dismissed L-1B Case: Software Development

U.S. Department of Homeland Security 
20 Massachusetts Ave , N.W., Rm. A3042 
Washington, DC 20529 
L 
U. S. Citizenship 
and Immigration 
5 
JAN 2 7 2005 
FIL~: LIN 03 066 50246 Office: NEBRASKA SERVICE CENTER Date: 
PETITIC~: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1101(a)(15)(L) 
ON BEWF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS : 
decision of the Administrative Appeals Office in your case. All documents have been returned to 
the This offic is that originally decided your case. Any further inquiry must be made to that office. 
{? 
~drninistjative Appeals Office 
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DISCUSSION: The Director, Nebraska Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of LINC 
software specialist as an L-1B nonimmigrant intracompany transferee with specialized knowledge pursuant to 
9 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1101(a)(15)(L). The petitioner 
is engaged in consulting and software development. The petitioner's breakdown of ownership of the foreign 
and U.S. entities indicates that the petitioner and the foreign entity are affiliates. The record indicates that the 
foreign entity is located in Latvia. The petitioner seeks to employ the beneficiary for a period of three years. 
The director denied the petition, concluding that the petitioner failed to submit sufficient evidence to establish 
that the beneficiary's knowledge is special or that any proprietary knowledge is involved in the beneficiary's 
duties. 
On appeal, the petitioner disputes the director's conclusion and submits a copy of an AAO decision from 
1999 in which one of the petitioner's appeals, filed on behalf of a different beneficiary, was sustained. The 
petitioner also submitted a number of letters and other evidence discussing the beneficiary's duties in the 
context of the petitioner's organization. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section lOl(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. $ 1101(a)(15)(L). Specifically, within three years 
preceding the beneficiary's application for admission into the United States, 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. 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. 3 214.2(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)(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 himher 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. 
The key issue in the instant matter is whether the beneficiary possesses specialized knowledge. 
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Section 214(c)(2)(B) of the Act, 8 U.S.C. 8 1184(c)(2)(B), provides the following: 
For purposes of section lOl(a)(lS)(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. 8 2 14.2(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. 
In a letter, dated December 18, 2002, submitted with the petition,the petitioner's vice 
president, stated that the beneficiary "is very proficient in the use of Unisys' LINC fourth generation language 
and related software tools to design and implement efficient business information systems, and possesses 
specialized knowledge of the advanced tools, techniques, processes, and procedures developed by BTG, 
which enable[s] him to quickly develop and optimize performance of systems in LINC." The petitioner 
further stated that the beneficiary's knowledge of LINC software is complex and not readily available in the 
marketplace. The petitioner claimed that the beneficiary would use his proprietary knowledge of software 
technologies to assist with clients' information systems applications. The petitioner provided the following 
list of duties for the beneficiary's proposed position as senior LINC consultant: 
[Clonsulting, design, programming, testing, maintaining and enhancing our clients' 
information systems applications. 
[Wlorking with Western banking consultants to further enhance and add to various software 
functions of our proprietary banking software in accordance with international banking 
principles and standards. 
[Clontinuing development of our software information systems, including SBS, into 
comprehensive, easy to use systems which address unique banlung and commercial 
requirements and provide a strong, flexible foundation for future growth and evolving 
requirements. 
On February 14, 2003, the director issued a notice requesting additional information to establish that the 
beneficiary possesses specialized knowledge as claimed in the petition. The director notified the petitioner 
that even though the record clearly suggests that the beneficiary is a professional in his field, it cannot be 
concluded that he possesses specialized knowledge. The director further stated that in order to be considered 
proprietary, the beneficiary's particular knowledge must be something that exclusively relates to the 
petitioner's business and the beneficiary's employment must be critical to the petitioner's proprietary 
interests. The director stated that evidence must include the beneficiary's job description, which establishes 
that the beneficiary's knowledge is uncommon and noteworthy, and not easily transferable to others in the 
same professional field. 
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In response, the petitioner submitted a letter, dated May 1, 2003, in which the petitioner stated that all of its 
prospective employees are required to successfully complete a LINC programming class and to then complete 
a software development project using LINC in order to demonstrate their ability to apply the knowledge 
gained through training. The petitioner stated that after a candidate is hired that new employee is trained in 
the company's proprietary techniques, processes and procedures. The petitioner did not specify the actual 
techniques, process and procedures referred to in the record. 
The petitioner also provided the following percentage breakdowns of the beneficiary's proposed duties: 
Consulting (10%) - review operational procedures and potential new systems, recommend 
new procedures and replacement systems, 
Analysis (20%) - work with end users to define new requirements 
Design (20%) - develop prototypes, review with end users 
Development (30%) - develop enhancements to systems and custom reports in LINC; 
develop user and system documentation 
Testing (10%) - unit test new modules, system test with real data 
Support (10%) - handle support calls from end users; diagnose problems; determine and 
correct faults in LINC code, data errors, configuration and network problems 
The petitioner also resubmitted the December 18, 2002 support letter from Mr iscussing the 
beneficiary's proficiency in using LINC fourth generation language and related software tools to work on 
clients' business information systems. 
On July 25,2003 the director denied the petition concluding that the beneficiary's proficiency in programming 
using a tool that is commercially available to others in the field suggests that the beneficiary's is not 
specialized and is not of a proprietary nature. The director further noted that adapting software to a particular 
project is not specialized knowledge, but rather is knowledge that is general and possessed by others in a 
similar field. The director also disputed the petitioner's reference to a prior AAO decision, citing 8 C.F.R. 
5 103.3(c) to support his claim that unpublished decisions have no precedent effect. 
On appeal, the petitioner submits a brief, dated August 25, 2003, pointing out that the AAO's prior decision 
was submitted not for its precedent effect, but for the purpose of showing that the AAO had previously 
established that the petitioner's "unique, proprietary techniques, processes, and procedures for using LINC 
meet the INS criteria for specialized knowledge." Regardless of the petitioner's motive in its reference to a 
prior AAO decision, if the previous nonirnmigrant petition was approved based on the same unsupported 
assertions that are contained in the current record, the approval (or sustained appeal, as in the instant case) 
would constitute material and gross error on the part of the director. The AAO is not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that 
may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 
(Comm. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged errors as 
LIN 03 066 50246 
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binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 
U.S. 1008 (1988). Based on this reasoning, any other appeals filed by the petitioner and subsequently 
sustained by the AAO, if based on evidence similar to that found in the instant record of proceeding, would 
also be deemed to have been made in gross error. The AAO will not remedy its prior error by perpetuating 
such gross error in sustaining the appeal in the instant case where the petitioner has not established the 
necessary factors of eligibility. 
The petitioner also resubmitted ~rmsu~~ort letter, as well as a letter dated June 25, 2001 fro- 
director of development and training for the foreign entity, stating that the "specialized knowledge 
of unique LINC development techniques, processes, and procedure7' is imparted on all of the company's 
employees by virtue of intense training and hands-on ex erience. In addition, the petitioner submitted 
I) U.S. entity's president. MS.= another letter, dated December 18, 2002, written by 
reiterated the petitioner's need for "people with a high level of expertise in Unisys' LINC 4th generation design 
and development tools" and hands-on experience tailoring their knowledge to the specific needs of the 
petitioner's clientele. The petitioner repeatedly asserts that the beneficiary has proprietary knowledge of the 
techniques and processes that are unique to the petitioner and its foreign affiliate. The petitioner claims that 
the beneficiary's ability to combine his LINC programming skills with his proprietary knowledge distinguish 
him from other LINC programmers in the industry. The petitioner has also stated that it has "unique LINC 
techniques and processes," which include LINC-related system structure standards and templates, code 
standards, system testing processes, migration processes and conversion utilities, coding techniques, 
templates, and various libraries. While this list suggests that the petitioner has developed its own LINC 
techniques and processes, it falls short of defining any specific techniques and processes that are proprietary 
and unique to the petitioning organization. 
The AAO does not dispute the likelihood that the beneficiary is a highly skilled individual who understands 
LINC programming and is able to apply it within the context of the petitioner's specific environment. 
However, there is no evidence that the beneficiary's employment is critical to the petitioner's proprietary 
interests. Although the petitioner repeatedly points out the unique features of LINC software design and 
development tools, this cannot be deemed the petitioner's proprietary interest, as there are other LINC 
programmers in the industry that are not employed by the petitioner or its affiliate. Furthermore, as pointed 
out by the director, the petitioning entity "is simply one of many Unisys authorized vendors using Unisys 
products." The petitioner has not provided any specifics regarding the beneficiary's alleged proprietary 
knowledge that is unique to the petitioner. Conclusory assertions regarding the beneficiary's employment 
capacity are not sufficient. Merely repeating the language of the regulations does not satisfy the petitioner's 
burden of proof. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 
(2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The petitioner's 
numerous references to the beneficiary's proprietary knowledge have not been corroborated with any 
supporting evidence. It is noted that going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Furthermore, 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 
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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, 18 I&N Dec. 49, 52 (Comm. 1982), 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." 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 slulls 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 cany out a key process or function which is important or essential to the 
business' operation. 
Id. at 53. In the present matter, the evidence of record demonstrates that the beneficiary is more akin to an 
employee whose skills and experience enable him to produce a specialized product, rather than an employee 
who has unusual duties, skrlls, or knowledge beyond that of a slulled worker. 
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., "[slimply 
put, specialized knowledge is a relative . . . idea which cannot have a plain meaning." 745 F. Supp. at 15. 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 Dictionaly 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 that 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." 
1 Although the cited precedents pre-date the current statutory definition of "specialized knowledge," 
the AAO finds them instructive. Other than deleting the former requirement that specialized knowledge had 
to be "proprietary," the 1990 Act did not significantly alter the definition of "specialized knowledge" from the 
prior INS interpretation of the term. The 1990 Committee Report does not reject, criticize, or even refer to 
any specific INS regulation or precedent decision interpreting the term. The Committee Report simply states 
that the Committee was recommending a statutory definition because of "[vlarying [i.e., not specifically 
incorrect] interpretations by INS," H.R. Rep. No. 101-723(I), at 69, 1990 U.S.C.C.A.N. at 6749. Beyond that, 
the Committee Report simply restates the tautology that became section 214(c)(2)(B) of the Act. Id. The 
AAO concludes, therefore, the cited cases, as well as Matter of Penner, remain useful guidance concerning 
the intended scope of the "specialized knowledge" L-1B classification. 
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Moreover, in Matter of Penner, the Commissioner discussed the legislative intent behind the creation of the 
specialized knowledge category. 18 I&N Dec. 49. The decision noted that the 1970 House Report, H.R. 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 
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 "shlled craft workers." Matter of Penner, id. at 50 
(citing H.R. Subcomm. No. 1 of the Jud. Comm., Immigration Act of 1970: Hearings on H.R. 445,91st Cong. 
2 10,2 18,223,240,248 (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 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, "[mlost 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, "[sluch 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, 1756, Inc., 745 F. Supp. at 15 (concluding that 
Congress did not intend for the specialized knowledge capacity to extend all employees with specialized 
knowledge, but rather to "key personnel" and "executives.") 
Thus, based on the intent of Congress in its creation of the L-1B visa category, as discussed in Matter of 
Penner, even showing that a beneficiary possesses specialized knowledge does not necessarily establish 
eligibility for the L-1B intracompany transferee status. The petitioner should also submit evidence to show 
that the beneficiary is being transferred to the United States as a crucial employee. This has not been 
successfully demonstrated in the instant case, where the beneficiary appears to be one among a large number 
of the petitioner's employees who possesses similar training and knowledge and who the record shows is also 
one of many other beneficiaries on whose behalf the same petitioner has filed a significant number of L-1B 
petitions. 
The legislative history for 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, 745 F. Supp. at 16. Based on the evidence presented, it is 
concluded that the beneficiary has not been employed abroad and would not be employed in the United States 
in a capacity involving specialized knowledge. For this reason, 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 
director's decision will be affirmed and the petition will be denied. 
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ORDER: The appeal is dismissed.