dismissed L-1B Case: Software Development

PUBLICCOPY
U.S. Departmentof Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: EAC 07 188 53173 Office: VERMONT SERVICE CENTER Date: NOV 3 0 2001
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)(15)(L)
IN BEHALF OF PETITIONER:
SELF-REPRESENTED
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
i~b~~'~~f
Administrative Appeals Office
www.uscis.gov
•
EAC 0718853173
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa and
certified the matter to the Administrative Appeals Office (AAO) for affirmation or withdrawal pursuant to 8
C.F.R. § 103.4(a). Upon review, the AAO will affirm the director's decision and will further deny the petition
for the additional reasons set forth below.
The petitioner filed this nonimmigrant petition on June 18, 2007 seeking to employ the beneficiary in the
position of "programmer analyst - insurance vertical" as an L-1B 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 is a software development and consulting company and seeks to
employ the beneficiary for a period of three years.
On October 10, 2007, the director denied the petition and certified the matter to the MO. The director
concluded that the petitioner failed to establish (1) that the beneficiary was employed abroad in a specialized
knowledge capacity; or (2) that the beneficiary will be employed in the United States in a specialized
knowledge capacity.
Upon certification, the director informed the petitioner in the Form I-290C that it may file a brief or written
statement with the AAO within thirty days after service of the decision. As of the date of this decision, no
brief or written statement has been received by the AAO and the record will be considered complete.
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 (l)(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
EAC 0718853173
Page 3
education, training, and employment qualifies himlher to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
At issue in this proceeding is whether the petitioner has established that the beneficiary has been employed
abroad, and will be employed in the United States, in a specialized knowledge capacity. 8 C.F .R. §
214.2(1)(3)(ii) and (iv).
Section 214(c)(2)(B) of the Act, 8 U.S.C. § 1 184(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 petitioner describes the beneficiary's current and proposed job duties and purported specialized
knowledge in a letter dated June 14, 2007 appended to the initial petition. The petitioner indicates that the
beneficiary has been working in India, and will work in the United States, on an ongoing "Quote Rate and
Issue," or QRI, enhancements project (hereinafter, the "QRI Enhancement Project") for Travelers Indemnity
Company (hereinafter the "unaffiliated employer"). The beneficiary has been employed by the foreign
employer since March 2005 and, as explained in an appended letter dated April 4, 2007, has been working on
this specific project offshore since January 2006.
The petitioner specifically described the QRI Enhancement Project on page 3 of the June 14, 2007 letter.
Generally, the project is described as maintaining and enhancing the unaffiliated employer's applications
systems as these pertain to the issuance of certain commercial insurance policies. The petitioner also
described the beneficiary's proposed duties as these relate to the QRI Enhancement Project as follows:
As Programmer Analyst on [the QRI Enhancement Project] in the U.S., [the beneficiary] will
analyze the internal systems currently used at [the unaffiliated employer]. To this end, he
will serve as the key liaison between India and the U.S. and will utilize analytical tools and
methodologies to assess the requirements for system maintenance in the United States as
developed by our offshore development center, [the foreign employer]. [The beneficiary]
will apply his advanced knowledge of our Indian subsidiary's proprietary software tools and
quality assurance standards and procedures to maintain and enhance our U.S. client's
computer applications in accordance with our quality control standards and business practices
EAC 0718853173
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and procedures.
Specifically, [the beneficiary] will continue his work on the [QRI Enhancement Project], and
to his end, he will transfer business rules into technical architecture. [The beneficiary] will be
responsible for system maintenance and enhancement of CL Portal, IENET application and
IEXML application that exist with the [QRI Enhancement Project]. [The beneficiary] will
perform job classification and subsequently assign the tasks accordingly. He will use
Microsoft Visual Studio .net 2003 for enhancement of the existing system, Microsoft Office
for the documentations of the different processes carried out and VSS for the version control
of the documents. He will further perform maintenance work on portal using databases like
DB2 server for maintenance of the data[.] [The beneficiary] will closely monitor the latest
status against each log, and pending status. [The beneficiary] will be responsible for system
testing, quality assurance and final implementation. He will utilize a host of Internal tools
that include E-tracker for Application Value Management, E-Metrics to collect, consolidate
and analyze project metrics, and assist in the efficient calculation of quantifiable project
specifications, E-Cockpit, to graphically represent quantifiable project data and assists in
decision support and project management, Q-View for quality assurance, and Q-Smart to
automate quality assurance through powerful built-in workflow mechanisms.
More importantly [the beneficiary] will utilize his professional experience and advanced
knowledge of the different systems in the [QRI Enhancement Project]. This knowledge will
be an asset to the client since he became acquainted with these systems during the initial
Knowledge transitions phase. [The beneficiary] has been identified as the key person on this
project. His knowledge of the quality procedures and practices in [the petitioning
organization] is also seen as an essential advantage for [the petitioning organization] and the
client.
The petitioner described the beneficiary's purported specialized knowledge as it pertains to his duties, and the
QRI Enhancement Project, in the letter dated June 14, 2007 as follows:
[The beneficiary] has worked on the [QRI Enhancement Project] and has been instrumental in
the development of their application components. [The beneficiary] has acquired
[unaffiliated employer] business product and technical process knowledge that can only be
attained through developing the company's information technology and is thereby neither
common nor basic knowledge. He worked on design, development, and testing during the
development phases of the [QRI Enhancement Project] and hence has acquired the business
knowledge of the project for future leveraging during the upcoming implementation,
modification, and enhancement phases of the project. [The beneficiary] is very familiar with
the different systems used in this project and his technical expertise is an asset to both [the
unaffiliated employer] and [the petitioning organization].
[The beneficiary] earned a Bachelor['s] degree in Computer Science from I
Unversity in India. His unique combination of professional experience with [the unaffiliated
EAC 07188 53173
Page 5
employer] practical and educational expertise cannot be transferred or taught to other
candidates. His concentrated focus on the development and implementation of this client's
technology cannot be passed on to another candidate due to the intense and lengthy time
period required for acquaintance with [the unaffiliated employer's] business processes and
related technology. [The beneficiary] was introduced to [the petitioning organization's]
Insurance vertical and its projects in March 2005 and has subsequently worked exclusively on
projects like [the QRI Enhancement Project]. [The unaffiliated employer's] QRI Application
is a highly sophisticated and complex system that requires consistent monitoring and analysis
of system components that must operate in cohesion. [The unaffiliated employer's] QRI
Application operates via a variety of hardware and software platforms that often require the
regular exchange of application critical data.
[The beneficiary] has utilized a host of internal tools for [the unaffiliated employer's]
projects. These include eCockpit, Icare, Qsmart, eTracker, eMetrics and Qview. He has
broader industry knowledge of Visual Studio .net 2003, Visual Studio 6.0 and SQL Server
2000; he is a Microsoft Certified Application Developer, and has specific expertise with [the
unaffiliated employer's] different Applications. His business knowledge is noteworthy,
distinguishable and very uncommon and his resulting expertise spans across data collection
methodologies, hardware and software development, data processing, and systems analysis.
[The beneficiary] has specialized knowledge of systems in [the unaffiliated employer's] QRI
Enhancements and he has been critical in the development of all the previously mentioned
systems. This is highly specific and advanced knowledge that [the petitioning organization]
would like to utilize in its implementation in the United States.
[The beneficiary] was chosen to come to the United States based on his professional
experience with [the unaffiliated employer] and [the petitioning organization]. He developed
an advanced understanding of [the petitioning organization's] proprietary internal
development tools, worked on several key projects for [the petitioning organization] abroad
and as a result of his work on significant projects for [the unaffiliated employer]; he is
uniquely well-versed in [the petitioning organization's] Onsite/Offshore implementation
methodology. [Citation omitted]. The specific leveraging of our internal tools in the
development of applications is based on the beneficiary's professional, technical and
educational knowledge. [The beneficiary] has shown his ability to develop application
modules and utilize our internal tools and this means that he is ideal for transfer to the U.S.
since he has acquired a well-honed understanding of the type of technological information
that must be gleaned from the U.S. client in order to maximize effective implementation.
Specifically, [the beneficiary] displayed his advanced expertise through his focus on [the QRI
Enhancement Project].
Furthermore, the petitioner explained in the letter dated June 14, 2007 that the beneficiary "has acquired
specialized knowledge of the technologies required for the application development and maintenance of [the
QRI Enhancement Project]" and that the beneficiary has specialized knowledge of the petitioning
organization's "proprietary technologies." These proprietary technologies are described by the petitioner as
EAC 0718853173
Page 6
follows:
These are the proprietary systems that [the petitioning organization] uses to implement
projects for [its] clients. They include eMetrics, on online tool used to collect project
measurements and progress and calculate metrics based on this information, Icare, a system
for logging complaints and problems regarding a particular support system, eCockpit, a tool
to measure and represent Productivity, Effort, Schedule, Requirements and defect density,
and software quality assurance tools such as Qview and Qsmart, to view project activities.
These tools, developed by and used exclusively for, [the petitioning organization] projects,
are resources that allow two implementation teams - separated by thousands of miles and
several time zones - to work together seamless1y and move forward on the same client
project.
* * *
[The beneficiary] has also developed a unique understanding of [the petitioning
organization's] Onsite/Offshore Methodology. He served in the Offshore Team and has
contributed to [the petitioning organization's] most significant projects. He became
extremely well versed in the procedures and protocols integral to [the petitioning
organization's] Onsite/Offshore methodology. His substantial role in the project described
above translates into specialized experience with the workflow, procedures and standards
followed by [the petitioning organization's] Indian teams for processing information from
client sites in the U.S. and creating and implementing applications remotely. This provides
him with a unique perspective on what information the team in the U.S. will need to gather
from the U.S. client and forward to the Indian team for optimal and efficient results on a
particular project. This depth of knowledge of [the petitioning organization's] offshore
operations will provide the [the petitioning organization] with a definite competitive
advantage in managing this project, as well as the client's expectations, in the U.S.
On June 29, 2007, the director requested additional evidence. The director requested, inter alia, evidence
establishing the minimum amount of time required to train an employee to perform the beneficiary's duties in
the United States; documentation addressing the manner in which the beneficiary gained his purported
specialized knowledge, including training records, coursework records, and certifications; and evidence
addressing the number of workers employed by the petitioning organization in positions similar to the
beneficiary's current and prospective position.
In response, the petitioner submitted a letter dated September 21,2007. In this letter, the petitioner explains
that the petitioning organization "employs around twenty six Programmer Analysts offshore and four onsite in
the U.S. at the client location" and that "[b]efore being able to join this particular project in a Programmer
Analyst role each employ[ ee] must go through multiple internal training sessions in the technical mainframe
skills set, as well as participate in knowledge transition sessions and related case studies."
The petitioner also describes the beneficiary's acquisition of his purported specialized knowledge as follows:
EAC 0718853173
Page 7
[The foreign employer] has employed [the beneficiary] in a specialized knowledge capacity
since March 2005. He has spent much of his entire [foreign employer] career working in the
narrow field of this particular [unaffiliated employer] project, during which time he has
gained in-depth knowledge that is not generally known within [the petitioning organization],
and certainly not available outside of [the petitioning organization] in the industry. Indeed,
because his knowledge surpasses the usual found within [the foreign employer], [the
petitioning organization] seeks to transfer [the beneficiary] onsite so that he may help the
offshore and onsite team collaborate more closely on this specific [unaffiliated employer]
project.
The petitioner further claims that the beneficiary acquired his "specialized knowledge" in two ways: (1)
through working offshore on the QRI Enhancement Project; and (2) through formal training. The petitioner
asserts that the beneficiary's knowledge of the QRI Enhancement Project "differs substantially from what is
generally known within [the petitioning organization]" and that he is part of a "sub-set" of workers having a
"combination of special knowledge, and its application in the onsite team in the U.S." Moreover, the
petitioner asserts that the beneficiary's knowledge of the petitioning organization's process and procedures
also distinguishes him from other employees.
Finally, the petitioner outlines the beneficiary's formal training regimen. As explained above, the record
indicates that the beneficiary began working for the foreign employer in March 2005 and commenced
working on the offshore component of the QRI Enhancement Project in January 2006. The instant petition
was filed on June 18, 2007. During his approximately 28 months of employment by the petitioning
organization, the beneficiary received 164 hours of training. One hundred and forty-four hours of this
training was received during the beneficiary's first 9 months of employment in 2005, and these courses appear
to have concerned primarily widely used software or general methodologies of the petitioning organization.
Twenty hours of general training relating to the "foundation of insurance" was received by the beneficiary in
early 2006. Almost half of the beneficiary's training (80 hours) concerned asp.net, which is described by the
petitioner as "methodology and best practices for computer software components that can be used by
programmers to develop web applications." However, asp.net is not listed elsewhere in the petition as a
subject of which the beneficiary has specialized knowledge. Furthermore, of all the "proprietary
technologies" listed in the letters dated June 14,2007 or September 21,2007, the beneficiary appears to have
received formal training in only one - eTracker - for 4 hours in November 2005.
Upon review, the petitioner's assertions are not persuasive in demonstrating that the beneficiary had been
employed abroad, or will be employed in the United States, in a specialized knowledge capacity as defined at
8 C.F.R. § 214.2(1)(1)(ii)(D).
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 performed, or to be performed, sufficient to establish specialized knowledge. In
this matter, the petitioner fails to establish that either the foreign or United States position requires an
employee with specialized knowledge or that the beneficiary has specialized knowledge.
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Although the petitioner repeatedly asserts that the beneficiary's prospective position requires "specialized
knowledge" and that the beneficiary has 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 and educated 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 systems and technologies
required for the development and enhancement of the QRI Enhancement Project. The petitioner also asserts
that the beneficiary possesses specialized knowledge of the petitioning organization's "Onsite/Offshore
Methodology" as well as of the "proprietary technologies" used to implement the petitioning organization's
projects. The petitioner alleges that the beneficiary's knowledge was acquired through formal training and
working on the QRI Enhancement Project abroad and that "[hjis concentrated focus on the development and
implementation of [the unaffiliated employer's] technology cannot be passed on to another candidate due to
the intense and lengthy time period required for acquaintance with [the unaffiliated employer's] business
processes and related technology." The petitioner asserts that the beneficiary is part ofa "sub-set" of workers
having a combination of specialized knowledge which "spans across data collection methodologies, hardware
and software development, data processing, and systems analysis."
However, despite these assertions, the record does not establish how, exactly, the beneficiary's knowledge of
the QRI Enhancement Project or the petitioning organization's "proprietary technologies" is so materially
different from software development and implementation projects in general that a similarly experienced and
educated software professional employed by the petitioning organization or in the industry at large could not
perform the duties of the position. The petitioner never establishes what specific knowledge of the QRI
Enhancement Project or the petitioning organization's "proprietary technologies" would require an "intense
and lengthy time period" to convey to a similarly trained and experienced software professional. In fact, the
petitioner fails to specifically define this "intense and lengthy time period." It is unclear what specific
knowledge would need to be imparted during the "intense" experience or how long this experience would
need to last to fully impart the knowledge. Therefore, the petitioner has not established that the beneficiary's
knowledge is noteworthy or uncommon, and not possessed generally by similarly educated and experienced
software professionals.
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 the QRI Enhancement Project, or of certain proprietary technologies as these relate to the project's
implementation, does not alone establish that the beneficiary's knowledge is indeed uncommon or
EAC 0718853173
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noteworthy. 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 technologies or project do not establish that any knowledge of the QRI
Enhancement Project or the "proprietary technologies" is "specialized." Rather, the petitioner must establish
that qualities of the unique or proprietary technologies, or of the QRI Enhancement Project, 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
QRI Enhancement Project or of the petitioner's "proprietary technologies" 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 experienced employee after a few weeks of on-the-job instruction. As the record is devoid of
evidence establishing how long, and under what conditions, the purported specialized knowledge would be
imparted to similarly educated and experienced employees, the petitioner has failed to establish that the
beneficiary's knowledge is, or will be, truly specialized.
Furthermore, while the petitioner asserts that the beneficiary acquired his purported "specialized knowledge"
through both work experience and formal training, the record is not persuasive in establishing that either of
these methods truly imparted "specialized knowledge" to the beneficiary. First, as explained above, the
record is devoid of persuasive evidence establishing that the beneficiary's experience with the QRI
Enhancement Project abroad instilled him with specialized knowledge. The petitioner fails to explain what
specific knowledge of the QRI Enhancement Project is unique to the beneficiary or to establish how long it
would take to impart this knowledge to a similarly employed person and under what conditions.
Second, the record is not persuasive in establishing that the 164 hours of "formal training" provided to the
beneficiary during his first eleven months of employment imparted specialized knowledge to the beneficiary.
The training regimen outlined by the petitioner does not appear to relate specifically to the beneficiary's
purported specialized knowledge. Only one course, a 4-hour course pertaining to eTracker, appears to
directly concern one of the "proprietary technologies" listed in the training outline. Likewise, the beneficiary
appears to have taken only one course relating tangentially to the QRI Enhancement Project - a 20-hour
course pertaining to the insurance industry. The remaining 140 hours of training appear to concern general
topics relating to widely used software and the petitioning organization's methodologies, none of which are
listed as subjects of which the beneficiary has "specialized knowledge." Regardless, absent evidence
establishing that the knowledge imparted by the training sessions is not possessed by other similarly
employed workers, knowledge of these subjects would not be specialized. ill this matter, as the petitioner
indicates that "each employ[ee] must go through multiple internal training sessions in the technical mainframe
skills set," it appears that such training sessions, and the resultant knowledge imparted, is common throughout
the petitioning organization. ill addition, as the petitioner has indicated that it employs approximately 30
"programmer analysts" in the QRI Enhancement Project, it appears unlikely that the beneficiary's knowledge
or training regimen is truly uncommon or noteworthy.1
[While neither the Act nor the regulations mandate a certain amount of training for imparted knowledge to be
"specialized," it must be noted that, even if the knowledge imparted to the beneficiary during his training
sessions related primarily to his purported "specialized knowledge" (which it did not), the beneficiary's
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Finally, even assuming that the beneficiary has "specialized knowledge" as defined by the Act and
regulations, the petitioner has failed to establish that the beneficiary was employedin a specialized knowledge
capacity abroad for at least one year. 8 C.F.R. § 214.2(l)(3)(iv). The petitioner alleges in the letter dated
September 21,2007 that "[the foreign employer] has employed [the beneficiary] in a specialized knowledge
capacity since March 2005," which is when the beneficiary first became employed by the petitioning
organization. However, this assertion is neither credible nor consistent with other allegations in the record.
As indicated above, the petitioner asserts that the beneficiary has "specialized knowledge" of aspects of the
QRI Enhancement Project and of certain "proprietary technologies" of the petitioning organization. The
petitioner further asserts that this knowledge can only be gained after an "intense and lengthy time period"
during which time an employee would become acquainted with the unaffiliated employer's "business
processes and related technology." Finally, the petitioner asserts that the beneficiary gained his specialized
knowledge in two ways: (1) through working offshore on the QRI Enhancement Project; and (2) through
formal training. Therefore, if the beneficiary gained his specialized knowledge through a combination of
experience and training available only during his period of employment with the foreign employer, he could
not have possibly been employed in a specialized knowledge capacity on the day he first became employed
by the petitioning organization, i.e., March 2005. The petitioner offers no explanation for this fundamental
inconsistency in the record. It is incumbent upon the petitioner to resolve any inconsistencies in the record by
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice
unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter ofHo, 19
I&N Dec. 582, 591-92 (BIA 1988). Accordingly, even if the beneficiary's knowledge was specialized, the
petitioner has failed to establish that the beneficiary was employed in a specialized knowledge capacity
abroad for one year.
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 ofColley, 18 I&N
Dec. 117, 120 (Comm. 1981) (citing Matter ofRaulin, 13 I&N Dec. 618 (R.C. 1970) and Matter ofLeBlanc,
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
receipt of 164 hours of training spread out over 11 months of employment will not alone establish that the
training sessions imparted "specialized knowledge." The petitioner must establish that the provision of the
training is necessary to impart the specialized knowledge, that a substantial number of other similarly
employed workers do not also have the claimed specialized knowledge, and, crucially, that the provision of
the training to other similarly educated and employed workers would be economically inconvenient to the
petitioning organization. In this matter, the provision of 164 hours, or approximately 4 weeks, of on-the-job
training to a relatively new employee as described in the record does not constitute an economic
inconvenience of a magnitude sufficient to justify labeling the imparted knowledge as "specialized" absent the
existence of other factors, e.g., infrequency of the training, expenses related to the employment of outside
teachers, or the location of the training, any of which could possibly establish that the provision of such
training to a different employee would be economically inconvenient.
EAC 0718853173
Page 11
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 finn'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-l 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
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 , 91
51
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
EAC 0718853173
Page 12
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 Acting Executive Associate Commissioner,
Immigration and Naturalization Service, Interpreiation 0 ifJecialized 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 advanced than the
knowledge possessed by other people employed by the petitioning organization or by computer professionals
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
training in the company 's methodologies or processes which would separate him from other professionals
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 will not be employed in the United States, and was not employed abroad, in a capacity
involving specialized knowledge. For these reasons , the director's decision will be affirmed and the petition
EAC 0718853173
Page 13
will be denied.
Beyond the decision of the director, the petition will also be denied because the petitioner failed to establish
that the beneficiary, who will be stationed primarily at the worksite of an unaffiliated employer, will be
controlled and supervised principally by the petitioner or that the placement is related to the provision of a
product or service for which specialized knowledge specific to the petitioning employer is necessary. Section
214(c)(2)(F) of the Act, 8 U.S.C. § 1184(c)(2)(F). The beneficiary's proposed employment appears to be an
impermissible arrangement to provide labor for hire which is prohibited by the anti "job shop" provisions of
the L-l Visa Reform Act of 2004.2
As amended by the L-1 Visa Reform Act of 2004, section 214(c)(2)(F) of the Act, 8 U.S.C. § 1184(c )(2)(F),
provides:
An alien who will serve in a capacity involving specialized knowledge with respect to an
employer for purposes of section 1101(a)(l5)(L) and will be stationed primarily at the
worksite of an employer other than the petitioning employer or its affiliate, subsidiary, or
parent shall not be eligible for classification under section 1101(a)(15)(L) if-
(i) the alien will be controlled and supervised principally by such unaffiliated
2The term "job shop" is commonly used to describe a firm that petitions for aliens in L-IB status to contract
their services to other companies, often at wages that undercut the salaries paid to U.S. workers. Upon
introducing the L-l Visa Reform Act, Senator Saxby Chambliss described the abuse as follows:
The situation in question arises when a company with both foreign and U.S.-based operations
obtains an L-l visa to transfer a foreign employee who has "specialized knowledge" of the
company's product or processes. The problem occurs only when an employee with
specialized knowledge is placed offsite at the business location of a third party company. In
this context, if the L-l employee does not bring anything more than generic knowledge of the
third party company's operations, the foreign worker is acting more like an H-1B professional
than a true intracompany transferee. Outsourcing an L-l worker in this way has resulted in
American workers being displaced at the third party company.
149 Congo Rec. S11649, *S11686, 2003 WL 22143105 (September 17, 2003).
In general, the L-IB visa classification does not currently include the same U.S. worker protection provisions
as the H-IB visa classification. See generally, 8 C.F.R. §§ 214.2(h) and (1). The L-IB visa classification is
not subject to a numerical cap, does not require the employer to certify that the alien will be paid the
"prevailing wage," and does not require the employer to pay for the return transportation costs if the alien is
dismissed from employment. Additionally, by filing under the L-1B classification, an employer will not be
required to pay the $1,500 fee for each new H-1B petition which funds job training and low-income
scholarships for U.S. workers. Section 214(c)(9) of the Act.
EAC 0718853173
Page 14
employer; or
(ii) the placement of the alien at the worksite of the unaffiliated employer is
essentially an arrangement to provide labor for hire for the unaffiliated
employer, rather than a placement in connection with the provision of a product
or service for which specialized knowledge specific to the petitioning employer
is necessary.
Section 214(c)(2)(F) of the Act was created by the L-l Visa Reform Act of 2004 and is applicable to all L-l B
petitions filed after June 6, 2005, including extensions and amendments involving individuals currently in L-l
status. See Pub. L. No. 108-447, Div. I, Title IV, 118 Stat. 2809 (Dec. 8, 2004). As explained above, the
primary purpose of the L-I Visa Reform Act amendment was to prohibit the "outsourcing" of L-IB
intracompany transferees to unaffiliated employers to work with "widely available" computer software and,
thus, help prevent the displacement of United States workers by foreign labor. See 149 Congo Rec. S11649,
*S11686, 2003 WL 22143105 (September 17, 2003); see also Sen. Jud. Comm., Sub. on Immigration,
Statement for Chairman Senator Saxby Chambliss, July 29, 2003, available at
<http://judiciary.senate.gov/member statement.cfm?id =878&wit id=3355> (accessed on July 16, 2007).- -
In evaluating a petition subject to the terms of the L-l Visa Reform Act, the AAO must emphasize that the
petitioner bears the burden of proof. Section 291 of the Act, 8 U.S.C. § 1361; see also 8 C.F.R. § 103.2(b)(l).
As such, if a specialized knowledge beneficiary will be primarily stationed at the worksite of an unaffiliated
employer, the statute mandates that the petitioner establish both: (l) that the alien will be controlled and
supervised principally by the petitioner, and (2) that the placement is related to the provision of a product or
service for which specialized knowledge specific to the petitioning employer is necessary. Section
214(c)(2)(F) of the Act. These two questions of fact must be -established for the record by documentary
evidence; neither the unsupported assertions of counselor the employer will suffice to establish eligibility.
Matter of Soffici, 22 I&N Dec. at 165; Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988). If the
petitioner fails to establish both of these elements, the beneficiary will be deemed ineligible for classification
as an L-l B intracompany transferee.
In this matter, the petitioner indicates in the L Classification Supplement to Form 1-129 that the beneficiary
will be stationed primarily at the worksite of the unaffiliated employer. The petitioner further asserts in an
attachment to the petition that all of its employees "work directly for [the petitioner] on projects" and "under
the supervision of one or more [of the petitioner's] project managers." The petitioner emphasizes that it is not
a "placement company, nor an agent that arranges short-term employment." Rather, the petitioner asserts that
it "designs, engineers, and implements business solutions on a project basis for companies that are not in the
IT sector."
Furthermore, in response to the director's Request for Evidence, the petitioner submitted an organizational
chart pertaining to the beneficiary's role within the QRI Enhancement Project. The chart shows the
beneficiary reporting to a project leader employed by the petitioner but also simultaneously "interacting" with
an "account manager" employed by the unaffiliated employer. The petitioner did not specifically explain the
difference between "reporting" and "interacting" for purposes of the organizational chart or describe, exactly,
EAC 0718853173
Page 15
the nature of the beneficiary's "interaction" with the unaffiliated employer's "account manager."
Finally, as explained above, the petitioner describes the beneficiary as having specialized knowledge of the
QRI Enhancement Project. The petitioner describes the QRI Enhancement Project on page 3 of the June 14,
2007 letter appended to the initial petition. Generally, the project is described as maintaining and enhancing
the unaffiliated employer's applications systems as these pertain to the issuance of certain commercial
insurance policies. Apparently, the unaffiliated employer has hired the petitioning organization to provide
services in connection with the QRI Enhancement Project, and the petitioner desires to employ the beneficiary
in the United States to continue his work on the project at the unaffiliated employer's workplace in Hartford,
Connecticut. According to the petitioner, the beneficiary gained "specialized knowledge" of the QRI
Enhancement Project during his employment abroad. As explained in the letter dated June 14, 2007, the
beneficiary "has acquired [unaffiliated employer] business product and technical process knowledge that can
only be attained through developing the company's information technology and is thereby neither common
nor basic knowledge." Further, because the beneficiary "worked on design, development and testing during
the development phases of the [QRI Enhancement Project]," he has acquired "the business knowledge of the
project for future leveraging during the upcoming implementation, modification, and enhancement phases of
the project."
Upon review, the record is not persuasive in establishing either (1) that the beneficiary, who will be stationed
primarily at the worksite of an unaffiliated employer, will be controlled and supervised principally by the
petitioner; or (2) that the placement is related to the provision of a product or service for which specialized
knowledge specific to the petitioning employer is necessary. Section 214(c)(2)(F) of the Act.
First, the record is not persuasive in establishing that the beneficiary will be controlled and supervised
principally by the petitioner. As explained above, while the petitioner asserts that the beneficiary will be
supervised by a project leader, it also appears that he will be supervised to some extent by an "account
manager" employed by the unaffiliated employer. The exact relationship between the project leader, the
account manager, and the beneficiary was not clearly defined even though the director specifically requested
an organizational chart in the Request for Evidence. 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). Going on record
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in
these proceedings. Matter of Soffici, 22 I&N Dec. at 165 (citing Matter of Treasure Craft of California, 14
I&N Dec. 190). Given that the beneficiary will be employed at the workplace of the unaffiliated employer, it
is imperative under the L-1 Visa Reform Act that the petitioner clearly establish that the beneficiary will be
principally, rather than nominally or indirectly, supervised and controlled by the petitioning organization
while working on the QRI Enhancement Project.
Accordingly, as it cannot be concluded that the beneficiary will be principally controlled and supervised by
the petitioner during his employment at the unaffiliated employer's workplace, the petition will be denied for
this additional reason.
The second issue under the L-1 Visa Reform Act analysis is whether the petitioner has established that the
beneficiary's placement is related to the provision of a product or service for which specialized knowledge
EAC 0718853173
Page 16
specific to the petitioning employer is necessary. Section 214(c)(2)(F)(ii) of the Act.
Upon review, the record is not persuasive in establishing that the beneficiary's placement at the unaffiliated
employer's workplace to work on the QRI Enhancement Project is related to the provision of a service for
which specialized knowledge specific to the petitioning organization is necessary. To the contrary, even
assuming the beneficiary has specialized knowledge, which he does not (see supra), it appears that the
beneficiary has knowledge specific to the unaffiliated employer rather than to the petitioning organization. As
explained above, the petitioner repeatedly emphasizes that the beneficiary has gained "specialized
knowledge" of the QRI Enhancement Project during his employment abroad and that he "has acquired
[unaffiliated employer] business product and technical process knowledge that can only be attained through
developing the company's information technology and is thereby neither common nor basic knowledge."
While the petitioner also asserts that the beneficiary has specialized knowledge of certain "proprietary
technologies" related to the provision of its services, the record is not persuasive in establishing that this
knowledge, which has also not been established to be specialized (see supra), is necessary to the provision of
the petitioning organization's service. Rather, it is clear that the beneficiary is being transferred to the United
States because of his knowledge of the unaffiliated employer's processes and procedures as these pertain to
the QRI Enhancement Project.
Accordingly, the petitioner has not described the beneficiary as one having specialized knowledge of the
petitioner's processes and procedures. Instead, the petitioner has described the beneficiary as one having
knowledge of the processes and procedures of the unaffiliated employer. Therefore, the beneficiary is
ineligible under section 214(c)(2)(F)(ii) for classification as an L-IB intracompany transferee. As explained
above, in order for an offsite specialized knowledge worker to be eligible for L-IB classification, the
petitioner must establish that the beneficiary is not being employed as "labor for hire" for the unaffiliated
employer. In this matter, as the petitioner has asserted that the beneficiary's knowledge is related to the
unaffiliated employer's processes and procedures, the beneficiary falls squarely within the prohibition
imposed by the L-l Visa Reform Act of 2004 on the "outsourcing" ofL-IB nonimmigrants who do not have
specialized knowledge related to the provision of a product or service specific to a petitioner.
Moreover, a review of the facts of this petition reveal that this is exactly the type of employment relationship
the L-l Visa Reform Act of 2004 was adopted to prohibit. As explained above, this legislation was proposed
to primarily prevent the "outsourcing" of L-IB intracompany transferees to unaffiliated employers to work
with "widely available" computer software. In this matter, the petitioner has indicated that the project on
which the beneficiary has been working, both abroad and in the United States, involves software such as
Microsoft Visual Studio .net 2003, Microsoft Office, VSS, Visual Studio 6.0, SQL Server 2000, and
applications related specifically to the unaffiliated employer. Importantly, the petitioner is not providing
these implementation services in connection with the sale of any technology products, and the beneficiary's
purported specialized knowledge has not been established to be related to the petitioner's provision of a
service other than the provision of labor.
Accordingly, as the beneficiary's placement is not related to the provision of a product or service for which
specialized knowledge specific to the petitioning employer is necessary, the petition will be denied for this
additional reason.
EAC 07188 53173
Page 17
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 (B.D. Cal. 2001), aff'd, 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
matters 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 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. Accordingly, the
director's decision will be affirmed and the petition will be denied.
ORDER: The director's decision is affirmed. The petition is denied.