for the Programmer Analysts' 
service, who is employed by [the petitioner], and who works under the supervision of our 
Manager responsible for the client account at our office located at Suite #lo, 528 Weddell Dr, 
Sunnyvale, CA-94089. 
The consultant services agreement with Health Net, Inc. submitted at the time of filing indicates that the 
petitioner's staff will serve as "staff augmentation" and "will be assigned development tasks, deliverables, and 
associated deadlines as determined by the Health Net Manager and Program Manager." The agreement 
further indicates that "all deliverables prepared by Consultant will be subject to the review by Health Net's 
project manager." 
In the request for evidence, the director requested evidence to establish that the beneficiary will be controlled 
and supervised principally by the petitioner. 
In response to the RFE, the petitioner stated: "We assure you that the beneficiary will be controlled and 
supervised principally by the Employer in US which is [the petitioner] and the placement of beneficiary at 
client's worksite is not to provide labor for hire." The petitioner indicated that the beneficiary will be part of a 
15-member team which includes a project managerheam lead, system architect, system administrator, six 
computer systems analysts, a security administrator, two developers, two testers and a facilitator. The 
petitioner did not specifically identify the name, job title or worksite of the individual or individuals who 
would be directly controlling and supervising the beneficiary's work. 
In denying the petition, the director found that the petitioner submitted insufficient evidence to corroborate its 
statement that the beneficiary will be principally controlled and supervised by the petitioning entity, such as 
contracts, statements of work, etc. 
On appeal, the petitioner states: "This is to confirm that the beneficiary will be supervised and controlled by 
other representatives of the petitioner at the client site. Hence the beneficiary working offsite and not being 
controlled by the petitioner does not arise." 
Upon review, the AAO concurs with the director's determination. The contract between the petitioner and 
Health Net indicates that the petitioner's employees are supervised by Health Net's management staff. The 
contract between the petitioner and Transglobal Venture, Inc. is silent on the issue of who will supervise the 
petitioner's employees assigned to the RightDB project. The petitioner has never identified the name or 
location of the beneficiary's proposed supervisor, or submitted any evidence clearly establishing who would 
be principally supervising and controlling the beneficiary in the performance of his duties as a programmer 
analyst. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. The petitioner's assertion that 
WAC 08 022 5013 1 
Page 17 
that the beneficiary will be supervised and controlled by an employee of the petitioning company is not 
corroborated by any evidence. 
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 2 14(c)(2)(F)(i) of the Act. On this basis alone, 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 2 14(c)(2)(F)(ii) of the Act. As discussed below, the 
petition also fails to meet the requirements of this section of the Act. 
In denying the petition, the director referred to the petitioner's consulting services agreement with Health Net, 
Inc. and concluded that "the service the petitioner is providing is essentially technical specialists for hire to 
adjust, modify, fine tune and maintain the petitioner client's already existing system and/or software rather 
than develop the petitioner's own software." The director determined that the knowledge needed to perform 
the work for the client is not specific to the petitioner, and that the work to be performed would be labor for 
hire. 
On appeal, as noted above, the petitioner asserts that the Health Net, Inc. contract was submitted in error. The 
petitioner asserts that the beneficiary will instead be working on the Right DB-Job Portal for Transglobal 
Ventures, Inc., and will be applying knowledge of a proprietary tool, Vista web, which was designed by the 
petitioner specifically for the RightDB project. The petitioner states that the beneficiary will be placed at the 
client's site "to implement the remaining phases of the project" and not to provide labor for hire. 
The petitioner's assertions are not persuasive. 
 The petitioner has not established that the beneficiary's 
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 21 4(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 
spec@ 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. 
For the reasons discussed above, the AAO will not completely discount the petitioner's submission of its 
consulting agreement with Health Net, Inc. Such agreement clearly requires the petitioner to provide "staff 
augmentation" services requiring it to work alongside the client's employees in supporting and enhancing the 
clients' existing systems. 
While it appears that the petitioner's agreement with Transglobal Ventures, Inc. will involve development of a 
new software product for the client, the evidence of record does not support a conclusion that the beneficiary 
WAC 08 022 50131 
Page 18 
will be implementing, developing, maintaining, or supporting systems or software that is specific to or sold by 
the petitioning company, or providing a service that other information technology companies with comparable 
capabilities could not provide. The primary purpose of the assignment is for the beneficiary to develop a 
web-based product, based on software and technologies that are common in the industry, according to the 
clients needs and specifications. 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's claim on appeal that the beneficiary was specifically chosen for the assignment based on his 
proprietary knowledge of the petitioner's Vista web tool, or that knowledge of Vista web is required for 
performance of the job duties, remains wholly unsupported by any documentary evidence. The record 
contains extensive descriptions of both the beneficiary's previous project assignments and the proposed U.S. 
project. None of the evidence submitted references the "Vista web tool," nor has the petitioner submitted any 
documentation describing exactly what this tool is or why it is essential to the U.S. assignment. 
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. 
To the contrary, a review of the facts of this petition suggests that this is exactly the type of employment 
relationship the L-1 Visa Reform Act of 2004 was enacted to prohibit. As explained above, this legislation 
was enacted to prevent the "outsourcing" of L-1B intracompany transferees to unaffiliated employers to work 
with "widely available" computer software. In this matter, the petitioner indicated that the proposed project 
will involve the application of the beneficiary's knowledge of web-based software technologies that are 
widely available in the industry. 
The petitioner suggests that the position does not involve labor for hire because the petitioner has been 
contracted to complete certain project-related work. However, if the project on which the beneficiary will 
work involves the unaffiliated employer essentially outsourcing the entire development of its RightDB 
product to the petitioner, then the employees assigned to the project are not providing a product or service 
which necessitates specialized knowledge that is speciJic to the petitioning employer. 
In conclusion, 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. Instead, the limited evidence in the record related to the 
nature of the contract indicates that the petitioner is providing general software development services to the 
unaffiliated employer. The fact that such services appear to be delivered on a 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 
WAC 08 022 50131 
Page 19 
employer is necessary, and the petition may not be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 200 I), afd, 345 
F.3d 683 (9th Cir. 2003). 
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. 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.