dismissed H-1B Case: Computer Science

U.S. Department of Homeland Security 
. . 20 Mass. Ave. N W., Rm. A3042 
ikl& ddeUd L. 
Washington, DC 20529 
dt~l~ UD~ U. S. Citizenship 
umm~md~~d~ and Immigration 
FILE: WAC 03 232 53697 Office: CALIFORNIA SERVICE CENTER Date: Kt3 03 2m 
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 10 1 (a)(l S)(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 ofice. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 232 53697 
Page 2 
DISCUSSION: The director of the service center denied the nonimrnigrant 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, a corporation engaged in management services, presently employs the beneficiary as a systems 
analyst, in accordance with a previously approved petition for the petitioner to employ the beneficiary in that 
position as an H-1B nonimmigrant worker in a specialty occupation, pursuant to section 101 (a)(l 5)(H)(i)(b) of 
the Immigration and Nationality Act, 8 U.S.C. 8 1 lOl(a)(lS)(H)(i)(b). In order to continue this employment 
beyond the period approved in the initial petition, the petitioner endeavors to continue the beneficiary's H-1B 
classification and extend his stay. 
The director denied the petition on the basis that the petitioner had failed to establish that the beneficiary 
would be employed as a systems analyst. While the director found that the petitioner's general description of 
the duties of the proffered position comported with a specialty occupation, the director determined that the 
petitioner had not established that the beneficiary would be performing such duties for any business entity. In 
reaching this conclusion, the director determined that the petitioner is not the beneficiary's employer, on the 
basis of the director's finding that the petitioner contracts out the beneficiary's services without controlling 
the work that he performs. The director also determined that the petitioner had not established that it is the 
beneficiary's agent. The director also found that the labor condition application (LCA) "cannot be considered 
in compliance" because the record lacked contractual evidence by which LCA compliance may be evaluated. 
On appeal, counsel submits a brief, styled as a motion to reopen, and documents pertaining to professional 
service agreements between the petitioner and two Holiday Inn Express motels. 
The director's decision to deny the petition was correct. The AAO bases its decision upon its consideration of 
the entire record of proceeding before it, which includes: (1) the petitioner's Form 1-129 and the supporting 
documentation filed with it; (2) the director's request for additional evidence (WE); (3) the materials 
submitted in response to the WE; (4) the director's denial letter; and (5) the Form I-290B, counsel's June 14, 
2004 brief on appeal, entitled "Motion to Reopen," and the documents enclosed with the brief. 
The AAO does not concur with the director's finding that an employer-employee relationship would not exist 
between the petitioner and the beneficiary. The AAO finds that the contract documents submitted into the 
record on appeal and the previously submitted September 30, 2003 letter of the petitioner offering to extend 
the beneficiary's employment indicate that the petitioner would exercise sufficient control over the 
beneficiary's work as a consultant to qualify as the beneficiary's employer under the definition of a U.S. 
employer at 8 C.F.R. 5 214.2(h)(4)(ii). The AAO also finds that the aforementioned contract documents and 
extension-of-employment letter provide sufficient information to overcome the director's finding of insufficient 
information in the record regarding compliance with the terms and conditions of employment stated in LCA. 
However, as discussed below, the director's ultimate basis for denying the petition was correct, namely, the 
petitioner's failure to establish that the beneficiary would be performing the duties of a specialty occupation. 
WAC 03 232 53697 
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Section lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. § 1 10 1 (a)(l S)(H)(i)(b), provides a nonirnrnigrant 
classification for aliens who are coming temporarily to the United States to perform services in a specialty 
occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184 (i)(l), defines the term "specialty occupation" as an occupation 
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. 
Thus, it is clear that Congress intended this visa classification only for aliens who are to be employed in an 
occupation that requires the theoretical and practical application of a body of highly specialized knowledge 
that is conveyed by at least a baccalaureate or higher degree in a specific specialty. 
Consonant with section 214(i)(l) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(ii) states that a specialty 
occupation means an occupation: 
which [l] requires theoretical and practical application of a body of highly specialized 
knowledge in fields of human endeavor including, but not limited to, architecture, engmeering, 
mathematics, physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [2] requires the attainment of a 
bachelor's degree or higher in a specijic specialty, or its equivalent, as a minimum for entry into 
the occupation in the United States. (Italics added.) 
Pursuant to 8 C.F.R. 8 214.2(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; 
(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. 
WAC 03 232 53697 - 
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Citizenship and Immigration Services (CIS) has consistently interpreted the term "degree" in the criteria at 
8 C.F.R. 5 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific 
specialty that is directly related to the proffered position. Applying this standard, CIS regularly approves 
H-1B petitions for qualified aliens who are to be employed as engineers, computer scientists, certified public 
accountants, college professors, and other such professions. These occupations all require a baccalaureate 
degree in the specific specialty as a minimum for entry into the occupation and fairly represent the types of 
professions that Congress contemplated when it created the H-1B visa category. 
In an addendum to the Form 1-129 (Petition for Nonimmigrant Worker), the petitioner provided this 
description of the proposed duties: 
Analyze requirement[s], procedures and problems to design, develop, and test software 
applications to process or improve existing computer systems and review system capabilities, 
workflow and scheduling limitations to determine the requested program changes and 
possibilities within existing system. Study systems to evaluate effectiveness of and develop 
new systems to improve production or workflow as required. Write user needs, functions and 
steps required to develop and modify programs. Plan and prepare technical reports, 
instructional manuals and documentation. Upgrade system and correct errors to maintain the 
system after implementation. 
In his letter of reply to the RFE, counsel provided the following additional information about how the 
beneficiary's workday would be divided among different duties: 
Analyze information processing and computation needs of clients and plan and design 
information management systems using techniques such as structured analysis, data 
modeling and information engineering (20%) 
Analyze client's existing technology requirements and develop software applications to 
replace or improve existing computer systems for use in accounting transactions, billing, 
and scheduling (15%) 
Analyze and monitor the integrity of system information and security, especially financial 
information data flowing over WAN and LAN (10%) 
Develop computer information resources, providing for data security and control, 
strategic computing, risk assessment, and disaster recovery (1 5%) 
Study the client's current systems and evaluate their effectiveness in meeting client 
requirements in terms of financial transactions and scheduling (10%) 
Prepare reports on existing systems for management review and make suggestions on 
modifying systems to improve production and workflow (10%) 
WAC 03 232 53697 
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Prepare technical reports, documentation, and instructional manuals for clients on the 
effective use of the computer systems and software (10%) 
Maintain the system through upgrading and debugging, as required (10%) 
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. 
In this particular case, the beneficiary is to work in a consulting capacity for two clients of the petitioner. 
However, the petitioner has not provided specific details of particular work to be done for either client. 
Accordingly, it is impossible for CIS to determine whether the actual performance requirements of the 
proffered position support the petitioner's claim that the position is a specialty occupation. 
In response to the RFE, the petitioner's president submitted an April 27, 2004 document asserting that the 
petitioner has management consultancy contracts until December 31, 2007 with a Holiday Inn Express of 
Lawndale, California, and a Holiday Inn Express of Los Angeles. The RFE response also included a 
document from the petitioner stating that the beneficiary would perform work for the Lawndale motel from 
October 1,2003 through April 30,2005, and for the Los Angeles motel from May 1,2005 through September 
30, 2006. However, the RFE response included no copies of contractual material pertaining to either of the 
clients, even though the RFE specifically requested copies of "contractual agreements between the petitioner 
and the companies for which the beneficiary will be providing consulting services" and copies of "the 
statements of work, work orders and any other documents and appendices." As a consequence of the 
petitioner's failure to provide documentary evidence of the actual work to be performed, the evidence of 
record at the time of the director's decision did not establish that the beneficiary would be performing work 
that requires the theoretical and practical application of a body of highly specialized knowledge that is 
conveyed by at least a baccalaureate or higher degree in a specific specialty, as required by the Act and its 
implementing regulations. 
In Defernor v. Meissner, 201 F. 3d 384 (5" Cir. 2000), the court held that the Immigration and Naturalization 
Service, now CIS, reasonably interpreted the statute and the regulations when it required the petitioner to show 
that the entities ultimately employing the proposed beneficiaries require a bachelor's degree for all employees in 
that position. The court found that the degree requirement should not originate with the employment agency that 
brought the beneficiaries to the United States for employment with the agency's clients. 
The contractual documents submitted on appeal do not illuminate the specific work that would be performed 
for the two motels. The only reference to the work to be performed is the generic statement in the first 
paragraph of each contract that the petitioner "will provide the following employee, [the beneficiary], for 
WAC 03 232 53697 
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technical related services as applicable to BUYER." The two "work orders" submitted on appeal only 
provide this generic and generalized "Services Description:" "Development of Web-based document 
management systems (DMS)." 
As the petitioner has presented no contract specifications or other explanatory documentation, the vague 
phrasings "technical related services as applicable" and "[d]evelopment of Web-based document management 
systems" in the work orders do not substantiate counsel's contention that "[tlhe slulls required can be 
obtained only as part of at least a Bachelor's degree in Information Systems or Computer Science offered at 
accredited institutions of higher learning." Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 
158, 165 (Cornm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). Without documentary evidence to support the claim, the assertions of counsel will not satisfy the 
petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
In light of the insubstantial evidence that the petitioner has presented about the duties that the beneficiary 
would perform as a consultant to the two motels, the petitioner has not satisfied any of the other criteria of 
8 C.F.R. 9 2 14.2(h)(4)(iii)(A). 
The petitioner has not satisfied the criterion of 8 C.F.R. 3 214.2(h)(4)(iii)(A)(I) by establishing that the 
proffered position is one for which the normal minimum entry requirement is at least a bachelor's degree, or 
the equivalent, in a specific specialty closely related to the position's duties. 
The evidence of record demonstrates that the director was correct in concluding that the petitioner had not 
established that the general duties that the petitioner described for the proffered position actually comport 
with work that the beneficiary would perform for the two motels. 
Furthermore, the generalized duties that were asserted, but not corroborated by evidence in the record, do not 
comprise a position for which the normal hiring requirement is at least a bachelor's degree, or the equivalent, 
in a specific specialty. Those duties generally comport with the occupational categories of computer systems 
analyst, data-base administrator, and programmer-analyst as described in the section "Computer Systems 
Analysts, Database Administrators, and Computer Scientists" at pages 105-1 12 of the 2004-2005 edition of the 
Department of Labor's Occupational Outlook Handbook, which CIS recognizes as an authoritative source on the 
duties and educational requirements of the wide variety of occupations that it addresses. However, as discussed 
below, the Handbook indicates that a bachelor's degree, or the equivalent, in a specific specialty is not normally 
a minimum hiring requirement for positions in these occupational categories. 
According to the Handbook, the computer systems analyst, data-base administrator, and programmer-analyst 
occupations primarily engage in the design and development of new hardware and software systems and the 
incorporation of new technologies. The Handbook includes this information about computer systems 
analysts: 
WAC 03 232 53697 
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Systems analysts solve computer problems and apply computer technology to meet the 
individual needs of an organization. They help an organization to realize the maximum 
benefit from its investment in equipment, personnel, and business processes. Systems 
analysts may plan and develop new computer systems or devise ways to apply existing 
systems' resources to additional operations. They may design new systems, including both 
hardware and software, or add a new software application to harness more of the computer's 
power. Most systems analysts work with specific types of systems-for example, business, 
accounting, or financial systems, or scientific and engineering systems-that vary with the 
lund of organization. Some systems analysts also are known as systems developers or 
systems architects. 
Systems analysts begin an assignment by discussing the systems problem with managers and 
users to determine its exact nature. Defining the goals of the system and dividing the 
solutions into individual steps and separate procedures, systems analysts use techniques such 
as structured analysis, data modeling, information engineering, mathematical model building, 
sampling, and cost accounting to plan the system. They specify the inputs to be accessed by 
the system, design the processing steps, and format the output to meet users' needs. They 
also may prepare cost-benefit and return-on-investment analyses to help management decide 
whether implementing the proposed technology will be financially feasible. 
When a system is accepted, systems analysts determine what computer hardware and 
software will be needed to set the system up. They coordinate tests and observe the initial 
use of the system to ensure that it performs as planned. They prepare specifications, flow 
charts, and process diagrams for computer programmers to follow; then, they work with 
programmers to "debug," or eliminate, errors from the system. Systems analysts who do 
more indepth testing of products may be referred to as software quality assurance analysts. 
In addition to running tests, these individuals diagnose problems, recommend solutions, and 
determine whether program requirements have been met. 
The Handbook includes the following information about database administrators: 
With the Internet and electronic business generating large volumes of data, there is a growing 
need to be able to store, manage, and extract data effectively. Database administrators work 
with database management systems software and determine ways to organize and store data. 
They identify user requirements, set up computer databases, and test and coordinate 
modifications to the systems. An organization's database administrator ensures the 
performance of the system, understands the platform on which the database runs, and adds 
new users to the system. Because they also may design and implement system security, 
database administrators often plan and coordinate security measures. With the volume of 
sensitive data generated every second growing rapidly, data integrity, backup systems, and 
database security have become increasingly important aspects of the job of database 
administrators. 
. WAC 03 232 53697 
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The Handbook provides this general description of programmer-analyst work: 
In some organizations, programmer-analysts design and update the software that runs a 
computer. Because they are responsible for both programming and systems analysis, these 
workers must be proficient in both areas. (A separate statement on computer vroaammers 
appears elsewhere in the Handbook.) As this dual proficiency becomes more commonplace, 
these analysts increasingly work with databases, object-oriented programming languages, as 
well as client-server applications development and multimedia and Internet technology. 
The Handbook does not indicate that employers of any of the occupations discussed above normally require a 
bachelor's degree, or the equivalent, in a specific specialty. One of the Significant Points introducing the 
Handbook's narrative in the section on Computer Systems Analysts, Database Adrmnistrators, and Computer 
Scientists is: "Education requirements range from a 2-year degree to a graduate degree." The subsection 
"Training, Other Qualifications, and Advancement" includes these statements indicative of the fact that, while 
some employers may require such credentials, a bachelor's degree in a specific specialty is not a normal hiring 
requirement: 
[Wlhile there is no universally accepted way to prepare for a job as a systems analyst, 
computer scientist, or database administrator, most employers place a premium on some 
formal college education. A bachelor's degree is a prerequisite for many jobs; however, 
some jobs may require only a 2-year degree. Relevant work experience also is very 
important. For more technically complex jobs, persons with graduate degrees are preferred. 
For systems analyst, programmer-analyst, and database administrator positions, many 
employers seek applicants who have a bachelor's degree in computer science, information 
science, or management information systems (MIS). MIS programs usually are part of the 
business school or college and differ considerably from computer science programs, 
emphasizing business and management-oriented course work and business computing 
courses. Employers are increasingly seeking individuals with a master's degree in business 
administration (MBA), with a concentration in information systems, as more firms move their 
business to the Internet. For some network systems and data communication analysts, such 
as webmasters, an associate's degree or certificate is sufficient, although more advanced 
positions might require a computer-related bachelor's degree. For computer and information 
scientists, a doctoral degree generally is required due to the highly technical nature of their 
work. 
Despite employers' preference for those with technical degrees, persons with degrees in a 
variety of majors find employment in these computer occupations. The level of education 
and type of training that employers require depend on their needs. One factor affecting these 
needs is changes in technology. Employers often scramble to find workers capable of 
implementing "hot" new technologes. Those workers with formal education or experience in 
information security, for example, are in demand because of the growing need for their slulls 
.* WAC 03 232 53697 
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and services. Another factor dnving employers' needs is the timeframe during which a 
project must be completed. 
Most community colleges and many independent technical institutes and proprietary schools 
offer an associate's degree in computer science or a related information technology field. 
Many of these programs may be more geared toward meeting the needs of local businesses 
and are more occupation specific than are 4-year degree programs. Some jobs may be better 
suited to the level of training that such programs offer. Employers usually look for people 
who have broad knowledge and experience related to computer systems and technologies, 
strong problem-solving and analytical skills, and good interpersonal slulls. Courses in 
computer science or systems design offer good preparation for a job in these computer 
occupations. For jobs in a business environment, employers usually want systems analysts to 
have business management or closely related skills, while a background in the physical 
sciences, applied mathematics, or engineering is preferred for work in scientifically oriented 
organizations. Art or graphic design skills may be desirable for webmasters or Web 
developers. 
The petitioner has not presented evidence to satisfy the first alternative prong of 8 C.F.R. 
tj 214.2(h)(4)(iii)(A)(2), which is for a position with a requirement for at least a bachelor's degree in a 
specific specialty that is common to the petitioner's industry in positions that are both (1) parallel to the 
proffered position and (2) located in organizations that are similar to the petitioner. 
Next, the petitioner has not presented any evidence to establish that the proffered position qualifies as a 
specialty occupation in accordance with 8 C.F.R. tj 214.2(h)(4)(iii)(A)(3), that is, by the petitioner's having an 
established history of recruiting and requiring only persons with at least a bachelor's degree in a specific 
specialty. 
Because it leaves the actual duties and performance requirements of the work for the two motels in doubt, the 
record does not convey the complexity, uniqueness, or specialization required to qualify a position as a 
specialty occupation under either the second alternative prong of 8 C.F.R. tj 214.20(4)(iii)(A)(2) or the 
criterion of 8 C.F.R. § 2 14.2(h)(4)(iii)(A)(4). 
The petitioner noted that CIS approved a previous petition filed on behalf of the beneficiary for the position 
that is the subject of the present petition. The director's decision does not indicate whether he reviewed the 
prior approval of the other nonimrnigrant petition. If the previous nonimmigrant petition was approved based 
on the same type of evidence that is contained in the current record, the approval would constitute material 
and gross mor on the part of the director. The AAO is not required to approve applications or petitions 
where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. 
See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be 
absurd to suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. 
Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
' WAC 03 232 53697 
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Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
As the petitioner has not established that the beneficiary would be performing the duties of a specialty 
occupation, the decision of the director shall not be disturbed. 
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. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.