dismissed L-1B Case: Software Development

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U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
pUBLIC·copy
File: EAC 02 101 50629 Office: VERMONT SERVICE CENTER Date: FEB 0 r200e
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(l5)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
:a...
.. /---~
(ROb:.l~mann, Chief
Administrative Appeals Office
www.uscis.gov
EAC 02 101 50629
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The
petitioner appealed this denial to the Administrative Appeals Office (AAO). The AAO will dismiss the
appeal.
The petitioner filed this nonimmigrant petition seeking to extend the employment of the beneficiary in the
position of project leader as an L-IB nonimmigrant intracompany transferee with specialized knowledge
pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. §
1101(a)(l5)(L). The petitioner describes its business as being a "software development consultancy." The
petitioner seeks to employ the beneficiary for a period of two years.
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary has been
or will be employed in the United States in a capacity involving specialized knowledge.
On appeal, counsel for the petitioner asserts that the petitioner has satisfied the criteria for establishing that
the beneficiary has been and will be employed in the United States in a specialized knowledge capacity.
Counsel argues that the beneficiary's purported specialized knowledge was imparted by a combination of
training and experience.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. 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 managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 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 (1)(1)(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 him/her to perform the intended
services in the United States; however, the work in the United States need not be the
EAC 02 101 50629
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same work which the alien performed abroad.
Section 214(c)(2)(B) of the Act, 8 U.S.C. § 1184(c)(2)(B), provides:
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. § 214.2(l)(1)(ii)(D) defines "specialized knowledge" as:
[S]pecial knowledge possessed by an individual of the petitioning organization's product,
service, research, equipment, techniques, management or other interests and its application in
international markets, or an advanced level of knowledge or expertise in the organization's
processes and procedures.
The primary issue in this proceeding is whether the petitioner has established that the beneficiary has been or
will be employed in a capacity involving specialized knowledge. 8 C.F.R. §§ 214.2(l)(3)(ii) and (iv).
The petitioner described the beneficiary's job duties abroad and proposed job duties in the United States in the
Form 1-129 as follows:
As Project Leader on this assignment, [the beneficiary] is responsible for supervising the
Customer Connects Web Application project. [The beneficiary] is responsible for system
analysis, design and development, system implementation, preparing system and unit testing
plans, project management, interacting with GE Capital Management, and analyzing project
requirement in accordance with [the petitioning organization's] protocols. In addition, [the
beneficiary] is responsible for quality control, coordinating with onsite and offshore technical
teams, and preparing the system and tests plans in accordance with [the petitioning
organization's] protocols. As Project Leader, his responsibilities include project planning,
coordinating, monitoring, and participating in the implementation process.
The petitioner described the beneficiary's purported specialized knowledge in a memorandum appended to the
petition as follows:
[The beneficiary] was selected for this project because of his in-depth knowledge of [the
petitioning organization's] project management procedures, internally designed software
engineering procedures and tools, particularly those related to maintenance and development
projects, including the use of its proprietary development and management tools - FPAT for
effort estimation, DEL TA for quality tracking and SPMW for project management,
scheduling, costing and status reporting and its internally developed CASEP AC tools. Since
he joined [the petitioning organization] on October 10, 1996, [the beneficiary] has acquired
an in-depth knowledge of [the petitioning organization's] own quality management system,
EAC 02 101 50629
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software development cycle and project management procedures for maintenance and
development projects. For instance, from December 12, 1999 to March 2, 2001, [the
beneficiary] worked on a project for [a third party client], a global leader in providing
professional insurance brokerage services to corporate customers in various parts of the
world. This project consisted of various components of a functional module application, and
conducting implementation of the applications. As Project Leader for this [project], [the
beneficiary] was responsible for performing and overseeing the data migration from the
existing legacy systems to the newly developed product called Bridge in accordance with [the
petitioning organization's] protocols utilizing [the petitioning organization's] propriety [sic]
tools. He performed his duties in Chicago, Illinois under L-1 status. In addition," [the
beneficiary] received training in [the petitioning organization's] own maintenance and
development methodologies and proprietary tools and in [the petitioning organization's]
established standards for these projects.
On March 25, 2002, the director requested additional evidence. The director requested, inter alia, evidence
establishing that the beneficiary's knowledge is uncommon, noteworthy, or distinguished by some unusual
quality and is not generally known by practitioners in the beneficiary's field of endeavor; evidence
establishing that the beneficiary's advanced level of knowledge distinguishes him from those with only
elementary or basic knowledge; and evidence addressing the training required for the proffered position.
In response, counsel submitted a letter dated June 19, 2002 in which she further describes the beneficiary's
claimed specialized knowledge and purported acquisition thereof as follows:
[The beneficiary's] specialized knowledge of [the petitioning organization's] proprietary tools,
procedures, management techniques, and value added products, is derived from both [the
petitioning organization's] training and more than five years of experience with [the
petitioning organization]. [The beneficiary] has received training in [the petitioning
organization's] maintenance methodologies, design and development techniques, established
standards for software engineering projects, management techniques, and other proprietary
products and tools throughout his more than five years of employment with [the petitioning
organization]. Trainings through the years ranged from several days to one month or more
and included topics required to perform his p,resent duties, including training in [the
petitioning organization's] tools and protocols for use of AS/400, CL/400, Java technology
based architecture, and e-Technology.
[The petitioning organization] develops a range of software for specific applications in
specific industries, such as their Computer Aided Systems Engineering Package (CASEPAC)
used for specialized systems engineering. [The beneficiary] in his five years of work
experience with [the petitioning organization] has gained an in-depth knowledge of these
[petitioning organization] developed proprietary tools and products, their benefits to the
client, and the [the petitioning organization] quality control certified procedures for using
them.
EAC 02 101 50629
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* * *
[The beneficiary] could only obtain this knowledge through his prior employment experience
and training with [the petitioning organization]. This knowledge would not be easily
transferred to or taught to another individual because it requires an understanding of [the
petitioning organization's] abilities and how they function in the market and with specific
systems to complete the requirements of the job. This may only be obtained by the type of
mix of training, education, and on the job experience that [the beneficiary] has. A minimum
of a year experience with [the petitioning organization], significant [petitioning organization]
training, and a Bachelor of Engineering, Technology, or Computer Science degree or a
degree in a relevant related field would be required to perform the duties of this position.
[The beneficiary] holds not only a Bachelor of Computer Science degree, but also a Masters
of Computer Applications degree. [The beneficiary] has had periodic trainings in [the
petitioning organization's] techniques, protocols, tools, and proprietary products, including
specific training regarding [the petitioning organization] projects utilizing Java, which is
necessary for an understanding of how to use [the petitioning organization's] value added
products. He holds specialized knowledge of [the petitioning organization's] capabilities and
how to utilize them on a [petitioning organization] project that is required for the
performance of his duties in the role of Project Leader with [the petitioning organization's]
project for [the client].
On July 30, 2002, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary has been or will be employed in a capacity involving specialized knowledge.
On appeal, counsel for the petitioner asserts that the petitioner has satisfied the criteria for establishing that
the beneficiary has been and will be employed in the United States in a specialized knowledge capacity.
Counsel argues that the beneficiary's purported specialized knowledge was imparted by a combination of
training and experience.
Upon review, the petitioner's assertions are not persuasive in demonstrating that the beneficiary will be
employed in a position involving specialized knowledge as defined at 8 C.F.R. § 214.2(1)(1)(ii)(D) or that the
beneficiary possesses specialized knowledge. The record is also not persuasive in establishing that the
beneficiary was employed abroad in a capacity involving specialized knowledge for the requisite one-year
period.
In examining the specialized knowledge capacity of the beneficiary, the AAO will look to the petitioner's
description of the job duties. See 8 C.F.R. § 214.2(1)(3). The petitioner must submit a detailed job
description of the services to be performed sufficient to establish specialized knowledge. In this matter, the
petitioner fails to establish that this position requires an employee with specialized knowledge or that the
beneficiary has been employed in a specialized knowledge capacity for the requisite one-year period abroad.
The petitioner also fails to establish that the beneficiary's knowledge is specialized.
Although the petitioner repeatedly asserts that the beneficiary's proposed position III the United States
EAC 02 101 50629
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requires specialized knowledge, that the beneficiary possesses specialized knowledge, and that the beneficiary
has been employed abroad in a position involving specialized knowledge, the petitioner has not adequately
articulated any basis to support this claim. The petitioner has failed to identify any special or advanced body
of knowledge which would distinguish the beneficiary's role from that of other similarly experienced
software workers 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 Soffici, 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. 1103 (E.D.N.Y. 1989),
aff'd, 905, F.2d 41 (2d. Cir. 1990).
The petitioner asserts that the beneficiary possesses specialized knowledge of the petitioning organization's
project management procedures and techniques, "internally designed" software engineering procedures, and
proprietary tools and products, including those procedures and tools associated with certain client projects.
The petitioner asserts that this knowledge is neither widely known nor commonly utilized in the industry and
that it can only be imparted to a worker through a year or more of training, education, and on-the-job
experience. However, despite these assertions, the record does not establish how, exactly, the petitioning
organization's procedures, techniques, tools, and products are so materially different from similar software
development processes and procedures that a similarly experienced and educated software worker could not
perform the duties of the positions abroad or in the United States.
Overall, the record does not establish that the beneficiary's knowledge is substantially different from the
knowledge possessed by software workers generally throughout the industry or by other employees of the
petitioning organization. The assertion that the beneficiary and a select group of workers possess a very
specific set of skills related to certain processes, procedures, and tools does not alone establish that the
beneficiary's knowledge is indeed uncommon or noteworthy. The petitioner has not established that the
beneficiary's knowledge would be difficult to impart to another similarly educated worker without suffering
significant economic inconvenience. All employees can be said to possess unique and unparalleled skill sets
to some degree; however, a unique skill set that can be imparted to another similarly experienced and
educated employee without significant economic inconvenience is not "specialized knowledge." Moreover,
the proprietary or unique qualities of the petitioner's process do not establish that any knowledge of this
process is "specialized." Rather, the petitioner must establish that qualities of the unique or proprietary
process 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 professionals may not have very specific, proprietary
knowledge regarding the petitioner's processes 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, similarly educated or
experienced employee.
Furthermore, while the petitioner asserts that the beneficiary received training and on-the-job experience
which imparted the claimed specialized knowledge to him, the record is devoid of evidence addressing the
length or substance of this training or of evidence specifically tying this training and experience to the
knowledge in question. Absent detailed information addressing the length and substance of the training and
EAC 02 101 50629
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its availability to the petitioning organization's workforce, it is impossible to conclude that the purported
specialized knowledge would be significantly economically inconvenient to impart to similar workers. Once
again, going on record without 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 (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190).
The AAO does not dispute the possibility that the beneficiary is a skilled and experienced employee who has
been, and would be, a valuable asset to the petitioner. However, it is appropriate for the AAO to look beyond
the stated job duties and consider the importance of the beneficiary's knowledge of the business's product or
service, management operations, or decision-making process. Matter of Colley, 18 I&N Dec. 117, 120
(Comm. 1981) (citing Marter of Raulin, 13 I&N Dec. 618(R.C. 1970) and Matter of LeBlanc, 13 I&N Dec.
816 (R.C. 1971)). As stated by the Commissioner in Matter of Penner, when considering whether the
beneficiaries possessed specialized knowledge, "the LeBlanc and Raulin decisions did not find that the
occupations inherently qualified the beneficiaries for the classifications sought." 18 I&N Dec. at 52. Rather,
the beneficiaries were considered to have unusual duties, skills, or knowledge beyond that of a skilled worker.
Id. The Commissioner also provided the following clarification:
A distinction can be made between a person whose skills and knowledge enable him or her to
produce a product through physical or skilled labor and the person who is employed primarily
for his ability to carry out a key process or function which is important or essential to the
business firm's operation.
Id. at 53.
It should be noted that the statutory definition of specialized knowledge requires the AAO to make
comparisons in order to determine what constitutes specialized knowledge. The term "specialized knowledge"
is not an absolute concept and cannot be clearly defined. As observed in 1756, Inc. v. Attorney General,
"[s]imply put, specialized knowledge is a relative ... idea which cannot have a plain meaning." 745 F. Supp.
9, 15 (D.D.C. 1990). The Congressional record specifically states that the L-1 category was intended for "key
personnel." See generally, H.R. REP. No. 91-851, 1970 U.S.C.C.A.N. 2750. The term "key personnel"
denotes a position within the petitioning company that is "of crucial importance." Webster's II New College
Dictionary 605 (Houghton Mifflin Co. 2001). 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. Accordingly,
based on the definition of "specialized knowledge" and the congressional record related to that term, the AAO
must make comparisons not only between the claimed specialized knowledge employee and the general labor
market, but also between the employee and the remainder of the petitioner's workforce. While it may be
correct to say that the beneficiary in the instant case is a highly skilled and productive employee, this fact
alone is not enough to bring the beneficiary to the level of "key personnel."
Moreover, in Matter of Penner, the Commissioner discussed the legislative intent behind the creation of the
specialized knowledge category. 18 I&N Dec. 49 (Comm. 1982). The decision noted that the 1970 House
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Report, H.R. REP. No. 91-851, stated that the number of admissions under the L-l classification "will not be
large" and that "[t]he class of persons eligible for such nonimmigrant visas is narrowly drawn and will be
carefully regulated by the Immigration and Naturalization Service." Id. at 51. The decision further noted that
the House Report was silent on the subject of specialized knowledge, but that 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." Matter
ofPenner, 18 I&N at 50 (citing H.R. Subcomm. No. 1 of the Jud. Comm., Immigration Act of 1970: Hearings
on H.R. 445, 91st Congo 210, 218, 223, 240, 248 (November 12,1969)).
Reviewing the Congressional record, the Commissioner concluded in Matter of Penner that an expansive
reading of the specialized knowledge provision, such that it would include skilled workers and technicians, is
not warranted. The Commissioner emphasized that the specialized knowledge worker classification was not
intended for "all employees with any level of specialized knowledge." Matter ofPenner, 18 I&N Dec. at 53.
Or, as noted in Matter of Colley, "[m]ost employees today are specialists and have been trained and given
specialized knowledge. However, in view of the House Report, it can not be concluded that all employees
with specialized knowledge or performing highly technical duties are eligible for classification as
intracompany transferees." 18 I&N Dec. at 119. According to Matter ofPenner, "[s]uch a conclusion would
permit extremely large numbers of persons to qualify for the 'L-l ' visa" rather than the "key personnel" that
Congress specifically intended. 18 I&N Dec. at 53; see also 1756, Inc. v. Attorney General, 745 F. Supp. at
15 (concluding that Congress did not intend for the specialized knowledge capacity to extend to all employees
with specialized knowledge, but rather to "key personnel" and "executives.")
A 1994 Immigration and Naturalization Service (now Citizenship and Immigration Services (CIS))
memorandum written by the then Acting Executive Associate Commissioner also directs CIS to compare the
beneficiary's knowledge to the general United States labor market and the petitioner's workforce in order to
distinguish between specialized and general knowledge. The Executive Associate Commissioner notes in the
memorandum that "officers adjudicating petitions involving specialized knowledge must ensure that the
knowledge possessed by the beneficiary is not general knowledge held commonly throughout the industry but
that it is truly specialized." Memorandum from James A. Puleo, Acting Executive Associate Commissioner,
Immigration and Naturalization Service, Interpretation of Specialized Knowledge, CO 214L-P (March 9,
1994). A comparison of the beneficiary's knowledge to the knowledge possessed by others in the field is
therefore necessary in order to determine the level of the beneficiary's skills and knowledge and to ascertain
whether the beneficiary's knowledge is advanced. In other words, absent an outside group to which to
compare the beneficiary's knowledge, CIS would not be able to "ensure that the knowledge possessed by the
beneficiary is truly specialized." Id. The analysis for specialized knowledge therefore requires a test of the
knowledge possessed by the United States labor market, but does not consider whether workers are available
in the United States to perform the beneficiary's job duties.
As explained above, the record does not distinguish the beneficiary's knowledge as more special or advanced
than the knowledge possessed by other people employed by the petitioning organization or by software
workers employed elsewhere. As the petitioner has failed to document any materially unique qualities to the
EAC 02 101 50629
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beneficiary's knowledge, the petitioner's claims are not persuasive in establishing that the beneficiary, while
perhaps highly skilled, would be a "key" employee. There is no indication that the beneficiary has any
knowledge that exceeds that of any other similarly experienced professional or that he has received special
training in the company's methodologies or processes which would separate him from other professionals
employed with the foreign entity or elsewhere. It is simply not reasonable to classify this employee as a key
employee of crucial importance to the organization.
The legislative history of the term "specialized knowledge" provides ample support for a restnctlve
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, 745 F. Supp. at 16. Based on the evidence presented, it is
concluded that the beneficiary will not be employed in the United States, and was not employed abroad, in a
capacity involving specialized knowledge. For these reasons, the appeal will be dismissed.
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.