sustained EB-2 Case: Software Engineering

U.S. Department of Homeland Security 
- 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
identi&ing data deleted to 
prevent clearly miwarranted 
iovmim of -1 privacy 
PUBLIC Copy 
U. S. Citizenship 
and Immigration 
Services 
Q> 
Office: CALIFORNIA SERVICE CENTER 
 Date: OCT 1 7 2006 
WAC 05 092 50186 
PETITION: 
 Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 
 1153(b)(2) 
ON BEHALF OF PETITIONER: 
MSTRUCTIONS: 
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. 
%obert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, California Service Center, denied the employment-based immigrant 
visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The 
decision of the director will be withdrawn, the appeal will be sustained, and the petition will be 
approved. 
The petitioner provides software development and consulting services. 
 It seeks to employ the 
beneficiary permanently in the United States as a software engineer pursuant to section 203(b)(2) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 11 53(b)(2). As required by statute, the petition 
was accompanied by certification fiom the Department of Labor. The director determined that the 
petitioner had not offered the beneficiary a permanent job. 
On appeal, counsel submits a brief and additional evidence. 
As quoted by the director, the regulation at 20 C.F.R. 5 656.3 defines "employment" as it relates to the 
labor certification process for the permanent employment of aliens as follows: 
"Employment" means permanent fill-time work by an employee for an employer other 
than oneself. For purposes of this definition an investor is not an employee. 
On the Form 1-40 petition, the petitioner indicated that the proffered position was permanent. On 
February 16, 2006, the director requested information regarding whether the beneficiary would be 
outsourced and requested the petitioner's quarterly wage and withholding reports. In response, the 
petitioner indicated that the beneficiary was working on a project with NetApp. The petitioner 
continued: 
Generally, the initial contracts are for a specified number of unnamed engineers. 
Engineers are assigned to a contract when the start date is imminent. As the contracts 
are extended, the engineers working on these projects usually stay with the project, and 
are often named in the contract extension. Most of [the petitioner's] accounts are 
extended for lengthy periods of time. The contract renewal with NetApp is in progress 
and we anticipate that the contract will be extended for at least another year. [The 
beneficiary] will continue working on the project at NetApp. 
The petitioner then submitted its contract with NetApp listing the beneficiary. 
 The most recent 
extension was through April 30,2007. 
The director concluded that the beneficiary was only employed on a temporary basis. On appeal, the 
petitioner asserts that the beneficiary has been working for the petitioner since November 2000 and has 
been working on the NetApp project since December 2004. The petitioner asserts that if the contract 
with NetApp ends, the petitioner will assign the beneficiary "to work either on one of its other 
numerous contracts or on further developing its products." The petitioner submits its brochures and 
several client contracts. The petitioner also submitted evidence of the beneficiary's prior work for 
different clients. 
The letter from the petitioner submitted in response to the director's request for additional evidence was 
drafted in response to that request, which inquired as to whether the petitioner outsources the 
beneficiary's services. In that context, the letter in no way implies that the beneficiary's contract with 
the petitioner is contingent on the petitioner's contract with NetApp. The listing of the beneficiary on 
the contract between the petitioner and NetApp does not suggest that the beneficiary's contract with the 
petitioner is similarly a term contract. We are satisfied that the record, including the evidence submitted 
on appeal, does not suggest that the beneficiary has a term appointment with the petitioner. Nothing in 
the record contradicts the petitioner's assertion that, should the contract with NetApp end, the 
beneficiary will be reassigned to another client as he was in December 2004. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 8 136 1. Here, the petitioner has met that burden. 
ORDER: 
 The decision of the director dated May 25,2006, is withdrawn. The appeal is sustained 
and the petition is approved.