dismissed L-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D- CORP. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Oflice 
DATE: JUNE 25,2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting company, seeks to temporarily employ the 
Beneficiary as a senior software engineer under the L-1 B nonimmigrant classification for intracompany 
transferees. Immigration and Nationality Act (the Act) section 10l(a)(15)(L), 8 U.S.C. 
§ 1101(a)(15)(L). The L-IB classification allows a corporation or other legiil 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 Petitioner did not 
establish, as required, that the Beneficiary was employed abroad in a managerial, executive, or 
specialized knowledge capacity or that he would be employed in a specialized knowledge capacity in 
the United States. ' 
On appeal, the Petitioner contends that the Director misunderstood, misconstrued, and did not 
consider the record in its entirety. 
Upon de novo review, we find that the Petitioner has not provided sufficient evidence to establish 
that the Beneficiary possesses specialized knowledge and that he has been and would be employed 
in a specialized knowledge capacity. Therefore, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-IB nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 10l(a)(I5)(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 affiliate thereof in a specialized knowledge capacity. !d. The petitioner 
must also establish that the beneficiary's prior education, training, and employment qualify him or 
her to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
Matter of D- Corp. 
II. BACKGROUND 
The Petitioner is a 140-employee provider of software services that rely on the Electronic Data 
Interchange (EDI) solution which enables the exchange of data between buyers and suppliers 
throughout supply chain networks within the automotive parts manufacturing industry. The 
Petitioner develops and markets a suite of supply chain applications for retailers and suppliers as 
well as IT products and solutions to businesses of all sizes. The Petitioner seeks to employee the 
Beneficiary as a senior software engineer at an annual rate of pay of $48,000. The Petitioner 
discussed the Beneficiary's knowledge of its proprietary automotive software and industrial supply 
chain software- Base2- stating that he will use this knowledge to design a technical solution, which 
he will then demonstrate to its developers and clients. Pointing to the Beneficiary's "intimate 
familiarity" with company clients, the Petitioner claims that this element is critical to its continued 
success. The Petitioner stated that the Beneficiary will use his understanding of the current "non­
timctional" Base2 requirements and the new "integrated automotive solution" on the Petitioner's 
cloud interchange platform ("CIP") to offer expertise that will lead to the creation of software 
solutions for clients in the automotive parts manufacturing industry. 
The Petitioner further claimed that the Beneficiary is the only employee within the organization "at 
the global level" who can perform his assigned duties because he possesses an expertise that is 
"unmatched" industry-wide. The Petitioner focused on the Beneficiary's longevity with the foreign 
employer, stating that the Beneficiary's nearly five years of "hands-on proprietary and uncommon 
experience" resulted in his specialized knowledge of the organization's ED! features, its research 
and technology protocols, and the Clarion platform, all of which he will usc to make a "proprietary 
prototype and test applications" that will fill a "unique B2B niche in the global market." The 
Petitioner also stated that the Beneticiary has specialized knowledge of the company's processes and 
procedures, which he will rely on to troubleshoot "urgent issues," write "user cases and guides," and 
draw diagrams and guides to describe new softw~re functions. 
III. SPECIALIZED KNOWLEDGE 
The primary issue in this matter is whether the Petitioner established that the Beneficiary possesses 
specialized knowledge and whether he has been employed abroad, and will be employed in the 
United States, in a specialized knowledge capacity. If the evidence is insufficient to establish that 
the Beneficiary possesses specialized knowledge, then we cannot conclude that he has been 
employed abroad in a specialized knowledge capacity. · 
A beneficiary is deemed to have specialized knowledge if he or she has: (I) a "special" knowledge 
of the company product and its application in international markets; or (2) an "advanced" level of 
knowledge of the processes and procedures of the company. Section 214(c)(2)(B) of the Act. A 
petitioner may establish eligibility by submitting evidence that the beneficiary and the proffered 
position satisfy either prong of the statutory definition. 
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Matter ofD- Corp. 
Once a petitioner articulates the nature of the c.laimed specialized knowledge, it is the weight and 
type of evidence which establishes whether or not the beneficiar y actua lly poss esses specialized 
knowledge. We cannot make a factual det erminati on regarding a given beneficiary' s spec ialized 
knowledg e if the petitioner does not , at a minimum, articulate with spec ificity the nature of its 
products and services or processes and procedures , the natur e of the specific industry or field 
involved, and the nature of the beneficiary's knowledge. The petiti oner should also descri be how 
such knowledge is typically gained within the organization, and explain how and when the 
individual ben~ficiary gained such knowledge. :· 
In the denial decision , the Director found that the record lacked evidence to demonstrate that the 
Beneficiary 's foreign and propo sed positions require either special knowledge of the compa ny 's 
products that is uncommon in the industry and could not be easily transferred , or an advanced level 
of knowl edge or expertise of the organization's processes and procedure s. 
On appeal, the Petitioner contends that the Beneficiary possesses knowledge that is both spec ial and 
advanced , asse rting that the Beneficiary's duties require the use of the company's proprietary 
product s, processes, and methodologies that can only be attained after "many years" of emp loyment 
with the organization. The Petitioner points out that the Beneticiar y holds "advance d certifications 
in various third-party product s" that his employer uses; it argues that the Base2 software , which the 
Beneficiary has and would continue to use, is differe nt from any other tool within the indu stry and 
that its features are "more demanding, complex , highly advanced , specialized[,] and sophis ticated." 
We find that the Petition er did not provide suff icient evidence to establi sh that the Beneficiary 
possesses specialized knowl edge. Although the Petitioner provid ed ev idence to s how that the 
Beneficiary has years of experience working with its propri etar y products within the automotive 
parts manufacturing industry and is therefore an asset to his current and proposed ·employers, it has 
not establi shed that the Beneficiary has speci alized knowledge or explained how he gained 
knowledge that is claimed to be specialized. 
A. Special Knowledge 
The Petitioner claims that the Beneficiary has "special" knowledg e of its proprietary automotive and 
industrial supply chain software - Base2 - because of his ability to use company processes and 
procedur es - ' and methodologie s" - to understan d the current "Base2 soluti on" 
requirem ents and the integrate d automotive solution on the CIP platform in orde r to design 
impro vements for the company 's various proprietary softw are products. The Petiti oner claims that 
specialized knowledge is required to carry out the Be neficiary 's ass igned respo nsibiliti es, including 
designing software application s "based on Clarion architecture and requirement s" and ultimately 
creating a marketable propriet ary prototype and test applications. The Petitioner did no t describe the 
·· and · methodologie s" or point to any distinct or uncommon characteri stics to ex plain 
how the Beneficiary's knowledge of these elem ents is "special" as compared to other senior soft ware 
engineers within the automotive parts manufacturing industry . Likew ise, the Petition er did not 
explain what is "spec ial" about the Beneficiary's knowledge of its proprietary software products or 
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Matter ofD- Corp. 
state how his knowledge of these products is different when compared to the knowledge others 
possess with regard to similarly used products within the industry. 
Because "special knowledge" concerns knowledge of the employing 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. 
In the present matter, the Petitioner provided a profile of the Beneficiary's employment with the 
foreign entity, including a summary of his education and certifications, a list of the technical skills 
he has developed, the scope of the Base2 project he has worked on since starting his employment 
with the foreign entity in March 2012, and the responsibilities and technologies associated with that 
project. The profile indicates that the Beneficiary has been a "key member" of an eight-person team 
that worked on the Base2 project since 2013. Although the profile indicates that training others to 
work with Clarion technology is among his listed responsibilities, it docs not list any employer­
specific training to explain how the Beneficiary acquired his claimed expertise to become a "key 
member" of the team. 
In a request for evidence (RFE), the Director informed the Petitioner that the record lacked sufficient 
evidence to demonstrate that the Beneficiary's knowledge of his employer's proprietary automotive 
and industrial supply chain software is "special" and that it is different from the knowledge 
possessed by individuals in similar positions within the same industry. The Director also noted that 
limiting knowledge of a particular organizational tool to a relatively small group of people does not 
necessarily establish that such knowledge is "special." The Director identified several factors that 
we consider in order to determine whether a beneficiary possesses specialized knowledge, including 
the minimum time in training and work experience that is required to obtain the knowledge that the 
Beneficiary is claimed to possess, a comparison of the Beneficiary's knowledge to the knowledge of 
others who are similarly employed within the industry, and evidence of the Beneficiary's prior 
education, training, and employment along with an explanation of how these elements relate to the 
Beneficiary's claimed specialized knowledge. 
In .response, the Petitioner provided a statement explaining that the foreign entity hired the 
Beneficiary because of his "specialized and advanced knowledge of specific modules," which it 
claimed as "an integral part" of the foreign entity's proprietary Base2 platforms and systems. This 
information is inconsistent with the Petitioner's original statement, which indicates that the 
Beneficiary attained "special" knowledge of the Petitioner's proprietary software tools as a result of 
his years of direct hands-on experience with the foreign entity. If the Beneficiary was hired by the 
foreign entity based on his experience with Clarion-specific modules, which he obtained before 
being hired by that entity, then it is unclear how the Beneficiary's specialized knowledge relates to 
the Petitioner or its foreign subsidiary. The Petitioner must resolve this inconsistency in the record 
with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
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Matter of D- Corp. 
582, 591-92 (BIA 1988). Further, although the· Petitioner claimed that the Beneficiary has an '"in­
depth and uncommon expertise in Clarion," it did not point to specific information about the 
Beneficiary's knowledge of Clarion to explain what makes it uncommon and more in-depth as 
compared to the knowledge of others, nor did it draw a nexus between the Beneficiary's knowledge 
of Clarion and his claimed specialized knowledge of the Petitioner's proprietary systems and 
processes. Although the Petitioner claimed that the Beneficiary has "extensive experience in 
developing ... these systems and processes," it did not point to actual contributions the Beneficiary 
made or specify any change(s) in functionality that resulted from those contributions. The Petitioner 
must support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 
25 l&N Dec. 369, 376 (AAO 2010). 
The Petitioner also claimed that the Beneficiary's specialized knowledge '"stems from years of 
training and specialized knowledge experience" dating back to 2004. However, the Petitioner did 
not catalogue the training and "specialized knowledge experience" in terms of dates, content, and 
origin, nor did it explain how the former t~aining and experience, which predated the Beneficiary's 
current employment by approximately nine years, relate to his claimed specialized knowledge of the 
Petitioner's proprietary software. The Petitioner also referred to the USCIS Policy Memorandum 
PM-602-0111, L-1 B Adjudications Policy (Aug. 17, 2015), https://www.uscis.gov/laws/policy­
memoranda, to support the position that the Beneficiary's knowledge does not need to be either 
proprietary in nature or narrowly held with the employing organization. However, this point 
weakens the Petitioner's eligibility claim, which is precisely premised on the assertion that the 
Beneficiary's knowledge is both proprietary and narrowly held within the organization. 
In a separate statement, the foreign entity's chief administrative officer ("CAO") stated that over the 
course of the Beneficiary's employment, his primary responsibility was to develop and maintain the 
Base2 software, which resulted in the creation of "various EDI [s]olutions and [e]nhancements and 
Automotive ERP integrations" that generated over $1.6 million in sales. The CAO did not, however, 
describe the new functionalities of the upgrades to explain precisely how the Beneliciary's 
contributions resulted in the additional revenue. Although the CAO claimed that the Beneficiary 
also performed maintenance functions on other "proprietary features and solutions," he/she did not 
establish that special knowledge of the foreign entity's products that was uncommon within the 
automotive parts manufacturing industry was required in order to maintain and upgrade the 
proprietary software. 
Lastly, as evidence of the Beneficiary's claimed specialized knowledge, the Petitioner provided a 
Base2 sample user guide and two automotive solutions, claiming that the Beneficiary wrote the user 
guide and developed the solutions. The Petitioner did not, however, point to evidence verifying the 
Beneficiary's claimed integral role in these projects. 
In the denial decision, the Director determined that the Beneficiary has experience using the foreign 
entity's software to carry out his assigned duties, but found that the Petitioner did not establish that 
the Beneficiary's knowledge is special in comparison to that of others within the same organization 
or industry. The Director also observed that the Petitioner did establish the length or type of training 
5 
Mauer of D- Corp. 
required to acquire the type of knowledge the Beneficiary is claimed to possess. Accordingly, the 
Director found that the Petitioner did not demot1strate that the Beneficiary's current or proposed 
positions involve specialized knowledge. 
On appeal, the Petitioner puts forth arguments that are similar to those made earlier in its RFE 
response. It claims that the Beneficiary's knowledge is not commonly found in the relevant industry 
and that his assigned duties have and would require the use of proprietary products. The Petitioner 
provides a list of the Beneficiary's job duties and states that he "holds advanced certifications in 
various third-party products." 
We find that the Petitioner's arguments and supporting evidence are not sufficient to establish that 
the Beneficiary possesses specialized knowledge. Although the Petitioner provided evidence of the 
Beneficiary's education and certificates, it did not establish that either is a required element that led 
the Beneficiary to acquire specialized knowledge. 
As previously indicated, a key element that factors into our determination of whether the Beneficiary 
has "special" knowledge is establishing precisely how and when the Beneficiary obtained the 
knowledge that is claimed to be "special." However, the Petitioner in this matter does not describe a 
path to or provide a particular protocol for acquiring the "special" knowledge that the Bencliciary is 
claimed to possess. Beyond broadly stating that the Beneficiary has over five years of hands-on 
experience with the foreign entity's proprietary products, the Petitioner does not outline a process for 
acquiring the knowledge that the Beneficiary is claimed to possess; without such information, it is 
unclear how the Beneficiary attained his current level of knowledge, which is claimed to be special 
and uncommon in comparison to others. Despite claiming that the Beneficiary had a pivotal role in 
writing a manual and developing product solutions, these products in and of themselves do not 
explain how the Beneficiary acquired specialized knowledge even if, argue11do, his role in the 
finished products was indicative of his possessing specialized knowledge. Here, the Petitioner listed 
the Beneficiary's education credentials and provided a certificate showing that he completed the 
requirements for a "Microsoft Technology Specialist"; it did not, however, establish a causal 
relationship between these credentials and the Beneficiary's claimed "special" knowledge. 
Moreover, as discussed above, the Petitioner has not provided corroborating evidence to support its 
claims about the Beneficiary's role as author of the manual and developer of two automotive 
· solutions, as neither the manual nor the solution~ identify the Beneficiary as an active participant in 
these finished products. As noted earlier, the J?etitioner must support its assertions with relevant, 
probative, and credible evidence. See Chawathe, 25 l&N Dec. at 376. 
The record is equally incomplete in drawing a connection between the Beneficiary's claimed 
"special" knowledge and his work experience with the Petitioner's foreign subsidiary. In certain 
instances, the Petitioner claims that the Beneficiary acquired specialized knowledge prior to starting 
his position with the foreign entity, although it does not specify the type of specialized knowledge he 
acquired, the steps he took to acquire it, or the connection between the knowledge .he previously 
acquired and his current employment with the Petitioner's foreign subsidiary. Given this lack of a 
distinction between the Beneficiary's former experience and his current position with the foreign 
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Matter ofD- Corp. 
entity, it is reasonable to question whether there is a link between the Beneficiary's current employer 
and the "special" knowledge he is claimed to have gained while working for that employer. Further, 
indicating that the Beneficiary worked with similar products during his prior employment indicates 
that the products he is currently working with are not uncommon ~ithin the industry; this 
undermines the claim that the Beneficiary's knowledge of his current employer's specific product is 
"special." Paradoxically, the Petitioner contends that the Beneficiary acquired specialized 
knowledge through his years of experience with his current employer without explaining the process 
or phases involved in the knowledge acquisition process. If the Beneficiary did acquire his 
knowledge through work experience as opposed to formal or classroom training, the Petitioner 
should still be able to articulate the various stages involved in acquiring the knowledge based on the 
assumption that a basic level of knowledge is necessary as a foundation upon which the higher levels 
of knowledge would be built. Here, the Petitioner does not articulate the process for acquiring the 
Beneficiary's current level of knowledge through his years of experience with the same employer 
and its products. Instead, the Petitioner makes sweeping claims about the Beneticiary's level of 
knowledge in comparison to others without distinguishing his knowledge at year one with his 
knowledge after five years of employment with t~e same organization. 
Further, the Petitioner claims that the foreign entity's proprietary software "is entirely ditlerent lrom 
any other tool, product, or process used within the industry"; it does not, however, point to specific 
characteristics that distinguish the company's tools and products tram those of other companies or 
provide sufficient evidence to support the claim that the products the Beneficiary is currently using 
require "special" knowledge that he gained in the course of his current employment with the 
Petitioner's foreign subsidiary. As previously noted, the Petitioner does not consistently state that 
the Beneficiary acquired his specialized knowledge through his experience with the current 
employer. Further, the Petitioner does not offer a layman's interpretation of the technical software 
specifications of the software that the Beneficiary uses to allow for a meaningful understanding of 
the difference(s) between the foreign entity's software products and those used by similar 
organizations within the industry, nor does it identify the Beneficiary's specilic role and 
contributions with respect to the company's proprietary sotiware, even though it claims that the 
Beneficiary has made improvements to the company's products. 
We also note that determining whether a beneficiary's knowledge is "special" requires a comparison 
of that knowledge to the knowledge of others who hold comparable positions in the Petitioner's 
industry. The Petitioner bears the burden of showing that the Beneficiary holds knowledge that is 
noteworthy or uncommon compared to his colleagues outside the organization. However, the 
Petitioner did not expressly compare the Beneficiary's duties to those of other similarly employed 
professionals at similar organizations, nor did it establish that using and further developing software 
within the context of the foreign entity is different from and requires knowledge that is "special" as 
compared to similarly employed individuals within the same industry. 
In light of the above, we find that the Petitioner has not established that special knowledge is 
required to perform the Beneficiary's assigned ~uties or that his knowledge is distinct and can be 
taught only through prior experience with the organization. The Petitioner does not adequately 
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Matter of D- Corp. 
specify how the Beneficiary's knowledge is "special" or establish how and when the Beneficiary 
gained such knowledge. While the Beneficiary may be an experienced IT professional and a 
valuable employee of the company, the record lacks sufficient evidence to establish that his 
knowledge is "special," as defined in the Act and regulations. The Petitioner has submitted little 
evidence to set the Beneficiary's knowledge apart or to demonstrate that it is uncommon, 
noteworthy, or distinguished by some unusual quality. Due to these evidentiary deficiencies, the 
record does not establish that he possesses "special" knowledge. 
B. Advanced Knowledge 
The Petitioner has not established, m the alternative, that the Beneficiary possesses advanced 
knowledge. 
Determinations concerning "advanced knowledge". require review of a beneficiary's knowledge of 
the petitioning organization's processes and procedures. A petitioner may meet its burden through 
evidence that a given 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. Also, as with special 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. 
Here, the Petitioner broadly refers to the Beneficiary's knowledge of his current employer's 
processes and methodologies and claims that such knowledge is "more demanding, complex, highly 
advanced, specialized[,] and sophisticated." However, the Petitioner does not specify what those 
processes are or list any characteristics to support these general claims. The Petitioner also states 
that the Beneficiary's current team is comprised of eight members and of those eight members, there 
are four senior software 'engineers. This information does not allow us to compare the Beneficiary's 
knowledge of company processes and procedures to that of other employees within the petitioning 
company and its foreign subsidiary, nor does it lead to the conclusion that the Beneficiary's 
knowledge is greatly developed or further along in progress from others within the organization. 
Further, as discussed earlier in this decision, the Petitioner does not provide an adequate explanation 
to clarify precise! y how and when the Beneficiary gained knowledge that is claimed to be 
"advanced." Therefore, the Petitioner has not supported the claim that the Beneficiary possesses 
"advanced" knowledge. 
Because the Petitioner has not demonstrated that the Beneficiary possesses special or advanced 
knowledge, we need not address whether the Beneficiary has been employed abroad in a position 
involving specialized knowledge or would be employed in the United States in a specialized 
knowledge capacity. 
Matter of D- Corp. 
IV. CONCLUSION 
For the reasons discussed above, the evidence submitted does not establish that the Beneficiary 
possesses specialized knowledge, that he was employed abroad in a position involving specialized 
knowledge, and that he would be employed in the United States in a specialized knowledge capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of D- Corp., ID# 1195821 (AAO June 25, 2018) 
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