dismissed H-1B Case: Computer Consulting

identifying data &let& U, 
prevent clearly unwarranted 
invasion of per$onsl priw 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 168 53658 Office: CALIFORNIA SERVICE CENTER Date: JUN 2 3 2006 
IN RE: 
PETITION: 
 Petition for a Nonirnmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 lOl(a)(lS)(H)(i)(b) 
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 
WAC 04 168 53658 
Page 2 
DISCUSSION: The director of the California Service Center denied the nonimmigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The 
petition will be denied. 
The petitioner is a computer consulting firm, was established in 1997, has annual gross income of $1.2 million, 
and 5 employees. It provides software development and consulting. It seeks to employ the beneficiary as a 
full-time programmer analyst pursuant to section 10 1 (a)(l S)(H)(i)(b) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. tj 1 lOl(a)(lS)(H)(i)(b). The director denied the petition based on his determination that the 
petitioner had not established that it would employ the beneficiary in a specialty occupation. The director 
found that the petitioner had not established that it would be the beneficiary's employer. The director found 
that the petitioner had not employed the beneficiaries for whom previous petitions were approved and 
concluded that the petitioner would not employ the beneficiary in a specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence (WE); (3) the petitioner's response to the director's WE, dated October 13, 
2004; (3) the director's denial letter; and (4) Form I-290B, with the petitioner's appeal statement, and new and 
previously submitted evidence. 
The first issue before the AAO is whether the proffered position qualifies as a specialty occupation. To meet 
its burden of proof in this regard, a petitioner must establish that the job it is offering to the beneficiary meets 
the following statutory and regulatory requirements. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1184(i)(l) defines the term 
"specialty occupation" as one that requires: 
(A) 
 theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) 
 attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The term "specialty occupation" is further defined at 8 C.F.R. 5 214.2(h)(4)(ii) as: 
An occupation which requires theoretical and practical application of a body of highly 
specialized knowledge in fields of human endeavor including, but not limited to, 
architecture, engineering, mathematics, physical sciences, social sciences, medicine and 
health, education, business specialties, accounting, law, theology, and the arts, and which 
requires the attainment of a bachelor's degree or higher in a specific specialty, or its 
equivalent, as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(I) 
 A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
WAC 04 168 53658 
Page 3 
(2) 
 The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) 
 The employer normally requires a degree or its equivalent for the position; or 
(4) 
 The nature of the specific duties is so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the above criteria to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position. 
In order to determine whether a position is a specialty occupation, CIS must examine the ultimate employment 
of the alien. To determine whether a particular job qualifies as a specialty occupation, CIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of the 
petitioning entity's business operations, are factors to be considered. CIS must examine the ultimate 
employment of the alien, and determine whether the position qualifies as a specialty occupation. Cf: Defensor 
v. Meissner, 201 F.3d 384 (5" Cir. 2000). The critical element is not the title of the position nor an employer's 
self-imposed standards, but whether the position actually requires the theoretical and practical application of a 
body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific 
specialty as the minimum for entry into the occupation, as required by the Act. 
The petitioner states that it is seeking the beneficiary's services as a Programmer Analyst. Evidence of the 
beneficiary's duties includes: the Form 1-129, and the petitioner's support letter. The petitioner indicated the 
duties of the proposed position as follows: 
Plan, develop tests and document computer programs applying knowledge of programming techniques 
and computer systems; 
Evaluate user requests for new or modified programs; 
Consult with users to identify current procedures and clarify program objectives; and 
Formulate plan outlining steps required to develop program using structured analysis and design. 
To determine whether the duties described are those of a specialty occupation, the AAO first considers the 
criteria at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(I)& (2): a baccalaureate or higher degree or its equivalent is the 
normal minimum requirement for entry into the particular position. Factors considered by the AAO when 
determining these criteria include: whether the Department of Labor's POL) Occupational Outlook 
Handbook (Handbook), on which the AAO routinely relies for the educational requirements of particular 
occupations, reports that the industry requires a degree; whether the industry's professional association has 
made a degree a minimum entry requirement; and whether letters or affidavits from firms or individuals in the 
industry attest that such firms "routinely employ and recruit only degreed individuals." See Shanti, Inc. v. 
WAC 04 168 53658 
Page 4 
Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 
1102 (S.D.N.Y. 1989)). 
The evidence of record establishes that the petitioner is an employment contractor in that the petitioner will 
place the beneficiary at multiple work locations to perform services established by contractual agreements for 
third-party companies. The petitioner, however, has provided no contracts, work orders or statements of work 
describing the duties the beneficiary would perform for its clients and, therefore, has not established the 
proffered position as a specialty occupation. 
The court in Defensor v. Meissner, 201 F. 3d 384 (5" Cir. 2000) held that for the purpose of determining 
whether a proffered position is a specialty occupation, the petitioner acting as an employment contractor is 
merely a "token employer," while the entity for which the services are to be performed is the "more relevant 
employer." The Defensor court recognized that evidence of the client companies' job requirements is critical 
where the work is to be performed for entities other than the petitioner. The court held that the legacy 
Immigration and Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the basis of the 
requirements imposed by the entities using the beneficiary's services. 
As the record does not contain any documentation that establishes the specific duties the beneficiary would 
perform under contract for the petitioner's clients, the AAO cannot analyze whether these duties would require 
at least a baccalaureate degree or the equivalent in a specific specialty, as required for classification as a 
specialty occupation. Accordingly, the petitioner has not established that the proposed position qualifies as a 
specialty occupation under any of the criteria at 8 C.F.R. 5 214.2(h)(4)(A) or that the beneficiary would be 
coming temporarily to the United States to perform the duties of a specialty occupation pursuant to 8 C.F.R. 
2 14.2(h)(l)(B)(I). 
The AAO turns to a consideration of the criterion at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(l), that a baccalaureate 
or higher degree or its equivalent is normally the minimum requirement for entry into the particular 
position. The AAO finds that the duties of the position, though generally described, are comparable to 
those of a computer programmer. The 2006-2007 Internet version of the Handbook's description of 
computer programmer, at http:llwww .bls.govlocolocOs 1 lO.htrn, states: 
Computer programmers write, test, and maintain the detailed 
instructions, called programs, that computers must follow to perform 
their functions. Programmers also conceive, design, and test logical 
structures for solving problems by computer. Many technical 
innovations in programming-advanced computing technologies and 
sophisticated new languages and programming tools-have redefined 
the role of a programmer and elevated much of the programming work 
done today. Job titles and descriptions may vary, depending on the 
organization. In this occupational statement, computer programmers are 
individuals whose main job function is programming; this group has a 
wide range of responsibilities and educational backgrounds. 
WAC 04 168 53658 
Page 5 
Computer programs tell the computer what to do-which information to 
identify and access, how to process it, and what equipment to use. 
Programs vary widely depending on the type of information to be 
accessed or generated. For example, the instructions involved in 
updating financial records are very different from those required to 
duplicate conditions on an aircraft for pilots training in a flight 
simulator. Although simple programs can be written in a few hours, 
programs that use complex mathematical formulas whose solutions can 
only be approximated or that draw data from many existing systems 
may require more than a year of work. In most cases, several 
programmers work together as a team under a senior programmer's 
supervision. 
Many programmers update, repair, modify, and expand existing 
programs. When making changes to a section of code, called a routine, 
programmers need to make other users aware of the task that the 
routine is to perform. . .. 
Programmers test a program by running it to ensure that the 
instructions are correct and that the program produces the desired 
outcome. If errors do occur, the programmer must make the 
appropriate change and recheck the program until it produces the 
correct results. This process is called testing and debugging. ... 
Computer programmers often are grouped into two broad types- 
applications programmers and systems programmers. Applications 
programmers write programs to handle a specific job, such as a 
program to track inventory within an organization. They also may 
revise existing packaged software or customize generic applications 
which are frequently purchased from vkndors. Systems programmers, in 
contrast, write programs to maintain and control computer systems 
software, such as operating systems, networked systems, and database 
systems. These workers make changes in the instructions that determine 
how the network, workstations, and central processing unit of the 
system handle the various jobs they have been given and how they 
communicate with peripheral equipment such as terminals, printers, and 
disk drives. Because of their knowledge of the entire computer system, 
systems programmers often help applications programmers determine 
the source of problems that may occur with their programs. 
Regarding training of computer programmers, the Handbook states: 
WAC 04 168 53658 
Page 6 
Although there are many training paths available for programmers, 
mainly because employers' needs are so varied, the level of education 
and experience employers seek has been rising due to the growing 
number of qualified applicants and the specialization involved with 
most programming tasks. Bachelor's degrees are commonly required, 
although some programmers may qualify for certain jobs with 2-year 
degrees or certificates. The associate degree is a widely used entry- 
level credential for prospective computer programmers. Most 
community colleges and many independent technical institutes and 
proprietary schools offer an associate degree in computer science or a 
related information technology field. 
Employers primarily are interested in programming knowledge, and 
computer programmers can become certified in a programming 
language such as C+ + or Java. College graduates who are interested 
in changing careers or developing an area of expertise also may return 
to a 2-year community college or technical school for additional 
training. In the absence of a degree, substantial specialized experience 
or expertise may be needed. Even when hiring programmers with a 
degree, employers appear to place more emphasis on previous 
experience. 
The Handbook indicates that a baccalaureate degree in a specialty is not normally required to enter the 
occupation. The Handbook indicates that some programmers may qualify for certain jobs with 2-year 
degrees or certificates. The 2-year degree is a widely used entry-level credential for prospective computer 
programmers. The Handbook is clear that a degree or its equivalent is not the normal minimum requirement 
for entry into the occupation. Because the petitioner has failed to submit a job description from the ultimate 
work location, the AAO is unable to analyze whether a two- or a four-year degree might be required. 
Accordingly, the AAO finds that the petitioner has failed to establish the proffered position as a specialty 
occupation under the first criterion at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(I) - a baccalaureate or higher degree or its 
equivalent is normally the minimum requirement for entry into the particular position. 
The AAO now turns to a consideration of whether the proffered position may qualify as a specialty occupation 
under either of the prongs of the second criterion at 8 C.F.R. $ 214.2(h)(4)(ii)(A)(2) - establish that a degree 
requirement is common to the industry in parallel positions among similar organizations, or that the proffered 
position is so complex or unique that it can be performed only by an individual with a degree. 
Regarding parallel positions in the petitioner's industry, the petitioner submitted 5 Internet job postings for 
programmer/analyst positions. 4 of the advertisements requiring degrees are from employers in fields 
unrelated to the petitioner's. One is a medical-surgical products and services company; one is a developer of 
building products; one is an music distributor with 2,000 employees; and one is a mall-based specialty retailer 
with over 450 locations. The other advertisement seeks a candidate with website development experience to 
work on its website. The petitioner is an employment contractor and seeks to place the beneficiary with a third 
party to perform unspecified job duties. 
WAC 04 168 53658 
Page 7 
Further, the duties of the advertised positions are not specific enough to compare with the job duties of the 
proffered position. Thus, the petitioner has not established that the degree requirement is common to the 
industry in parallel positions among similar organizations. No other evidence of record establishes the first 
prong of the second criterion. Therefore, the petitioner has failed to establish that a degree requirement is 
common to the industry in parallel positions among similar organizations. 
As noted above, the petitioner has described duties normally performed by computer programmers. However, 
the duties of the proffered position, as listed, are so generic that they provide no meaningful description of the 
tasks that the beneficiary would perform for the petitioner or its clients on a daily basis. The petitioner 
provided no documentation to establish the complexity of the position. In the response to the RFE, counsel 
simply referenced the Handbook to indicate that a degree is required by most employers for programmer 
analyst positions. The AAO finds the petitioner to have provided no evidence that would support a finding 
that the proffered position is so complex or unique that it can be performed only by an individual with a 
degree. Therefore, the record also fails to establish that the position qualifies as a specialty occupation under 
the second prong at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2) - the position is so complex or unique that it can be 
performed only by an individual with a degree. Accordingly, the petitioner has not established its position as 
a specialty occupation under either prong of the second criterion. 
The AAO next considers the criteria at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(3) and (4): the employer normally 
requires a degree or its equivalent for the position; and the nature of the specific duties is so specialized and 
complex that the knowledge required to perform them is usually associated with the attainment of a 
baccalaureate or higher degree. To determine the petitioner's ability to meet the third criterion, the AAO 
normally reviews the petitioner's past employment practices, as well as the histories, including names and 
dates of employment, of those employees with degrees who previously held the position, and copies of those 
employees' diplomas. In the instant case, the petitioner did not provide any such information. Accordingly, 
the petitioner failed to establish its normal hiring practices with regard to the proffered position and has not 
established it as a specialty occupation on this basis. 
The fourth criterion at 8 C.F.R. tj 214.2(h)(4)(iii)(A)(4) requires that a petitioner establish that the nature of the 
specific duties of the position is so specialized and complex that the knowledge required to perfonn them is 
usually associated with the attainment of a baccalaureate or higher degree. As previously noted, the AAO 
requires information regarding the specific duties of a proffered position to make its determination regarding 
the position's degree requirements, if any. In the instant case, the record offers a general description of the 
type of work to be performed, rather than a description.of the proffered position's duties as they relate to the 
petitioner's client's business. As the petitioner has provided no description of the specific tasks to be 
performed by the beneficiary, the record contains no evidence to establish the specialized and complex nature 
of those tasks. The record does not establish the complexity of the project work which the beneficiary will 
perform. Therefore, the proffered position has not been established as a specialty occupation under the 
requirements at 8 C.F.R. 2 14.2(h)(4)(iii)(A)(4). 
For the reasons related in the preceding discussion, the petitioner has failed to establish that the proffered 
position meets the requirements for a specialty occupation set forth at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
WAC 04 168 53658 
Page 8 
The director found that the proffered position could not be considered a specialty occupation because the 
petitioner failed to establish that it has available employment, and therefore was not the employer. Pursuant to 
8 C.F.R. €j 214.2@)(4)(ii), United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States whch: 
(I) 
 Engages a person to work within the United States; 
(2) 
 Has an employer-employee relationshp with respect to employees under thls part, 
as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the 
work of any such employee; and 
(3) 
 Has an Internal Revenue Service Tax identification number. 
The evidence of record, including the employment agreement, establishes that the petitioner will act as the 
beneficiary's employer in that it will hlre, pay, fire, supervise, or otherwise control the work of the 
beneficiary.' See 8 C.F.R. €j 214.2(h)(4)(ii). As the beneficiary will be placed at multiple work locations, 
including third-party company locations, the petitioner is also an agent, as described at 8 C.F.R. €j 
2 14.2(h)(2)(i)(F): 
A United States agent may file a petition in cases involving workers who are traditionally 
self-employed or workers who use agents to arrange short-term employment on their 
behalf with numerous employers, and in cases where a foreign employer authorizes the 
agent to act on its behalf. A United States agent may be: the actual employer of the 
beneficiary, the representative of both the employer and the beneficiary, or, a person or 
entity authorized by the employer to act for, or in place of, the employer as its agent . . . . 
The regulation governing agents at 8 C.F.R. § 214.2(h)(2)(i)(F)(I) requires the submission of an itinerary of 
definite employment to cover the entire period of time requested in the petition. Employers, pursuant to the 
language at 8 C.F.R. $ 214.2(h)(2)(i)(B), must also submit an itinerary with the dates and locations of 
employment if the beneficiary's duties will be performed in more than one location. 
In his request for evidence, the director asked for the beneficiary's employment itinerary for contracts of work 
to be performed. In response to the RFE the petitioner provided an employment "itinerary" indicating that the 
beneficiary will be employed at the petitioner's office in Sacramento, CA. However, this statement conflicts 
with the employment contract between the petitioner and the beneficiary indicating that the beneficiary will be 
worhng off site for the petitioner's clients. The record contains no documentation regarding the dates and 
locations of the beneficiary's employment or contracts of work to be performed. Accordingly, the petitioner 
1 
 See also Memorandum from Michael L. Aytes, Assistant Commissioner, INS Office of Adjudications, 
Interpretation of the Term "Itinerary" Found in 8 C.F.R. 214.2(h)(2)(i)(B) as it Relates to the H-IB 
Nonimmigrant Classzjication , HQ 7016.2.8 (December 29, 1995). 
WAC 04 168 53658 
Page 9 
has failed to comply with the requirements at 8 C.F.R. 9 214.2(h)(2)(i)(B) and 8 C.F.R. 
 214.2(h)(2)(i)(F)(I) 
and the petition must be denied.2 
The director also questioned the petitioner's documentation and specifically noted that although the petitioner 
has filed at least 46 H-1B petitions, the majority of which have been granted, on the 1-129 it claimed 5 
employees. The AAO notes that in its appeal statement the petitioner states that it has 13 employees and 8 
independent contractors. The AAO also notes that the payroll record the petitioner submitted is for only one 
payroll period from December 01,2004 to December 22, 2004, and indicates 5 employees. Doubt cast on any 
aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988). 
For the reasons related in the preceding discussion, the petitioner has failed to establish that the proffered 
position meets the requirements for a specialty occupation. Accordingly, the AAO shall not disturb the 
director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied. 
AS noted by Assistant Commissioner Aytes in the cited 1995 memorandum, "[tlhe purpose of this 
particular regulation is to [elnsure that alien beneficiaries accorded H status have an actual job offer and are 
not coming to the United States for speculative employment."