remanded L-1B Case: Software Development

identifying data deleted to 
prevent clearly unwarranted 
- 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
I), 
-i+ 3 
File: WAC 08 2 1 8 5 1 342 
 Office: CALIFORNIA SERVICE CENTER 
 Date: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(lS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(l S)(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. 
oh F. Grissom 
W A ing Chief, Administrative Appeals Office 
WAC 08 218 51342 
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). The AAO will withdraw the director's 
decision and remand the petition to the director for further consideration and entry of a new decision. 
The petitioner filed this nonimmigrant visa petition seeking to employ the beneficiary as an L-1B intracompany 
transferee with specialized knowledge pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act 
("the Act"), 8 U.S.C. €j 1101(a)(lS)(L). The petitioner, a software development and consulting company, is an 
affiliate of Yomari Pvt. Ltd., located in Kathmandu, Nepal. The petitioner seeks to employ the beneficiary in the 
position of software engineer based at its Minneapolis, Minnesota office. 
The director denied the petition on September 29, 2008. Citing to section 2 14(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 at the worksite of an unaffiliated employer. 
The petitioner subsequently filed an appeal. The petitioner declined to treat the appeal as a motion and forwarded 
the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director's decision 
contains numerous misstatements of fact which suggest that the director has mistakenly attributed the statements 
of another company to the petitioner. Counsel emphasizes that the petitioner never stated that the beneficiary will 
work offsite at the worksite of an unaffiliated employer, and that the director's conclusion were not based on the 
evidence the petitioner submitted. 
To establish L-1 eligibility under section I0 l(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. €j 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 
WAC 08 218 51342 
Page 3 
education, training, and employment qualifies himher 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. 
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 2 14.2(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. 5 1 184(c)(2)(F) (the "L- I Visa Reform Act"), in turn, provides: 
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 1 (a)(] 5)(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). 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker on August 6, 2008, and indicated that 
the beneficiary will be working as a software engineer based at its Minneapolis, Minnesota headquarters. In 
response to Question 13 on the Form 1-129 Supplement L, the petitioner responded "No" when asked: "Will 
WAC 08 218 51342 
Page 4 
the beneficiary be stationed primarily offsite (at the worksite of an employer other than the petitioner or its 
affiliate, subsidiary, or parent)?" The petition was accompanied by a ten-page letter from the petitioner in 
which it described the beneficiary's proposed assignment in the United States, noting that the beneficiary will 
be contributing to the development of the petitioner's Retail Intelligence solution, which the company hopes 
to introduce to the market as a licensed software application in early 2009. The petitioner also reiterated that 
the beneficiary's worksite will be at the company's Minneapolis, Minnesota offices. 
In the request for evidence issued on August 19,2008, the director nevertheless requested additional evidence 
related to the beneficiary's "L-IB Offsite Employment." In response to the WE, the petitioner once again 
stated that the beneficiary's work will be completed entirely at the petitioner's own site, but nevertheless made 
a good faith effort to comply with all requests made in the WE. 
The director denied the petition on September 29, 2008, concluding that "the petitioner has not established 
that the placement of the beneficiary at the worksite of the unaffiliated employer is not merely labor for hire." 
In denying the petition, the director noted that the beneficiary will perform as a software engineer "for a 
project at a Minnesota location of a worldwide provider of banking and financial services." The director noted 
that the project "involves the consolidation and modification of the client's pre-existing Customer 
Relationship Management (CRM) system." Neither of these statements is accurate. The petitioner has not 
stated that the beneficiary will work at a client site, his proposed assignment does not involve modification of 
a client's CRM system, and the petitioning company does not provide services in the CRM field. 
The decision contains numerous other errors. The decision at page 3 includes a quoted paragraph attributed to 
the petitioner, yet, upon careful review of the record, the AAO finds that the petitioner made no such 
statements. The director also states that the petitioner "is a branch of the parent company located in India," 
when in fact the petitioner has no parent company and has one affiliate located in Nepal. While the decision 
contains a few references to actual statements made by the petitioner, a review of the totality of the decision 
reflects that the director did not take into account the facts and arguments set forth by the petitioner in the 
initial petition and in response to the RFE. 
On appeal, counsel addresses the director's factual errors and the resulting erroneous conclusion that the 
beneficiary will be placed at the worksite of an unaffiliated employer. Counsel asserts that the denial is based 
on an incorrect and incomplete reading of the petition. Counsel emphasizes that the beneficiary's assignment 
is not related to any specific client contract for IT services, but rather he will be involved in the development 
of the petitioner's own Retail Intelligence software solution, which is "conceptualized, designed, developed, 
published, sold and maintained by the petitioner." 
Upon review, the director's decision dated September 29, 2008 will be withdrawn, and the matter will be 
remanded to the director for further consideration and entry of a new decision. The decision was based 
solely on the incorrect finding that the beneficiary would be providing client services at the worksite of an 
unaffiliated employer. Furthermore, the director did not take into account the majority of the petitioner's 
actual claims with respect to the beneficiary's specialized knowledge and the application of such knowledge 
in the U.S. assignment. 
WAC08218 51342 
Page 5 
On remand, the director is instructed to review and weigh the evidence submitted in support of the initial 
petition and in response to the RFE in order to determine whether the petitioner has established that the 
beneficiary possesses specialized knowledge and whether he has been and will be employed in a position 
requiring specialized knowledge. The director may request any additional evidence deemed warranted and 
should allow the petitioner to submit additional evidence in support of its position within a reasonable period of 
time. 
Specifically, additional evidence may be required to establish that the petitioner has an ongoing internal 
development project requiring the beneficiary's services in a specialized knowledge capacity. Although the 
petitioner has indicated that the beneficiary's services are essential to the timely completion of its Retail 
Intelligence product, to be launched in 2009, the evidence of record indicates that "Yomari Retail Intelligence" 
was listed among the petitioner's solutions on its public web site as of September 2008 when the petitioner 
responded to the RFE. The petitioner should be instructed to clarify the launch date for the solution and indicate 
whether it has already been licensed to U.S. clients. If development and launch of the product was in fact already 
completed prior to the adjudication of the petition, this would raise questions regarding the accuracy and 
completeness of the beneficiary's proposed job description. 
In addition, it has not been established that the knowledge required to develop the Retail Intelligence product is 
indeed specialized. The petitioner notes that the product encompasses "a unique combination of computer 
languages, databases, tools and applications," and that it would require 12 to 18 months to train a new hire to 
become a productive member" of the Retail Intelligence team. The AAO notes that the product is built entirely on 
Oracle and other third-party retail data warehouse technologies. The petitioner acknowledges that other workers 
employed with unrelated companies have advanced knowledge of the same computer languages and databases 
but claims that "no U.S. worker possesses [the beneficiary's] knowledge of how we have used these computer 
languages and databases to develop our own unique proprietary software application." The petitioner has not, 
however, explained how the knowledge possessed by the beneficiary is so complex that it would require a full 
year or longer to train a similarly experienced software engineer who already possesses advanced knowledge of 
the same underlying retail data warehousing technologies. The beneficiary himself was hired in October 2006 
inimediately after completing his bachelor's degree and assigned to implement customized solutions for clients 
after a three-month traineelprobationary period. Further, the petitioner states in its 2007 annual report that 
"[tlhere are many other small boutique software companies that offer similar, though not exact, software packages 
as the ones that we intend to offer." The record as presently constituted does not establish that the beneficiary's 
experience with the Retail Intelligence product alone constitutes specialized knowledge. 
However, in light of the critical errors and misstatements of fact present in the director's decision dated September 
20, 2008, the director's decision will be withdrawn and the petition will be remanded for further review and entry 
of a new decision. As always in visa petition proceedings, the burden of proving eligibility for the benefit sought 
remains entirely with the petitioner. Section 29 1 of the Act, 8 U.S.C. 5 13 6 1. 
ORDER: 
 The decision of the director is withdrawn. The petition is remanded to the director for further 
action in accordance with the foregoing and entry of a new decision, which, if adverse to the 
petitioner, is to be certified to the AAO for review.