dismissed L-1B Case: Software Engineering

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U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Ofice of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. s. Citizenship 
and Immigration 
File: WAC 08 154 5 1771 
 Office: CALIFORNIA SERVICE CENTER 
 Date: 
 JAN 2 1 20'0 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(15)(L) 
ON 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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 8 103.5(a)(l)(i). 
Peny Rhew 
Chief, Administrative Appeals Office 
WAC 08 154 51771 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition to employ the beneficiary in the United States as an L-IB 
intracompany transferee with specialized knowledge pursuant to section 10 1 (a)( 1 5)(L) of the Immigration and 
Nationality Act ("the Act"), 8 U.S.C. 5 1 101(a)(15)(L). The petitioner, a manufacturer of industrial automation 
systems and solutions, states that it is the parent company of the beneficiary's foreign employer, located in 
Prague, Czech Republic. The petitioner seeks to employ the beneficiary in the position of embedded software 
engineer for a period of three years. 
The director denied the petition concluding that the petitioner had failed to establish that the beneficiary 
possesses specialized knowledge or that he has been and would be employed in a capacity requiring 
specialized knowledge. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded 
the appeal to the AAO. On appeal, counsel asserts that the petitioner established that the beneficiary possesses the 
required specialized knowledge for the U.S. position. Counsel submits a brief and additional evidence in support 
of the appeal. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Act, 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. The petitioner must also demonstrate that the 
beneficiary seeks to enter the United States temporarily in order to continue to render 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)(3) further states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
WAC 08 154 51771 
Page 3 
same work which the alien performed abroad. 
Under section 101(a)(15)(L) of the Act, an alien is eligible for classification as a nonimmigrant if the alien, 
among other things, will be rendering services to the petitioning employer "in a capacity that is managerial, 
executive, or involves specialized knowledge." Section 214(c)(2)(B) of the Act, 8 U.S.C. 5 1184(c)(2)(B), 
provides the statutory definition of specialized knowledge: 
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. 
Furthermore, the regulation at 8 C.F.R. 5 214.2(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 sole issue addressed by the director is whether the petitioner established that the beneficiary possesses 
specialized knowledge and that he has been and will be employed in a capacity requiring specialized 
knowledge. 
The petitioner filed the Fonn 1-129, Petition for a Nonimmigrant Worker on May 6, 2008. 
 In a letter dated 
April 28, 2008, the petitioner indicated that the beneficiary's current employer, the petitioner's Czech 
subsidiary, houses one of the organization's Advanced Technology Labs "charged with the responsibility of 
analyzing, researching and developing product and system prototypes for [the petitioner's] operations on a 
global basis." The petitioner indicated that the beneficiary joined the foreign entity in October 2006 in the 
position of research engineer, performing the following duties: 
[The beneficiary] has been responsible for leading and participating in research and 
development projects for [the petitioner's] Advanced Technology Division on an international 
level. 
As a Research Engineer, [the beneficiary] is specifically responsible for researching, 
analyzing, designing, developing, implementing and testing state of the art components and 
subsystems for [company] products. He is also responsible for conferring and working with 
other [company] engineers on an international level, including the company's engineers at 
[the petitioner's] Labs in Cleveland (Mayfield Heights), Ohio and Milwaukee, Wisconsin, in 
connection with the company's research and development projects. 
As a Research Engineer, [the beneficiary] has been responsible for the analysis, design and 
implementation of the firmware (embedded software) used inside the company's embedded 
devices, such as [the petitioner's] Logix controllers. As part of his duties, he is responsible for 
WAC 08 154 51771 
Page 4 
the specification of embedded software modules and subsystems based upon the company's 
goals concerning maintainability, extendibility, reliability, testability and efficiency. He is 
also responsible for updating the documentation to support changes within the system 
requirements and related modules or subsystems. 
In his current capacity, [the beneficiary] participates in or leads the implementation, unit 
testing, code review of embedded software modules or subsystems. He identifies, reports and 
documents anomalies found in products or tools using appropriate reporting mechanisms. He 
also conducts investigations of software anomalies in association with the functional test 
team, customer support team, or other interested groups as needed. In addition, he is 
responsible for participating in activities to debug and correct the anomalies. 
Over the past year, [the beneficiary] has been engaged in a number of key research and 
development projects for [the petitioner]. For example, he has been responsible for designing 
and modifying new Logix controller firmware for the company. He has also been responsible 
for leading the design and implementation of a security subsystem for the company's 
embedded devices, including the research and prototype activities. He has also been 
responsible for designing new architecture for the company's products. In addition, he has 
been responsible for the re-design of an existing communication subsystem in the company's 
Logix controller firmware. 
The petitioner further described the beneficiary's specialized knowledge as follows: 
[The beneficiary] has been involved in critical research and development projects relating to 
embedded firmware design and development in which he has played a key leading or 
participating role for [the petitioner]. [The beneficiary] has participated in the overall 
strategy and definition for advanced technology projects. He has also participated in defining 
and shaping the products and applications of the future. He has been instrumental in 
identifying the value of advanced technological developments for incorporation into [the 
petitioner's] products and systems. Moreover, he has expert knowledge of [the petitioner's] 
embedded devices. 
Specifically, he has designed and implemented the core part of the communication subsystem 
(PublisherISubscriber) for the company's Logix controllers. He has worked on the new 
communication (fragmentationlreassembly) protocol which should be incorporated into this 
subsystem. By way of example, he is the only person in the company with the overall detailed 
knowledge of the subsystem and he is also the only person working on a full-time basis on 
the design of the new protocol and the new architecture for the subsystem. 
Since there is [a] strong desire to use [the beneficiary's] new architectural proposal as a basis 
for the new design of the communication subsystems implemented across various [company] 
embedded devices, it is necessary to coordinate the effort very closely within the other 
architectural activities within the company. As such, [the petitioner] would like to transfer 
[the beneficiary] temporarily to [the] U.S. operations so that he will be able to participate in 
WAC 08 154 51771 
Page 5 
intensive discussions and work activities concerning the new design with all relevant 
[company] architects and developers. 
The petitioner indicated that it would like to employ the beneficiary at its Ohio Advanced Technology Lab as 
an embedded software engineer, performing the following duties: 
[The beneficiary] will be responsible for developing and documenting designs for embedded 
software modules and subsystems based upon product requirements and internal goals 
concerning maintainability, extendibility, reliability, testability and efficiency. He will be 
updating the documentation to support changes in requirements and related subsystems or 
systems. He will also be participating in the analysis and specification of embedded software 
modules and subsystems. 
While in the United States, [the beneficiary] will be assuming a key role by participating in 
the design of embedded software subsystems and systems that optimize and balance the 
following goals: run-time performance, memory requirements, simplicity and correctness, 
development time and effort, reusability, extendibility, reliability, and safety. He will be 
identifying methods to maximize the application of already existing internal or external 
software components in order to shorten the product development cycle. He will also review 
the system and subsystem designs of others for system design implications. 
[The beneficiary] will also be participating in the actual implementation of embedded 
software subsystems or systems. He will conduct code reviews as required. He will be 
reporting anomalies found in products or tools. He will also investigate software anomalies in 
association with the functional test tem, customer support team, or other interested groups as 
needed. In turn, he will be debugging and correcting the software anomalies. Finally, he will 
be responsible for reviewing test requirement documentation as well as product 
documentation, including user manuals, release notes, and other matters as needed. 
The petitioner stated that the position requires an individual "who has played a key role in leading and 
participating in research and development projects with regard to [the petitioner's] embedded software 
products and systems." 
The petitioner submitted a copy of the beneficiary's resume, in which he indicates that his computer skills 
include C/C++ (ARM, MS Visual Studio), Object Oriented Programming, Clearcase, Multi-ICE, VxWorks, 
C#, XML and UML. The beneficiary indicates that his duties with the foreign entity include the following: 
C/C++ firmware development 
project lead and architect 
research as well as regular development 
The beneficiary indicates that from June 2000 until October 2006, he worked as a developer and system 
engineer for, assigned to work as a contractor for the foreign entity. The beneficiary states that his 
WAC 08 154 51771 
Page 6 
duties in this capacity included C/C++ firmware and software development, research and regular 
development. 
On May 12,2008, the director issued a request for additional evidence (RFE) to establish that the beneficiary 
possesses specialized knowledge. Specifically, the director instructed the petitioner to submit the following: 
(1) an organizational chart for the foreign entity depicting the beneficiary's position in the company's staffing 
pattern; (2) the total number of employees working for the foreign entity; (3) a copy of the U.S. company's 
organizational chart; and (4) the total number of employees working for the U.S. entity at the location where 
the beneficiary will be employed, including any H-1B employees and their job titles. The director advised that 
the initial evidence was not sufficient to demonstrate that the beneficiary's duties involve knowledge or 
expertise beyond what is commonly held in his field. 
In response dated May 28, 2008, the petitioner stated that the Czech company's research center employs 13 
direct employees and 3 1 contractors. The petitioner indicates that the beneficiary reports to a senior research 
engineer and does not supervise subordinate employees. The petitioner indicated that its Mayfield Heights, 
Ohio location employs approximately 1,150 direct employees of which 12 are H-1B workers and four are L- 
1B workers. The petitioner stated that the beneficiary is the only person employed within the global 
organization "who has researched and created several advanced communication protocols for [the petitioner's] 
proprietary line of Logix controllers." The petitioner indicated that the communication protocols are a 
prerequisite for a new set of product features to be incorporated into the company's products, and that the 
beneficiary is "the only person in the global [company] organization with an in-depth knowledge of these 
protocols." 
The petitioner emphasized that its Logix system is a key component to the company's proprietary line of 
Integrated Architecture, a "core product system" on which the petitioner devotes a significant amount of 
resources. The petitioner noted that the beneficiary's "novel research and development work is targeted at 
enhanced functionality for company customers that use the Logix system within the process industry," which 
the petitioner indicates is a "top strategic priority." The petitioner indicated that the beneficiary's research and 
development work will be incorporated into a "new communication scheme within the company's Logix 
system." The petitioner stated that the beneficiary's knowledge is unique and uncommon, and not possessed 
by the U.S. based engineers. 
The petitioner's response to the RFE also included a letter from , director of the petitioner's 
Czech subsidiary. states: 
This is not a case where the beneficiary . . . has simple knowledge of the systems being used. 
Nor is this a case where the beneficiary's familiarity of the parent organization, innate talent, 
or potential to contribute to the organization's growth serves as the basis for the requested 
transfer. 
Rather, this temporary transfer involves a key Research Engineer, [the beneficiary], who has 
been responsible for leading advanced research and development projects for [the petitioner] 
on a global basis and his research work is now going to be incorporated into the next 
WAC 08 154 51771 
Page 7 
generation of [the petitioner's] technology, products and systems for worldwide use, thereby 
keeping [the petitioner] on the leading edge of industrial automation systems technology. 
Specifically, [the beneficiary] is the only author of several communication protocols for [the 
petitioner's] highly-specialized industrial controllers. These state-of-the-art communication 
protocols are a prerequisite for the set of new product features which are going to be 
incorporated into the company's products and which will bring critical competitive 
advantages to the company. The design of these protocols is the result of the unique research 
conducted at company's operations in Prague during the last several years. 
reiterates that the beneficiary is the "only person in the global [company] organization with in- 
depth knowledge of these protocols," and states that the intended knowledge transfer cannot take place 
without the beneficiary's temporary presence in the United States. further states: 
In addition, [the beneficiary] has unique experience with and knowledge of the diagnostics, 
specifically in the software processing of the diagnostic information, and the related 
standards. He has been continually working in this area for the last several years. Since the 
next phase of the product enhancement by diagnostic capabilities is going to be carried out at 
[the petitioner's Ohio operations], [the beneficiary's] expertise is required and his presence at 
the facility will enable the company to leverage the unique know-how he possesses to the 
fullest extent . . . . 
Finally, [the beneficiary] was a key participant in the research conducted in the industrial 
security aspect of the products. Part of this research was conducted by one of the company's 
research partners in the United States. While working in this area, [the beneficiary] was 
selected to be the person at [the petitioner] to whom the results of several years of research 
work would be transferred. 
In addition, the petitioner submitted a letter from 
 Logix Embedded Software Engineering 
Manager. 
 explains that the beneficiary "has served as a lead engineer in one of [the petitioner's] 
recent research and development projects concerning the development of a new product feature targeted at 
enhanced functionality for company customers operating within the process industries." further 
states: 
[The beneficiary's] research and development work on this new product feature included a 
key new firmware object in the company's Logix controller system. The company's Logix 
system is part of [the petitioner's] Integrated Architecture which is an industrial automation 
infrastructure that provides scaleable solutions for the full range of automation disciplines. . . 
. Unlike traditional architectures, Integrated Architecture reduces total coast of ownership by 
using a single control platform for the entire range of factory automation applications whether 
they are large or small. . . . 
[The petitioner's] Logix system is not only a key component to the company's Integrated 
Architecture, it is one of the areas to which the company devotes a considerable amount of 
WAC 08 154 51771 
Page 8 
resources, including research and development, because it is a core product system and 
significant product business for the company on a worldwide basis. . . . 
The new firmware object that was the subject of [the beneficiary's] research and development 
work is going to be used in a new communication scheme between this object and other parts 
of the Logix system, such as the controller or other devices, that are designed and 
manufactured by [the petitioner]. . . . 
These research and development projects are critical to future developments aimed at that 
process industries marketplace. [The beneficiary] has unique and uncommon knowledge of 
that system. None of our other engineers possess this knowledge, especially our local 
engineers in the United States, because he was one of the lead engineers on the team doing 
that research and development work at the company's research center in Prague. 
Since we are currently either working on, or beginning, several efforts aimed at enhancing 
and making more maintainable, the software that [the beneficiary] originally developed, it is 
important for him to continue to bring his specialized knowledge and expertise concerning 
that system to the engineering teams involved. As these features are becoming more used, 
and expect to be more exploited within the product, it is important for him to work very 
closely with our local engineering teams in the United States that do the majority of the 
product development work in the Logix system. Without the special knowledge that [the 
beneficiary] brings, and the close interaction between the engineers, it would be significantly 
more difficult to successfully accomplish these efforts. 
The petitioner submitted an organizational chart depicting the beneficiary's proposed position. The chart 
indicates that the beneficiarv would be one of 20 engineers reporting to an embedded software manager. who 
in turn reports to 
 the Logix Embedded Engineering Manager. The chart depicts an additional 
I, and each of these employees 
also supervises 15-20 engineers. The organizational chart for the foreign entity's research center depicts the 
beneficiary as one of 14 research engineers, software engineers and senior research engineers who report to a 
senior research engineer. Additional research engineers report to employees with the job titles "research 
consultant" and "senior research consultant." 
The petitioner's supporting documentation also included information from its company web site regarding 
Integration Architecture and the Logix Control Platform and a white paper describing the petitioner's Process 
Industry strategies. 
The director denied the petition on June 11, 2008, concluding that the petitioner failed to establish that the 
beneficiary possesses specialized knowledge or that he has been or would be employed in a capacity requiring 
specialized knowledge. In denying the petition, the director observed that the petitioner has not demonstrated 
how the beneficiary's knowledge or expertise is advanced or special compared to other engineers employed 
by the petitioning company on an international level. The director noted that "there is no substantive evidence 
WAC 08 154 51771 
Page 9 
demonstrating that the beneficiary has been responsible for leading advanced research and development 
projects for [the petitioner] on a global basis." The director further found that "the beneficiary's generally 
described employment fails to establish that the beneficiary possesses or has used in the performance of his 
employment, skills that qualify as or [require] specialized knowledge." 
On appeal, counsel for the petitioner asserts that, contrary to the director's finding, "the substantive evidence 
in this case establishes that . . . [the beneficiary] has been responsible for researching, designing and 
developing several state-of-the-art communication protocols that are going to be incorporated into the next 
generation of [the petitioner's] proprietary product line of Logix controllers," and that he is "the only 
engineer" within the petitioner's global organization that possesses specialized knowledge of these protocols. 
Counsel emphasizes that the beneficiary will be working with the petitioner's U.S.-based engineers on the 
next generation of Logix products that will incorporate the communication protocols that he developed. 
Counsel asserts that "only a small percentage of the company's direct employees are engaged in advanced 
research and development, such as the 13 direct employees of the company's Research Center in the Czech 
Republic." 
The petitioner indicates that the petitioner has listed the beneficiary as an inventor on at least two patent 
applications recently filed with the U.S. Patent and Trademark Office. Counsel objects to the director's 
finding that the evidence of record contained "no substantive evidence demonstrating that the beneficiary has 
been responsible for leading advanced research and development projects." 
 Counsel indicates that the 
petitioner submitted substantive evidence in the form of the statements of 
 and - 
and quotes passages from their statements. 
Counsel further objects to the director's determination that the beneficiary's employment was "generally 
described," noting that the petitioner's initial letter of support provided detailed descriptions of the 
beneficiary's current and proposed job duties. Counsel asserts that the beneficiary's duties "are only reflective 
of what is truly critical," namely, "the knowledge possessed by the beneficiary." Counsel notes that the 
beneficiary will not be performing mere "skilled labor," but rather has been and will be conducting "novel 
state-of-the-art research and development work involving extremely complex systems and technologies that 
will be incorporated into the next-generation of a core [company] system." 
In support of the appeal, the petitioner submits copies of two U.S. Patent Applications and copies of 
previously submitted documents. One of the patent applications was filed by the U.S. petitioner on 
September 29, 2006 for "customized industrial alarms," which is described as an "alarm generation system 
within an industrial automation environment comprises a packaging component that packages contextual data 
together with an alarm." The beneficiary is listed as one of nine inventors of the product, among seven 
American and two Czech contributors. The other invention was also filed on September 29, 2006 for 
"Buffering Alarms" described as "an industrial field device comprises an alarm generator component that 
creates an alarm relating to the industrial field device and a buffering component that selectively catches the 
alarm within a data repository." The beneficiary is listed as one among eight inventors. 
Upon review, the petitioner's assertions are not persuasive in demonstrating that the beneficiary has 
specialized knowledge or that he will be employed in a specialized knowledge capacity as defined at 8 C.F.R. 
5 214.2(1)(1)(ii)(D). 
WAC 08 154 51771 
Page 10 
Standard for Specialized Kizowledge 
Looking to the language of the statutory definition, Congress has provided USCIS with an ambiguous definition 
of specialized knowledge. In this regard, one Federal district court explained the infeasibility of applying a 
bright-line test to define what constitutes specialized knowledge: 
This ambiguity is not merely the result of an unfortunate choice of dictionaries. It reflects the 
relativistic nature of the concept special. An item is special only in the sense that it is not 
ordinary; to define special one must first define what is ordinary. . . . There is no logical or 
principled way to determine which baseline of ordinary knowledge is a more appropriate reading 
of the statute, and there are countless other baselines which are equally plausible. Simply put, 
specialized knowledge is a relative and empty idea which cannot have a plain meaning. CJ: 
Westen, The Empty Idea ofEquality, 95 Harv.L.Rev. 537 (1982). 
1756, Inc. v. Attorney General, 745 F.Supp. 9, 14- 15 (D.D.C., 1990)' 
While Congress did not provide explicit guidance for what should be considered ordinary knowledge, the 
principles of statutory interpretation provide some clue as to the intended scope of the L-1B specialized 
knowledge category. NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 123 (1987) 
(citing ZiVS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207,94 L.Ed.2d 434 (1987)). 
First, the AAO must look to the language of section 214(c)(2)(B) itself, that is, the terms "special" and 
"advanced." Like the courts, the AAO customarily turns to dictionaries for help in determining whether a word in 
a statute has a plain or common meaning. See, e.g., In re A.H. Robins Co., 109 F.3d 965,967-68 (4th Cir. 1997) 
(using Webster's Dictionary for "therefore"). According to Webster's New College Dictionary, the word "special" 
is commonly found to mean "surpassing the usual" or "exceptional." Webster's New College Dictionary, 1084 
(3rd Ed. 2008). The dictionary defines the word "advanced" as "highly developed or complex" or "at a higher 
level than others." Id. at 17. 
Second, looking at the term's placement within the text of section 101(a)(15)(L) of the Act, the AAO notes that 
specialized knowledge is used to describe the nature of a person's employment and that the term is listed among 
the higher levels of the employment hierarchy together with "managerial" and "executive" employees. Based on 
the context of the term within the statute, the AAO therefore would expect a specialized knowledge employee to 
occupy an elevated position within a company that rises above that of an ordinary or average employee. See 
1 756, Inc. v. Attorney General, 745 F. Supp. at 14. 
Third, a review of the legislative history for both the original 1970 statute and the subsequent 1990 statute 
indicates that Congress intended for USCIS to closely administer the L-1B category. Specifically, the original 
drafters of section 101(a)(15)(L) of the Act intended that the class of persons eligible for the L-1 classification 
' 
 Although 1756, Inc. v. Attorney General was decided prior to enactment of the statutory definition of 
specialized knowledge by the Immigration Act of 1990, the court's discussion of the ambiguity in the legacy 
Immigration and Naturalization Service (INS) definition is equally illuminating when applied to the definition 
created by Congress. 
WAC 08 154 51771 
Page 11 
would be "narrowly drawn" and "carefully regulated and monitored" by USCIS. See generally H.R. Rep. No. 91- 
851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750,2754, 1970 WL 5815. The legislative history of the 1970 Act 
plainly states that "the number of temporary admissions under the proposed 'L' category will not be large." Id. In 
addition, the Congressional record specifically states that the L-1 category was intended for "key personnel." 
See generally, id. The term "key personnel" denotes a position within the petitioning company that is "[olf 
crucial importance." Webster 's New College Dictionary 620 (3'* ed., Houghton Mifflin Harcourt Publishing 
Co. 2008). Moreover, 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." See 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 (Nov. 12, 1969). 
Neither in 1970 nor in 1990 did Congress provide a controlling, unambiguous definition of "specialized 
knowledge," and a narrow interpretation is consistent with so much of the legislative intent as it is possible to 
determine. H. Rep. No. 91-851 at 6, 1970 U.S.C.C.A.N. at 2754. This interpretation is consistent with legislative 
history, which has been largely supportive of a narrow reading of the definition of specialized knowledge and the 
L-1 visa classification in general. See 1756, Inc. v. Attorney General, 745 F.Supp. at 15-16; Boi Na Braza 
Atlanta, LLC v. Upchwch, Not Reported in F.Supp.2d, 2005 WL 2372846 at *4 (N.D.Tex., 2005), afSd 194 
Fed.Appx. 248 (5th Cir. 2006); Fibermaster, Ltd. v. I.N.S., Not Reported in F.Supp., 1990 WL 99327 (D.D.C., 
1990); Delta Airlines, Inc. v. Dept. of Justice, Civ. Action 00-2977-LFO (D.D.C. April 6, 2001)(on file with 
AAO). 
Further, although the Immigration Act of 1990 provided a statutory definition of the term "specialized 
knowledge" in section 214(c)(2) of the Act, the definition did not generally expand the class of persons eligible 
for L-1 B specialized knowledge visas. Pub.L. No. 101-649, tj 206(b)(2), 104 Stat. 4978, 5023 (1990). Instead, 
the legislative history indicates that Congress created the statutory definition of specialized knowledge for the 
express purpose of clarifying a previously undefined term from the Immigration Act of 1970. H.R. Rep. 101- 
723(I) (1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6749, 1990 WL 200418 ("One area within the L visa that 
requires more specificity relates to the term 'specialized knowledge.' Varying interpretations by INS have 
exacerbated the problem."). While the 1990 Act declined to codify the "proprietary knowledge" and "United 
States labor market" references that had existed in the previous agency definition found at 8 C.F.R. 
tj 214.2(1)(l)(ii)(D) (1988), there is no indication that Congress intended to liberalize its own 1970 definition of 
the L-1 visa classification. 
If any conclusion can be drawn fi-om the enactment of the statutory definition of specialized knowledge in section 
2 14(c)(2)(B), it would be based on the nature of the Congressional clarification itself By not including any strict 
criterion in the ultimate statutory definition and further emphasizing the relativistic aspect of "special knowledge," 
Congress created a standard that requires USCIS to make a factual determination that can only be determined on a 
case-by-case basis, based on the agency's expertise and discretion. Rather than a bright-line standard that would 
support a more rigid application of the law, Congress gave the INS a more flexible standard that requires an 
adjudication based on the facts and circumstances of each individual case. CJ: Ponce-Leiva v. Ashcroft, 33 1 F.3d 
369,377 (3d Cir. 2003) (quoting Baires v. INS, 856 F.2d 89,91 (9th Cir. 1988)). 
WAC 08 154 51771 
Page 12 
To determine what is special or advanced, USCIS must first determine the baseline of ordinary. As a 
baseline, the terms "special" or "advanced" must mean more than simply "skilled" or "experienced." By 
itself, work experience and knowledge of a firm's technically complex products will not equal "special 
knowledge." See Matter of Penner, 18 I&N Dec. 49, 53 (Comm. 1982). 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. In other words, specialized knowledge generally requires more than a short period of experience; 
otherwise special or advanced knowledge would include every employee in an organization with the 
exception of trainees and entry-level staff. If everyone in an organization is specialized, then no one can be 
considered truly specialized. Such an interpretation strips the statutory language of any efficacy and cannot 
have been what Congress intended. 
Considering the definition of specialized knowledge, it is the petitioner's, not USCIS's, burden to articulate 
and prove that the beneficiary possesses "special" or "advanced" knowledge. Section 214(c)(2)(B) of the Act, 
8 U.S.C. 5 11 84(c)(2)(B). USCIS cannot make a factual determination regarding the beneficiary's specialized 
knowledge if the petitioner does not, at a minimum, articulate with specificity the nature of the claimed 
specialized knowledge, describe how such knowledge is typically gained within the organization, and explain 
how and when the beneficiary gained such knowledge. 
Once the 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. A 
petitioner's assertion that the beneficiary possesses advanced knowledge of the processes and procedures of 
the company must be supported by evidence describing and distinguishing that knowledge from the 
elementary or basic knowledge possessed by others. Because "special" and "advanced" are comparative 
terms, the petitioner should provide evidence that allows USCIS to assess the beneficiary's knowledge 
relative to others in the petitioner's workforce or relative to similarly employed workers in the petitioner's 
specific industry. 
Analysis 
In examining the specialized knowledge of the beneficiary, the AAO will look to the petitioner's description of 
the job duties and the weight of the evidence supporting any asserted specialized knowledge. See 8 C.F.R. 
§ 214.2(1)(3)(ii). The petitioner must submit a detailed job description of the services to be performed sufficient to 
establish specialized knowledge. Id. Merely asserting that the beneficiary possesses "special" or "advanced" 
knowledge will not suffice to meet the petitioner's burden of proof. 
Upon review, the petitioner in this case has failed to establish either that the beneficiary's position in the 
United States or abroad requires an employee with specialized knowledge or that the beneficiary has 
specialized knowledge. Although the petitioner repeatedly asserts that the beneficiary has been and will be 
employed in a "specialized knowledge" capacity, the petitioner has failed to document any special or 
advanced body of knowledge which would distinguish the beneficiary's role from that of other research 
engineers or embedded software engineers employed by the company or in the industry in general. While the 
petitioner provided a lengthy description of the beneficiary's current and proposed responsibilities, the AAO 
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concurs that the duties were described in general terms and not distinguished in any way from those 
performed by the 50 or more other embedded software engineers who also report to the Logix Embedded 
Engineering Manager within the petitioner's Ohio office. The petitioner indicates that only a small percentage 
of its workers are engaged in research and development engineering work and implies that these employees 
necessarily have advanced knowledge of the company's products. However, the petitioner is still obligated to 
describe and document this beneficiary's specific duties and claimed specialized knowledge in order to 
support its claims. Going on record without documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner indicated that the beneficiary "has designed and implemented the core part of the communication 
subsystem (Publisher / Subscriber) for the company's Logix controllers," and "worked on the new communication 
(fragmentation / reassembly) protocol which should be incorporated into the system." The petitioner indicates 
that the beneficiary is the "only person working on a full-time basis on the design of the new protocol and the new 
architecture," and that the beneficiary's "architectural proposal" will serve as a basis for a new design of 
communications subsystems across various embedded devices. The petitioner went on to describe the importance 
of Logix controllers within the scope of its Integrated Architecture product offering, but provides no additional 
detail regarding what exactly constitutes the beneficiary's specialized knowledge, such as a detailed description of 
the specific projects on which he has worked that are relevant to the U.S. assignment. The additional letters 
submitted by and also failed to elaborate in any detail regarding exactly what constitutes 
the beneficiary's specialized knowledge. 
Such explanation is critical, as the petitioner claims that the beneficiary's work over the last year has rendered him 
the only employee among the petitioner's staff of 20,000 who is readily able to perform the proposed services in 
the United States. The petitioner has not indicated when the beneficiary was assigned to work on the Logix 
communication subsystem project that is stated to perform the basis of his specialized knowledge, provided 
any documentation related to the "new architectural proposal" he is stated to have single-handedly developed, 
or explained how his role differs from other research engineers assigned to develop embedded systems for the 
same product. The petitioner has provided little context within which to evaluate the claim that the 
beneficiary has developed a unique skill set and knowledge base that is not possessed by any other employee 
in the world. 
Although the director clearly emphasized the lack of evidence in the record regarding the beneficiary's 
advanced knowledge, the only evidence new submitted on appeal is the two patent applications which were 
filed by the petitioner in September 2006. The beneficiary's appearance on these applications as an inventor is 
notable, but the petitioner has not provided any explanation as to how the inventions relate to the beneficiary's 
qualifying employment abroad or his proposed duties in the United States. The patent applications also 
precede the beneficiary's date of hire by the foreign entity and were filed while the beneficiary was still 
employed by another company and working as a contractor for the petitioner's foreign subsidiary. As such, 
any contributions he made to these inventions did not occur during his period of qualifying employment 
abroad and will not be considered in this proceeding. See 8 C.F.R. 5 214.2(1)(3)(iii). 
The AAO has reviewed the beneficiary's resume but finds that it sheds no additional light on the specific 
duties he has performed, any significant assignments he has held with the foreign entity, or the claimed 
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specialized knowledge. He indicates that he is skilled in C/C++, OOP, Clearcase, Muli-ICE, VxWorks, C#, 
XML and UML and has experience in all stages of regular firmware/software development process, including 
requirements specifications, design, implementation, unit testing and documentation, as well as six years of 
experience in C/C++ firmware development in real-time OS environments. These skills appear to be typical 
of an experienced embedded software engineer. The beneficiary indicates that, since joining the foreign 
entity in 2006, he has performed "C/C++ firmware development" and "research as well as regular 
development." He indicates that he has served as a "project lead and architect," but provides no hrther details 
regarding his role or responsibilities, and little basis to support a conclusion that his knowledge is more 
advanced than similarly-employed engineers working for the petitioning company or elsewhere. 
The remaining question before the AAO is whether the beneficiary's knowledge of and experience with the 
petitioner's proprietary products alone constitutes specialized knowledge. While the current statutory and 
regulatory definitions of "specialized knowledge" do not include a requirement that the beneficiary's 
knowledge be proprietary, the petitioner cannot satisfy the current standard merely by establishing that the 
beneficiary's purported specialized knowledge is proprietary. The knowledge must still be either "special" or 
"advanced." As discussed above, the elimination of the bright-line "proprietary" standard did not, in fact, 
significantly liberalize the standards for the L-1B visa classification. 
Reviewing the precedent decisions that preceded the Immigration Act of 1990, there are a number of 
conclusions that were not based on the superseded regulatory definition, and therefore continue to apply to the 
adjudication of L-1 B specialized knowledge petitions. In 198 1, the INS recognized that "[tlhe modem 
workplace requires a high proportion of technicians and specialists." The agency concluded that: 
Most employees today are specialists and have been trained and given specialized knowledge. 
However, in view of the [legislative history], it can not be concluded that all employees with 
specialized knowledge or performing highly technical duties are eligible for classification as 
intracompany transferees. The House Report indicates the employee must be a "key" person 
and associates this employee with "managerial personnel." 
Matter of Colley, 18 I&N Dec. at 1 19-20. 
In a subsequent decision, the INS looked to the legislative history of the 1970 Act and concluded that a "broad 
definition which would include skilled workers and technicians was not discussed, thus the limited legislative 
history available therefore indicates that an expansive reading of the 'specialized knowledge' provision is not 
warranted." Matter of Penner, 18 I&N Dec. at 5 1. The decision continued: 
[I]n view of the House Report, it cannot be concluded that all employees with any level of 
specialized knowledge or performing highly technical duties are eligible for classification as 
intra-company transferees. Such a conclusion would permit extremely large numbers of 
persons to qualify for the "L-1" visa. The House Report indicates that the employee must be 
a "key" person and "the numbers will not be large." 
Id. at 53. 
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According to the reasoning of Matter of Penner, work experience and knowledge of a firm's technically 
complex products, by itself, will not equal "special knowledge." USCIS must interpret specialized knowledge 
to require more than fundamental job skills or a short period of experience. 
The AAO acknowledges that the specialized knowledge need not be narrowly held within the organization in 
order to be considered "advanced." However, it is equally true to state that knowledge will not be considered 
"special" or "advanced" if it is universally or even widely held throughout a company. If all similarly 
employed workers within the petitioner's organization receive essentially the same training, then mere 
possession of knowledge of the petitioner's processes and methodologies does not rise to the level of 
specialized knowledge. The L-1B visa category was not created in order to allow the transfer of all 
employees with any degree of knowledge of a company's processes. If all employees are deemed to possess 
"special" or "advanced" knowledge, then that knowledge would necessarily be ordinary and commonplace. 
Overall, the record does not establish that the beneficiary's knowledge is substantially different from the 
knowledge possessed by other employees of the petitioning organization. The petitioner highlights the fact 
that an undefined "small percentage" of its workers are involved in research and development activities, but it 
does not immediately follow that all such employees should be considered to have specialized knowledge. 
The fact that the beneficiary and a select group of workers possess a very specific set of skills does not alone 
establish that the beneficiary's knowledge is indeed special or advanced. All employees can be said to possess 
uncommon skill sets to some degree. Moreover, the proprietary or unique qualities of the petitioner's process 
or product do not establish that any knowledge of the product is "specialized." The petitioner has not 
explained how ongoing engineering development on its Logix controller product is allocated among its 
research and embedded systems staff. It is reasonable to believe that such engineers are typically assigned to 
work on discrete systems, subsystems or other components within a product. 
In such a scenario, it appears that any research or embedded software engineer employed by the petitioner's 
group of companies would be deemed to have specialized knowledge, because they would all have narrowly 
tailored knowledge of product subsystems or components. This interpretation of "specialized knowledge" is 
untenable as it would essentially allow the petitioner to utilize the L-1B classification for any technical 
employee who had one year of experience working on a single project. Rather, the petitioner must establish 
that qualities of the particular process or product require an individual to have knowledge beyond what is 
common among its workforce, or to establish that the beneficiary has advanced knowledge of the product. 
This has not been established in this matter. The fact that other workers may not have the same level of 
experience with a particular product subsystem is not enough to equate to special or advanced knowledge if 
the gap could be closed by the petitioner by simply revealing the information to a similarly trained or 
experienced employee who has worked on a similar product or different aspect of the same product. 
While the AAO acknowledges that there will be exceptions based on the facts of individual cases, an 
argument that an alien is unique among a small subset of workers, will not be deemed facially persuasive if a 
petitioner's definition of specialized knowledge is so broad that it would include the majority of its workforce. 
The AAO does not doubt that the beneficiary is a valuable employee who is capable of performing the work 
described, nor does it doubt that the work is important to the petitioner's product development efforts. 
However, the fact that the petitioner claims that it does not employ an embedded software engineer or 
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research engineer with the exact same project experience as the beneficiary at its Ohio facility who could 
readily perform the intended duties does not automatically lead to a conclusion that the instant beneficiary 
must possess specialized and advanced knowledge. As discussed above, the petitioner provided only a general 
description of the beneficiary's intended duties that appears to be applicable to all of its embedded software 
engineers and did not persuasively demonstrate that the position requires the beneficiary's claimed expertise. 
The legislative history for the term "specialized knowledge" provides ample support for a restrictive 
interpretation of the term. In the present matter, the petitioner has not demonstrated that the beneficiary 
should be considered a member of the "narrowly drawn" class of individuals possessing specialized 
knowledge. 
 See 1756, Inc. v. Attorney General, supra at 16. 
 The record does not establish that the 
beneficiary has specialized knowledge or that the position offered with the United States entity requires 
specialized knowledge. Accordingly, the petition will be denied. 
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. 8 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.