remanded L-1B Case: Software Solutions

identifying data deleted to 
prevent clearly unwanztnted 
invasion of personal p'ivacy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
File: WAC 07 225 52532 Office: CALIFORNIA SERVICE CENTER Date: 
 JUL 0 8 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 l(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. 3 103.5 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. 3 103.5(a)(I)(i). 
kqdn F. Grissom 
Acting Chief, Administrative Appeals Office 
- WAC 07 225 52532 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office ("AAO") on appeal. The AAO will withdraw the 
director's decision and remand the petition to the director for further action and entry of a new decision. 
The petitioner filed this nonimmigrant visa petition to employ the beneficiary an L-1B intracompany transferee 
with specialized knowledge pursuant to section 1 Ol(a)(15)(L) of the Immigration and Nationality Act ("the Act"), 
8 U.S.C. 8 1 101(a)(15)(L). The petitioner, a California corporation established in 1999, claims to be a subsidiary 
of ehfochips Ltd., located in India. The petitioner is a provider of ASIC and embedded software solutions and 
services. The petitioner has employed the beneficiary as an ASIC Engineer in L-1B status since 2005 and now 
seeks to extend his status for two additional years. 
The director denied the petition, concluding that the petitioner failed to establish that the petitioner has a 
qualifying relationship with the beneficiary's foreign employer. In denying the petition, the director 
determined that there are unresolved discrepancies in the record regarding the company's issuance of stock. 
On appeal, counsel for the petitioner asserts that the petitioner has provided ample evidence to establish that 
the petitioner is a wholly-owned subsidiary of the foreign entity. Counsel concedes that there have been some 
"small corporate errors" and a typographical error which have been corrected, and states that such small 
inconsistencies are irrelevant to the legal requirements for establishing a qualifying relationship. Counsel 
requests that the AAO review the evidence as a whole and apply the preponderance of the evidence standard. 
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 qualieing 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. 3 214.2(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 07 225 52532 
Page 3 
education, training, and employment qualifies himlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The sole issue addressed by the director is whether the petitioner established that there is a qualifying 
relationship between the petitioning company and the beneficiary's last foreign employer. To establish a 
"qualifying relationship" under the Act and the regulations, the petitioner must show that the beneficiary's 
foreign employer and the proposed U.S. employer are the same employer (i.e. one entity with "branch" 
offices), or related as a "parent and subsidiary" or as "affiliates." See generally section 101(a)(15)(L) of the 
Act; 8 C.F.R. § 214.2(1). 
The pertinent regulations at 8 C.F.R. tj 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) 
 Qualljjing organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(1) 
 Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (l)(l)(ii) of this section; 
(2) 
 Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one other 
country directly or through a parent, branch, affiliate or subsidiary for the 
duration of the alien's stay in the United States as an intracompany 
transferee[.] 
(I) 
 Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(K) 
 Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
The petitioner filed the nonimmigrant petition on July 25, 2007 and stated on Form 1-129, Petition for a 
Nonimmigrant Worker, that the petitioner is a subsidiary of the foreign entity, eInfochips Ltd., located in 
Ahmedabad, India. The petitioner submitted evidence that the beneficiary was admitted to the United States 
in L-1B status under the U.S. company's Blanket L petition in 2005, along with a copy of the company's most 
WAC 07 225 52532 
Page 4 
recent Blanket L approval notice, which is valid indefinitely as of December 2006. The petitioning company 
and the foreign entity are included on the list of qualifying entities appended to the Blanket L approval notice. 
As additional evidence of the qualifying relationship between the two companies, the petitioner submitted: 
A copy of the original Articles of Incorporation of Digital Yantra, Inc. endorsed by the 
California Secretary of State on February 20, 1998. The Articles indicate that the 
corporation is authorized to issue 100,000 shares of common stock. 
A copy of a Certificate of Amendment to the Articles of Incorporation endorsed by the 
California Secretary of State on September 25, 1998. The document amends Article 4 of 
the original Articles of Incorporation and indicates that the total number of shares 
authorized is 500,000. 
A copy of a Certificate of Amendment to the Articles of Incorporation endorsed by the 
California Secretary of State on June 3, 1999. The document amends the company's 
name from Digital Yantra, Inc. to its current name, and indicates that the total number of 
outstanding shares of the corporation is 400,000. 
A copy of the petitioner's stock ledger, which indicates that all outstanding shares have 
been issued to "Solutions Machines Pvt. Ltd., now eInfochips Ltd." The ledger indicates 
that stock certificates 1, 3, and 4, totaling 400,000 shares were issued to the foreign 
entity in September and November 1998 in exchange for $20,000. According to the 
ledger, the foreign entity was issued stock certificate #5 for 2,000,000 shares in 
exchange for $100,000. The ledger indicates that stock certificate #2, for 400,000 shares, 
was cancelled, and that stock certificate #6 was issued on May 15, 2003 and issued 
6,600,000 shares to the foreign entity in exchange for $330,000. The total number of 
shares issued according to the ledger is 9,000,000 and the total value of the issued shares 
is $450,000. 
Copies of stock certificates #1 through 6. Stock certificates # 1-5 were issued in the 
petitioner's original name of "Digital Yantra, Inc.," while stock certificate #6 reflects the 
company's current name. 
A copy of the petitioner's Notice of Transaction Pursuant to Corporation Code Section 
25012(f), which indicates that the petitioner issued stock valued at $25,000, filed with 
the California Department of Corporations on September 25, 1998. 
A copy of the petitioner's 2004 IRS Form 1120, U.S. Corporation Income Tax Return, 
which indicates at Schedule K that the foreign entity is the petitioner's sole shareholder. 
The petitioner indicated at Schedule L that the company's issued common stock is 
valued at $450,000. The petitioner filed Form 5472, Information Return of a 25% 
Foreign-Owned U.S. Corporation along with its Form 1120. 
A copy of the petitioner's 2003 IRS Form 1120 and Form 5472, also identifying the 
foreign entity as the sole shareholder. Schedule L indicates that there was an increase in 
the value of the capital stock from $120,000 to $450,000 during the fiscal year. 
A copy of the foreign entity's 2004-2005, 2003-2004 and 2002-2003 Annual Reports, 
which discuss the petitioner's financial results and identify the U.S. company as its 
wholly-owned subsidiary. The annual report also includes the petitioner's year-end 
balance sheet and shows the value of the company's common stock as $120,000 in 2003 
WAC 07 225 52532 
Page 5 
and as $450,000 in 2004 and 2005. 
A statement from UTI Bank Ltd. detailing the dates, amounts and purposes of equity 
transferred to the U.S. company by eInfochips Ltd. between 1998 and 2003. The sum of 
all of the transactions was $450,000. 
Evidence of the foreign entity's name change from Solution Machines Private Limited to 
eInfochips Ltd. on March 13,2000. 
The director issued a request for additional evidence on May 29, 2008, in which he stated: 
USCIS notes that the petitioner's name was changed from Digital Yantra, Inc. to E-Infochips, 
Inc. when [a] Certificate of Amendment of Articles of [In]corporation was filed with the 
Secretary of State of California on June 3, 1999. It is noted that the total number of 
outstanding shares of the corporation is 400,000. However the record contains copies of stock 
certificates numbered 1 through 5 showing that the total number of shares is 2,400,000. 
Provide evidence that the corporation is authorized to issue more than 400,000 shares. 
The director also requested evidence to establish the ownership of the foreign entity, including its annual 
report and a list of owners. 
In response to the RFE, the petitioner submitted a detailed letter dated January 24, 2008, which was prepared 
by the petitioner's corporate counsel, in relation to a petition for a different beneficiary. The letter was 
accompanied by 21 exhibits. As the response is part of the record, it will not be discussed in detail here. The 
evidence included authorizing board actions and evidence of payment for shares for stock issuance, and the 
petitioner's Amended & Restated Articles of Incorporation filed with the California Secretary of State on 
November 27, 2007, which increased the number of authorized shares to 20,000,000. The petitioner also 
submitted a "verified and updated" share ledger as of December 6,2007 and a Notice of Transaction Pursuant 
to Corporations Code Section 21052(f) filed December 3, 2007, which indicates that stock valued at $425,000 
has been issued since May 15, 2003. Petitioner's counsel attributed any discrepancies in the record at the time 
of filing to "errors and oversights in corporate governance procedures," and emphasized that the record as a 
whole demonstrates that the foreign entity is the sole owner of the U.S. company. 
The director denied the petition on August 20, 2008, concluding that the petitioner did not establish that the 
petitioner and foreign entity have a qualifying relationship. In denying the petition, the director acknowledged 
the petitioner's response to the request for evidence but found that it "has not established that the petitioner 
has been authorized to issue 2,000,000 common shares." The director therefore found the evidence 
insufficient to establish the foreign entity's claimed ownership interest in the U.S. entity. 
On appeal, counsel for the petitioner emphasizes that the standard of proof in nonimmigrant cases is the 
preponderance of the evidence and asserts that the director applied a much higher standard in adjudicating the 
instant petition. Counsel asserts that the petitioner has provided ample evidence to establish that the petitioner 
is a wholly-owned subsidiary of eInfochips Ltd., as all stocks have been issued to the foreign entity. 
Counsel notes that the petitioner has provided a multitude of documentation and lengthy explanations from 
outside corporate counsel regarding any discrepancies or inconsistencies. Counsel asserts that the director 
WAC 07 225 52532 
Page 6 
focused on "insignificant details in the mounds of evidence provided." 
Upon review, counsel's assertions are persuasive. The AAO finds the totality of the evidence in the record 
sufficient to establish the claimed parent-subsidiary relationship between eInfochips Ltd. and the petitioner. 
The "preponderance of the evidence" standard requires that the evidence demonstrate that the applicant's 
claim is "probably true," where the determination of "truth" is made based on the factual circumstances of 
each individual case. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989). In evaluating the evidence, 
Matter of E-M- also stated that "[tlruth is to be determined not by the quantity of evidence alone but by its 
quality." Id. Thus, in adjudicating the application pursuant to the preponderance of the evidence standard, the 
director must examine each piece of evidence for relevance, probative value, and credibility, both individually 
and within the context of the totality of the evidence, to determine whether the fact to be proven is probably 
true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible 
evidence that leads the director to believe that the claim is "probably true" or "more likely than not," the 
applicant or petitioner has satisfied the standard of proof. See US. v. Cardozo-Fonseca, 480 U.S. 421 (1987) 
(defining "more likely than not" as a greater than 50 percent probability of something occurring). If the 
director can articulate a material doubt, it is appropriate for the director to either request additional evidence 
or, if that doubt leads the director to believe that the claim is probably not true, deny the application or 
petition. 
Here, the submitted evidence is relevant, probative, and credible. The inconsistencies and errors in the record, 
which mostly relate to the number of shares the petitioner is authorized to issue, appear to be more a function 
of careless corporate recordkeeping than any attempt to obscure critical information from USCIS regarding 
the ownership of the petitioning company. A few errors or minor discrepancies are not reason to question the 
credibility of an alien or an employer seeking immigration benefits. See, e.g., Spencer Enterprises Inc. v. US., 
345 F.3d 683,694 (9th Cir., 2003). 
While the petitioner's corporate record keeping practices may be imperfect, there are no inconsistencies in the 
record with respect to the actual ownership of the company. The foreign entity publishes an independently 
audited annual report in which it has consistently identified the U.S. entity as its wholly-owned subsidiary and 
included the petitioner's balance sheet and financial results. The petitioner has consistently identified the 
foreign entity as its sole shareholder on all tax filings, and there is no evidence in the record that any shares of 
the company have been issued to any other shareholder. Therefore, even if the 2,000,000 shares issued in 
2000 and the 6,600,000 shares issued in 2003 could be deemed invalid due to the petitioner's failure to amend 
its articles of incorporation to authorize the issuance of additional shares, the record shows that the petitioner 
issued 400,000 authorized shares to the foreign entity in 1998. The director did not articulate any reason to 
doubt that the foreign entity remains the owner of those authorized shares. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical'Systerns, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
WAC 07 225 52532 
Page 7 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
In light of the totality of the evidence in the record, the petitioner has established by a preponderance of the 
evidence that the foreign entity wholly owns the U.S. company. Accordingly, the claimed parent-subsidiary 
relationship has been demonstrated and the director's decision dated August 20,2008 will be withdrawn. 
Although the director's decision will be withdrawn, the AAO finds that the record as presently constituted 
does not establish that the beneficiary possesses specialized knowledge, or that he has been and will be 
employed in a position requiring specialized knowledge, as required by 8 C.F.R. $ 214.2(1)(3)(ii) and (iv). 
The current record also does not establish whether the beneficiary will be primarily employed at the worksite 
of an unaffiliated employer, and therefore it is not clear whether the provisions of section 214(c)(2)(F) of the 
Act, 8 U.S.C. 5 1184(c)(2)(F), are applicable to this petition. Accordingly, the petition will be remanded to the 
director for further consideration of these issues and entry of a new decision. 
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 1 184(c)(2)(B), 
provides the statutory definition of specialized knowledge: 
For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity 
involving specialized knowledge with respect to a company if the alien has a special knowledge 
of the company product and its application in international markets or has an advanced level of 
knowledge of processes and procedures of the company. 
Furthermore, the regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(D) defines specialized knowledge as: 
[Slpecial knowledge possessed by an individual of the petitioning organization's product, 
service, research, equipment, techniques, management or other interests and its application in 
international markets, or an advanced level of knowledge or expertise in the organization's 
processes and procedures. 
Section 214(c)(2)(F) of the Act, 8 U.S.C. $ 1 184(c)(2)(F) (the "L-1 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 101 (a)(15)(L) if - 
(i) 
 the alien will be controlled and supervised principally by such unaffiliated 
employer; or 
WAC 07 225 52532 
Page 8 
(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, fj 412,118 Stat. 2809,3352 (Dec. 8,2004). 
The petitioner, a provider of ASIC and embedded software solutions and services for technology companies, 
stated on Form 1-129 that the beneficiary will be employed as an ASIC Engineer and will work at the company's 
Sunnyvale, California office. In a letter dated July 16, 2007, the petitioner stated that "the transferee will 
undertake temporary assignments from our US offices currently located in Millbury, MA, Austin, TX, 
Schaumburg, IL and Sunnyvale, California." The petitioner indicated on Form 1-129 that the beneficiary will not 
be stationed primarily offsite at the worksite of an unaffiliated employer. 
The petitioner described the beneficiary's current and ongoing duties as follows: 
[The beneficiary] has been responsible for and will be involved on PC1 Express eVC (e- 
Language Verification Component) project, mainly used in verification of PC1 Express 
technology applications. It executes on Specman Elite tool and on UNIX (Solaris) and Linux 
platforms. He will be involved in all phases of PC1 Express eVC development like preparing 
design and function specification, implementation and integrated verification. 
[The beneficiary] has gained knowledge of employer's internally developed proprietary product 
software and processes only through prior experience and this knowledge cannot be easily 
transferred or taught to another individual. [The petitioner] would experience a significant 
interruption of business in order to train a new employee to assume the above duties. He is also 
very well versed in implementing these processes in customer projects to improve the efficiency 
and quality of deliverables. The combination of the procedures which [the beneficiary] has 
knowledge of render him essential to the client in US and the development team in India. [The 
beneficiary's] special or advanced duties are so intricate that they can only be implemented 
efficiently by him. 
[The beneficiary] possesses knowledge, which has only been gained through extensive prior 
experience with the client. The knowledge that he possesses is extremely valuable to our 
competitiveness in the US marketplace. He is not only skilled in the requisite areas, but has 
previously worked on the client project in India, or is intimately familiar with the technical 
requirements for the client in the USA. It is this familiarity with on-going projects, and business 
and technical requirements of our clients that make his knowledge so specialized that he 
qualifies for this L- 1 B visa extension. 
' WAC 07 225 52532 
Page 9 
The petitioner indicated that the beneficiary's training is "exclusive and significantly unique" compared to 
others employed in his field. The petitioner indicated that his "in-house" training includes: "e" language using 
Specman Elite, eRM (e Reusable Methodology) and CDV (Coverage Driven Verification); Programming 
Languages such as Verilog, C, C++, "e" from Verisity; EDA Tools such as Specman Elite, Modelsim, NC- 
Verilog, and Operating Systems such as Windows 9x, Windows NT, Unix (Solaris) and Linux. 
The petitioner noted that its parent company has developed "several products" which are "significantly 
different from other products in the industry," but did not further elaborate as to what the products are or how 
they differ from those developed by similar companies. 
The petitioner further described the beneficiary's duties and claimed specialized knowledge in a letter dated 
July 2,2007, in which it stated that the beneficiary "will be responsible to execute project from client location 
and co-ordinate with staff in India for offshore projects," and will "be responsible for the development of 
verification environments as per client's requirements." 
The petitioner submitted a copy of the beneficiary's resume which describes the projects on which he has 
worked since joining the foreign entity in 2002. The three most recent projects are described as "on-site 
projects" for clients. 
The director issued a request for evidence on May 29,2008, in which the director advised the petitioner that it 
provided insufficient evidence concerning the location where the beneficiary will work, the product or service 
to which the beneficiary will be providing specialized knowledge, and/or the conditions of employment. The 
director requested: "evidence that establishes the beneficiary has the required specialized knowledge; that he 
will be controlled and supervised principally by the petitioner; the location where the beneficiary will work; 
and that the placement at a client's worksite is not merely to provide labor for hire. 
The director requested, among other evidence, a description in layman's terms of the reason the beneficiary's 
specialized knowledge is required and evidence that the beneficiary's knowledge is uncommon, noteworthy, 
or distinguished by some unusual quality and not generally known by practitioners in his field of endeavor. 
The director stated that "a petitioner's assertion that the alien possesses an advanced level of knowledge of the 
processes and procedures of the company must be supported by evidence describing and setting apart that 
knowledge from the elementary or basic knowledge possessed by others." The director advised that it is the 
"weight and type of evidence that establishes whether or not the beneficiary possesses specialized knowledge. 
The director also requested copies of the petitioner's human resources records that provide the beneficiary's 
job description and worksite location, and evidence related to the beneficiary's provision of services for an 
unaffiliated employer, if applicable. 
The petitioner's response to the director's detailed request consisted of the following statement: 
[The petitioner] develops Verification IP (VIP - Verification Intellectual Property) which is 
software which is sometimes used by semiconductor companies to often test their 
semiconductor design in a simulated environment before the semiconductor is actually 
fabricated . . . . [The beneficiary] has extensive knowledge on interfaces and bus protocols 
WAC 07 225 52532 
Page 10 
which are used to develop the VIP. In addition [the beneficiary] has demonstrated expertise 
on Specman simulation environment under which the VIP is used for testing purposes. 
To customize or support the VIP developed by [the petitioner] one needs to be very familiar 
with the architecture and design which are proprietary in nature and are the Intellectual 
Property of [the petitioner] It is extremely time consuming and difficult for someone with no 
knowledge of [the petitioner's] architecture and design of the VIP to be able to perform 
demonstration, customization or support [activities] with a degree of effectiveness which 
meets the acceptable industry requirements. As [the beneficiary] was involved in developing 
VIP he has extensive knowledge on how the VIP works and how best it can be customized 
with minimum effort and time so as to remain competitive in the business. 
The petitioner did not clarify the beneficiary's worksite location or further address the director's requests 
regarding the claimed specialized knowledge. 
Looking to the language of the statutory definition of specialized knowledge at section 214(c)(2)(B) of the Act, 
Congress has provided USCIS with an ambiguous definition. 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. C' 
Westen, The Empty Idea ofEquality, 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-IB specialized 
knowledge category. NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 123 (1987) 
(citing INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207,94 L.Ed.2d 434 (1987)). 
First, the AAO must look to the language of section 214(c)(2)(B) itself, that is, the terms "special" and 
"advanced." Like the courts, the AAO customarily turns to dictionaries for help in determining whether a word in 
a statute has a plain or common meaning. See, e.g., In re A.H. Robins Co., 109 F.3d 965, 967-68 (4th Cir. 1997) 
(using Webster's Dictionary for "therefore"). According to Webster's New College Dictionary, the word "special" 
is commonly found to mean "surpassing the usual" or "exceptional." Webster's New College Dictionary, 1084 
' 
 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 07 225 52532 
Page 11 
(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 
1756, Inc. v. Attorney General, 745 F.Supp. at 14. 
Third, a review of the legislative history for both the original 1970 statute and the subsequent 1990 statute 
indicates that Congress intended for USCIS to closely administer the L-1B category. Specifically, the original 
drafters of section 101(a)(15)(L) of the Act intended that the class of persons eligible for the L-1 classification 
would be "narrowly drawn" and "carefully regulated and monitored" by USCIS. See generally H.R. Rep. No. 9 1 - 
851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750, 2754, 1970 WL 5815. The legislative history of the 1970 Act 
plainly states that "the number of temporary admissions under the proposed 'L' category will not be large." Id. In 
addition, the Congressional record specifically states that the L-1 category was intended for "key personnel." 
See generally, id. The term "key personnel" denotes a position within the petitioning company that is "[olf 
crucial importance." Webster's New College Dictionav 620 (3rd 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. 445,91a Cong. 210,218,223,240,248 (Nov. 12, 1969). 
Neither in 1970 nor in 1990 did Congress provide a controlling, unambiguous definition of "specialized 
knowledge," and a narrow interpretation is consistent with so much of the legislative intent as it is possible to 
determine. H. Rep. No. 91-851 at 6, 1970 U.S.C.C.A.N. at 2754. This interpretation is consistent with legislative 
history, which has been largely supportive of a narrow reading of the definition of specialized knowledge and the 
L-1 visa classification in general. See 1756, Inc. v. Attorney General, 745 F.Supp. at 15-1 6; Boi Nu 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. INS., 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 clarifLing a previously undefined term from the Immigration Act of 1970. H.R. Rep. 101- 
723(I) (1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6749, 1990 WL 200418 ("One area within the L visa that 
requires more specificity relates to the term 'specialized knowledge.' Varying interpretations by INS have 
exacerbated the problem."). While the 1990 Act declined to codify the "proprietary knowledge" and "United 
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States labor market" references that had existed in the previous agency definition found at 8 C.F.R. 
tj 214.2(1)(l)(ii)(D) (1988), there is no indication that Congress intended to liberalize its own 1970 definition of 
the L- 1 visa classification. 
If any conclusion can be drawn 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 hrther 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. Cf: 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)). 
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 establish by a preponderance of the evidence that the beneficiary possesses "special" or "advanced" 
knowledge. Section 214(c)(2)(B) of the Act, 8 U.S.C. tj 1184(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. 
In this matter, the petitioner has not adequately described or documented the beneficiary's claimed specialized 
knowledge. The petition will be remanded and the director instructed to request a comprehensive description 
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Page 13 
of all positions held by the beneficiary, which describes the projects to which he has been assigned, and 
explains any special or advanced assignments that would help to compare the beneficiary's knowledge and 
experience to that of other similarly employed workers within the petitioner's workforce and the industry at 
large. 
If the beneficiary has undertaken specialized training with the foreign entity, the petitioner should identify the 
type and length of training, the purpose of such training, and evidence, such as course completion certificates 
or other records, to establish that the beneficiary actually completed the training. The petitioner should also 
describe the training program typically completed by similarly employed workers in the foreign organization. 
If all employees receive exactly the same training, mere completion of the training program is insufficient to 
establish that the beneficiary's knowledge is advanced. 
The record contains no information regarding other similarly employed workers employed by the foreign and 
U.S. entities which would allow USCIS to make comparisons between the beneficiary and the remainder of 
the foreign entity's workforce. The petitioner has stated that the beneficiary is the only employee capable of 
performing the duties of the position offered in the United States, but did not provide documentary evidence 
or sufficient explanation to support this statement, or any other information that would distinguish the 
beneficiary's knowledge from that held by other engineers within the U.S. and foreign entities. 
Finally, the petitioner has not provided sufficient information or documentation regarding the petitioner's 
products and services that would distinguish it from other companies providing similar hardware verification 
and testing services to technology companies. The beneficiary's technical skills appear to include tools, 
software, programming languages and testing environments that are common in the industry. The petitioner 
should submit a detailed description of any company-specific knowledge possessed by the beneficiary and 
indicate how he utilizes this knowledge in performing his duties. If the beneficiary contributed to the 
development of any proprietary software or related technologies, the petitioner should explain the extent of 
his contribution, identify the technical environment in which it was developed, and explain how the 
petitioner's products differ from what is available in the industry from other verification service providers. 
The lack of evidence in the record as presently constituted makes it impossible to classify the beneficiary's 
knowledge of the petitioner's products, services and processes as advanced. Furthermore, the record as 
presently constituted does not establish that knowledge of the petitioner's products, services and processes 
alone constitutes specialized knowledge. Although the knowledge need not be narrowly held within an 
organization in order to be specialized knowledge, the L-1B visa category was not created in order to allow 
the transfer of employees with any degree of knowledge of a company's products or services. As the petition 
will be remanded, the petitioner shall be given the opportunity to submit additional evidence in order to 
establish the beneficiary's specialized knowledge qualifications. 
The final issue to be address is whether the beneficiary would be placed at the worksite of an unaffiliated 
employer during his U.S. assignment. Notwithstanding the petitioner's statement on Form 1-129 that the 
beneficiary will not be assigned to offsite employment, the record as presently constituted contains conflicting 
information as to whether the beneficiary will work principally at the petitioner's offices. Specifically, the 
petitioner indicated in its letter dated July 2, 2007 that the beneficiary will execute projects from client 
locations, and the beneficiary indicates on his resume that he participates in on-site project-related activities 
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Page 14 
for clients. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 
582,591-92 (BIA 1988). 
Accordingly, the director's request for additional evidence in this regard was justified and the petition could 
have been denied solely on the basis of the petitioner's failure to submit such evidence. See 8 C.F.R. 5 
103.2(b)(14). 
As these issues were not raised in the denial letter, the petition will be remanded to the director, and the 
petitioner shall be given another opportunity to submit the evidence requested in the RFE dated May 29, 
2008, and any other evidence the director deems necessary in order to establish the beneficiary's specialized 
knowledge and the petitioner's compliance with section 214(c)(2)(F) of the Act. 
Although the petitioner has overcome the director's sole ground for denial of the petition, the evidence of 
record raises underlying questions regarding eligibility. Further evidence is required in order to establish that 
the petitioner and beneficiary meet the requirements for L-1B classification. Accordingly, the matter is 
remanded to the director, who is instructed to issue a request for evidence addressing the issues discussed above, 
and any other evidence he deems necessary. 
ORDER: 
 The decision of the director dated August 20, 2008 is withdrawn. The matter is remanded for 
further action and consideration consistent with the above discussion and entry of a new decision.