dismissed L-1B Case: Software Development / It

U.S. Citizenship 
and In1n1igration 
Services 
MATTER OF N- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 14, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and IT operations company, seeks to temporarily employ the 
Beneficiary as a network engineer at its new office 1 under the L-lB nonimmigrant classification for 
intracompany transferees. Immigration and Nationality Act (the Act) section 10l(a)(l5)(L), 
8 U.S.C. § l 10l(a)(l5)(L). The L-lB 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 California Service Center denied the petition, concluding that the record did not 
establish, as required, that: the Beneficiary possesses specialized knowledge; has been employed 
abroad as a manager, executive, or in a specialized knowledge capacity; and will be employed in the 
United States, in a specialized knowledge capacity. 
On appeal, the Petitioner asserts that the Director erred by disregarding credible evidence of 
eligibility. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lB 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 beneficiary's application for 
admission into the United States. Section 10l(a)(l5)(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 affiliate thereof in a specialized knowledge capacity. Id. The petitioner 
must also establish that the beneficiary's prior education, training, and employment qualify him or 
her to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
1 The term "new office" refers to an organization which has been doing business in the United States for less than one 
year. 8 C.F.R. § 214.2(l)(l)(ii)(F). 
Matter of N- Inc. 
If a beneficiary is coming in a specialized knowledge capacity to open a new office, the petitioner must 
submit evidence that it secured sufficient physical premises to house its operation, evidence that the 
new business entity is or will be a qualifying organization, and evidence that it has the financial 
ability to remunerate the beneficiary and to commence doing business in the United States. See 
generally, 8 C.F.R. § 214.2(1)(3)(vi). 
11. BACKGROUND 
The Petitioner described itself as "a start-up company specializing in telecommunications systems 
and software development for collaborative communications." The Petitioner's foreign parent 
company has employed the Beneficiary as a network engineer since July 2015. The Petitioner stated 
that the Beneficiary has been "responsible for developing and creating [the foreign parent 
company's] essential software and network technologies by researching various complex open­
source network-related technologies and customizing them to meet the needs of [the company's] 
organization and its clients." 
The Petitioner intends to employ the Beneficiary as a network engineer, at a salary of $160,000 per 
year. In that capacity, the Beneficiary "will be responsible for forming and establishing standards, 
best practices and production procedures for building, maintaining and improving network 
infrastructures," and "will be the key person who possesses specialized knowledge of [the 
Petitioner's] proprietary and advanced technologies and business operations." The Petitioner stated 
that the Beneficiary would use "open-source network-related technologies ... includ[ing] Hypertext 
Transfer Protocol, File Transfer Protocol, Session Initiation Protocol, Real-Time Transport Protocol, 
Link Aggregation Control Protocol, Transmission Control Protocol, Asynchronous Spacewarp and 
several IP routing protocols." 
III. SPECIALIZED KNOWLEDGE 
The Director determined that the Petitioner did not establish that the Beneficiary possesses 
knowledge that is special or advanced compared to others in the same field. The Director also found 
that the record did not establish that the Beneficiary had previously been employed in a position that 
was managerial, executive, or involved specialized knowledge, and that the U.S. position involves a 
special or advanced level of knowledge. 
As a threshold issue, we must determine whether the Petitioner established that the Beneficiary 
possesses specialized knowledge. If the evidence is insufficient to establish that he possesses 
specialized knowledge, then we cannot conclude that the Beneficiary's past and intended future 
employment involve specialized knowledge. 2 
2 The Petitioner does not claim, in the alternative, that the Beneficiary was employed abroad in an executive or 
managerial capacity. 
2 
Matter of N- Inc. 
Under the statute, specialized knowledge consists of either: (1) 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)(B) of the Act. 
Specialized knowledge is also defined as 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. 8 C.F.R. § 214.2(1)(l)(ii)(D). 
As both "special" and "advanced" are relative terms, determining whether a given beneficiary's 
knowledge is "special" or "advanced" inherently requires a comparison of the beneficiary's 
knowledge against that of others. With respect to either special or advanced knowledge, the 
petitioner ordinarily must demonstrate that the beneficiary's knowledge is not commonly held 
throughout the particular industry and cannot be easily imparted from one person to another. The 
ultimate question is whether the petitioner has met its burden of demonstrating by a preponderance 
of the evidence that the beneficiary's knowledge or expertise is special or advanced, and that the 
beneficiary's position requires such knowledge. 
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 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 is typically gained within the organization, and explain how and when the 
beneficiary gained such knowledge. 
Special knowledge concerns knowledge of the petitioning organization's products or services and its 
application in international markets. To establish that a beneficiary has special knowledge, the 
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. 
Because "advanced knowledge" concerns knowledge of an organization's processes and procedures, 
the petitioner may meet its burden through evidence that the beneficiary has knowledge of or an 
expertise in the 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. The petitioner must support its claims with evidence setting that knowledge apart from 
the knowledge possessed by others. 
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Matter of N- Inc. 
The Petitioner stated: 
Some of the specialized technologies . . . that [the Beneficiary] has extensive 
experience with include: (i) Session Initiation Protocol ... ; (ii) various elements of 
network infrastructure to maintain and control the capacity of networks with 
flexibility; (iii) Virtual Router Redundancy Protocol ... ; and (iv) Juniper and Cisco, 
leading complex and versatile network software that enable Engineers to build high­
quality network systems for clients efficiently. 
The protocols listed above are not native or exclusive to the petitioning organization. Juniper and 
Cisco are not "specialized technologies," but rather companies that provide network technology and 
services. 
The Petitioner's business plan included a section on staffing. The Beneficiary's page listed the 
following items under "Training Courses/Certifications": 
• Certification from and 
• Certification m Juniper Intermediate Routing (JIR) from 
2013 
• Certification m Juniper Unified Threat Management (ruTM) from 
2014 
• English course from the 
The business plan also indicated that the Beneficiary "has 
prove his technical expertise." 
(2006) 
and certificates that 
English language proficiency is not specialized knowledge. The dates listed above all predate the 
Beneficiary's employment with the petitioning organization. The Petitioner did not provide dates for 
the Beneficiary's and certifications (if the certification was different from the 
Juniper certifications specified elsewhere in the list). The Petitioner did not provide information 
about the nature or duration of the certification programs, show how this training distinguishes the 
Beneficiary from others in his field, or establish the time and expense required for other employees 
to acquire that training. 
The Director instructed the Petitioner to submit additional evidence, stating that the initial 
submission "did not provide supporting documentation and/or explain why the knowledge of the 
subject matters is not easily transferable to other employees" or "compare and contrast the 
beneficiary ' s knowledge, training, and employment with others ... performing the same or similar 
type of work." 
In response, the Petitioner asserted that the Beneficiary "has been crucial to developing and 
maintaining infrastructure technology that he has specifically developed and improved to fit the 
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Matter of N- Inc. 
needs of [the Petitioner's] largest client." As a result, the Beneficiary "is uniquely familiar with the 
network infrastructure of the client," and "it would be extremely difficult, if not impossible, for [the 
Petitioner] to find anyone with the knowledge required to fill [the Beneficiary's] position and 
maintain these systems without undergoing extensive training with [the Beneficiary], himself." The 
letter containing these claims did not go into further detail, instead citing generally "the documentary 
evidence of the Beneficiary's projects" and a letter from the Beneficiary's manager at the foreign 
parent company. 
The Petitioner's foreign parent company stated it chose "only a select few" employees to transfer to 
the United States, and asserted: "The very fact that [the Beneficiary] was chosen to play such an 
important role ... is evidence that he possesses specialized knowledge and skills that are unique in 
this field." Assignment or position is not, itself, evidence that the Beneficiary possesses specialized 
knowledge. 
The Petitioner submitted copies of technical documents relating to the Beneficiary's projects, but the 
Petitioner did not explain how the Beneficiary's work and knowledge differ from those of other 
qualified workers in the same field. 
The Director denied the petition, stating that the Petitioner did not establish that the Beneficiary's 
education, training, and experience had imparted specialized knowledge. The Director 
acknowledged the Beneficiary's familiarity with the Petitioner's products, but found that this 
familiarity does not necessarily represent specialized knowledge. The Director also made findings 
about the Beneficiary's past and intended future duties, which we need not address unless and until 
the Petitioner establishes that the Beneficiary possesses specialized knowledge. 
On appeal, the Petitioner states that the Beneficiary is not merely familiar with the company's 
proprietary products; "the Beneficiary's experience is unique, specialized and involved the actual 
design, development and creation of technology tailored to the specific needs of [the Petitioner's] 
client." The Petitioner asserts that the Director selectively quoted from the Petitioner's statements, 
choosing only the most generic assertions while disregarding the most relevant information about the 
Beneficiary's specialized knowledge. 
A central assertion on appeal is that the Director did not acknowledge details provided by the 
Beneficiary's manager abroad. That official did not address the Beneficiary's training or explain 
specifically how the Beneficiary's knowledge distinguishes him from others in his field or within the 
foreign entity. The official simply presumed the Beneficiary's specialized knowledge, and asserted 
that the Beneficiary used that knowledge in various projects for the foreign entity. At one point, the 
official described a software project and stated: "Because [the Beneficiary] developed this software 
himself, he is the most appropriate individual to transfer to the U.S. to ensure that it is employed 
properly by the U.S. entity in serving [the Petitioner's] current U.S. client." This statement attests to 
the Beneficiary's familiarity with his own work, but it does not show that the project required 
specialized knowledge or that the Beneficiary possesses that knowledge. 
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Matter of N- Inc. 
The current statutory and regulatory definitions of "specialized knowledge" do not include a 
requirement that a beneficiary's knowledge be proprietary. Thus, whether the knowledge is 
proprietary or not, a petitioner must still establish that the knowledge utilized in the proposed 
position and possessed by the beneficiary is in fact specific to the petitioning organization, and 
somehow different from that possessed by similarly-employed personnel in the industry. It is 
reasonable to believe that all software developers create products for their clients that are unique in 
some way. Without a substantive explanation or evidence, the Petitioner has not established that the 
petitioning organization's products are particularly complex or uncommon compared to other 
companies providing software to the same industry. The Petitioner has not sufficiently explained 
how the Beneficiary gained knowledge specific to only its organization, and has not supported a 
claim that it would take a significant amount of time to train an experienced developer to perform 
the duties required of the proposed position. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reason. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-Inc., ID# 2338917 (AAO Mar. 14, 2019)