dismissed H-1B Case: Computer Consulting

ideadieing data ddcbdm 
vent clearly unwrandd 
invvinr of pi- 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: LIN 04 174 5001 9 Office: NEBRASKA SERVICE CENTER Date: JUL 1 2 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 
 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
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. 
/wR?!!<dc~2 Administrative Appeals ffice 
LIN 04 174 50019 
Page 2 
DISCUSSION: The director of the Nebraska Service Center denied the nonirnmigrant 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, has annual net income of $7,187, and 1 employee. It 
provides contract employees for software development and implementation services to clients. It seeks 
to employ the beneficiary as a full-time software engineer pursuant to section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1 lOl(a)(lS)(H)(i)(b). The director denied the 
petition based on his determination that the proffered position was not 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 (RFE); (3) the petitioner's response to the director's RFE, dated 
October 18, 2004; (3) the director's denial letter; and (4) Form I-290B, with the petitioner's brief and new 
and previously submitted evidence. 
The 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. !j 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. !j 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. !j 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one 
of the following criteria: 
(1) 
 A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
LIN 04 174 50019 
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 hghly 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 Software Engineer. Evidence of the 
duties to be performed was submitted on the form 1-129 and in a letter submitted in response to the RFE. 
According to this evidence, the beneficiary would: design and develop applications to meet the client's 
business needs; perform workflow data analysis; generate hnctional specifications; perform data 
mapping; participate in system design development and testing; and develop test plans to test new system 
enhancements and integration. 
The director found that the proffered position could not be considered a specialty occupation because the 
petitioner failed to submit a description of the duties the beneficiary will perform for its client. The 
petitioner indicated that the beneficiary would be working at its client's office, in Naperville, IL pursuant 
to an agreement between the petitioner and 
 from January 10,2005 to July 29,2005. 
The evidence of record establishes that the petitioner is an employment contractor in that the petitioner 
will place the beneficiary at a client's work location to perform services established b a contractual 
agreement for a third-party company. The petitioner provided an a eement with 
stating that the beneficiary will work, as a consultant, at the office o 
 The petitioner, 
however, has provided no work orders or statements of work from > describing the duties the 
LIN 04 174 50019 
Page 4 
beneficiary would perform fo The A eement with 
 states only that: "the 
consultant shall perform the following services for m: COBOL, DD2, Oracle and Java." 
The court in Defensor v. Meissner, 201 F. 3d 384 (5th 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 from the petitioner that establishes the specific duties 
the beneficiary would perform under contract for the petitioner's client, 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. 8 
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. 5 214.2(h)(l)(B)(I). 
To determine whether the duties described by the petitioner are those of a specialty occupation, the AAO 
first considers the criteria at 8 C.F.R. 5 214.2(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;. the degree 
requirement imposed by the petitioner is common to the industry in parallel positions among similar 
organizations, or the particular position is so complex or unique that it can be performed only by an 
individual with a degree. 
Factors considered by the AAO when determining these criteria include: whether the Department of 
Labor's (DOL) 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. Reno, 36 F. Supp. 2d 1 15 1, 1 165 (D. Minn. 1999) 
(quoting Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
The AAO turns first to a consideration of the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I), 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 software engineer, which generally requires a degree in a specialty. However, 
without a comprehensive description of the duties from an authorized representative of the client 
company, the petitioner has not established that the beneficiary will be performing the duties of a 
software engineer. The petitioner must do more than simply recite the duties of a software engineer as 
listed in the Handbook. The petitioner must have the client describe the duties to be performed in relation 
LIN 04 174 50019 
Page 5 
to its particular business interests. The record contains no evidence of business application 
needs, its existing business and operating systems, and other business requirements. Without a 
breakdown of the applications to be engineered, it cannot be determined whether the performance of the 
duties will require a baccalaureate degree in computer science or a related field. Thus the petitioner has 
not established eligibility under the first criterion at 8 C.F.R. 5 214.2(h)(4)(ii)(A)(I) 
The AAO now turns to a consideration of whether the duties of the proffered position as described by the 
petitioner may qualify as a specialty occupation under either of the prongs of the second criterion at 
8 C.F.R. 5 214.2(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. 
The AAO notes that the petitioner provided no documentation to establish that firms similar to the 
petitioner offering jobs similar to the proffered position employ individuals with a degree in the specialty. 
Going on record without supporting documentary evidence is not sufficient for the purposes of meeting 
the burden of proof in these proceedings. See Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 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 generally described duties normally performed by software engineers. 
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's client on a daily basis. In 
its appeal brief, the petitioner simply asserted that the Handbook indicates that a degree is required by 
most employers for software engineer positions, and stated that similar to other software engineers the 
beneficiary will plan, develop, test, and document computer systems applications software. The MO 
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. 5 214.2(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 MO 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. 
LIN 04 174 500 19 
Page 6 
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. 5 214.2(h)(4)(iii)(A)(#) 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 perform 
them is usually associated with the attainment of a baccalaureate or higher degree. On appeal, the 
petitioner contends that the duties of the proffered position satisfy the criterion's requirements. The AAO 
does not agree. 
As previously noted, the AAO requires information regarding the specific duties of a proffered position, 
as well as the nature of the petitioning entity's business operations, 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 roffered position's duties as they relate 
to the business of the beneficiary's ultimate work location for 
D 
As the petitioner has provided 
no description of the specific tasks to be performed by the bene iciary, 
 e record contains no evidence to 
establish the specialized and complex nature of those tasks. 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). 
Beyond the decision of the director, the evidence of record, including the subcontractor agreement and the 
work order wit 
 establishes that the petitioner will act as the beneficiary's employer in that it 
and otherwise control the work of the beneficiary.' 
 See 8 C.F.R. 4 
2142(h)(4)(ii) 
 As the beneficiary will be placed at multiple locations established by contractual 
agreements between the petitioner and thud-party companies, the petitioner is also an agent, as described 
at 8 C.F.R. 4 214.2(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. 9 214.2(h)(2)(i)(F)(l) requires the submission of an itinerary 
of definite employment to cover the entire period of time requested in the position. Employers, pursuant 
to the language at 8 C.F.R. 9 214.2(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. 
The regulation at 8 C.F.R. 4 214.2(h)(2)(i)(F)(l) requires a petitioner that is also an agent to submit an 
itinerary with the duties and locations of employment to cover the entire period of employment. The 
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-1B 
Nonirnrnigrant Classification, HQ 7016.2.8 (December 29, 1 995). 
LIN 04 174 50019 
Page 7 
record contains one work order covering the period from January 10,2005 to July 29,2005. The end date 
of the proposed employment is September 2007. The record does not contain an itinerary for the entire 
period of proposed employment. For this additional reason, the petition may not be approved. 
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. 
3 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.