dismissed H-1B Case: Computer Science

U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W.. Ih. A3042 
Washington, DC 20529 
U. s. Citizenship 
identiftriqg data Qleled ta and Immigration 
prevent c)lbariy unwarranted! 
kwasion d mmmal ~rivacy 
FILE: LIN 03 271 52888 Office: NEBRASKA SERVICE CENTER Date: SEp 2 0 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § I 1 Ol(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 office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
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DISCUSSION: The director of the service center denied the nonirnrnigrant 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 engaged in the business of providing computer software development and consulting 
services. It seeks to employ the beneficiary as a programmer analyst. The petitioner, therefore, endeavors to 
classify the beneficiary as a nonirnrnigrant worker in a specialty occupation pursuant to section 
10 1 (a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 110 1 (a)(l S)(H)(i)(b). 
The director denied the petition because the evidence of record does not establish that the job offered qualifies 
as a specialty occupation and that the petitioner will be the employer of the beneficiary. On appeal, counsel 
submits a brief and additional evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 1184(i)(l), defines the term "specialty occupation" as an occ;upation 
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. 
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; 
(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 criteria at 8 C.F.R. 
3 2 14.2(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. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) counsel's response to the director's request; (4) the di-rector's 
denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in its 
entirety before issuing its decision. 
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The petitioner is seeking the beneficiary's services as a full-time programmer analyst. Evidence of the 
beneficiary's duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the c:ompany 
support letter; and counsel's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail analyzing the communications, informational and programming 
requirements of clients; planning, developing and designing business programs and computer systems; 
designing, programming and implementing software application and packages customized to meet specific 
client needs; reviewing, repairing and modifying software programs to ensure technical accuracy and 
reliability of programs; training of clients on the use of software applications and providing trouble shooting 
and debugging support. The petitioner indicated that the proffered position requires a baccalaureate degree in 
computer science, electronics, or electrical engineering or the equivalent. 
The director issued a request for additional evidence. The director requested recent contracts between the 
petitioner and its clients which will have need for the beneficiary's services. The director requested a list of 
contact names and telephone numbers. The director noted that the contracts should be specific as to the 
amount of time covered in the contract and contain a list of job duties. The director requested quarterly tax 
reports and an income statement. Additionally, the director requested the identity of the types of computer 
hardware and software that the beneficiary will be working with. 
In response, the petitioner stated that it is a bona fide organization engaged in providing computer consulting 
services to major corporations in the United States. The petitioner indicated that it submitted copies of 
contracts between it and clientslvendors; a list of client names along with contact information; copies of 
invoices to clientslvendors; copies of payments received from clients; copies of quarterly tax reports; copies 
of contracts with sub-contractors and copies of invoices fi-om sub-contractors. 
The director noted that the petitioner submitted a subcontract showing the petitioner referenced as the 
"subcontractor" and is serving as a vendor to another independent consulting firm, Verinon Technology 
Solutions Limited, to supply services to a third party, identified by the work order as Walter Industries. The 
director noted that the work order submitted with the contract identifies the intended beneficiary to provide 
information technology consulting services to an end client identified as Walter Industries and the work site is 
that of Walter Industries and was dated December 17, 2003 subsequent to the initial petition that was filed 
September 19, 2003. The director noted that the 1-129 and the certified labor condition application indicated 
that the work site of the beneficiary is listed as, Iowa. The director found that 
the petitioner does not have an independent contract to produce any tangible product or service to ariy client 
directly. The director determined that the petitioner's business is to provide temporary labor to a third party 
which is an unknown, unrelated entity that ultimately controls the key factors related to a proper employer- 
employee relationship. The director found that the petitioner has not established that it qualifies as an 
employer as contemplated by the regulations. The director found that the record did not establish that the 
petitioner had a specialty occupation position at the time of filing the present petition and that it cannot be 
concluded that the position qualifies as a specialty occupation. 
On appeal, the petitioner states that it grossed more than $440,000 in 2003 and currently employs 12 IT 
professionals. The petitioner contends that is has sufficient in-house and off-site business to employ the 
beneficiary. The petition states that "it is the direct employer and does have total control over its employees. 
It hires employees, puts them into in-house or off-site projects as it deems fit, and does have the right to 
evaluate and terminate employees." The petitioner explains that it offers services for Oracle application 
business development, business intelligence (Bl), warehouse and distribution solutions, enterprise application 
LIN 03 271 52888 
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integration (EAI) and on-siteloff-shore development. On appeal, the petitioner explains that it develops in- 
house computer and informational requirements. The petitioner asserts that it submitted a comprehensive list 
of the types of in-house projects in which their employees may be engaged. The petitioner explains that these 
projects are created to build a sophisticated system of tools that helps it in gaining a competitive edge and in 
developing the most economical and efficient systems and procedures to manage its own business. The 
petitioner contends that it always has consultants working on in-house projects. The petitioner states that it 
intends to place the beneficiary initially in the company head quarters and then when it decides to !send the 
beneficiary to a client it will file a new Labor Condition Application (LCA) with the new location. The 
petitioner notes that many of the company's clients prefer that the work be done on a consulting basis with the 
employees available on-site. The petitioner explains that the contracts take the form of what is routinely 
referred to as a third-party contract. The petitioner states that the beneficiary would not always be working at 
its office. The petitioner states that it has an employer - employee relationship with the beneficiary arid that it 
consultants "operat[e] under the direct supervision and control of the responsible manager." Finally, counsel 
contends that CIS denied the petition without even sending a request for evidence. 
The AAO notes that the petitioner indicated on the Form 1-1 29 that it had a gross annual income of $600,000 
and on appeal indicated that had gross annual sales of $441,777. The Form 1120 Federal Income Tax Return 
for the year 2003 indicated gross receipts or sales of $441,777. It is incumbent upon the petitioner to resolve 
any inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The AAO notes that the petitioner did not include working on in-house projects in the initial job description 
and added the job requirement of in-house projects on appeal. Although the petitioner stated that it submitted 
an extensive listing of in-house projects, the record does not support the statement. The record does not 
contain an extensive listing of in-house projects. Going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 
1972)). Additionally, the petitioner indicated on the LCA that the place of employment was Oskaloosi~, Iowa. 
In response to the director's request for evidence, the petitioner submitted a contract indicating 1:hat the 
beneficiary would be working at a client site for a period of six months with an option to extend. The contract 
was dated after the initial petition was submitted. The petitioner did not provide a new LCA for the new 
client job site. On appeal, the petitioner states that it intends to place the beneficiary initially in the company 
headquarters and then, when it decides to send the beneficiary to a client site; it will file a new LCA with the 
new location. The petitioner has not documented where the beneficiary will be working. It is incumbent upon 
the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho. The petitioner has not documented with an LCA 
filed prior to the filing date of the petition that the beneficiary will be working for an extended period outside 
of the Oskaloosa, Iowa SMSA, as indicated in some of the documents of record. 
The director found that the petitioner had not established that it was the employer pursuant to the definition of 
employer at 8 C.F.R. § 214.2(h)(4)(ii)(2) in that it did not have an employee-employer relationshxp with 
respect to the proposed beneficiary as indicated by the fact that it could not hire, pay, fire, supenrise, or 
otherwise control the work of any such employee. The petitioner submitted several contracts indicating that 
the alien would work on-site of the third party. The AAO notes that several contracts indicated that the third 
LIN 03 271 52888 
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party would have a great deal of control over the petitioner's consultants such as the Master Cctnsulting 
Agreement between the petitioner and Silicon Alley Group which noted that the petitioner would not be able 
to remove the consultant without written consent from the third party. The task order between KADS Tech, 
Inc. and the petitioner indicated that the third party client will have the option of removing the petitioner's 
consultant if the consultant does not meet the expectations of the client. Therefore, as noted by the director, 
the record does not establish that the petitioner will be the employer of the beneficiary pursuar~t to the 
regulations. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO first considers the criteria at 8 C.F.R. $5 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate clr higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; ;a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. Factors often 
considered by CIS when determining these criteria include: whether the Handbook 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 115 1, 1165 
(D.Minn. 1999)(quoting Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
In determining whether a position qualifies as a specialty occupation, CIS looks beyond the title of the 
position and determines, from a review of the duties of the position and any supporting evidence, whether the 
position actually requires the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate degree in a specific specialty as the minimum for entry into the 
occupation as required by the Act. The AAO routinely consults the Handbook for its information about the 
duties and educational requirements of particular occupations. 
The petitioner stated that the industry standard for educational requirements among computer scientists and 
systems analysts is that the candidate possess at least a bachelor's degree in computer science or a related 
area. The Handbook discloses that the duties of the proffered position are performed by a programmer 
analyst. Like the beneficiary, who will design, program and implement software application and packages 
customized to meet specific client needs, the Handbook reports: 
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 
kind of organization. Some systems analysts also are known as systems developers or systems 
architects. 
LIN 03 271 52888 
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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 programmers 
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 petitioner fails to establish the first criterion because the Handbook states the following about training 
and education requirements: 
While 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). 
Although many employers prefer to hire persons who have at least a bachelor's degree and relevant work 
experience with a variety of computer systems and technologies, it is not a requirement for entry into the 
field. The Handbook specifically notes that 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 
technologies. The petitioner has failed to describe the proffered position with sufficient detail to find that the 
position of programmer analyst rises to the level that requires a baccalaureate degree as a minimum 
requirement for entry into the profession. The petitioner submitted contracts that it has with contractors who 
would then place the beneficiary with a third party. The petitioner has not provided a detailed description of 
the duties from the entity ultimately using the alien's services. In Defensor v. Meissner, 201 F. 3d 384 (5" Cir. 
2000). the court held that the Immigration and Naturalization Service, now Citizenship and 1mm;lgration 
Services (CIS), reasonably interpreted the statute and the regulations when it required the petitioner to show that 
the entities ultimately employing the aliens 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 aliens 
to the United States for employment with the agency's clients. 
Although the record contains an agency service agreement between the petitioner and a contractor who places 
the beneficiary with the third party, the record does not contain a comprehensive description of the 
beneficiary's proposed duties from an authorized representative of the third party. Without such a description, 
the petitioner has not demonstrated that the work that the beneficiary will perform at the third party will 
qualify as a specialty occupation. Accordingly, the petitioner cannot establish that a baccalaureate or higher 
degree or its equivalent in a specific specialty is the normal minimum requirement for entry into the proffered 
position. 
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There is no evidence in the record that would establish the second criterion - that a specific degree 
requirement is common to the industry in parallel positions among similar organizations. The record does not 
contain sufficient evidence demonstrating that a degree requirement is the industry standard for this position, 
or that the beneficiary's duties are so unique that they can only be performed by an individual with abilities 
beyond the industry standard. The petitioner has not demonstrated a bachelor's degree is required because the 
job duties are so complex that someone may not perform them with the minimum educational background 
gained through a bachelor's degree program. 
Nor is there evidence in the record to establish the third criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A): that the 
petitioner normally requires a degree or its equivalent for the position. 
The fourth criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A) requires that the petitioner establish that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties is usually 
associated with the attainment of a baccalaureate or higher degree. Once again, the Handbook indicates that 
some employers prefer to hire persons who have at least a bachelor's degree, but that it is not a requirement 
for an entry-level position in the field. The petitioner has not related the listed duties to its business. The 
petitioner indicated on the Form 1-129 and the certified labor condition application that the beneficiary would 
work at the petitioner's place of business. The petitioner's support letter indicated that the beneficiary would 
work off-site at a client location as a consultant. As discussed above, the petitioner contends that it employs 
consultants in its office working on in-house projects and contends that it submitted a comprehensive list of 
the types of in-house projects in which its employees maybe engaged. However, upon review of the record, 
no such list was submitted. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Crafl of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
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. CJ: 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 has not shclwn, in 
relation to its business, that the duties of the proffered position are so complex or unique that they can be 
performed only by an individual with a degree in a specific specialty. Although some computer programmer 
analysts positions may be considered specialty occupations, the petitioner's description of the duties 
associated with this position did not demonstrate that the preponderance of the beneficiary's duties would be 
so complex that they would require a baccalaureate degree in a specialty. 
As indicated earlier, the petitioner's unsubstantiated estimate of specialization and complexity is not evidence. 
The evidence of record describes duties that generally comport with those of a programmer analyst. However, in 
light of the fact that, as indicated by the Handbook, not all programmer analyst positions require a bachelor's 
degree, those duties are too generally and generically described to establish that they would be usually associated 
with the attainment of a bachelor's degree as opposed to a lower level of knowledge. 
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The petitioner contends that the director erred in stating that the evidence failed to demonstrate that the 
petitioner was proffering a credible or bona fide position. An H-1B alien is allowed a temporary stay in the 
United States to perform services in a specialty occupation. Section lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 
9 10 1 (a)( 1 S)(H)(i)(b), 8 C.F.R. fj 2 14.2(h)(l)(ii)(B). The petitioner has failed to establish that it will employ 
the services of a programmer analyst, with a bachelor's degree or the equivalent in computer science, 
information systems, or a related specialty. 
Again, the Handbook reveals that the duties of the proffered position would be performed by a programmer 
analyst, an occupation that in this case has not been shown to require a specific baccalaureate degree. Thus, 
the petitioner fails to establish the fourth criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition on the 
ground that the proffered position does not qualify as a specialty occupation. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 1J.S.C. 5 
1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The pztition is denied.