dismissed L-1B Case: Software Development

invraia dprsonal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: WAC 07 21 1 50250 Office: CALIFORNIA SERVICE CENTER Date: AU6 0 1 2008 
Petition: 
 Petition for a Nonirnmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
IN BEHALF OF BENEFICIARY: 
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 
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Page 3 
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 
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 and whether the beneficiary possesses 
specialized knowledge. 8 C.F.R. 8 2 14.2(1)(3)(ii) and (iv). 
The petitioner described the beneficiary's duties in the United States and abroad in a letter dated May 22, 
2007 as follows: 
The beneficiary will be employed at [the petitioner's] corporate headquarters in Naperville, 
Illinois. As the Senior Software Developer [the beneficiary] will be overseeing the 
implementation of the Contract Manager for the client Filenet Corp. and Environment Case 
Management application for the State of Rhode Island Department of Environmental 
Management, which he developed as part of his employment with the [foreign employer]. 
The beneficiary will also test and adjust the system as necessary to ensure an efficient 
implementation. 
Since June 2005, [the beneficiary] has been a Senior Software Developer at [the foreign 
employer]. As part of ths position, the beneficiary leads the team's development of P8 
Workplace application for the State of Rhode Island Department of Environmental 
Management and development of the application administration interface for Contracts 
Manager. The beneficiary also directs creation of a LDAP authentication module for 
integrating Contract Manager with FileNet P8 and directs development of Contract Manager 
parameters which include the Search hctionality to lookup indexed objects in FileNet P8, 
the export content module and the deployment package. 
[The beneficiary] also oversees testing of each module in the Environment Case Management 
application and Contract Manager. He uses Content Engine and Process Engine Java API 
extensively throughout the application to allow the user to create content objects and upload 
content to the Content Engine. He also oversees the design and development of FileNet's 
Process maps to conform to business requirements and works directly with clients to obtain 
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business requirements and implement them into maps of both applications. 
[The beneficiary] is uniquely qualified to *perform the temporary assignment of Senior 
Software Developer in the United States, based upon his expertise acquired at [the foreign 
employer]. His services are required to deploy applications he principally developed as part 
of hs employment at [the foreign employer] in India. These applications include the 
Contract Manager application for the American client Filenet Corporation (an IBM company) 
and the FileNet-based Environment Case Management application for the State of Rhode 
Island Department of Environmental Management. 
The petitioner also claims that the beneficiary has been employed by the foreign employer since June 8,2005. 
The instant petition was filed on July 5,2007. 
On July 1 1, 2007, the director requested additional evidence. The director requested, inter aka, evidence 
addressing how the beneficiary's duties differ from those performed by similarly employer workers; a more 
detailed description of the equipment, system, product, technique, or service of which the beneficiary 
purportedly has specialized knowledge; and an explanation addressing how the beneficiary's training or 
experience imparted knowledge which is uncommon, noteworthy, or distinguished by some unusual quality 
that is not generally known by practitioners in the field of endeavor. 
In response, counsel submitted a letter dated October 5, 2007 in which he further describes the beneficiary's 
purported specialized knowledge as follows: 
[The beneficiary] played a principal role in the development of the Enterprise Contracts 
Manager solution for the IBM-FileNet ECM solution that was developed in the India office. 
The hnctional and technical requirements emerged since no solution existed, and the 
customers needed an integrated contracts management solution. The design and development 
of this product was entirely done in the India location. In addition to lacking the expertise to 
complete the tasks, the other employees in the US location were not involved and will not be 
able to configure, install, support this solution for IBM-FileNet clients like Duke Energy. 
[The beneficiary] has expertise in the Enterprise Contracts Manager solution for the IBM- 
FileNet Enterprise Content Management products. These ECM solutions by IBM-FileNet are 
cutting edge technology products being used by 400 of the Fortune 500 companies in the 
United States. These products are used in all types of organizations - Federal and State 
Governments, finance, insurance, manufacturing, legal, and more. Some of the uses are 
regulatory compliance like Sarbanes Oxley, managing business processes, Records 
Management within organizations, electronic discovery, enterprise content management, etc. 
IBM-FileNet is a tier one player in this space. Other players in this space are EMC and 
OpenText. The Enterprise Contracts Management solution in which the beneficiary 
specializes has been developed as a hlghly integrated solution for IBM-FileNet. IBM 
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currently does not have a Contracts Management solution; [the petitioner] represents IBM- 
FileNet in the Enterprise Contracts Management space. 
Finally, counsel asserts the following in response to the director's request for an explanation addressing how 
the beneficiary's training or experience imparted knowledge which is uncommon, noteworthy, or 
distinguished by some unusual quality that is not generally known by practitioners in the field of endeavor: 
The beneficiary's unique expertise in Enterprise Contracts Manager for IBM-FileNet P8 
products is not found in other practitioners in the same field. Although there are other 
practitioners who work on IBM -FileNet P8, since this Enterprise Contracts management 
solution itself is unique to IBM-FileNet, this expertise cannot be found in similar 
practitioners in the beneficiary's field. This is the same case with other employees of [the 
petitioner]. They do have I'M-FileNet P8 experience but the unique Enterprise Contracts 
Manager solution expertise cannot be found with the other US location employees. 
On November 1, 2007, 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 or 
that the beneficiary possesses 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 a specialized knowledge capacity. 
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. 8 214.2(1)(3). 
 The petitioner must submit a detailed job 
description of the services 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. 
Although the petitioner repeatedly asserts that the beneficiary's position requires "specialized knowledge" and 
that the beneficiary had been employed abroad in a "specialized knowledge" capacity, the petitioner has not 
adequately articulated any basis to support this claim. The petitioner has failed to identify any specialized or 
advanced body of knowledge which would distinguish the beneficiary's role from that of other similarly 
experienced workers employed by the foreign entity 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 Soffci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure CraB 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 
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reiterating the regulations. See Fedin Bros. Co., Ltd. v. Sava, 724, F. Supp. 1 103 (E.D.N.Y. 1 989), am, 905, 
F.2d 41 (2d. Cir. 1990). 
The petitioner asserts that the beneficiary has specialized knowledge of the Enterprise Contracts Manager 
solution for IBM-FileNet Enterprise Content Management products. However, despite this assertion, the 
record does not establish how, exactly, the beneficiary's knowledge of the Enterprise Contracts Manager 
solution for IBM-FileNet products is so materially different from knowledge of other software products, 
including IBM-FileNet products, that a generally experienced and similarly educated software worker could 
not perform the duties of the position. The petitioner never establishes the difference between the petitioner's 
products or procedures and other software products or procedures, which requires noteworthy or uncommon 
knowledge not possessed generally by similarly educated software workers. 
Overall, the record does not establish that the beneficiary's knowledge is substantially different from the 
knowledge possessed by software professionals generally throughout the industry or by other employees of 
the petitioning organization. The fact that no other employee possesses very specific knowledge of certain 
aspects of certain types software or software solutions does not alone establish that the beneficiary's 
knowledge is indeed uncommon or noteworthy. All employees can be said to possess uncommon and 
unparalleled skill sets to some degree; however, a skill set that can be imparted to another similarly educated 
and generally experienced software employee without significant economic inconvenience is not "specialized 
knowledge." Moreover, the proprietary or unique qualities of the petitioner's product do not establish that any 
knowledge of this software is "specialized."  ath her, the petitioner must establish that qualities of the product 
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 may not have very specific, proprietary knowledge 
regarding the petitioner's product, or its implementation or use, 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 software employee. 
Furthermore, while the petitioner implies that the beneficiary gained his purported specialized knowledge 
through the performance of his foreign job duties, the petitioner failed to support this claim with any 
evidence. Once again, going on record without documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. at 165 (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190). The record is devoid of evidence establishmg, exactly, what 
knowledge was imparted during the performance of these duties and why the purported specialized 
knowledge took this long to impart. Also, even though requested by the director, the petitioner failed to 
address whether the beneficiary received any training and, if so, whether this training imparted the purported 
specialized knowledge to him in whole or in part. Failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
Finally, even assuming the beneficiary has specialized knowledge, the petitioner failed to establish that the 
beneficiary was employed abroad in a specialized knowledge capacity for the requisite one-year period. The 
petitioner asserts that the beneficiary began working for the foreign entity on June 8,2005. Approximately 25 
months later, on July 5, 2007, the petitioner filed the instant petition. Therefore, at some point between June 
8, 2005 and July 5, 2006, the beneficiary would have needed to have acquired the claimed specialized 
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knowledge in order for the beneficiary to have been employed in a specialized knowledge capacity for one 
year prior to the filing of the instant petition. However, the record is devoid of evidence addressing when, 
exactly, the beneficiary acquired the claimed specialized knowledge. As noted above, the petitioner failed to 
describe the beneficiary's training regimen, if any, or to describe the beneficiary's evolution from newly hired 
employee to the possessor of "specialized knowledge." 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). Absent a detailed 
description of the beneficiary's acquisition of hls claimed specialized knowledge, it cannot be concluded that 
the beneficiary was employed in a specialized knowledge capacity abroad for the requisite one-year period. 
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 petitioning organization. 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. 1 17, 120 (Comm. 198 1) (citing Matter of Raulin, 13 I&N Dec. 6 18(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 I1 
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 hlghly skilled and productive 
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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 
Report, H.R. REP. NO. 91 -85 1, stated that the number of admissions under the L-1 classification "will not be 
large" and that "[tlhe class of persons eligible for such nonimmigrant visas is narrowly drawn and will be 
carefully regulated by the Imgration and Naturalization Service." Id. at 5 1. The decision futher 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 
of Penner, 18 I&N at 50 (citing H.R. Subcomm. No. 1 of the Jud. Comm., Immigration Act of 1970: Hearings 
on H.R. 445,9 1'' Cong. 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 of Penner, 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 of Penner, "[s]uch a conclusion would 
permit extremely large numbers of persons to qualify for the 'L-1 ' visa" rather than the "key personnel" that 
Congress specifically intended. 18 I&N Dec. at 53; see also 17.56, 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. 
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As explained above, the record does not distinguish the beneficiary's knowledge as more 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 software workers or that he has received 
special training in the company's methodologies or processes which would separate him from other workers 
employed with the petitioning organization 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 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, it is concluded 
that the beneficiary was not employed abroad, and will not be employed in the Untied States, in a capacity 
involving specialized knowledge. For this reason, the appeal will be dismissed. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
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 at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. 5 1 36 1. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.