dismissed L-1B Case: Software Engineering

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC 03 142 53 175 Office: VERMONT SERVICE CENTER Date: AUG 3 0 2005 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
r 4 Robert P. Wiemann, Dir tor 
pministrative Appeals Office 
EAC 03 142 53175 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Vermont Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
According to the documentary evidence contained in the record, the petitioner was established in 1965 and 
claims to be a software services company. It claims to be the parent company with a branch office,= 
ocated in Noida, India. It seeks to employ the beneficiary temporarily in the United States as a 
software engineer consultant for three years. The director determined that the beneficiary did not possess 
specialized knowledge and had not been employed in a position that involved specialized knowletlge. The 
director also determined that the position being offered by the U.S. entity did not require the services of an 
individual possessing specialized knowledge. 
On appeal, the petitioner disagrees with the director's decision and asserts that the evidence submitted was 
sufficient to demonstrate that the beneficiary qualifies in the specialized knowledge category. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer, or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii) states, in part: 
Intracompany transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a fm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
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. 
(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 c)f 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
EAC 03 142 53175 
Page 3 
education, training, and employment qualifies hirnlher 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 first issue in this proceeding is whether the petitioner has established that the beneficiary possesses 
specialized knowledge and has been employed by the foreign entity in a specialized knowledge capacity. 
Section 214(c)(2)(B) of the Act, 8 U.S.C. 5 1184(c)(2)(B), provides the following: 
For purposes of section 101(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. 
The regulation at 8 C.F.R. 3 214.2(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. 
The petitioner stated in the petition that the benefiiciary's past duties while employed by the foreign entity 
included: "software professional-design, development and support of business applications using fonnal 
software engineering and project management methodologies. Worked on team using offshorelonsite 
business model communicating with client, gathering systems requirements for maintenance and 
enhancements." 
In a letter dated April 7, 2003, the petitioner stated that the beneficiary had been employed by the foreign 
entity continuously since June 19, 2001, as a software engineer consultant. The petitioner noted that the 
beneficiary received five days of mandatory training on Quality Management System, was awarded a 
Bachelor of Engineering Degree in 2000, has been certified by Brainbench in JavaScript, and has attended in- 
house computer training sessions. The petitioner stated that the in-house training sessions included: Visual 
Studio.Net Seminar, Wan Infrasstructure & Network Connectivity, Peer Review, Java Training, AS-400, Net 
Training, Visual BasicIASP, Mainframe, CMM, and IS0 9000:2001 training. The petitioner stated that the 
beneficiary has been a team member in designing the training management system for the foreign entity in 
that he was responsible for coding, review, crating the test plan, testing the integration and performance, and 
evaluating and resolving errors. The petitioner also stated that the beneficiary had been involved as a team 
member on an offshorelonsite project for 16 months. The petitioner noted that the work was done using 
Keane's Knowledge Acquisition Process in conjunction with Quality Assurance. The petitioner stated that 
the beneficiary had been instrumental in working on the DCI Donor Services project. The petitioner asserts 
that the combination of the beneficiary's education, in-house training, and 22 months of work experience have 
provided him with unique specialized technical knowledge. 
The petitioner submitted as evidence copies of the beneficiary's training details, educational documents, 
resume, Keane's Knowledge Acquisition Process, Keane India's training details, and Keane India's 
achievement of IS09001: 2000 Certification, and SEI CMM level 5 information. The petitioner submitted a 
list of computer training sessions attended by the beneficiary in 2001 and 2002. The petitioner also submitted 
EAC 03 142 53175 
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a copy of the beneficiary's Bachelor's Degree in Engineering and transcripts received from the Dr. Babasaheb 
Ambedkar Marathwada University in May of 2001. 
In a request for evidence, dated April 11, 2003, the director requested that the petitioner submit evidence 
establishing that: 
(1) The beneficiary's specialized knowledge of the foreign entity's development procedures, 
methodologies, and tools is different from every other programmer that the entity employs; 
(2) The beneficiary's knowledge is uncommon, noteworthy, or distinguished by some unusual 
quality and not generally known by practitioners in the beneficiary's field of endeavor; 
(3) The beneficiary's advanced level of knowledge of the processes and procedures of the foreign 
entity distinguish him from those with only elementary or basic knowledge; 
(4) The knowledge possessed by the beneficiary is not general knowledge held commonly 
throughout the industry but that it is truly special or advanced; 
(5) The beneficiary possesses knowledge that is valuable to the employer's competitiveness in 
the market place; 
(6) The beneficiary is qualified to contribute to the U.S. entity's knowledge of foreign operating 
conditions as a result of special knowledge not generally found in the industry; 
(7) The beneficiary has been utilized abroad in a capacity involving significant assignments 
which have enhanced the employer's productivity, competitiveness, image, or financial 
position; 
(8) The beneficiary possesses knowledge, which normally can be gained only through prior 
experience with the employer; and 
(9) The beneficiary possesses knowledge of a product or process that cannot be easily transferred 
or taught to another individual. 
The director also requested that the petitioner submit evidence identifying the manner in which the 
beneficiary has gained his specialized knowledge, including the total length of any classroom or on-the-job- 
training received. The director also requested that the petitioner submit evidence describing its Knowledge 
Acquisition Process in more detail, and the number of company software engineers who are trained in the 
process and the length of such training. 
In response to the director's request for evidence, the petitioner asserted that the beneficiary's specialized 
knowledge of the petitioner's development procedures, methodologies, and tools is different from every other 
programmer that the entity employs in that he is considered a senior-level employee and a subject matter 
expert in the design and analysis of technical specifications and web development. The petitioner asserted 
that the beneficiary, as a software engineer consultant, holds a senior-level position within the forei~m entity. 
The petitioner also asserted that the beneficiary's in-house training, educational background, nearly two years 
of work experience, and his expertise in Dot Net, MS SQL Server 2000 differentiates him from other low - 
level programmers who have not completed the in-house training. The petitioner stated that the beneficiary's 
knowledge is not general knowledge held commonly throughout the industry but is truly special or advanced 
in that he possesses a Bachelor's Degree in Engineering, has approximately two years of work experience, and 
has been assigned to develop and maintain software applications being executed offshore. The petitioner also 
stated that the beneficiary's responsibilities at the foreign entity include extensive onsite interaction with the 
technical team to assist them in understanding the project requirements and development of the application. 
The petitioner described the company's training processes in detail and further stated "Keane India has had 
210 senior level software engineers in India put through this training in 2002." The petitioner noted that it 
EAC 03 142 53175 
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would take approximately 12 to 18 months of training before an individual would be eligible for a senior- 
level position. The petitioner further noted that the beneficiary had received approximately 35 days of in- 
house technical training and that the CMM and IS0 quality standard training was ongoing. The petitioner 
asserted that every "resource" of the foreign entity needed to undergo a minimum of five days of training on 
Quality Management System. The petitioner concluded by stating that the beneficiary has used the "Keane's 
Knowledge Acquisition" process while working on the onshore and offshore DCI Donor Services project and 
the foreign entity's 'Training Management System" project. 
The director determined that the position of software engineer consultant did not require someone with 
specialized knowledge. The director noted that the petitioner failed to demonstrate that the beneficiary's 
knowledge or experience was different from that found within the petitioning company or that found 
commonly throughout the industry. The director also noted that because of the variety of projects, each 
software engineer acquires a unique combination of experiences; but that the computer language, routines, 
processes, and procedures used do not differ greatly within the industry. The director stated that although the 
petitioner and other companies within the industry have their own way of doing things, the minor differences 
do not constitute specialized knowledge because the skill sets can be easily taught to other qualified software 
engineers. The director also stated that the in-house training received by the beneficiary was not proprietary 
or related to any special processes, software, or practices developed by the petitioning company. The director 
noted that although the petitioner's "Knowledge Acquisition Process" appeared to differ from training offered 
by other computer consulting companies, the petitioner had failed to describe, the process, the percentage of 
employees trained in the process, or the amount of training required. 
On appeal, the petitioner argues that the beneficiary has gained experience working with clients using 
Keane's proprietary "Knowledge Access Process (KAP)." The petitioner notes that there is no formal 
classroom training for Keane's "Knowledge Access Acquisition Process," but that the beneficiary gained his 
experience as a member of professional technical teams who have worked on numerous client projects using 
KAP. The petitioner reiterates a description of the beneficiary's job duties, education, and e.xperience 
acquired while employed by the foreign entity. 
Although the petitioner asserts that the beneficiary's position requires specialized knowledge, the petitioner 
has not articulated any basis to the claim that the beneficiary is employed in a capacity requiring specialized 
knowledge. Other than submitting a general description of the beneficiary's job duties, the petitioner has not 
identified any aspect of the beneficiary's position which involves special knowledge of the petitioning 
organization's product, service, research, equipment, techniques, management, or other interests. The 
petitioner has not submitted any evidence of the knowledge and expertise required for the beneficiary's 
position that would differentiate that employment from the position of software engineer at other employers 
within the industry. Furthermore, the petitioner stated that in 2002, the foreign entity trained 210 other 
software engineers as it had trained the beneficiary. The petitioner has failed to submit sufficient evidence to 
establish that the beneficiary possesses specialized knowledge, or that he was employed by the foreign entity 
in a specialized knowledge capacity. 
The second issue to be addressed is whether the petitioner has submitted sufficient evidence to establish that 
the beneficiary will be employed by the U.S. entity in a specialized knowledge capacity. 
The petitioner described the beneficiary's proposed duties as: "Will work with outside team gathering client 
requirements using Keane's Knowledge Acquisition Process to design, develop and support business 
EAC 03 142 53175 
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applications using project management methodologies. Will communicate with offshore technical team in 
India for maintenance of developed systems." 
In a letter dated April 7, 2003, the petitioner stated that the beneficiary's proposed duties would consist of 
working with the on-site team in the United States to coordinate a seamless transmission of developed 
software solutions to the offshore team in India that will meet client objectives. The petitioner stated that the 
beneficiary would perform a variety of system design and analysis duties necessary to implement and 
maintain software applications. The petitioner also asserted that the beneficiary would develop practical and 
workable solutions to clients' technical and business problems; work on projects independently and on 
multiple phases of projects; test a variety of programs and systems errors; and perform a variety of system 
design and analysis duties necessary to implement and maintain software applications. 
The petitioner further described the beneficiary's proposed duties by stating that he would be a team leader or 
team member on projects initiated in the United States and transmitted to India for system maintenance and 
enhancements. The petitioner asserted that the beneficiary would be responsible for insuring enhancements 
to systems based upon existing systems developed in the United States and transferred to offshore teams in 
India. The petitioner also asserted that the beneficiary would be responsible for communication and 
coordination of development efforts with the foreign entity's software development teams who will be 
working on international and global client projects. 
In response to the director's request for evidence on the subject, the petitioner stated that the beneficiary 
would not be working on the DCI Donor Service project in the United States, but rather would be assigned to 
working on a Retiree Medical System project for Mercer Human Resource Consulting company. The 
petitioner further asserted that the beneficiary would design and analyze the technical specifications, web- 
enable the existing application, and support and develop the project on MS platform on Dot.Net Technology 
using Keane's Knowledge Acquisition Process. The petitioner identified the amount of time required to train 
a person to work as a software engineering consultant for the U.S. entity by stating that the person should 
possess a Bachelor of Science degree or equivalent with two or more years of relevant experience in software. 
The director stated that it appeared the beneficiary could be assigned to any of a number of projects in the 
United States depending on the needs of the U.S. entity. The director also stated that since the beneficiary 
had not been working on an assignment abroad to which he would be assigned in the United States, he would 
not be bringing any advanced prior knowledge or understanding regarding a particular project with him. The 
director noted that the petitioner had failed to establish that the software engineer consultants employed by the 
U.S. entity were not interchangeable. The director concluded by noting that all the U.S. entity's other 
software engineer consultants qualify to work on the same projects as the beneficiary, and that other software 
engineer consultants outside the company could work on similar projects with limited training. 
On appeal, the petitioner argues that a software engineer needs to have been employed by the foreign entity to 
be able to use its Knowledge Acquisition Process in order to participate in projects in the United States. The 
petitioner also argues that the beneficiary will be able to effectively perform his job duties in the United States 
as a result of being well versed in the foreign entity's operating procedures, products, release process, and 
requirements. The petitioner concludes by asserting that the beneficiary possesses an in-depth and specialized 
knowledge of Keane's competitiveness in the market place, and that this knowledge of the company's 
methodologies and procedures gained through work experience qualifies him for the position. 
EAC 03 142 53175 
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The record does not establish that the proposed position with the U.S. entity requires specialized knowledge 
or that the beneficiary will be employed in a specialized knowledge capacity. It should be noted that the 
statutory definition of specialized knowledge requires the AAO to make comparisons in order to determine 
what constitutes specialized knowledge. The term "specialized knowledge" is not an absolute concept and 
cannot be clearly defined. As observed in 1756, Inc. v. Attorney General, "[slimply put, specialized 
knowledge is a relative . . . idea which cannot have a plain meaning." 745 F. Supp. 9, 15 (D.D.C. 1990). The 
Congressional record specifically states that the L-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 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 has indicated 
that the beneficiary qualifies in a specialized knowledge capacity based upon his in-house training; 
educational background; two years of work experience; expertise in Dot Net, MS SQL Server 2000; a 
working knowledge of the Keane's Knowledge Acquisition process; and experience working on the DCI 
Donor Service project. As the petitioner infers that anyone with the beneficiary's training and experience 
possesses "special knowledge" or an "advanced level of knowledge," the AAO must conclude that., while it 
may be correct to say that the beneficiary is a highly skilled employee, this fact alone is not enough to bring 
the beneficiary to the level of "key personnel." 
The petitioner's interpretation of the specialized knowledge provision would allow virtually any skilled or 
experienced employee to enter the United States as a specialized knowledge worker. In Matter of Penner, the 
Commissioner discussed the legislative intent behind the creation of the specialized knowledge category. 18 
I&N Dec. 49 (Comrn. 1982). Although the definition of "specialized knowledge" in effect at the time of 
Matter of Penner was superseded by the 1990 Act to the extent that the former definition required a showing 
of "proprietary" knowledge, the reasoning behind Matter of Penner remains applicable to the current matter. 
The decision noted that the 1970 House Report, H.R. No. 91-851, 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, supra at 50 (citing H.R. Subconlm. No. 1 
of the Jud. Comm., Immigration Act of 1970: Hearings on H.R. 445, 91st Cong. 210, 218, 223, 240, 248 
(November 12, 1969)). Reviewing the congressional record, the Commissioner concluded that an expansive 
reading of the specialized knowledge provision, such that it would include skilled workers and technicians, is 
not warranted. For the same reasoning, the AAO cannot accept the proposition that a skilled worker is 
necessarily a specialized knowledge worker. There has been insufficient evidence submitted to establish that 
the beneficiary has been or will be employed in a specialized knowledge capacity and that the U.S. entity's 
position requires specialized knowledge. For these reasons, the petition may not be approved. 
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. 3 1361. The petitioner has not sustained that burden. 
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ORDER: The appeal is dismissed