dismissed L-1B Case: Software Development

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-D-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOY. 8, 2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a developer of enterprise marketing solutions, seeks to continue the Beneficiary's 
temporary employment as a "software development developer expert" under the L-1 B nonimmigrant 
classification for intracompany transferees. Immigration and Nationality Act (the Act) 
section 101 (a)(l S)(L), 8 U .S.C. § 1101 (a)( I 5)(L). The L-1 B classification allows a corporation or other 
legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee with 
"specialized knowledge" to work temporarily in the United States. 
The Director of the Yennont Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary was employed abroad in a specialized knowledge capacity 
or that he would be employed in a specialized knowledge capacity in the United States. 
On appeal, the Petitioner asserts that the Director's decision provides insufficient analysis and 
includes errors of fact. The Petitioner contends that the Beneficiary is the sole software engineer 
responsible for business critical components of the company's mail platform i·csponsible for 
75% of its revenue. · 1 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the·L~I B nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the· ben'efic'iary's application for 
admission into the United States. Section IOl(a)(IS)(L) of the Act. 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 aff!liate thereof in a specialized k~owledge capa_city. Id. 
II. BACKGROUND 
The Petitioner stated that it is "the leader in enterprise cross-ch:~ritie'i marketing solutio~s," that it has 
"the only independent, enterprise-grade B2C SaaS marketing platfonn of scale," and that it serves 
"more than 3,000 customers around the world and has over 1,600 employees in 17 countries." The 
.
Mauer ofC-D-, Inc. 
Petitioner indicated that the Beneficiary holds specialized knowledge of "a very complex ESP 
(Email Service Provider) system, specifically Email Marketing Platform." It explained 
that the Beneficiary enhances, maintains, and supports this system and that it "is a fifteen-year old 
platform that [has]' been used by thousands of clients." Tlie Petitioner asserted that any delays in 
platform response in this system could lead to "security lapses and vulnerability issues" and that the 
"ramp up time" to fully understand security vulnerabilities is "two to three years ." 
The Petitioner stated that the Beneficiary would utilize specialized knowledge of different aspects of 
the platform, including "Extract, Transfer, Load (ETL)," "Loader," "Blackbox," 
"Reporting," "Redirect," and "Bounce." It further indicated that the Beneficiary "possesses in-depth 
knowledge of the technologies used to support the platform, including "COB key-value 
database," "Bernstein deamontools (svc services)," and "Bernstein flavored C language." It 
explained that the Beneficiary's "combined knowledge of our complex platform, 
application software, system hardware architecture, and legacy technologies is uncommon within 
our company and across the industry." Jt added that the Beneficiary would "work closely with 
business analysts and project managers through "scoping, testing and documentation phases" and 
"maintain relationships with business units, customers, and information technology subject matter 
experts." It also stated that in his position abroad, the Beneficiary was involved in "directing the 
engineering and development of the EU Cookie Compliance project to ensure system 
complied with the EU Cookie," that he remodeled and developed the server-side form validation 
systems to consolidate all validators," and that he "coordinated with Product, Quality Assurance, 
Project Managers, Operations, and Release Teams to quickly resolve production issues." Further, it 
indicated that the Beneficiary assisted and mentored junior developers in code reviews. 
ln a letter submitted in response to the Director's request for evidence (RFE), the Petitioner stated 
that "few developers inside or outside of [the company] understand the systern as well as [the 
Beneficiary]." The Petitio11er listed several software engineering technologies and_skill°s in which 
the Beneficiary has specialized knowledge , including 
C, Go, Javascript, SQL, PL/SQL," amongst others, and indicated that ,while some of these languages 
and systems where understood by other developers, few could assert that they had used these to 
develop and enhance techno _logy. The . Petitio .ner als9 .explained that to perform the 
duties of the position, an employee must be proficient in "Git," "Jira,:' "Puppet," [and] "NoSQL 
databases such as MongopB and Hadoop." h asserted that knowledge of a "combination of these 
technologies is a rare permutation in the field, as it encompasses .legacy technologies (which arc no 
long~r taught) and modern technologies." , · \, ·· 
ln addition, 'the Petitioner stated that the Beneficiary was "involved in several projects which 
required the knowledge of those unique set of technologies," and provided a general overview of the 
projects he worked on and the technologies he used on these ·assignments. It explained that the 
plat_form · is maintained by four senior software engineers, each aciing as "the sole 
custodian of business critical subject maucr expertise unique to the platfonn and our business 
segment." It further 'indicated that the Beneficiary "is .inv_aluable. for designing, aiding, and 
val.idating the work performed by the three other engineers dedicated to the platform." It ~tated that 
2 
.
Matter cf C-D-. Inc. 
the Beneficiary "remains the only engineer with specific business subject matter knowledge required 
for the continued maintenance and development of the core platform" and that he is the 
"sole custodian of business critical application knowledge." 
Ill. SPECIALIZED .KNOWLEDGE 
The primary issue in this matter is whether the Petitioner established that the Beneficiary possesses 
specialized knowledge and whether he has been employe9 abroad, and will be employed in the 
United States, in a specialized knowledge capacity. If the evidence is insufficient to establish that 
the Beneficiary possesses specialized knowledge, then we cannot conclude that he has been 
employed abroad in a specialized knowledge capacity. 
A beneficiary is deemed to have specialized knowledge if he or she has : (I) a "special" knowledge 
of the company product and its application in international markets; or (2) an "advanced" level of 
knowledge of the processes and procedures of the company. Section 214( c )(2)(8) of the Act. A 
petitioner may establish eligibility by submitting evidence that the beneficiary and the proffered 
position satisfy either prong of the statutory definition. 
Once a petitioner articulates the nature of the claimed specialized knowledge, it is the weight and 
type of evidence which establishes whether or not the beneficiary actually possesses specialized 
knowledge. We cannot make a factual determination regarding a given beneficiary's specialized 
knowledge if the petitioner does not, at a minimum , articulate with specificity the nature of its 
products and services or processes and procedures, the nature of the specific industry or field 
involved, and the nature of the beneficiary's knowledge. The petitioner should also describe how 
such knowledge i_s typically gained within the organization, and explain how and when the 
individual beneficiary gained such knowledge. 
In the denial decision, the Director concluded that the Petitioner did not demonstrate how the 
Beneficiary's knowledge of the platform differed significantly from that held by 
similarly placed employees both within and outside of the company. The Director noted that the 
company has many employees; and therefore, that it is likely there arc many other employees with 
narrowly held knowledge of specific products or clients. In addition, the Director stated it was not 
sufiicient for the Petitioner to merely indicate that the Beneficiary is the most knowledgeable in the 
company without specifically -comparing him against his colleagues both within and outside of the 
company to demonstrate that his knowledge is special or advanced . 
On appeal, the Petitioner contends that the Beneficiary is the sole engineer responsible for business 
critical components of its platform that accounts for approximately 75% of its revenue. 
The Petitioner asserts that it is not clear from the Director's decision why the submitted evidence 
was insufficient . to demonstrate the Beneficiary's specialized knowledge. rt further states that it 
would take ~t least two to three years to train another employee to the level of the Beneficiary which 
would cause undue delay and financial hardship. ' 
3 
.
Mauer of C-D-. Inc. 
We find that the Petitioner did not provide sufficient evidence to establish that the Beneficiary 
possesses specialized knowledge. Although the Petitioner provided evidence indicating that the 
Beneficiary has years of experience working with its proprietary platform and is 
therefore an asset to his current and proposed employers, it has not established that the Beneficiary 
has specialized knowledge or sufficiently explained how he gained his asserted level of knowledge 
in comparison to his colleagues . 
A. Advanced Knowledge 
We will first analyze whether the Beneficiary possesses advanced knowledge . The Petitioner does 
not clearly indicate whether the Beneficiary holds special or advanced knowledge ; as requested by 
the Director in the RFE, but it does emphasize that his knowledge of its platform is 
greater than that of his colleagues within the company suggesting that his knowledge is advanced. 
Determinations concerning "advanced knowledge" require review of a beneficiary 's knowledge of 
the petitioning organization's processes and procedures. A petitioner may meet its burden through 
evidence that a given beneficiary has knowledge of or expertise in thy organization's processes and 
procedures that is greatly developed or further along in_ progress, complexity, and understanding in 
comparison to other workers in the employer 's operations. Such advanced knowledge must be 
supported by evidence setting that knowledge apart from the elementary or basic knowledge 
possessed by others . Al$o, as with special knowledge, the petitioner ordinarily must demonstrate , 
that a beneficiary's knowledge is not commonly held throughout the particular industry and cannot 
be easily imparted from one person to another . 
In the RFE, the Director emphasized that the Petitioner did not provide a meaningful comparison of 
the Beneficiary against his colleagues, as necessary , to set his knowledge apart as greatly developed 
or further along in progress, complexity , and understanding in comparison to other workers in the 
employer's operations. In response, the Petitioner did not specifically compare the Beneficiary to 
his colleagues . We note that determining whether a beneficiary's knowledge is "advanced" requires 
a comparison of a beneficiary's knowledge to the knowledge of his colleagues within the company . 
The Petitioner bears the burden of showing that the Beneficiary holds knowledge that is greatly 
developed or further along in progress, complexity, or understanding than that of his colleagues. 
However, the Petitioner did not specifically compare the Beneficiary 's duties and knowledge to 
those of other similarly employed professionals within the organization . 
The Petitioner only stated that the Beneficiary "remains the only engineer with specific business 
subject matter knowledge required for the continued maintenance and development of the core 
platform" and that he is the "sole custodian of business critical application knowledge ." 
The Petitioner also indicated that the Beneficiary was one of a few within the organization holding 
this level of knowledge; however, the Beneficiary's foreign organizational chart , only applicable to a 
Malaysian affiliate amongst many other foreign affiliates 1, included fourteen other software 
1 The record includes blanket petitions specific to the Petitioner and the foreign employe.r's parent company indicating 
4 
.
Maller ofC-D- . Inc. 
developers devoted to the platform , including a manager above the Beneficiary, four 
"team leaders," and four others identified as senior developers like him. Likewise, the Petitioner 
states that the Beneficiary would work with a large group of other ancillary employees while 
working in this technology, including business analysts , product managers, business units, technical 
subject matter experts , quality assurance employees, and operational and release teams. The 
Petitioner also refers to the Beneficiary as a member of a "rapidly expanding team." It further stated 
that its platform has been in existence for approximately 15 years, that it has been used 
to service thousands of clients, and that it is responsible for approximately 75% of its revenue . In 
addition, it indicated that the company has "1,600 employees in 17 countries" and that it was 
recently acquired by its new parent company based on its expertise in the ___ platform. 
However, it does not provide sufficient detail on how the Beneficiary became the sole engineer 
responsible for business critical components of its platform in approximately only four 
years working for the foreign employer prior to his transfer to the United States in 2015. The 
Petitioner does not explain in detail how the Beneficiary gained some of the most advanced 
knowledge out of its 1,600 employees in an application accounting for 75% of its revenue. In fact, 
given the Petitioner's statements and the provided foreign organizational chart, it is reasonable to 
conclude that many others have high levels of knowledge of the ___ platform. 
The Petitioner also states that the Beneficiary has knowledge of several software engineering 
technologies, including C, Go, Javascript, SQL, 
PL/SQL," "Git," "Jira," and "Puppet," as well as knowledge of "NoSQL databases" such as 
"MongoDB" and "Hadoop," amongst others. It also asserts that the "combination of these 
technologies is a rare permutation in the field, as it encompasses legacy technologies (which are no 
longer taught) and modern technologies." However, the Petitioner does not describe in detail how 
this combination of technologies in uncommon or how he gained this level of knowledge. Further , it 
did not sufficiently describe these technologies or indicate which were "legacy technologies" and 
"modern technologies ." 
Likewise, the Petitioner indicated that the Beneficiary worked abroad on "EU Cookie compliance," 
indicating that he modified applications to allow for "informed consent to lawfully store infomrntion 
or to gain access to information stored in a terminal equipment of a subscriber or user." However, it 
is not clear how the Beneficiary's focus on this project abroad set him apart from his colleagues . 
Without further explanation and evidence, it reasonable to conclude that working on EU Cookie 
compliance was a broad initiative across the company, particularly given the importance of its 
application and the presumed size of the European market. For instance, as noted, the 
submitted organizational chart included fourteen other software engineers focused on 
only within the Beneficiary's one component in Malaysia, but the Petitioner does not indicate how 
many others were focused on this EU compliance initiative. 
that these affiliated companies account for over 200 entities in various countries. 
5 
.
Maller of C-D-. Inc. 
In addition, the Petitioner stated in response to the RFE that the Beneficiary was a member of a four 
person team in the United States of senior engineers tasked with the "continued maintenance and 
functionality" of and that "each engineer is the sole custodian of business critical 
subject matter expertise unique to the platform and our business segment." Again, the Petitioner 
provides no details or evidence related to these colleagues to differentiate them, and the Beneficiary, 
from the rest of the employees within its organization. For instance, the Petitioner does not describe 
how these four engineers gained advanced knowledge in relation to typical engineers within the 
organization, including the several other software developers included within only one 
component of the Beneficiary's foreign organization . Further, the Petitioner indicates that the 
Beneficiary is "invaluable for designing, aiding and validating work performed by the three other 
engineers dedicated to this platform," but it does not explain in detail how the Beneficiary exercises 
this authority over his colleagues nor does it submit supporting documentary evidence to substantiate 
this assertion. · 
Therefore, for these reasons , we conclude that the Petitioner did not establish that the Beneficiary's 
knowledge is advanced or greatly developed or further along in progress, complexity, or 
understanding than others within the organization. 
8. Special Knowledge 
Next, we will analyze whether the Beneficiary's knowledge is special as defined by the Act. As the 
Petitioner generically indicates that the Beneficiary's knowledge is both special and advanced, its 
assertions with respect to the special nature of his knowledge are similar to those discussed in the 
previous section. 
Because "special knowledge" concerns knowledge of the employing organization's products or 
services and its application in international markets, a petitioner may meet its burden through 
evidence that the beneficiary has knowledge that is distinct or uncommon in comparison to the 
knowledge of other similarly employed workers in the particular industry. Knowledge that is 
commonly held throughout a petitioner's industry or that can be easily imparted from one person to 
another is not considered specialized. 
As discussed, the Petitioner states that the Beneficiary holds knowledge in a combination of 
technologies that "is a rare permutation in the field, as it encompasses legacy technologies ("vhich 
are no longer taught) and modern technologies." However, the Petitioner provides little detail to 
corroborate this statement, such as indicating which technologies are no longer taught or what 
specifically about this combination of knowledge in technologies makes it a ''rare permutation." 
In fact, in support of the petition , the Petitioner submitted an industry article specific to the company 
dated in June 2017 which reflected that there are several other similar "enterprise software 
companies." The article also referenced the acquisition of by the Petitioner's foreign 
parent, but further discussed several other similar acquisitions by similarly placed companies in the 
industry, including Alliance Data buying Epsilon, Teradata acquiring eCircle, IBM purchasing 
6 
.
Maller ofC-D-, Inc. 
Silverpop , Salesforce buying ExactTarget, and Oracle purchasing Responsys and Eloqua. However, 
the Petitioner provides little detail on what makes the Beneficiary's knowledge distinct or 
uncommon in comparison to the knowledge of other similarly employed workers in his particular 
industry . The fact that the Beneficiary holds knowledge of a proprietary platform is not alone 
sufficient to demonstrate that his knowledge is special , as it appears that several other companies in 
the industry have similar platforms, and it is reasonable to conclude that many employees hold high 
levels of knowledge in these applications. 
Again, determining whether a beneficiary's knowledge is "special" requires a comparison of that 
knowledge to the knowledge of others who hold comparable positions in the Petitioner's industry. 
The Petitioner bears the burden of showing that the Beneficiary holds knowledge that is noteworthy 
or uncommon compared to his colleagues outside the organization. However, the Petitioner did not 
specifically compare the Beneficiary's duties to those of other similarly employed professionals at 
comparable organizations, nor did it establish that using and further developing the 
platform is different from and requires knowledge that is "special" as compared to similarly 
employed individuals within the same industry. 
In light of the above, we find that the Petitioner has not established that special knowledge is 
required to perform the Beneficiary's assigned duties or that his knowledge is distinct and can be 
taught only through prior experience with the organization. The Petitioner does not adequately 
specify how the Beneficiary ' s knowledge is "special" or sufficiently establish how and when he 
gained his knowledge. While the Beneficiary may be an experienced information technology 
professional and a valuable employee of the company, the record lacks sufficient evidence to 
establish that his knowledge is "special," as defined in the Act and regulations. The Petitioner has 
submitted little evidence to set the Beneficiary's knowledge apart or to demonstrate that it is 
uncommon, noteworthy , or distinguished by some unusual quality when compared to similar placed 
workers in the industry. Due to these evidentiary deficiencies, the record does not establish that the 
Beneficiary possesses "special" knowledge. 
IV. CONCLUSION 
For the reasons discussed above, the evidence submitted does not establish that the Beneficiary 
possesses specialized knowledge, that he was employed abroad in a position involving specialized 
knowledge, and that he would be employed in the United States in a specialized knowledge capacity. 
ORDER: The appeal is dismissed. 
Cite as Maller ofC-D-. Inc., ID# 1700934 (AAO Nov. 8, 2018)