dismissed EB-3 Case: Software Engineering

PUBLIC COPY 
identifying data dekted to 
prevent deariy unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
WAC 05 050 50335 
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. $ 1 153(b)(3) 
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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Service Center, and is now before 
the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a software consulting company. It seeks to employ the beneficiary permanently in the United 
States as a software engineer. As required by statute, the petition is accompanied by a Form ETA 750, 
Application for Alien Employment Certification, approved by the Department of Labor. The director 
determined that the petitioner had not established that it was offering full time permanent employment to the 
beneficiary and that the petitioner would employ the beneficiary after January 1997.12 The director denied the 
petition accordingly. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or 
fact. The procedural history in this case is documented by the record and incorporated into the decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's August 29, 2005 denial, the single issue in this case is whether or not the 
petitioner is offering the beneficiary fulltime permanent employment. 
Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(3)(A)(ii), 
provides for the granting of preference classification to qualified immigrants who hold baccalaureate degrees 
and are members of the professions. 
In addition, 8 C.F.R. §204.5(1)(3)(ii)(C) states: 
If the petition is for a professional, the petition must be accompanied by evidence that the alien holds 
a United States baccalaureate degree or a foreign equivalent degree and by evidence that the alien is a 
member of the professions. Evident of a baccalaureate degree shall be in the form of an official 
college or university record showing the date the baccalaureate degree was awarded and the area of 
concentration of study. To show that the alien is a member of the professions, the petitioner must 
submit evidence showing that the minimum of a baccalaureate degree is required for entry into the 
occupation 
The petitioner must demonstrate that, on the priority date, the beneficiary had the qualifications stated on its Form 
ETA 750 Application for Alien Employment Certification as certified by the U.S. Department of Labor and 
submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Cornrn. 1977). 
Here, the Form ETA 750 was accepted on November 30,200 1. 
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The AAO considers all 
1 
This date is wrong. January 2007 is the end date noted on a document submitted to the record describin 
in-house project to be worked on by the beneficiary at the petitioner's office in Fremont, California. 
Human Resources Manager, who signed the project description, is located in Princeton 
Junction, New Jersey. 
2 The record reflects that the instant beneficiary is a substituted beneficiary for~he record 
also reflects that a subsequent 1-140 petition was filed by the petitioner for the instant beneficiary under the 
visa petition classification of member of the professions holding an advanced degree or an alien of 
exceptional ability. This 1-140 petition was approved by the Texas Service Center on June 16,2006. 
pertinent evidence in the record, including new evidence 
 roperly submitted upon appealJ. 
 On appeal, 
ed September 9, 2005, fi-om 
 the petitioner's vice president- 
P 
states that the beneficiary was emp ye wi e petitioner from 2001 to the 
present, and that he is offered a full time permanent position as a software engineer and a salary of $42.99 an 
hour. 
Counsel resubmits an employment o 
 the petitioner and the beneficiary dated November 
23, 2004. This document is signed by 
 , Human Resources Administrator. The letter states 
that the petitioner offers the beneficiary a permanent fulltime position with petitioner as a software engineer, 
with an hourly salary, and participation in the petitioner's benefit plan. The letter describes the beneficiary's 
employment as "at-will" employment. Counsel also submits a copy of the instant 1-140 petition and notes 
that the petition indicates the beneficiary's position was a full time, permanent position. The petition also 
identifies the petitioner as being established in 1999, to have a gross annual income of $1 5.3 million dollars, 
and to currently have 225 employees. The record also contains numerous copies of contracts between the 
petitioner and other businesses that identify the petitioner's consultants who will work on the respective 
contracts. With regard to the beneficiary's proposed employment, the petitioner submitted a document 
prepared by a Human Resources Manager in Princeton Junction, New Jersey, that states the beneficiary would 
work on an in-house project at the petitioner's office at Fremont, California. The letter states "# of resources" 
is "six", and identifies the starting and ending date of the employment. Counsel in response to the director's 
request for further evidence, submitted numerous samples of contracts, or work orders, that identified the 
petitioner's consultants or employees that would work on the respective projects. Counsel also submitted a list 
of beneficiaries for three pending 1-140 petitions, as well as two other beneficiaries, whose 1-140 petitions had 
been approved. This list is dated August 5,2005. 
On appeal, counsel states that the petitioner already submitted a letter of employment with the petition that 
offered the beneficiary a permanent full-time position as a software engineer, and a document that detailed the 
project on which the beneficiary is working on with an expected date of completion of January 2007. Counsel 
states that this document also clearly states that six resources would be used, and explained that this meant six 
consultants were needed to work on the project. Counsel also notes that the sample contracts submitted in 
response to the director's request for further evidence show that the petitioner had different contracts and 
were not submitted to suggest that the beneficiary was working on these projects. 
Based on the evidence in the record, the petitioner appears to be a consulting firm with numerous consultants 
that it hires out to various companies for specific projects.4 For ascertaining whether or not the petitioner is 
the beneficiary's "actual employer," the regulations provide guidance at 20 C.F.R. 5 656.3 as follows: 
Employer means a person, association, firm, or a corporation which currently has a 
location within the United States to which U.S. workers may be referred for employment, 
3 
 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. 
 103.2(a)(l). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
4 
 The documents submitted to the record indicate that short-term contracts can be for a few months, while 
companies have contracted the petitioner for one-year contracts, with at least one contract length noted as 
"open." 
and which proposes to employ a full-time worker at a place within the United States or the 
authorized representative of such a person, association, firm, or corporation. 
Additionally, 8 C.F.R. 9 204.5(c) states the following: "Filing petition. Any United States employer desiring 
and intending to employ an alien may file a petition for classification of the alien under section 203(b)(l)(B), 
203(b)(l)(C), 203(b)(2), or 203(b)(3) of the Act." 
In Matter of Smith, 12 I&N Dec. 772 (Dist. Dir. 1968), a secretarial shortage resulted in the petitioner 
providing a continuous supply of temporary secretaries to third-party clients. The petitioner in Smith 
guaranteed a British secretary permanent, full-time employment with its firm for 52 weeks a year with "fringe 
benefits." The district director determined that since the petitioner was providing benefits; directly paying the 
beneficiary's salary; making contributions to the employee's social security, workmen's compensation, and 
unemployment insurance programs; withholding federal and state income taxes; and providing paid vacation 
and group insurance, it was the actual employer of the beneficiary. Id. at 773. Additionally, the petitioner in 
Smith guaranteed the beneficiary a minimum 35-hour work week, even if the secretary was not assigned to a 
third-party client's worksite, and an officer of the petitioning company provided sworn testimony that the 
general secretarial shortage in the United States resulted in the fact that the petitioner never failed to provide 
full-time employment over the past three years. Id. 
Two cases falling under the temporary nonimmigrant H-1B and H-2B visa programs also provide guidance 
concerning the temporary or permanent nature of employment offers. In Matter of Ord, 18 I&N Dec. 285 
(Reg. Comm. 1992), a firm sought to utilize the H-1B nonimmigrant visa program and temporarily outsource 
its aeronautical engineers on a continuing basis with one-year contracts. The regional commissioner 
determined that permanent employment is established when a constant pool of employees are available for 
temporary assignments. Id. at 287. Additionally, Ord held that the petitioning firm was the beneficiary's 
actual employer because it was not an employment agency merely acting as a broker in arranging 
employment between an employer and job seeker, but retained its employees for multiple outsourcing 
projects. Id. at 286. Likewise, Matter of Artee, 18 I&N Dec. 366 (Comm. 1982), also addresses the issue of 
an employment offer's temporary or permanent nature. The commissioner held that the nature of the 
petitioner's need for duties to be performed must be assessed in order to ascertain the temporary or permanent 
aspect of an employment offer. In Artee, the petitioner was seeking to utilize the H-2B program to employ 
machinists temporarily to be outsourced to third party clients. The commissioner referenced the occupational 
shortage of machinists in the U.S. economy to determine that the nature of the employment offered was 
permanent and not temporary. Id. at 366. The commissioner stated the following: 
The business of a temporary help service is to meet the temporary needs of its clients. To do 
this they must have a permanent cadre of employees available to refer to their customers for 
the jobs for which there is frequently or generally a demand. By the very nature of this 
arrangement, it is obvious that a temporary help service will maintain on its payroll, more or 
less continuously, the types of skilled employee most in demand. This does not mean that a 
temporary help service can never offer employment of a temporary nature. If there is no 
demand for a particular type of skill, the temporary help service does not have a continuing 
and permanent need. Thus a temporary help service may be able to demonstrate that in 
addition to its regularly employed workers and permanent staff needs it also hired workers 
for temporary positions. For a temporary help service company, temporary positions would 
include positions requiring skill for which the company has a non-recurring demand or 
infrequent demand. Id. at 367-368. 
The petitioner has been unclear about the placement of the beneficiary. While the petitioner submitted its 
employment offer to the beneficiary providing at-will employment in a permanent fulltime position, the only 
specific document in the record as to the beneficiary's employment is the document written by the petitioner's 
East Coast office, located in Princeton Junction, New Jersey. The petitioner provides no explanation for why 
such an employment project would not be generated by the petitioner's office located in Fremont, California, 
or the relationship between the Princeton Junction office and the petitioner.5 The record is also confused as to 
when the beneficiary began his employment with the petitioner after the 2001 priority date and the nature of 
that employment. The petitioner's vice president in his letter stated that the beneficiary began work with the 
petitioner in 2001, while the beneficiary stated on the Form ETA 750, Part B, that he began his employment 
with the petitioner in August 2003.~ Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988) states: "It is 
incumbent on the petitioner to resolve any inconsistencies in the record by independent objective evidence, 
and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to 
where the truth, in fact, lies, will not suffice." 
The petitioner makes no distinction between the beneficiary's previous employment and whether the 
petitioner did provide the beneficiary with sufficient consulting jobs that amounted to fulltime permanent 
employment. The letter detailing a specific in-house project for the beneficiary for the period of January 2005 
to January 2007 simply establishes that the petitioner would employ the beneficiary in a two-year project. 
Thus, the letter detailing a specific in-house project for the beneficiary for limited duration is given limited 
weight in the petitioner's attempt to establish it is providing fulltime permanent employment to the 
beneficiary. Nevertheless, as counsel points out on appeal, the petitioner did submit an employment letter 
with its initial petition that indicated the petitioner would pay the beneficiary, and that the beneficiary was 
eligible for the petitioner's benefit plan, that includes medical insurance, short terrnllong term disability 
insurance, life insurance and a 401K plan. The petitioner will also pay the beneficiary for ten days of paid 
vacation on completion of one year of service. It is noted that in the majority of the various contracts and 
work orders submitted to the record, the petitioner in Fremont or the company in Princeton, New Jersey are 
clearly identified as providing the services of its employees/consultants. Thus, the petitioner does appear to be 
the actual employer of the beneficiary. What is less clear, based on the evidence in the record, is whether the 
petitioner as of the 2001 priority date of the Form ETA 750 could offer the beneficiary sufficient consulting 
positions to be considered full time permanent employment. In visa petition proceedings, the burden is on the 
petitioner to establish eligibility for the benefit sought. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 
1966). The petitioner must prove by a preponderance of evidence that the beneficiary is fully qualified for the 
benefit sought. Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997). Without further clarification, the 
director's decision shall stand. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
8 1361. The petitioner has not met that burden. 
5 
 The employment offer letter from 
 dated July 2005,and submitted on appeal is written on 
the Princeton Junction letterhead, 
 the petitioner's vice president is on the Freemont 
office letterhead. The service contracts submitted to the recordcome from both the Fremont and the Princeton 
offices, in those documents where the party providing consulting services is identified. 
The petitioner submitted W-2 Forms for the beneficiary from the Fremont office that suggests with wages 
of $19,7 17, the beneficiary began working for the petitioner in late 2003. The beneficiary's W-2 forrn for tax 
year 2004 indicates the petitioner paid the beneficiary $13 8,50 1. 
ORDER: The appeal is dismissed.