remanded L-1B Case: Software Development

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-T-H-V-T-L-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 1, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION : FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner , 1 a company engaged in enterprise software development , sales, and implementation , 
seeks to temporarily employ the Beneficiary as technical product manager of its U.S. affiliate's new 
oftice 2 under the L-1 B noninu11igrant classification for intracompany transferees. Immigration and 
Nationality Act (the Act) section 10l(a)(l5)(L) , 8 U.S.C. § 110l(a)(l5)(L). 3 The L-lB classification 
allows a corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying 
foreign employee with "specialized knowledge " to work temporarily in the United States .4 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish. as required , that the Beneficiary possesses specialized knowledge , and that he will be 
employed in a specialized knowledge capacity in the United States. The Director further found that the 
Beneficiary 's placement at unaffiliated employers' worksites would be an arrangement to provide labor 
for hire rather than a placement in connection with the provision of a product or service for which 
specialized knowledge specific to the organization is necessary. 
On appeal, the Petitioner submits additional evidence and asserts that the Director ' s decision fails to 
address the Petitioner's primary claims regarding the Beneficiary ' s specialized knowledge. Further, 
the Petitioner emphasizes that the Beneficiary will not be working primarily at the worksites of 
unafliliated employers. 
Upon de novo review of the record, we will withdraw the Director's decision and remand the matter 
for fUI1her proceedings consistent with our discussion below. 
1 
The Petitioner in this matter is the Beneficiary's foreign employer and an affiliate of the proposed U.S. employer, 
, a company established in 2017. 
2 The t~rm "new office" refers to an organization which has been doing business in the United States for less than one 
year. 8 C.F.R. § 214.2(1)(1 )(ii)(F). 
3 The Petitioner requested that the Beneficiary be granted a five-year period of temporary employment. However, if a 
beneficiary is coming to the United States to be employed in a new office, the petition may be approved for a period not 
to exceed one year. 8 C.F.R. § 214.2(1)(7)(i)(A)(J). 
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Maller ofN- T-H- V- T-L-S-
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 B nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 101(a)(15)(L) of the Act. In addition, the beneficiary 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a specialized knowledge capacity. !d. The petitioner 
must also establish that the beneficiary ' s prior education, training, and employment qualify him or 
her to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
If a beneficiary is coming in a specialized knowledge capacity to open a new office, the petitioner must 
submit evidence that it secured sufficient physical premises to house its operation, evidence that the 
new business entity is or will be a qualifying organization, and evidence that it has the financial 
ability to remunerate the beneficiary and to commence doing business in the United States. See 
generally, 8 C.F.R. § 214.2(1)(3)(vi). 
Under the statute , a beneficiary is considered to have specialized knowledge if he or she has: (1) a 
"special" knowledge of the company product and its application in international markets; or (2) an 
"advanced" level of knowledge of the processes and procedures of the company. Section 
214(c)(2)(B) of the Act. Section 214(c)(2)(B) ofthe Act, 8 U.S.C. § 1184(c)(2)(B). A petitioner may 
establish eligibility by submitting evidence that the beneficiary and the proffered position satisfy 
either prong of the statutory definition of specialized knowledge. 
II. SPECIALIZED KNOWLEDGE 
The Director determined that the Petitioner did not establish that the Beneficiary possesses 
specialized knowledge or that he would be employed in the United States in a specialized knowledge 
capacity. The Director's conclusion was based on a finding that the Petitioner did not establish that 
the Beneficiary has knowledge in the field of software development that is significantly different 
from that possessed by others in the industry. 
We disagree with this conclusion. The record shows that the Beneficiary, as the Petitioner ' s founder 
and primary software architect for the last 12 years, was responsible for the development of its 
proprietary flagship product , and will be responsible for launching the product in the 
United States through the new affiliate. The evidence in the record , which now includes substantial 
documentation submitted on appeal, is sufficient to establish that the Beneficiary possesses special 
knowledge of this product which is distinct, uncommon, and not generally found in the industry. 
The new evidence differentiates the company product from existing manufacturing planning 
technologies and establishes that the Petitioner is working in an innovative sector of the industry. 
The Petitioner has established by a preponderance of the evidence that the Beneficiary was 
employed abroad in a managerial capacity, that he possesses specialized knowledge, and that such 
knowledge is required for the U.S. position. 
2 
Matter ofN- T-H- V- T-L-S-
Further, the Petitioner did not state, and the record does not indicate, that the Beneficiary would be 
working primarily ofrsite at the worksites of unaffiliated employers under an approved petition. The 
Director's finding that he will do so and that such assignments would be "labor for hire" are 
withdrawn. 
III. NEW OFFICE REQUIREMENTS 
Although the Director's decision is withdrawn, the Petitioner has not established that it has met all 
requirements applicable to a new office. 
Specifically, the petitioner must submit evidence that its U.S. affiliate secured sufficient physical 
premises to house its operation, evidence that the new business entity is or will be a qualifying 
organization, and evidence that it has the financial ability to remunerate the beneficiary and 
commence doing business in the United States. See generally, 8 C.F.R. § 214.2(1)(3)(vi). Doing 
business means the regular, systematic, and continuous provision of goods and/or services and does 
not include the mere presence of an agent or office of the qualifying organization. 8 C.F.R. 
§ 214.2(1)(1 )(ii)(H). As the validity of a new office petition is limited to one year, the Petitioner 
must show that it will be doing business as defined in the regulations within that timeframe. 
The Petitioner has provided evidence that its U.S. affiliate has leased an office, but has not submitted 
sufficient evidence to establish that the new office would be doing business as a qualifying 
organization in the United States within one year, or established that its afliliate has the financial 
ability to commence doing business in the United States. 
The record does not contain a business plan or financial projections in support of a claim that the 
Petitioner is prepared to commence business operations and engage in the provision of goods and/or 
services within one year. In fact. the Petitioner emphasizes that "it takes a long time to set up a sales 
pipeline" in its industry. and may take "at least a year to convert a potential client." The Petitioner 
indicates that it will maintain the Beneficiary on its payroll in Turkey and pay its affiliate's business 
related expenses, but the record lacks any further information regarding the U.S. affiliate's expected 
start-up costs, operating expenses, and anticipated revenue. 
We are remanding this matter so that the Director can determine whether the Petitioner has met the 
requirements for new offices at 8 C.F.R. § 214.2(1)(3)(vi). The Director should request any 
additional evidence deemed warranted and allow the Petitioner to submit such evidence within a 
reasonable period oftime. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis 
Cite as Matter oj'lv'-T-H-V-T-L-S-, ID# 1213339 (AAO May 1, 2018) 
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