dismissed L-1B Case: Software Development

U.S. Department of Homeland Security 
20 Mass. Avc, N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
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File: EAC 03 171 52046 Office: VERMONT SERVICE CENTER Date: JUN 1 3 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
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Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC 03 17 1 52046 
Page 2 
DISCUSSION: The Director, Vermont 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 seeks to employ the beneficiary, a software developer, in the United States as a 
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. 9 1101(a)(15)(L). The petitioner is a corporation 
organized in the State of Connecticut that is engaged in software development. It claims that it is the 
parent of Northeast Systems Group, located in Islamabad, Pakistan. 
The director denied the petition, determining that (1) the petitioner had failed to establish that a qualifying 
relationship existed between the U.S. entity and a foreign entity; (2) the petitioner had established neither 
that the beneficiary possesses specialized knowledge nor that the intended employment required 
specialized knowledge; and (3) the petitioner failed to show that it had secured adequate physical 
premises to house the U.S. entity as required by the regulations. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion, and 
forwarded the appeal to the AAO for review. On appeal, counsel submits a brief and asserts that: (1) the 
petitioner had submitted ample evidence to substantiate the beneficiary's specialized knowledge and skill 
in the position for which the beneficiary intended to work; (2) the petitioner provided ample and 
sufficient evidence to show that a qualifying relationship existed between the U.S and foreign companies; 
and (3) the director did not adjudicate the petition properly because the request for evidence requested 
immaterial and irrelevant evidence. In support of these contentions, counsel for the petitioner submits a 
brief and additional evidence. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 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. 5 214.2(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. 
EAC 03 171 52046 
Page 3 
(iii) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing 
of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that 
was managerial, executive or involved specialized knowledge and that the alien's 
prior education, training, and employment qualifies himlher to perform the 
intended services in the United States; however, the work in the United States 
need not be the same work which the alien performed abroad. 
Furthermore, the regulation at 8 C.F.R. 9 214.2(1)(3)(vi) states that if the petition indicates that the 
beneficiary is coming to the United States in a specialized knowledge capacity to open or to be employed in a 
new office, the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The business entity in the United States is or will be a qualifying organization as 
defined in paragraph (l)(l)(ii)(G) of this section; and 
(C) The petitioner has the financial ability to remunerate the beneficiary and to 
commence doing business in the United States. 
The regulation at 8 C.F.R. 9 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening 
of a new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (I)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and 
the duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
EAC 03 171 52046 
Page 4 
The first issue in this matter is whether the petitioner and a foreign entity are qualifying organizations as 
defined by 8 C.F.R. 5 214.2(1)(l)(ii)(G). The regulation defines the term "qualifying organization" as a 
United States or foreign firm, corporation, or other legal entity which: 
(I) Meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section; 
(2) Is or will be doing business (engaging in international trade is not required) as an 
employer in the United States and in at least one other country directly or through a 
parent, branch, affiliate, or subsidiary for the duration of the alien's stay in the 
United States as an intracompany transferee; and 
(3) Otherwise meets the requirements of section 1 Ol(a)(15)(L) of the Act. 
Additionally, the regulation at 8 C.F.R. 9 214.2(1)(l)(ii) provides in pertinent part: 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Brunch means an operating division or office of the same organization housed in a 
different location. 
(K) Subsidia~ means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over 
the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls 
the entity. 
(L) AfJiliate means 
(I) One of two subsidiaries both of which are owned and controlled by the same parent 
or individual, or 
(2) One of two legal entities owned and controlled by the same group of individuals, 
each individual owning and controlling approximately the same share or proportion 
of each entity, or 
(3) In the case of a partnership that is organized in the United States to provide 
accounting services along with managerial and/or consulting services and that 
markets its accounting services under an internationally recognized name under an 
agreement with a worldwide coordinating organization that is owned and controlled 
by the member accounting firms, a partnership (or similar organization) that is 
organized outside the United States to provide accounting services shall be 
EAC 03 17 1 52046 
Page 5 
considered to be an affiliate of the United States partnership if it markets its 
accounting senices under the same internationally recognized name under the 
agreement with the worldwide coordinating organization of which the United States 
partnership is also a member. 
In this case, the petitioner claims that the U.S. entity is a newly-established corporation, which was 
founded to develop a franchise operating software for its sister company, also located in the United 
States. In the petitioner's letter accompanying the petition, dated April 18, 2003, the petitioner states that 
the U.S. entity subsequently opened an office in Pakistan in order to prosper from the software talent 
available in that country. The petitioner claims that the beneficiary has been continuously employed by 
this Pakistani subsidiary, and now wishes to transfer the beneficiary to the United States as an 
intracompany transferee with specialized knowledge. 
The director found the initial evidence submitted with the petition to be insufficient to establish that the 
petitioner maintained a legitimate relationship with a qualifying organization abroad, and consequently 
issued a request for evidence on May 27, 2003. In the request, the director specifically directed the 
petitioner to submit evidence that definitively established its qualifying relationship with the Pakistani 
company. On July 31, 2003, counsel for the petitioner submitted a detailed response to the director's 
request which was accompanied by additional documentary evidence in support of the claimed affiliation. 
Upon review of the evidence submitted, the director concluded that the petitioner failed to establish that a 
qualifying relationship existed between the U.S. entity and a company in Pakistan. The director 
subsequently concluded that the petitioner's claim of affiliation with the foreign entity was invalid and, as 
a result, the petition was denied on August 8, 2003. 
On appeal, counsel for the petitioner asserts that the documentation submitted prior to adjudication was 
sufficient to establish the qualifying relationship between the U.S. petitioner and the Pakistani subsidiary. 
Counsel further alleges that the informal organization of the Pakistani entity was thoroughly addressed 
and explained by the documentary evidence provided, and thus claims that the petitioner has satisfied the 
regulatory requirements in this area. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for 
purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 
1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of 
Hughes, 18 I&N Dec. 289 (Comm. 1982). In context of this visa petition, ownership refers to the direct 
or indirect legal right of possession of the assets of an entity with full power and authority to control; 
control means the direct or indirect legal right and authority to direct the establishment. management, and 
operations of an entity. Matter of Church Scientolog-Y, 19 I&N Dec. at 595. 
Upon review of the record of proceeding, the petitioner has not established that it has the required 
qualifying relationship with the Pakistani entity. 
EAC 03 171 52046 
Page 6 
In this case, the petitioner suggests in its letter dated April 18, 2003 that the Pakistani entity is a 
subsidiary of the U.S. entity, and was created after the U.S. entity began operations in order to take 
advantage of the Pakistani expertise available in the field of software development. In response to the 
director's request for clarification with regard to the qualifying relationship in this matter, counsel 
contends that unlike U.S. organizations, companies in Pakistan are organized informally. Consequently, 
counsel provided copies of email correspondence between the U.S. entity and the beneficiary as evidence 
that the beneficiary was employed in Pakistan by the head office in the United States. In addition, 
counsel provided a copy of a lease agreement for a premises in Islamabad, dated July 2002 and signed by 
the U.S. entity's president, as evidence that a foreign office exists in Pakistan. 
As general evidence of a petitioner's claimed qualifying relationship, documentary evidence of the 
ownership and control of a corporate entity is expected in order to establish that a qualifying relationship 
exists between the U.S. entity and a foreign entity. Stock certificates, the corporate stock certificate 
ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder 
meetings should be examined to determine the total number of shares issued, the exact number issued to 
the shareholder, and the subsequent percentage ownership and its effect on corporate control. 
Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting 
actual control of the entity. See Matter of Siemens Medical Systems, lnc., supra. Without full disclosure 
of all relevant documents, CIS is unable to determine the elements of ownership and control. 
Upon review of the record of proceeding, the AAO concurs with the director's finding that the U.S. and 
foreign entities do not maintain a qualifying relationship as defined by the regulations. Specifically, there 
is no evidence that a foreign entity even exists in Pakistan. At best, the evidence as currently constituted 
suggests that the beneficiary may have been retained as a contractor for the U.S. petitioner and not as an 
employee of a qualifying organization in Pakistan. Despite the director's specific request for documentary 
evidence such as stock certificates and other corporate documentation, the petitioner failed andfor refused 
to submit such evidence. Failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
As previously stated, the term "qualifying organization" is defined as a United States or foreign firm, 
corporation, or other legal entity which: 
(1) Meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section; 
(2) Is or will be doing business (engaging in international trade is not required) as an 
employer in the United States and in at least one other country directly or through a 
parent, branch, affiliate, or subsidiary for the duration of the alien's stay in the 
United States as an intracompany transferee; and 
(3) Otherwise meets the requirements of section 10l(a)(15)(L) of the Act. 
EAC 03 17 1 52046 
Page 7 
(Emphasis added). 
In this case, there is no evidence that the Pakistani office is a firm, corporation, or other legal entity. Despite 
the petitioner's claim that businesses in Pakistan may be formed informally, there is no documentation 
establishing that a legal entity with a relationship to the U.S. entity actually exists.' The petitioner has failed 
to provide any evidence of business conducted by this alleged entity, nor has its company registration number 
been provided. The ownership structure of the foreign entity has likewise been omitted from the record. As a 
result, there is no evidence to confirm that the beneficiary was not operating on his own as an independent 
contractor or a sole proprietor, as opposed to legitimately working for a subsidiary of the U.S. entity. The 
petitioner's 2002 I.R.S. Form 1120-A, U.S. Corporation Short Form Income Tax Return, shows that no 
salaries or wages were paid to any employees during that year. If, as the petitioner alleges, the beneficiary 
was working in the Pakistan office but being paid by the head office in the United States, it is uncertain as to 
why there is no evidence of wages being paid to the beneficiary during his time of employment. Although 
counsel and the petitioner continually allege that the beneficiary has been working for the Pakistani office of 
the U.S. entity, and that the U.S. entity is the parent of this entity, no documentary evidence has been 
submitted to corroborate these claims. Going on record without supporting documentary evidence is not 
I In response to the director's request for evidence, counsel states in a letter dated July 26, 2003 that 
"companies in Pakistan are not organized based on an official organization method such as the customary 
ones in the United States, i.e., a corporation, limited liability company, etc. Rather, they are formed 
informally, such as the case here." There are two problems with this assertion. First, counsel's assertions 
are unsupported by corroborating evidence. Without documentary evidence to support the claim, the 
assertions of counsel will not satisfy the petitioner's burden of proof. The assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 
I&N Dec. 1 (BLA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Second, the 
Securities and Exchange Commission of Pakistan provides that a company may be formed by filing 
Articles of Association with any of the seven Company Registration Offices throughout the country. 
Additionally, and most importantly, a foreign company wishing to establish a place of business in 
Pakistan must submit (I) a certified copy of the charter, statute or Memorandum and Articles of the 
company in the English language, duly authenticated by a Pakistani diplomatic consular or consulate 
officer and accompanied by the prescribed fonn; (2) the address of the registered or principal office in the 
country of origin; (3) a list of the director, chief executive, and secretary, if any; (4) the particulars 
relating to the resident agent in Pakistan authorized to accept service on behalf of the foreign company; 
and (5) the address of the foreign entity's principal place of business in Pakistan. See Board of 
Investment, Government of Pakistan, Registration/Formntion of Companies, (Registration of Documents 
in Respect of a Foreign Company which Establishes a Place of Business in Pakistan), 
http://www.pakboi.~ov.~k~Overseas/re~istration formation of co.htm1, (accessed February 16, 2005); see 
generully www.sec~.~ov.~k. No such documentation has been submitted, although such documentation 
is required to be filed in order for a foreign company to do business in Pakistan. Although the director 
specifically requested corporate documentation relating to the Pakistani enterprise, the petitioner failed to 
submit any such documents. Failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. 9 103.2(b)(14). The non-existence or other 
unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. 5 103.2(b)(2)(i). 
EAC 03 17 1 52046 
Page 8 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of 
Califamia, 14 I&N Dec. 190 (Reg. Comm. 1972). Furthermore, without documentary evidence to 
support these claims, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 
1988); Matter Of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). 
Finally, there is insufficient documentation to establish that the foreign company is actively engaged in 
the regular, systematic, and continuous provision of goods or services as an employer in Pakistan. 
Therefore, it cannot be concluded that the petitioner has established that the foreign company is a 
qualifying organization as required by the regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(G)(2). 
Since the legitimacy of the alleged foreign entity is questionable and since there is no evidence in the 
record which demonstrates that the alleged foreign entity is actually conducting business, the petitioner 
has failed to establish that a qualifying relationship exists between the U.S. petitioner and a qualifying 
foreign organization. For this reason, the petition may not be approved. 
The second issue in this matter is whether the beneficiary possesses specialized knowledge. 
Section 214(c)(2)(B) of the Act, 8 U.S.C. 5 1184(c)(2)(B), provides the following: 
For purposes of section IOl(a)(15)(L), an alien is considered to be serving in a capacity 
involving specialized knowledge with respect to a company if the alien has a special 
knowledge of the company product and its application in international markets or has an 
advanced level of knowledge of processes and procedures of the company. 
Furthermore, the regulation at 8 C.F.R. 214.2(1)(l)(ii)(D) defines "specialized knowledge" as: 
[Slpecial knowledge possessed by an individual of the petitioning organization's product, 
service, research, equipment, techniques, management, or other interests and its 
application in international markets, or an advanced level of knowledge or expertise in the 
organization's processes and procedures. 
In the initial petition, counsel indicated that the beneficiary had been continuously employed by the 
foreign company since January 1, 2002, without interruption.' In a letter from the president of the U.S. 
 h he AAO notes a discrepancy in the record with regard to the beneficiary's dates of employment. The 
evidence in the record indicates that the U.S. petitioner was incorporated in April of 2002, and that it 
established the foreign entity afier the U.S. entity was established in order to take advantage of the 
software market in Pakistan. Consequently, this contention directly contradicts the statement that the 
beneficiary began working for the foreign entity in January of 2002 because, by the petitioner's own 
admission, the foreign entity did not exist at that time. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
EAC 03 17 1 52046 
Page 9 
entity, dated April 18, 2003, the petitioner stated that in 2002 a company called Edible Arrangements, 
L.L.C. (EAL) created the U.S. petitioner in order to design its software. The U.S. petitioner then created 
an office in Pakistan and contends that since July of 2002 the beneficiary was employed in that office to 
work on the U.S. petitioner's software development. With regard to the beneficiary's specialized 
knowledge and experience abroad, the petitioner stated: 
During his tenure as software designer for EAL, [the beneficiary] has been instrumental in 
the development and organization of the software. He has overseen all aspects of the 
design and running of this software. [The beneficiary] is the person who has the most 
detailed knowledge of the design of this software and has designed and developed the first 
phase of its operation. For instance, [the beneficiary] is [the] individual who has 
developed the ASP / ACCESS module for EAL's online operations and he has designed 
software for EAL in FLASH, SQL, Visual Basic for the purposes of delivery 
management, credit card clearing and other applications used in the daily operations of 
EAL. Therefore, he is the person who is best suited to carry on the remainder of the work 
and to finish up and implement this project. 
[The beneficiary's] presence in the United States is necessary and integral to the proper 
integration of the developed software into the current electronic operations of EAL. [The 
beneficiary] has to be here in person to install, test, run and examine the newly developed 
software and to improve upon its performance. No one else in [the petitioning 
organization] has the requisite knowledge to perform these tasks. As his background 
demonstrates, [the beneficiary] is an exceptional software developer. But most 
importantly, he is the person who has designed the subject software and knows the most 
about it. 
The beneficiary's resume, included with the petition, further indicated that he was currently a 
student at the Islamabad College for Boys pursuing a Bachelor of Science degree. 
A request for additional evidence was issued on February 26, 2003. Specifically, the director requested 
evidence showing that the beneficiary's knowledge was not general knowledge possessed throughout the 
industry. 
The petitioner submitted a lengthy response which was accompanied by numerous attachments. As the 
petitioner's response is part of the record, it will not be repeated in its entirety herein. The petitioner 
explained that the U.S. entity intends to initiate manufacturing in the United States. However, 
manufacturing in the U.S. did not commence as planned in 2002 primarily because of delays in the 
issuance of visas for three key manufacturing personnel who were to be transferred to the United States. 
Consequently, the petitioner states that the U.S. entity focused its ongoing activities on market expansion 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582,591-92 (BIA 1988). 
EAC 03 17 1 52046 
Page 10 
under the guidance of the beneficiary, and that the U.S. entity's market revenue has been steadily 
increasing. 
In a letter dated July 26, 2003, counsel addressed the director's concerns over the level of specialized 
knowledge possessed by the beneficiary. Specifically, counsel stated: 
As previously explained in the employer's attached letter, [the beneficiary] has been 
involved in almost all aspects of the software development for [the petitioner] and its 
sister company, Edible Arrangements, LLC (EAL). As mentioned in the previous 
submission of the employer, and as is evident by the evidence submitted (such as e-mail 
transmission records that show discussions about the software design), [the beneficiary 
has been the key person in the development and design of the franchise software required 
for the operation of EAL. He has overseen all aspects of design and running of the 
software. By way of example, your attention is directed to the texts of the e-mails dated 
February 24, 2003 and December 22, [2002]. These e-mails clearly demonstrate that [the 
beneficiary] is the person who has been designing and implementing the software for 
EAL, by way of his position as the project manager for [the petitioner]. 
For [the petitioner] and EAL to hire another individual to cany on the last phases of 
testing and implementation of this software in their various franchises will mean 
reinventing the wheel in terms of the work that is needed for this software to operate. 
With regard to the director's request for specific information regarding the other L-1B employees 
employed by the petitioner, counsel stated that there were no other L-IB employees. 
The director determined that the record did not establish that the beneficiary's knowledge was specialized 
or advanced and that the beneficiary's position did not require specialized knowledge. The director found 
that the evidence in the record indicated that the beneficiary would really be working for EAL, and not the 
petitioner, in order to develop their software. Further, the director concluded that the petitioner had failed 
to establish that the beneficiary's knowledge was valuable to the employer's competitiveness in the 
marketplace, that the beneficiary was qualified to contribute to the U.S. employer's knowledge of foreign 
operating conditions, that the beneficiary had utilized this knowledge in the employer's entity abroad, and 
that the knowledge could only be gained through prior experience with the employer. As the record 
seemed to indicate that there was no actual office overseas, the director consequently denied the petition. 
Counsel submits a lengthy brief on appeal in support of the petitioner's assertions that the beneficiary 
possesses specialized knowledge, and asserts that the petitioner has provided ample evidence to establish 
eligibility for the benefits sought. 
When examining the specialized knowledge capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). As required in the regulations, the 
petitioner must submit a detailed description of the services to be performed sufficient to establish specialized 
knowledge. Id. 

EAC 03 17 1 52046 
Page 12 
in Matter of Penner, 18 I&N Dec. 49, 52 (Comrn. 1982), when considering whether the beneficiaries 
possessed specialized knowledge, "the LeBEanc and RauEin decisions did not find that the occupations 
inherently qualified the beneficiaries for the classification 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 skills and knowledge enable him or 
her to produce a product through physical or skilled labor and the person who is employed 
primarily for his ability to carry out a key process or function which is important or 
essential to the business firm's operation. 
Id. at 53. 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 and operate a specialized product, 
namely computer software, rather than an employee who has unusual duties, skills, or knowledge beyond 
that of a skilled 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 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 that employee and the remainder of 
the petitioner's workforce. 
Here, the petitioner makes no claim that the beneficiary's knowledge is more advanced than other 
software developers in the workforce, nor did the petitioner distinguish the beneficiary's knowledge, work 
experience, or training from the other similarly qualified employees of the petitioner.5 The lack of 
specifically incorrect] interpretations by INS," H.R. Rep. No. 101-723(1), 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. 
' Generally, while the petitioner is not required to employ other persons in a specialized knowledge 
capacity, information on the petitioner's other employees is important when considering the level of 
EAC 03 17 1 52046 
Page 13 
evidence in the record makes it impossible to classify the beneficiary's knowledge of the newly-developed 
software as advanced, since no documentation is provided with regard to the software. Furthermore, it 
precludes a finding that the beneficiary's role is "of crucial importance" to the organization because it is 
impossible to compare the beneficiary's role in the organization to that of other similarly qualified 
employees. Simply going on record without supporting documentary evidence is not sufficient for the 
purpose of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Cornm. 1972). While it may be correct to say that the beneficiary 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 (Cornrn. 1982). The decision noted that the 1970 
House Report, H.R. No. 91-851, 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 
"skilled 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, 9lst Cong. 210, 218, 223, 240, 248 (November 12, 
1969)). 
Reviewing the Congressional record, the Commissioner concluded in Matter of Penner that an expansive 
reading of the specialized knowledge provision, such that it would include skilled workers and 
technicians, is not warranted. The Commissioner emphasized that 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, "[rnlost 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.") 
Counsel also alleges that CIS is not following its own policy guidelines as to the nature of specialized 
knowledge. Specifically, counsel refers to the December 20, 2002 Memorandum for all Service Center 
importance of the beneficiary in the petitioner's operations. The AAO acknowledges that the petitioner 
does not employ other software developers, as indicated in its response to the request for evidence. 
EAC 03 17 1 52046 
Page 14 
Directors b-ssociate Commissioner, on the "Interpretation of S ecialized Knowledge," 
which adopts the "Interpretation of Specialized Knowledge" memorandum dated 
March 9, 1994. Citing this memorandum, counsel asserts that "specialized knowledge is 'specialized 
knowledge of the company product and its application in international markets . . . or an advanced level 
of knowledge of the processes and procedures of the company."' Counsel then restates the previously 
submitted description of the beneficiary's duties and the knowledge they require, and asserts that the 
beneficiary has consequently satisfied the definition of specialized knowledge. Furthermore, counsel 
asserts that the director's conclusions in the denial were not supported. 
While the beneficiary's skills and knowledge may contribute to the success of the petitioning organization, 
this factor, by itself, does not constitute the possession of specialized knowledge. The AAO notes that, with 
regard to counsel's reliance on the 2002 Associate Commissioner's memorandum, the memorandum was 
intended solely as a guide for employees and will not supersede the plain language of the statute or 
regulations. Although the memorandum may be useful as a statement of policy and as an aid in interpreting 
the law. it was intended to serve as guidance and merely reflects the writer's analysis of the issue. Therefore, 
while the beneficiary's contribution to the economic success of the corporation may be considered, the 
regulations specifically require that the beneficiary possess an "advanced level of knowledge" of the 
organization's process and procedures, or a "special knowledge" of the petitioner's product, service, research, 
equipment, techniques, or management. 8 C.F.R. § 214.2(1)(l)(ii)(D). As determined above, the beneficiary 
does not satisfy the requirements for possessing specialized knowledge. 
In the present matter, the petitioner has failed to demonstrate that the beneficiary's training, work experience, 
or knowledge of the company product and its application in international markets is more advanced than the 
knowledge possessed by others employed by the petitioner, or in the industry. It is clear that the petitioner 
considers the beneficiary to be an important employee of the organization. The AAO, likewise, does not 
dispute the assertion that the beneficiary's knowledge has allowed him to competently perform his job in the 
foreign entity. However, the successful completion of one's job duties does not distinguish the beneficiary as 
"key personnel," nor does it establish employment in a specialized knowledge capacity. 
Moreover, the record fails to establish that the proposed U.S. position requires specialized knowledge. 
Counsel contends that the beneficiary's knowledge is essential for the petitioner to remain competitive in 
the U.S. market. While the position of software developer for the U.S. entity may require a 
comprehensive knowledge of the petitioner's software and its implementation, there is no documentation, 
other than counsel's assertion, that the beneficiary must possess advanced, "specialized knowledge" as 
defined in the regulations and the Act. Again, the assertions of counsel do not constitute evidence. 
Matter of Obaigbenu, supra; Matter of Rarnirez-Sanchez, supra. 
The legislative history for the term "specialized knowledge" provides ample support for a restrictive 
interpretation of the tern. 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 17-56, Inc. v. Attorney General at 16. Based on the evidence presented, it is concluded 
that the beneficiary does not possess specialized knowledge; nor would the beneficiary be employed in a 
capacity requiring specialized knowledge. For this reason, the appeal will be dismissed. 
EAC 03 171 52046 
Page 15 
The final issue before the AAO is whether the U.S. secured adequate physical premises to house the U.S. 
entity as required by the regulations. The director requested specific documentation pertaining to this 
issue in the request for evidence. Specifically, the director requested photographs of the petitioner's office 
in addition to evidence that physical premises had been secured. In response, counsel for the petitioner 
submitted some basic photos of the petitioner's alleged business location, which failed to display the name 
of the business on the exterior, and omitted a lease agreement establishing the business address of the 
petitioner. Consequently, the director concluded that the petitioner had failed to establish that it had 
established a place of business in the United States and subsequently denied the petition. 
On appeal, counsel for the petitioner alleges that the director never asked for a copy of the petitioner's 
lease agreement in the request for evidence, and additionally contends that it is erroneous for the director 
to request details about the building details for the petitioner's workplace. Consequently, the petitioner 
alleges that the denial on this basis "is simply another error in a line of errors that we have seen in this 
case." 
The AAO disagrees. The regulation at 8 C.F.R. 5 214.2(1)(3)(vi)(A) states that if the petition indicates that 
the beneficiary is coming to the United States in a specialized knowledge capacity to open or to be employed 
in a new office, the petitioner shall submit evidence that sufficient physical premises to house the new office 
have been secured. In the initial petition, the petitioner indicates that the U.S. petitioner is a newly 
established corporation. Consequently, the beneficiary would be coming to the United States to work in a 
new office, as provided for under 8 C.F.R. 5 214.2(1)(3)(vi), despite the petitioner's indication on the form 
1-129 that it was not a new office petition. If CIS fails to believe that a fact stated in the petition is true, 
CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. 5 1154(b); see also Anetekhai v. I.N.S., 876 
F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
In the request for evidence, the director requested on page two that the petitioner submit evidence that 
"establishes you have secured sufficient physical premises to house the new office." Generally, in 
commercial business dealings, lease agreements, as opposed to contracts of sale, are submitted as 
evidence of the petitioner's acquisition of a business location. Consequently, the director's denial based 
on the fact that the petitioner did not submit a lease agreement is reasonable, since the petitioner failed to 
submit any documentation establishing that it had secured physical premises to house the newly formed 
corporation. Failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
Finally, the petitioner's tax returns display the same address as its sister company, EAL. As a result, it is 
questionable whether the U.S. petitioner actually has an independent office. It appears from the record 
that the alleged software development company is an in-house office working within EAL. 
Consequently, the AAO concurs with the director's finding that the petitioner did not establish that 
adequate physical premises had been secured to house the new office. For this additional reason, the 
petition may not be approved. 
EAC 03 17 1 52046 
Page 16 
Beyond the decision of the director, the AAO notes additional issues not raised prior to adjudication. First, 
the petitioner has failed to show that the petitioner has the financial ability to remunerate the beneficiary and 
to commence doing business in the United States as required under 8 C.F.R. $ 214.2(1)(1)(3)(vi)(C). 
According to the petitioner's 2002 tax return, it paid no salaries or wages to any employees. Additionally, the 
bank statements submitted in the record are for its sister company, EAL, and therefore do not establish the 
financial ability of the petitioner to remunerate the beneficiary. For this additional reason, the petition may 
not be approved. 
Secondly, the petitioner has failed to establish that the beneficiary had at least one continuous year of 
full-time employment abroad with a qualifying organization within the three years preceding the filing of the 
petition as required under 8 C.F.R. 214.2(1)(1)(3)(iii). The record indicates that the beneficiary began 
working for the foreign entity in July of 2002. Since the petition was filed on May 19,2003, the beneficiary 
does not have one complete year of continuous full-time employment with the foreign entity at the time of 
filing. Although the record indicates in several places, contrary to the above claim, that the beneficiary's 
employment with the foreign entity commenced in January 2002, this evidence does not appear credible. The 
petitioner repeatedly states that the foreign entity was formed as a subsidiary of the U.S. entity. The 
petitioner states that the U.S. entity, after its formation, elected to open an office in Pakistan to reap the 
benefits of the software industry located therein. Since the U.S. entity was not formed until April of 2002, it 
stands to reason that the foreign entity was not opened until after this date. Consequently, the legitimacy of 
the petitioner's claim that the beneficiary began working abroad for the foreign entity in January of 2002 is 
doubtful. If CIS fails to believe that a fact stated in the petition is true, CIS may reject that fact. Section 
204(b) of the Act, 8 U.S.C. $ 1 154(b); see also Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th Cir.1989); 
Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Sy.~tronics Corp. v. INS, 153 F. 
Supp. 2d 7, 15 (D.D.C. 2001). 
Finally, the record is devoid of evidence proving that the beneficiary's employment abroad was in a position 
that was managerial, executive, or involved specialized knowledge as required by 8 C.F.R. $ 
2 14.2(1)(1)(3)(iv). The minimal evidence provided with regard to the beneficiary's functions while employed 
abroad make it impossible to conclude that the beneficiary was employed in a qualifying capacity. The 
assertions of counsel and the petitioner are unsupported by independent evidence; consequently, these 
assertions are not persuasive. As previously indicated, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Treusure Craft of California, 14 I&N Dec. 190. Without documentary evidence to support the claim, the 
assertions of counsel will not satisfy the petitioner's burden of proof. The assertions of counsel do not 
constitute evidence. Matter of Obaigbenu, 19 I&N Dec. at 534; Matter Of Laureuno, 19 I&N Dec. 1 ; 
Mutter ofRumirez-Sanchez, 17 I&N Dec. at 506. For this additional reason, the appeal will be dismissed. 
An application or petition that fails to comply with the technical requirements of the law may be denied 
by the AAO even if the Service Center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 
afd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting 
that the AAO reviews appeals on a de novo basis). 
EAC 03 171 52046 
Page 17 
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 appeal is dismissed.