dismissed L-1B Case: Software Development

identifyingdatadelesedto
preventclearlyunw~ted
invasionofpersonalpnvacy
PUBLIC COpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: EAC 02 101 50639 Office: VERMONT SERVICE CENTER Date: FEB 0 1 2008
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(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.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
EAC 02 101 50639
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-1B nonimmigrant intracompany transferee with specialized knowledge
pursuant to section 101(a)(l5)(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-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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)(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 Uniteq States; however, the work in the United States need not be the
EAC 02 101 50639
Page 3
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)(l5)(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)(l)(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 overseeing,
managing and participating in the VIPER Maintenance project team within [the petitioning
organization's] ASM project. [The beneficiary] is charged with completing and overseeing
architecture and application design, database design, assigning and re-assigning assignments
to other [petitioning organization] team members, providing technical support to the team
members in resolving problems, coordinating with the onsite and offshore technical teams,
coordinating quality related activities, gathering requirements, conducting system tests, and
implementing in accordance with [the petitioning organization's] protocols. As Project
Leader, [the beneficiary] has full responsibility for planning for the project, coordination of
the project, and monitoring the performance of the project team.
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 large scale database projects,
including the use of its proprietary management and development tools - FPAT for effort
estimation, DELTA for quality tracking and SPMW for project management, scheduling,
costing and status reporting and its internally developed CASEPAC tools. Since he joined
[the petitioning organization] on June 6, 1996, [the beneficiary] has acquired an in-depth
EAC 02 101 50639
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knowledge of [the petitioning organization's] own quality management system, software
development cycle and project management procedures for large scale database projects.
The petitioner also claims that 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 18, 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 six years of experience with [the
petitioning organization]. For example, [the beneficiary] has had more than four months of
[petitioning organization] training in the use of [petitioning organization] tools and protocols
used for Capability Maturity Model, MS-Visual Basic, MS-SQL Server, and Internet
Technologies alone. In his current position, he utilizes [the petitioning organization's]
proprietary IPMS tool for project tracking. He utilizes his knowledge of [the petitioning
organization's] unique conversion process methodology and casual analysis procedures to
ensure quality control. Similarly, he is required to ensure the implementation of [the
petitioning organization's] proprietary defect tracking which is documented in [the petitioning
organization's] ISO Certification and SEI-CMM Certification. In overseeing and engaging in
execution of the project, [the beneficiary] relies upon his knowledge of [the petitioning
organization's] retail domain, [the petitioning organization's] offshore development
capabilities, and [the petitioning organization's] web development techniques. [The
beneficiary] would be unable to accomplish the duties of his position without specialized
knowledge of [the petitioning organization's] tools, capabilities, methodologies, and product.
[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 six 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. He utilizes his training in [the petitioning organization's] proprietary procedures, tools,
and protocols in order to provide the service and end-product which provides [the petitioning
organization] its name in the market.
EAC 02 101 50639
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* * *
[The beneficiary] could only obtain this knowledge through his prior employment experience
with [the petitioning organization]. This knowledge would not be easily transferred to or
taught to another individual because it requires and [sic] understanding of [the petitioning
organization's] abilities and how they function in the market and with specific systems in
complete [sic] 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 degree or degree in a relevant related field would be
required for [sic] to perform the duties of this position. [The beneficiary] has had periodic
trainings in [the petitioning organization's] techniques, protocols, tools, and proprietary
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)(l)(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 in the United States
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 these claims. The petitioner has failed to identify any special or advanced
EAC 02 101 50639
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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),
af!'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
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
EAC 02 101 50639
Page 7
proof in these proceedings. Matter of SofJici, 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 Matter 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,
"[slimply 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-l category was intended for "key
personne1." 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 personne1."
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
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
EAC 02 101 50639
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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
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
EAC 02 101 50639
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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 restnctIve
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.