dismissed L-1B Case: Software Engineering

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Services 
File: WAC 08 242 5 1020 Office: CALIFORNIA SERVICE CENTER Date: 
'JUN 1 1 2009 
IN RE: Petitioner: 
Beneficiary: 
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 1101(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. 5 103.5(a)(l)(i). 
hn F. Grissom 
cting Chief, Administrative Appeals Office 
WAC 08 242 5 1020 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa and 
certified his decision to the Administrative Appeals Office (AAO) in accordance with 8 C.F.R. 5 103.4(a)(5). 
The AAO will affirm the director's decision and deny the petition. 
The petitioner filed this nonimmigrant visa petition to employ of the beneficiary as an L-1B intracompany 
transferee with specialized knowledge pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality Act 
("the Act"), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is engaged in the delivery of high-quality, cost-effective 
software solutions. It states that is the parent company of the beneficiary's foreign employer in India. The 
petitioner seeks to employ the beneficiary as a software engineer for a period of three years, and indicates that he 
will be assigned to perform work related to an unaffiliated employer's project, based in Irvine, California. 
The director denied the petition on December 10, 2008 and certified his decision to the AAO. The denial was 
based on two separate grounds. First, the director determined 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. Second, citing to the anti-"job shop" provisions of section 214(c)(2)(F) of 
the Act, as created by the L-1 Visa Reform Act of 2004, the director denied the petition as an impermissible 
arrangement to provide labor for hire.' 
Counsel for the petitioner has submitted a brief and additional evidence in support of the certification proceeding 
as provided by 8 C.F.R. 5 103.4(a)(2). 
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 
- - - - - - 
1 
 The term ''job shop" is commonly used to describe a firm that petitions for aliens in L-1B status to contract 
their services to other companies, often at wages that undercut the salaries paid to United States workers. 
Upon introducing the L-1 Visa Reform Act of 2004, Senator Saxby Chambliss described the abuse as follows: 
The situation in question arises when a company with both foreign and U.S.-based operations 
obtains an L-1 visa to transfer a foreign employee who has "specialized knowledge" of the 
company's product or processes. The problem occurs only when an employee with 
specialized knowledge is placed offsite at the business location of a third party company. In 
this context, if the L-1 employee does not bring anything more than generic knowledge of the 
third party company's operations, the foreign worker is acting more like an H-1B professional 
than a true intracompany transferee. Outsourcing an L-1 worker in this way has resulted in 
American workers being displaced at the third party company. 
149 Cong. Rec. S 1 1649, *S11686, 2003 WL 22 143 105 (September 17, 2003). In general, the L-1B visa 
classification does not include the same U.S. worker protection provisions as the H-1B visa classification. 
See generally 8 C.F.R. §§ 214.2(h) and (1). 
WAC 08 242 5 1020 
Page 3 
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. $ 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 hirnther 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. 
I. Relevant Law 
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. $ 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. fj 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. 
Section 214(c)(2)(F) of the Act, 8 U.S.C. 8 1184(c)(2)(F) (the "L-1 Visa Reform Act"), in turn, provides: 
WAC 08 242 51020 
Page 4 
An alien who will serve in a capacity involving specialized knowledge with respect to an 
employer for purposes of section 101(a)(15)(L) and will be stationed primarily at the worksite of 
an employer other than the petitioning employer or its affiliate, subsidiary, or parent shall not be 
eligible for classification under section 10 l(a)(15)(L) if - 
(i) 
 the alien will be controlled and supervised principally by such unaffiliated 
employer; or 
(ii) 
 the placement of the alien at the worksite of the unaffiliated employer is 
essentially an arrangement to provide labor for hire for the unaffiliated 
employer, rather than a placement in connection with the provision of a product 
or service for which specialized knowledge specific to the petitioning employer 
is necessary. 
Section 214(c)(2)(F) of the Act is applicable to all L-1B petitions filed after June 6, 2005, including petition 
extensions and amendments for individuals that are currently in L-1B status. See Pub. L. No. 108-447, Div. I, 
Title IV, 5 412, 118 Stat. 2809,3352 (Dec. 8,2004). 
Due to the nature of the L-1 Visa Reform Act, the two issues raised by the director - whether the petitioner has 
established that the beneficiary possesses the requisite "specialized knowledge" and whether the requirements of 
the L-1 Visa Reform Act have been satisfied - are independent but legally intertwined. Prior to evaluating 
whether the L-1 Visa Reform Act applies, an adjudicator must determine whether the beneficiary is employed in 
a specialized knowledge capacity. If the beneficiary is not employed in this capacity, the petition may be denied 
on this basis and there is no need to address the requirements of the L-1 Visa Reform Act. Because the director 
reviewed both issues in a thorough and well-considered decision, and because counsel objects to both 
determinations, the AAO will nevertheless discuss both specialized knowledge and the elements of the L-1 Visa 
Reform Act. Upon review, the AAO concurs with the director's decision to deny the petition. 
II. Specialized Knowledge 
The first 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 Form 1-129, Petition for a Nonimmigrant Worker on September 10, 2008. The 
petitioner indicated that the beneficiary has been employed by its Indian subsidiary since February 5, 2007 
"working for Balboa Life & Casualty in the application Collateral Command System in [the foreign entity]." 
The petitioner stated on Form 1-129 that, in the United States, the beneficiary will also be "working for 
Balboa Life and Casualty in the application Collateral Command System (CCS) at [the petitioner]." 
In a letter dated September 2, 2008, the petitioner provided additional explanation regarding the beneficiary's 
knowledge and experience and the client project to which he will be assigned. The petitioner indicated the 
Collateral Command System on which the beneficiary would be working is the client's "flagship Insurance 
tracking system," a mainframe system developed by the client in the 1980s and enhanced to track mortgage 
WAC 08 242 5 1020 
Page 5 
loans in the 1990s. The petitioner stated that the beneficiary will be responsible for working with this system 
in the United States, performing the following duties: 
Currently CCS system has only Flood GAP for Auto safe lenders; [the beneficiary] will 
be enhancing the system to make the Flood GAP product available for Failsafe billing 
lenders. 
Understanding business process and requirements to effectively manage the project as 
per [client] specific standards and guidelines. 
Working with business analysts in gathering business requirements, obtaining 
clarifications and approvals during functional analysis, data validations and integration 
testing[.] Analyzing requirements to prepare functional and technical specifications. 
Documenting the gathered requirements as per the Quality procedures. 
Solve the technical issues with the systems. 
Interacting with Business Analysts as well as with the SME's to meet client's requirements. 
Perform system testing activities which include formulating the testing strategy, preparing 
the test plans and identifying key business scenarios. 
Regression tests and issue resolution as a result of new Product/Code changes going into 
production. 
To implement the new Flood gap product into production. 
The petitioner stated that the beneficiary currently performs similar work in CCS engagements for the same client 
at the foreign entity's office in Hyderabad, including the following duties: 
Interacting and participating in Client meetings through conference calls. . . 
Involved in planning & execution of the development & maintenance work. 
Providing periodic status reports with work allocation and communicating to onsite of any 
foreseen issues. 
Resolving post-production implementation issues. 
Responsible to ensure all deliveries adhere to [the petitioner's] quality process and 
procedures. 
Proactively suggest any modifications to the existing system to enhance client's business 
from the business knowledge gained on the job over a period of time. 
Act as interface between team and client to address all client queries. 
Provide on call support for daily job streams in production. 
Responsible for providing training & technical guidance to the team members 
The petitioner indicated that, upon joining the foreign entity, the beneficiary "has been trained extensively on 
various methodologies, techniques, processes and procedures to build the software applications and maintain 
systems specific to our Client's needs." The petitioner stated that the beneficiary possesses "distinguished 
knowledge" including the following: 
Specialize[d] technical skills: COBOL, CICS, JCL, DB2, VSAM, IDMS and application 
knowledge expertise. 
WAC 08 242 5 1020 
Page 6 
Other skills: Version Management tools: PANVALET and ENDEVOR, File handling 
tools: FLEAID. Database tools: DMLO, OLQ, QMF, SPUFI 
Involving in designing of Flood GAP product for Auto Safe Lenders. 
Involved in critical changes after production move and enhancement of the Flood Gap 
application for Auto Safe Lenders 
Involved in the development of Front end, CCS - Core and Outbound process of FailSafe 
lenders 
Interacting the Business Analysts as well as with the SME's to meet client's requirements. 
Provide lender specific product solutions in the Insurance tracking system. 
Documenting the gathered requirements as per the Quality procedures within the project. 
Quality Team lead for testing of [the client's] Accelerated Configuration Technology. 
Trained on Test Design and Testing Best Practices. 
Conceptual understanding of the Software Quality Assurance methodology in compliance 
with SEICMMS standards. 
Complete knowledge on [the client's] regulations and standards in all deliverables. 
The petitioner further stated that the beneficiary has specialized knowledge of company processes and 
procedures, including two "proprietary processes" for project management and tracking software development 
activities - iPTS and KADET. 
Finally, the petitioner elaborated on the U.S. assignment as follows: 
In order to successfully complete the project, a thorough understanding of the Collateral 
Command System (CCS) is required. By virtue of having extensively worked on testing such 
applications and understanding [the client's] requirements, [the beneficiary] has acquired 
specialized business knowledge of the application. The onsite position that [the beneficiary] is 
identified for, requires a high level of technical expertise and [client] interaction skills. 
This position requires a person with detailed understanding of the application as well as expertise 
in testing of such applications. This role will also involve acting as a bridge between the business 
users of [the client] and the testing team at offshore. [The beneficiary] has the required 
combination of skills from the functional and technical perspectives that are relevant to this 
project and also has a proven track record in customer interactions. The combination of these 
skills sets makes him the ideal candidate for this requirement. 
The beneficiary is one of a handful of [company] employees who possess specialized knowledge 
and experience to successfully complete the company's project for [the client]. It would be great 
hardship to [the petitioner] to pull one of the few other employees with [the beneficiary's] level 
of specialized knowledge experience to work on [the client] project when they are all working on 
other large-scale projects for [the petitioner]. 
The petitioner stated that it would be virtually impossible to fill the beneficiary's position if he were unable to 
contribute to the project, considering his previous experience and training with the overseas company. 
WAC 08 242 51020 
Page 7 
In support of the petition, the petitioner submitted a copy of the beneficiary's resume which indicates that he 
graduated with a bachelor's degree in mechanical engineering in 2005 and worked for Infosys Technologies Ltd. 
in India for one year prior to joining the petitioner's subsidiary in India in February 2007. He indicates that he has 
worked on the U.S. client project for 15 months, using mainframe technologies and tools, IDMS and DB2, and 
working on a team of 20 people. The beneficiary indicates that his project responsibilities include coding and 
testing programs to deliver quality deliverables, communicating with onsite counterparts in the United States, and 
providing on-call support for daily job streams in production. The beneficiary states that he is strong at 
developing and maintaining enterprise applications for mainframe development projects using COBOL, JCL, 
IDMS, DB2 and CICs and is conversant in CMMI quality procedures. The beneficiary's resume indicates that he 
has undergone three months of training in "mainframe" and one month of training in SQL. 
The petitioner also submitted extensive internal documentation describing its tools and procedures for project 
implementation. The documentation submitted described: the KADET project management tool; C language, 
Functional Specifications; Analysis and Design Standards using UML; Business Modeling Discipline; 
Requirements Modeling Discipline; Analysis and Design; Implementation; Testing; Deployment; Configuration 
and Change Management; Project Management; Environment; and the V Process Life Cycle Model. 
The director issued a request for additional evidence (RFE) on October 10, 2008, in which he requested, inter 
alia, additional evidence to establish that the beneficiary will be coming to the United States to perform duties in 
a specialized knowledge capacity. The director requested a more detailed description of the beneficiary's 
proposed duties and clarification regarding the reason for his transfer to the United States at this time. The 
director also requested additional information regarding exactly what is the equipment, system, product, 
technique or service of which the beneficiary has specialized knowledge, as well as additional explanation 
regarding any special or advanced duties the beneficiary will perform and how such duties differ from those 
performed by other workers employed by the petitioner or other U.S. employers. In addition, the director 
requested a milestone plan showing the beginning and ending dates for the product or service to be provided by 
the petitioner on a weekly basis. 
In a response dated November 24,2008, the petitioner provided additional information related to the beneficiary's 
duties in India, noting that his roles have included the following: 
Performed as a role based team lead for the maintenance and testing of "Flood Gap" application 
for Autosafe Lender with a team size of 3. This project involved testing activities related to 
development of preprocessor unit, front end segmentation, CCS core changes and outbound 
changes. 
Performed as a role based team lead for the maintenance and testing of Failsafe billing method 
for [client] lender with a team size of 2. The project involved testing activities related to 
development of CCS core changes for Fail Safe billing. 
* * * 
Special or Advanced Duties 
WAC 08 242 5 1020 
Page 8 
Development of preprocessor unit, front end segmentation, skip logic, CCS core changes 
and outbound changes for "Flood Gap" product for Auto Safe lenders. 
Extensive knowledge in "Failsafe Billing Method." 
Extensive application framework knowledge leverages to efficient coding and testing. 
Hands on domain knowledge would support to implement new business scenarios. 
The petitioner indicated that the beneficiary's duties in the United States will require "understanding business 
process and requirements to effectively manage the project as per [the client's] specific standards and guidelines." 
The petitioner further described the "uniqueness" of the beneficiary's knowledge as follows: 
[The beneficiary] has thorough knowledge of the Fail Safe Lenders, processing of which is 
different from Auto Safe Lenders. He is the only resource who has in depth knowledge of Flood 
Gap product as well as Fail Safe Billing this makes him distinguished from the other resources 
available at offshore and onsite. 
The petitioner reiterated that the beneficiary has specialized knowledge of its processes and procedures, including 
SEI-CMM procedures, and proprietary processes including: Mainframe; Auto and Mortgage Insurance; iPTS 
(proprietary project management tool); and Kadet (proprietary SLA Compliance tool). The petitioner also 
described its "proprietary" system design and quality management processes. 
The petitioner further described the beneficiary's training and experience as follows: 
[The beneficiary] has undergone training at [the petitioning company] on Insurance domain and 
testing methodologies at [the company]. 
[The beneficiary] has undergone training at [the company] on various business events that has 
helped him in performing his tasks effectively and efficiently in this project. 
Shown below are the lists of classroom training courses which he has undergone: 
[Company] induction and training 
Software development life cycle 
Test design training 
Testing Best Practices 
Global etiquette 
Business Management System 
Configuration management 
Estimation @ [the company] 
Inspection & review record & defect prevention 
Achieving excellence 
Written Communication Skills 
The minimum amount of time required to train an employee to fill the above position is more 
than a year. Considering his previous experience and having undergone extensive on the job & 
. 
 WAC 08 242 5 1020 
Page 9 
in house classroom training at [the petitioning company], [the beneficiary] has all requirements 
to fill the above position. 
The petitioner submitted a copy of a single training certificate issued to the beneficiary by the foreign entity, 
which indicates that he completed "Introduction to SIW Architecture," a one-day course, on May 12,2008. 
On December 10, 2008, the director denied the petition and certified his decision to the AAO. The director 
concluded that the petitioner failed to establish that the beneficiary possesses specialized knowledge or that 
the beneficiary will be employed in a capacity involving specialized knowledge. The director determined that 
the beneficiary's duties performed with the foreign entity and proposed duties are essentially those of a skilled 
worker, and require knowledge that is common among software engineers employed by the petitioner's 
organization and by others within the information technology field. The director noted that the fact that the 
petitioner claims to employ only a small number of employees with the beneficiary's exact knowledge and 
skills is not necessarily indicative of specialized knowledge, absent evidence that the knowledge is advanced 
relative to its workforce or to the industry at large. 
In the brief submitted in the certification proceeding, counsel for the petitioner asserts that the beneficiary 
possesses specialized knowledge of the customized client application that he and his team enhanced in India, 
and will apply such knowledge to the U.S. end of the project. Counsel provides additional background 
information on the petitioner's off-shorelon-site business model, noting that customized systems developed 
for clients are often developed by its subsidiaries in India or Canada, and, once developed, installed, tested 
and refined on-site, usually at a client's place of business. Counsel states that the model requires off-shore 
employees to travel to the client site during critical phases of the project, and notes that the engineers who 
perform the off-shore development are best suited to transfer their knowledge to the on-site staff. Such 
employees are referred to as "rotationals" within the organization, and according to counsel, the company uses 
the L-1B classification primarily for these employees. 
Counsel also provides additional background information regarding the petitioner's relationship with the 
client, noting that it dates back to 2000. Counsel states that the petitioning company developed the "Flood 
Gap" application for the client in April 2006 and has continually modified the application to adapt to the 
client's changing requirements. Counsel asserts that the beneficiary was assigned to the part of the client 
project "where he could utilize his mainframe skills and knowledge of software systems in the insurance 
industry," and now possesses in-depth knowledge of a very specific part of the project which now requires his 
services in the U.S., specifically, Flood Gap and the conversion of FailSafe to AutoSafe billing. 
With respect to the claimed specialized knowledge, counsel asserts: 
[The beneficiary] has "special" knowledge of the company product in that he has detailed 
knowledge of the customized software that [the petitioner] has developed for a particular 
client. He has this "special" knowledge because he has been doing the development of that 
specific product on a daily basis for the past two years in [the foreign subsidiary]. . . . 
[The beneficiary's] knowledge is not only specific to [the petitioner], but it is specific to a 
particular part of the [petitioner's] project for this particular client. In short, he has 
WAC 08 242 5 1020 
Page 10 
specialized knowledge of a special customized product that was created by [the petitioner] in 
the first place. This is much different from knowledge of a product or system that is available 
on the open market, such as SAP. It is for this reason that [the beneficiary] fits into a narrow 
class of people with specialized knowledge about this particular product as it stands on the 
off-shore end in India. By definition, the only other people who would have this same kind of 
specialized knowledge would be the other members of the [petitioner's] team that have been 
working with [the beneficiary] in India. 
Counsel emphasizes that the beneficiary is "not simply a skilled worker," although "there are many people 
with similar baseline technical skill sets." Counsel asserts that the beneficiary's two years of experience on a 
specific project have imparted him with the specialized knowledge that is needed in the United States, and 
indicates that the beneficiary will be rotated back to India to "complete the cycle of knowledge transfer" when 
his work in the United States is completed. 
The ~etitioner has also submitted a letter dated Februarv 18. 2009 from the foreiw entitv's Manager-Human 
#, " u 
~esources, 
 further describes the content of the work the beneficiary 
performed in India between February 2007 and February 2009. The foreign entity indicates that much of the 
beneficiary's time in India has been spent implementing the Flood Gap system for banks that artner with the 
client, and also supporting other banks that were already using the client's system. states that 
some banks work with the client through Fail Safe procedures (using manual methods for billing, policy 
review, funding) and some use Auto Safe procedures, which are fully automated methods. He further 
explains: 
An essential part of the [petitioner's] project for [the client] has been to convert all the banks 
that partner with [the client] to Autosafe.. .. To convert a lender from Failsafe to Autosafe 
many parties will be involved. To begin with the lenderhank should be willing to enhance 
their systems to sendlreceive files tolfrom [the client's] systems. [The client's] systems need 
to be enhanced to sendlreceive files tolfrom banks and be able to decode the bank's response 
and issue/cancel the policies. [The client] outsources the IT work to [the petitioner] to 
enhance the systems whenever a new bank needs to be converted to the Autosafe billing 
method. [The petitioner's] development teams (both onsite and offshore) design, developed, 
test, and deploy these enhancements. [The beneficiary] was involved in all these phases from 
our offshore ADC at Hyderabad. A team of 3 people including [the beneficiary] are being 
involved in this conversion. 
indicates that the process of converting all banking partners will take 12 to 15 months and that 
the beneficiary, in the meantime, has been enhancing the CCS system to ensure that the Flood Gap product is 
available to Failsafe billing lenders. In addition to the Flood Gap project, the beneficiary has supported other 
CCS applications that were developed by the petitioner. 
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 2 14.2(1)(1)(ii)(D). 
WAC 08 242 5 1020 
Page 11 
Standard for Specialized Knowledge 
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 of Equality, 95 Harv.L.Rev. 537 (1982). 
1756, Inc. v. Attorney General, 745 F.Supp. 9, 14-1 5 (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 NSv. 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 10 1(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 08 242 5 1020 
Page 12 
would be "narrowly drawn" and "carefully regulated and monitored" by USCIS. See generally H.R. Rep. No. 91- 
85 1 (1970), reprinted in 1970 U.S.C.C.A.N. 2750,2754, 1970 WL 58 15. 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'd 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, 91St Cong. 21 0,218,223,240,248 (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. 91-85 1 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. Upchurch, 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-1B specialized knowledge visas. Pub.L. No. 101-649, 5 206(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 20041 8 ("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. 
8 214.2(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 from 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 08 242 51020 
Page 13 
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. 
5 214.2(1)(3)(ii). The petitioner must submit a detailed job description of the services to be performed sufficient to 
establish specialized knowledge. At a minimum, the petitioner must articulate with specificity the nature of the 
claimed specialized knowledge. 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 requires an employee with specialized knowledge or that the beneficiary has specialized 
knowledge. While the petitioner has provided a detailed description of the beneficiary's duties, such duties 
are typical of a software engineer working with mainframe-based database technologies, and require him to 
use knowledge and technical skills which are widely available in the information technology industry, such as 
C, Cobol, JCL and CICS programming languages, IDMS and DB2 database management systems, and 
WAC 08 242 5 1020 
Page 14 
mainframe system tools. Counsel for the petitioner acknowledged that "there are many people with similar 
baseline technical skill sets." Counsel and the petitioner assert, however, that some aspects of the position 
require project-specific knowledge that the beneficiary gained in India, as well as experience with the 
petitioner's processes and procedures, and therefore could not be performed by the typical skilled worker. 
Therefore, the first question before the AAO is whether the beneficiary's knowledge of and experience with 
the petitioner's proprietary tools, processes and methodologies 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-1B specialized knowledge petitions. In 1981, the INS recognized that "[tlhe modern 
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 
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. An expansive interpretation of 
specialized knowledge in which any experienced employee would qualify as having special or advanced 
knowledge would be untenable, since it would allow a petitioner to transfer any experienced employee to the 
WAC 08 242 51020 
Page 15 
United States in the L-1B classification. 
The proprietary specialized knowledge in this matter is stated to include proprietary tools and methodologies 
developed by the petitioner for the management of the company's software and systems development projects. 
These tools and methodologies are said to include iPTS (a proprietary project management tool); Kadet (a 
proprietary SLA Compliance tool), as well as the petitioner's "proprietary" system design and quality 
management processes. The petitioner emphasizes that its quality procedures are SEI-CMM Level 5 certified, 
thus further setting apart its employees' knowledge from that generally possessed by similarly employed 
workers in the information technology industry. However, all IT consulting firms develop internal tools, 
methodologies, procedures and best practices for documenting project management, technical life cycle and 
software qualify assurance activities. It is also industry standard practice for such companies to seek SEI- 
CMM assessment of their processes and methodologies. The software Capability Maturity Model is not 
particular to the petitioner's organization. 
Other than stating that its software development processes have been given the highest rating from the 
Software Engineering Institute, the petitioner did not attempt to explain how its processes and methodologies 
differ significantly from those utilized by other IT companies who have also adopted and followed the 
software CMM. The petitioner has not specified the amount or type of training its technical staff members 
receive in the company's tools and procedures and therefore it cannot be concluded that processes are 
particularly complex or different compared to those utilized by other companies in the industry, or that it 
would take a significant amount of time to train an experienced information technology consultant who had 
no prior experience with the petitioner's family of companies. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Sofzci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
To the contrary, the minimal evidence submitted suggests that the petitioner's employees are not required to 
undergo any extensive training in the company's processes and methodologies. The petitioner indicates that 
the beneficiary completed I I classroom-based courses, the majority of which do not appear to be clearly 
associated with the petitioner's claimed proprietary tools and processes. The petitioner has not provided 
certificates of completion or other evidence indicating the content and length of his classroom training, so it 
cannot be concluded that such training imparted him with specialized knowledge. Again, going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of SofJici, 22 I&N Dec. at 165. However, it is evident that courses in written 
communication, global etiquette and achieving excellence are not directly related to the petitioning company's 
processes and procedures. 
Rather, it is evident that the beneficiary was hired by the foreign entity with one year of insurance industry 
software application development experience and assigned to work on the offshore component of the client's 
CCS customization project in a role similar to the one he has been offered in the United States. While the 
petitioner made a reference to the beneficiary's on-the-job training, and indicated that it would take "over a 
year" to train another employee to perform the same duties, there is no indication that the beneficiary has not 
been fully performing the duties of the position since the date he was hired by the foreign entity. The 
. WAC 08 242 51020 
Page 16 
petitioner does not articulate or document how specialized knowledge is typically gained within the 
organization, or explain how and when the beneficiary gained such knowledge. 
Based on the petitioner's representations, its proprietary processes and tools, while highly effective and 
valuable to the petitioner, are simply customized versions of standard practices used in the industry that can 
be readily learned on-the-job by employees who otherwise possess the requisite technical background in 
software and systems development and appropriate functional background for the project to which they will 
be assigned. For this reason, the petitioner has not established that knowledge of its processes and procedures 
alone constitute specialized knowledge. 
The petitioner argues that the second, and most important, component of the beneficiary's purported 
specialized knowledge is his existing knowledge of the unaffiliated employer's CCS customization project, 
specifically, his experience with the implementing the Flood Gap application for both Auto Safe and Fail Safe 
lenders who utilize the client's services. Specifically, the petitioner indicates that the beneficiary's 
involvement in this project for over one year is indicative of his knowledge of the petitioner's products, 
services and techniques and their application in international markets. The beneficiary's familiarity with the 
unaffiliated employer's systems and requirements, while valuable to the petitioner, cannot be considered 
knowledge specific to the petitioning organization and cannot form the basis of a determination that he 
possesses specialized knowledge. All software development employees within the petitioning organization 
would reasonably be familiar with its proprietary internal processes and methodologies for caving out client 
projects. Similarly, most employees would also possess project-specific knowledge relative to one or more 
international clients, which the petitioner would equate to knowledge of the application of the petitioner's 
methodologies and processes in international markets. However, the fact that the beneficiary possesses very 
specific experience with a particular international client project does not establish that the beneficiary's 
knowledge is indeed special or advanced. 
In addition, even assuming arguendo that the beneficiary's familiarity with the client's systems could be 
considered "specialized knowledge," the petitioner claims that it has provided IT services to the client since 
2000, has developed many applications to enhance the client's major systems (including the Flood Gap 
application), and has many ongoing onshore and offshore projects for the client . In light of this information, 
it is unclear how the beneficiary, who had worked as a team member on a single project for the unaffiliated 
employer for approximately 19 months, is considered to have "advanced" knowledge of the petitioner's 
processes and methodologies relative to the client's projects. 
All employees can be said to possess unique skill or experience to some degree. Moreover, the proprietary 
qualities of the petitioner's process or product do not establish that any knowledge of this process is 
"specialized." Rather, the petitioner must establish that qualities of the unique process or product require this 
employee to have knowledge beyond what is common in the industry. This has not been established in this 
matter. The fact that other workers may not have the same level of experience with the petitioner's 
methodologies as applied to one component of a specific client project is not enough to establish the 
beneficiary as an employee possessing specialized knowledge. 
It is appropriate for USCIS to look beyond the stated job duties and consider the importance of the 
beneficiary's knowledge of the business's product or service, management operations, or decision-making 
, WAC 08 242 51020 
Page 17 
process. Matter of Colley, 18 I&N Dec. at 120 (citing Matter of Raulin, 13 I&N Dec. at 618 and Matter of 
LeBlanc, 13 I&N Dec. at 816). As stated by the Commissioner in Matter of Penner, when considering 
whether the beneficiaries possessed specialized knowledge, "the LeBlanc and Raulin decisions did not find 
that the occupations inherently qualified the beneficiaries for the classifications sought." 18 I&N Dec. at 52. 
Rather, the beneficiaries were considered to have unusual duties, skills, or knowledge beyond that of a skilled 
worker. Id. 
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. 
The petitioner has not successfully demonstrated that the beneficiary's knowledge of the petitioner's processes 
and procedures gained during his 19 months of employment with the foreign entity is advanced compared to 
other similarly employed workers within the organization. As noted above, the petitioner's attempts to 
distinguish the beneficiary's knowledge as advanced relative to a specific client project are unpersuasive. All 
of the foreign entity's technical employees would reasonably have project-specific knowledge in addition to 
knowledge of the company's proprietary tools and processes for implementing projects. By this logic, any of 
them would qualify for L-1B classification if offered a position working on the same project in the United 
States. All employees can be said to possess uncommon and unique skill sets to some degree; however, a skill 
set that can be easily imparted to another similarly educated and generally experienced computer programmer 
is not "specialized knowledge." The petitioner must establish that qualities of the processes, procedures, and 
technologies require this employee to have knowledge beyond what is common in the industry. This has not 
been established in this matter. 
The AAO does not dispute the possibility that the beneficiary is a skilled employee who has been, and would 
be, a valuable asset to the petitioner. However, as explained above, the record does not distinguish the 
beneficiary's knowledge as more advanced than the knowledge possessed by other people employed by the 
petitioning organization or by workers employed elsewhere. The beneficiary's duties and technical skills, 
while impressive, demonstrate that he possesses knowledge that is common among software specialists in the 
information technology consulting field. Furthermore, it is not clear that the performance of the beneficiary's 
duties would require more than basic proficiency with the company's internal processes and methodologies. 
The petitioner has failed to demonstrate that the beneficiary's training, work experience, or knowledge of the 
company's processes is more advanced than the knowledge possessed by others employed by the petitioner, 
or that the processes used by the petitioner are substantially different from those used by other technology 
consulting companies. The petitioner has failed to demonstrate that the beneficiary's knowledge is any more 
advanced or special than the knowledge held by a skilled worker. See Matter of Penner, 18 I&N Dec. at 52. 
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 
WAC 08 242 5 1020 
Page 18 
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. 
111. L-1 Visa Reform Act 
Assuming arguendo that the petitioner had established that the beneficiary possesses specialized knowledge, 
the terms of the L-1 Visa Reform Act would still mandate the denial of this petition. One of the main 
purposes of the L-1 Visa Reform Act amendment was to prohibit the outsourcing of L-1B intracompany 
transferees to unaffiliated employers to work with "widely available" computer software and, thus, help 
prevent the displacement of United States workers by foreign labor. See 149 Cong. Rec. S11649, *S 1 1686, 
2003 WL 22143105 (September 17, 2003); see also Sen. Jud. Comm., Sub. on Immigration, Statement for 
Chairman Senator Saxby Chambliss, July 29, 2003, available at 
<http://judiciary.senate.gov/member~statement. cfm?id =878&wit_id=3355> (accessed on September 5, 
2008). 
If a specialized knowledge beneficiary will be primarily stationed at the worksite of an unaffiliated employer, 
the statute mandates that the petitioner establish both: (1) that the beneficiary will be controlled and 
supervised principally by the petitioner, and (2) that the placement is related to the provision of a product or 
service for which specialized knowledge specific to the petitioning employer is necessary. Section 
214(c)(2)(F) of the Act. These two questions of fact must be established for the record by documentary 
evidence; neither the unsupported assertions of counsel or the employer will suffice to establish eligibility. 
Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998); Matter of Obaigbena, 19 I&N Dec. at 534. 
If the petitioner fails to establish both of these elements, the beneficiary will be deemed ineligible for 
classification as an L-1B intracompany transferee. As with all nonimmigrant petitions, the petitioner bears 
the burden of proving eligibility. Section 29 1 of the Act, 8 U.S.C. $ 1361; see also 8 C.F.R. $ 103.2(b)(l). 
A. Threshold Question: Worksite of Beneficiary 
As a threshold question in the analysis, USCIS must examine whether the beneficiary will be stationed 
primarily at the worksite of the clientlunaffiliated company. Section 214(c)(2)(F) of the Act. The petitioner 
indicated on the Form 1-129 petition that the beneficiary will be employed in Irvine, California, but did not 
provide a street address. In response to Question 13 on the Form 1-129 Supplement L, the petitioner answered 
"Yes" when asked: "Will the beneficiary be stationed primarily offsite (at the worksite of an employer other 
than the petitioner or its affiliate, subsidiary, or parent)?" The petitioner stated: "[The petitioner] is in the 
Business of providing custom software solutions and support, as a result development and support activities 
takes place at offshore in India and at the Client's sites." 
In its letter dated September 2, 2008, the petitioner stated that the beneficiary will be based at the petitioner's 
office in Irvine, California, but also referred to "L-1B Offsite Employment" to take place in Irvine, California. 
In a separate letter, the petitioner stated that the beneficiary will be working "on-site" at the petitioner's office 
at 133 Technology Drive, Suite #200, Irvine, CA 92618. 
WAC 08 242 51020 
Page 19 
The petitioner submitted a copy of a Consulting Services Agreement the petitioner executed with the client on 
July 1, 2004, which is valid through June 30, 2009. The agreement states that the petitioner "has expertise 
and experience in providing staff augmentation services in the United States and offshore project IT 
consulting and programming services from Company's application development centers in India." The 
agreement replaced a "Master Agreement for Temporary Employee Services" that was made in 1995, and 
discusses the "general terms and conditions" governing the contractual agreement between the parties. It does 
not provide specific information regarding the petitioner's obligations with respect to the client engagement to 
which the beneficiary has been and will be assigned. 
Generally, the agreement provides that the petitioner is not required to perform services on the client's 
premises. However, the agreement indicates that, unless otherwise specified in the "applicable Statement of 
Work," the client shall provide work space, equipment, software, and other resources, including personnel, 
necessary for the petitioner's onsite consultants to perform its services. The agreement states that "unless 
otherwise mutually agreed and specified in the applicable Statement of Work, Company shall provide the 
facility space and workstations necessary for Company to deliver the Services from a Company owned or 
leased facility." 
In the RFE issued on October 10, 2008, the director advised the petitioner that it had provided insufficient 
evidence concerning the location where the beneficiary will work and the conditions of employment. The 
director requested copies of contracts, statements of work, work orders, andlor service agreements between 
the petitioner and the client for the services or products to be provided. 
In response the petitioner stated that the address of the client where the beneficiary would work is the 
petitioner's own office located at 133 Technology Drive in Irvine, California. There is also evidence in the 
record indicating that the client has an office in Irvine, California. 
The petitioner re-submitted a copy of the Consulting Services Agreement entered with the client in 2004, but 
did not provide a copy of the Statement of Work that is specific to the project to which the beneficiary would 
be assigned, as requested by the director. 
The director determined that the beneficiary will be stationed primarily at the worksite of the 
client/unaffiliated employer and therefore the provisions of Section 2 14(c)(2)(F) are applicable. 
Counsel does not object to this determination, and notes in his brief that typically, the petitioning company 
will install, test and refine customized systems on-site, "usually at the client's place of business." In a letter 
dated February 19, 2009, the petitioner notes that "rotational employees" from India "need to come to the U.S. 
to continue the same project for the same client in person at the client site." The record also contains a chart 
outlining the roles of the client's and petitioner's project staff in the United States which indicates that the 
client must provide "required seating and desktops for the onsite team." 
Based on these responses and statements, the AAO concludes that the beneficiary will be primarily employed 
as a consultant at the worksite of an unaffiliated employer, thereby triggering the provisions of the L-1 Visa 
Reform Act. While the petitioner has an office in Irvine, California, it has not indicated that the director was 
incorrect in concluding that the beneficiary would work primarily at the client's Irvine location, and instead 
. 
 WAC 08 242 5 1020 
Page 20 
seeks to establish that the beneficiary's placement does not fall under the restrictions of the L-1 Visa Reform 
Act. 
The petitioner therefore must establish both: (1) that the beneficiary will be controlled and supervised 
principally by the petitioner, and (2) that the placement is related to the provision of a product or service for 
which specialized knowledge specific to the petitioning employer is necessary. Section 214(c)(2)(F) of the 
Act. 
B. Control and Supervision of Beneficiary 
Under section 214(c)(2)(F)(i) of the Act, the petitioner must establish that the beneficiary will be controlled 
and supervised principally by the petitioner, and not by the unaffiliated employer. The petitioner stated the 
following on Form I- 129: 
Employee shall be managed and controlled by [the petitioner's] Managerial staff. All duties 
are project based. [The petitioner] does not provide bodies to supplement staffing. Projects 
are developed by [the petitioner's] employees under the control of [the petitioner's] managers. 
In its letter dated September 2, 2008, the petitioner stated the following with respect to the offsite 
employment: 
During his stay, [the beneficiary] will be working with a team that 
, a Green Card Holder, who is stationed at Irvine, CA, USA. 
the team's plans along with [the beneficiary] and his team. He will track the status against the 
plans on a weekly basis as well as on an event-driven basis. is involved in 
determining the salary for people that are in [the beneficiary's] grade and designation. 
Further, he will be responsible for conducting [the beneficiary's] annual performance 
appraisal. 
The petitioner attached an organizational chart for the 
 indicates that the petitioner's U.S. project 
staff includes a project manager who has an L-1A visa, 
 who is an account manager, and a client 
relationship manager. The chart appears to show that the petitioner's project manager reports to the client's 
project manager, the account manager reports to the client's program manager, and the client relationship 
manager reports to the client's senior management. 
As noted above, the petitioner submitted a Consulting Services Agreement which indicates that the petitioner 
provides both staff augmentation and offshore project IT consulting and programming services based out of 
India. The Statement of Work describes the procedures through which the client obtains staff augmentation 
services but notes that "all project Services performed pursuant to this agreement will be mutually agreed 
upon and described in a Statement of Work similar in content and format to the template Statement of Work" 
which is referred to as "Attachment A-1 ." The petitioner didnot provide a copy of the referenced attachment, 
and more importantly, did not provide a copy of the Statement of Work for the client project on which the 
beneficiary will work in the United States. The general Consulting Services Agreement contains the following 
provision: 
. 
 WAC 08 242 5 1020 
Page 2 1 
1.8 
 Control and Supervision. The applicable Statement of Work shall specify which party 
has primary project responsibility. If the applicable Statement of Work specifies that 
[the petitioner] has primary project responsibility, [the petitioner] shall be responsible 
for the control and supervision of its personnel. If the applicable Statement of Work 
specifies that [the client] has primary project responsibility andlor for all staff 
augmentation Services performed hereunder, [the client] shall be responsible for the 
technical direction of [the petitioner's] personnel and the overall quality and end 
result of such tasks. 
The general Statement of Work also includes a "Right to Hire" provision which allows the client to hire 
certain Consultants who have been providing staff augmentation services in the United States for more than 
three months and less than nine months for a hiring fee. The provision does not apply to company project 
managers and onsiteloffsite coordinators or to consultants performing services other than staff augmentation 
"unless otherwise specified in the applicable statement of work." 
In the RFE, the director requested that the petitioner provide additional evidence that establishes that the 
beneficiary will be controlled and supervised principally by the petitioner. 
In response, the petitioner reiterated that the beneficiary will be supervised by, an Account 
Manager employed by the petitioning organization, who will "review" the beneficiary and his team members. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be 
principally controlled by the petitioner and not by the unaffiliated employer. The director acknowledged the 
petitioner's statement that will be supervising the beneficiary, but questioned the accuracy of 
such statements in light of the "Right to Hire" clause included in the Consulting Services Agreement made 
with the client. 
Counsel for the petitioner objects to the director's conclusion and asserts that the "staff augmentation" 
services referred to in the Consulting Services Agreement do not apply to the beneficiary, and that he is 
included among the classes of exempt employees not covered by the right to hire clause. Counsel emphasizes 
that such staff include on-site/offshore coordinators and consultants performing services other than staff 
augmentation. Counsel explains that staff augmentation services refer to "stand alone workers," and not 
rotational employees who serve as a point of contact for offshorelonsite projects. The petitioner also submits 
a letter dated February 19, 2009 which further addresses the company's "rotational employee" model and 
emphasizes that such employees are not to be hired by U.S. clients, as well as a document titled "Using Staff 
on Rotation to Support our Business Model and Client Needs," which is dated January 2009, and outlines 
"positions that will qualify placement of Ll rotational employees." 
Upon review, the petitioner has not established that the beneficiary will be controlled and supervised 
principally by the petitioner, and not by the unaffiliated employer. However, the AAO does not find that the 
"Right to Hire" provision in the petitioner's consulting services agreement with the client is clearly indicative 
of a situation in which the petitioner does not control the employee. The AAO is satisfied that the 
beneficiary's assignment is project-based and does not fall under the staff augmentation services provisions. 
WAC 08 242 5 1020 
Page 22 
The major deficiency in the evidence submitted is the lack of a statement of work specific to the services the 
beneficiary will be performing for the client in the United States. As noted above, the general Consulting 
Services Agreement signed by the petitioner and client in 2004 specifically states that individual Statements 
of Work will be prepared for projects and that such Statements of Work will identify the work location and 
resources and "shall specify which party has primary project responsibility," and responsibility for control and 
supervision of personnel. The agreement indicates that not all project work performed for the client is 
controlled by the petitioner. Therefore, thc submission of the Statement of Work for the project to which the 
beneficiary will be assigned is critical in determining who is ultimately responsible for his supervision. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Sofici, 22 I&N Dec. at 165. The petitioner's assertion that the 
beneficiary will be supervised and controlled by an employee of the petitioning company is not corroborated 
by sufficient evidence. 
Further, the AAO notes that the record contains an invoice dated October 13, 2008 issued by the petitioner for 
services rendered by the offshore Indian team in connection with the client's CCS project. The beneficiary is 
listed among the Indian employees who provided services related to the project. There is a notation on the 
invoice which indicates that this project is not controlled by the petitioning company. If this is the case, and 
the beneficiary will be assigned to the same project in the United States, then it is reasonable to believe that he 
would be subject to the control and supervision of the client with respect to technical issues and the quality of 
his work. 
Finally, the petitioner indicated that - supervision of the beneficiary will include review of 
the team's plans, tracking of the project on a weekly basis, determining the beneficiary's salary, and 
conducting a performance appraisal. Such tasks do not appear to amount to daily control and supervision of 
the services performed by the beneficiary. 
Based on the foregoing discussion, the petitioner has failed to meet its burden of establishing that the 
beneficiary would be controlled and supervised principally by the petitioning company and has not satisfied 
the requirements of section 214(c)(2)(F)(i) of the Act. For this additional reason, the petition must be denied. 
C. Necessity of Specialized Knowledge Specific to the Petitioning Employer 
The second issue under the L-1 Visa Reform Act analysis is whether the petitioner has established that the 
beneficiary's placement is related to the provision of a product or service for which specialized knowledge 
specific to the petitioning employer is necessary. Section 214(c)(2)(F)(ii) of the Act. As discussed below, the 
petition also fails to meet the requirements of this section of the Act. 
In denying the petition, the director concluded that the placement of the beneficiary at the worksite of the 
unaffiliated employer is essentially an arrangement to provide labor for hire for the unaffiliated employer, 
rather than a placement in connection with the provision of a product or service for which specialized 
knowledge specific to the petitioning employer is necessary. The director concluded that "[tlhe service the 
petitioner is providing is, essentially, programmers for hire to fine tune the client's already existing system 
and/or software rather than develop the petitioner's own software." The director further determined that the 
knowledge the beneficiary possesses "appears to be that of the petitioner's tools, procedures, and 
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methodologies to be applied to the client's existing program," and therefore, "the beneficiary's knowledge may 
only be tangentially related to the performance of the proposed offsite activity." 
On appeal, counsel objects to the conclusion that the beneficiary's services constitute an arrangement to 
provide "labor for hire" for the unaffiliated employer, emphasizing that the beneficiary has specialized 
knowledge related to an offshorelonsite project developed by the petitioner for the client, and is not merely 
acting as staff augmentation. Counsel's arguments with reference to the beneficiary's specialized knowledge 
have been discussed at length above and will not be repeated here. 
Counsel's assertions are not persuasive. The petitioner has not established that the beneficiary's placement at 
the unaffiliated employer's worksite is related to the provision of a product or service for which specialized 
knowledge specific to the petitioning employer is necessary. Section 214(c)(2)(F)(ii) of the Act. 
The petitioner must demonstrate in the first instance that the beneficiary's offsite employment is connected 
with the provision of the petitioner's product or service which necessitates specialized knowledge that is 
speciJic to the petitioning employer. If the petitioner fails to prove this element, the beneficiary's employment 
will be deemed an impermissible arrangement to provide "labor for hire" under the terms of the L-1 Visa 
Reform Act. 
As discussed above, the petitioner has not submitted a copy of the Statement of Work governing the services 
to be provided by the beneficiary at the unaffiliated employer's worksite. The information contained in the 
record indicates that the petitioner is providing ongoing support for one of its client's major information 
systems, and that such support includes ongoing maintenance and development of applications to enhance the 
client's systems. There is no indication that the client contracted with the petitioner to implement any system, 
product, processes, or tools of the petitioning company within the scope of the services to be performed at the 
client's worksite. 
Furthermore, as noted above, the invoice issued by the petitioner to the client for the offshore team's services 
indicates that the project being implemented is in fact managed by the client and not by the petitioner. Again, 
absent a copy of the applicable Statement of Work for this specific project to which the beneficiary will 
provide services, the petitioner's assertions remain uncorroborated. 
Nevertheless, the petitioner has not shown that any of the products or services to be supported or enhanced 
will require the application of the petitioner's own technologies. The evidence of record does not support a 
conclusion that the beneficiary will be implementing, developing, maintaining, or supporting systems or 
software developed by the petitioning company, or providing a service that other information technology 
companies with comparable capabilities could not provide. According to the terms of the Consulting Services 
Agreement, any applications developed by the petitioner in performing services become the client's property. 
It is for this reason that the director found that the beneficiary's use of the petitioner's internal tools and 
methodologies would be "incidental" to the assignment. The primary purpose of the assignment is for the 
beneficiary to support, enhance and modify the client's internal systems. An unrelated IT consulting company 
could likely provide an employee to deliver the exact same services, using its own internal project delivery 
tools and methodologies, and achieve the same results for the client. 
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While it is possible that the beneficiary here possesses knowledge that is directly related to both the petitioner 
and the unaffiliated employer's product or service, it is incumbent upon the petitioner to establish that the 
position for which the beneficiary's services are sought is one that requires knowledge specific to the 
petitioner. Here, the petitioner has failed to provide corroborating evidence demonstrating that the 
beneficiary's placement with the unaffiliated employer is related to the provision of a product or service for 
which specialized knowledge specific to the petitioning employer is necessary. 
To the contrary, a review of the facts of this petition suggests that this is exactly the type of employment 
relationship the L-1 Visa Reform Act of 2004 was enacted to prohibit. As explained above, this legislation 
was enacted to prevent the "outsourcing" of L-1B intracompany transferees to unaffiliated employers to work 
with "widely available" computer software. In this matter, the petitioner indicated that the beneficiary's 
project involves the application of the beneficiary's knowledge of a variety of mainframe and database 
technologies that are widely available in the industry. 
Counsel indicates that the position does not involve labor for hire because the petitioner has been retained to 
provide specific project-related work. However, if the project-related work involves the unaffiliated employer 
essentially outsourcing many aspects of its IT support function to the petitioner, then the employees assigned 
to the client's project are not providing a product or service which necessitates specialized knowledge that is 
specific to the petitioning employer. The record indicates that the petitioner's employees will be provided 
with the client company's technical documentation and existing code, and the petitioner will utilize this 
information regarding the client's applications to perform the contracted services of maintaining, supporting, 
enhancing the client's applications, and implementing new functionalities. The petitioner has not identified 
any aspect of the beneficiary's position that would require him to apply specialized knowledge relating to the 
petitioning company's products, processes or other interests. The duties and requirements of the project 
employees appear to have been determined primarily by the client, and thus reflect the unaffiliated employer's 
interests, standards and requirements. 
In conclusion, there is no evidence that the petitioner is providing the beneficiary's services in connection 
with the sale of any of its technology products or that the beneficiary's offsite employment requires any 
specialized knowledge specific to the petitioner's operations. Instead, the limited evidence in the record 
related to the nature of the contract indicates that the petitioner is providing general IT services to the 
unaffiliated employer. The fact that such services appear to be delivered on a large-scale "project" basis is 
insufficient to preclude a finding that such services essentially constitute "labor for hire." 
Accordingly, the petitioner has failed to meet its burden of establishing that the beneficiary's placement is 
related to the provision of a product or service for which specialized knowledge specific to the petitioning 
employer is necessary, and the petition may not be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for the decision. When the AAO denies a petition on multiple alternative grounds, a plaintiff 
can succeed on a challenge only if he or she shows that the AAO abused its discretion with respect to all of 
the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
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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. 5 1361. Here, that burden has not been met. 
ORDER: The director's decision dated December 10,2008 is affirmed. The petition is denied.