dismissed H-1B Case: Computer Science

U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rrn. A3042 
Washington, DC 20529 
&ata delete6 kcr 
~15 unwarranted 
U. S. Citizenship 
and Immigration 
, 
Ii: COPY 
FILE: WAC 04 205 52721 Office: CALIFORNIA SERVICE CENTER Date: RQBR 0 3 2Wti 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 I lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: Self-represented 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All materials 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 
WAC 04 205 5272 I 
Page 2 
DISCUSSION: The service center director denied the nonirnrnigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be 
denied. 
The petitioner is software development and consulting company. It seeks to employ the beneficiary as a 
computer systems analyst and to classify her as a nonimmigrant worker in a specialty occupation pursuant 
to section IOl(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101 
(a>( 15)(H>(i>(b). 
The director denied the petition on the grounds that the record failed to establish that the petitioner is the 
beneficiary's employer, as defined in 8 C.F.R. 5 214.2(h)(4)(ii), or that the petitioner is in compliance 
with the terms of the labor condition application (LCA) filed with the Department of Labor (DOL). The 
director also questioned the legitimacy of the petitioner based on inconsistent evidence regarding H-1B 
petitions it filed for other employees. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 
As provided in 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. 
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. 
WAC 04 205 52721 
Page 3 
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 RFE; (4) the notice of decision; 
and (5) Form I-290B, an appeal brief, and supporting materials. The AAO reviewed the record in its 
entirety before issuing its decision. 
In its initial documentation, including Form 1-129 and an accompanying letter, the petitioner stated that it 
is a computer software consulting and development firm, established in October 2000, with 24 
employees, six contractors, and gross annual income of $1.56 million in 2003. The company provides 
services in clientlserver Internet, Intranet, and e-commerce and ERP applications, the petitioner 
explained, including the installation of software, custom software development, and in-house, onsite, and 
offshore project development. The petitioner indicated that it needed a computer systems analyst to work 
on C, C++, Java, Corba, PASCAL, COBOL, SQL, PLISGL, Oracle, Informix, Sybase, FoxPro, Dbase 
and Windows 98lNT Unix, MVS, OSl390 environment in-house project involving analysis, design 
development, testing, and documentation. The petitioner stated that it would be responsible for hiring, 
supervising, paying, controlling, and firing the beneficiary from its home office in Pleasanton, California. 
The minimum educational requirement, the petitioner stated, is a baccalaureate or master's degree in 
computer science or a related field. The beneficiary is qualified for the position, the petitioner declared, 
by virtue of her master of computer applications from Sri Padmavati University in India, granted in 
March 1999, and her subsequent professional experience in the computer field with employers in India. 
In the RFE the director requested a more detailed description of the proffered position; an itinerary of the 
beneficiary's definite employment, including the names and addresses of the organizations where the 
beneficiary would be working during the three-year period requested for H-1B classification and copies of 
contractual agreements between the petitioner and the companies for which the beneficiary would be 
performing services; and other documentation establishing the petitioner's legitimacy. 
In response to the RFE the petitioner provided additional details about the substantive tasks of the 
proffered position, listed the beneficiary's specific responsibilities, and indicated that the project on which 
she would work has two stages - the first of which involves 20% documentation, 30% design, and 50% 
coding, and the second of which involves 40% testing, 40% implementation, and 20% documentation. 
The petitioner identified the client as indicated that the 
services would be performed at the ar itinerary with a 
chronological listing of the project's seven phases. 
 A copy of the petitioner's job offer to the beneficiary 
("offer letter") was submitted, as well as a copy of the petitioner's service agreement with the client. The 
petitioner also submitted additional documentation including a company brochure, excerpts from its 
internet website, federal income tax returns, an organizational chart, an employee list indicating that all of 
its programmer analysts were in H-1B status, photographs of the petitioner's business premises, and the 
petitioner's articles of incorporation. 
In his decision the director found that the proffered position requires the theoretical and practical 
application of a body of highly specialized knowledge to perform the occupation and qualifies as a 
specialty occupation. The director also found, however, that the record failed to show an employer- 
employee relationship between the petitioner and the beneficiary, or where the beneficiary would be 
working. The director cited conflicting evidence as to whether the beneficiary would be working at the 
petitioner's worksite or at the client's worksite. Though the petitioner stated in its Form 1-129 that the 
beneficiary would work at its home office, the petitioner's offer letter to the beneficiary stated that "[iln 
WAC 04 205 52721 
Page 4 
view of the nature of the company's business, you may be assigned to different locations/work places." 
The director interpreted an excerpt from the petitioner's service agreement with the client, stating that 
"[the petitioner] provides consulting and programming services to its clients, for which it locates, recruits 
and places individuals or other companies on full time and contract basis," as further evidence that the 
beneficiary would not be working at the petitioner's home office, but at the client's worksite. Noting that 
the service contract neglected to identify the client's locality, the director concluded that the beneficiary's 
worksite location was unknown. Though the petitioner's offer letter indicated that it would pay the 
employee's salary, the director found that the petitioner was acting as an agent and could not be 
considered the beneficiary's employer because the client company would exercise control over the 
beneficiary's work. In view of the conflicting evidence in the record, the director determined that it could 
not be determined whether the petitioner had complied with the terms of the LCA in regard to the work 
location and wage rate offered to the beneficiary. Lastly, the director declared that the petitioner's 
claimed employee total (24) was inconsistent with information in its 2002 federal income tax return on 
the amount of money paid that year in salaries ($70,373), and that the employer failed to advise the 
service center of the change of nonimmigrant status of some its previous employees who had moved on to 
different companies. 
On appeal the petitioner reiterates that it has job openings for in-house development projects, as well as 
for projects to be performed at client worksites, and submits copies of eight contracts with current clients. 
The petitioner submits a copy of its 2003 federal income tax return, showing gross receipts of $1.57 
million (compared to $415,000 in 2002) and expenditures for employee salaries of $644,071 (compared 
to $70,373 in 2002). According to the petitioner, its gross receipts for the first eight months of 2004 
totaled $3 million. An updated organizational chart has been submitted, identifying 26 employees and 
five contractors, as well as an employee list with each individual's job title, educational degree, annual 
salary, immigration status, and job duties. The petitioner has also submitted quarterly wage and tax 
statements for its employees covering the last two quarters of 2003 and the first two quarters of 2004. 
"United States employer" is defined in the regulation at 8 C.F.R. 5 214.2(h)(4)(ii), as follows: 
United States employer means a person, firm, corporation, contractor, or other association, or 
organization in the United States which: 
(I) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees under this 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 petitioner has not established that it will have an employer-employee relationship with the 
service agreement between the petitioner and the client, - 
does not indicate that the petitioner will retain the authority to fire, supervise, or 
otherwise control the work of the beneficiary. 
 While the petitioner stated in the petition and 
accompanying documents that it would be the beneficiary's employer, and that the beneficiary would be 
working on in-house projects, in its response to the RFE the petitioner indicated that the beneficiary 
would work exclusively for the client. The service agreement states that professionals placed at the client 
site are employees or sub-contractors of the vendor (i.e., of the petitioner). The service agreement is 
WAC 04 205 52721 
Page 5 
silent as to who will supervise and control the work of the beneficiary. But the client's control and 
supervision of the beneficiary is evident in the service agreement's provision directing the client to notify 
the petitioner "[s]hould the performance of the professionals provided by Vendor be determined to be less 
than satisfactory after careful and reasonable consideration by Client." Moreover, the service agreement 
gives the client the right to terminate the beneficiary's services with two-weeks notice. The AAO 
determines that the petitioner does not meet the definition of a U.S. employer under 8 C.F.R. 5 214.2 
(h)(4)(ii). 
Based on the entire record, the AAO agrees with the director that the petitioner is acting as the 
beneficiary's agent. As described in the regulation at 8 C.F.R. 5 214.2(h)(2)(i)(F): 
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 it[s] agent. A petition filed by a 
United States agent is subject to the following conditions: 
(1) An agent performing the function of an employer must guarantee the wages and other 
terms and conditions of employment by contractual agreement with the beneficiary or 
beneficiaries of the petition. The agentlemployer must also provide an itinerary of 
definite employment and information on any other services planned for the period of 
time requested. 
(2) A person or company in business as an agent may file the H petition involving 
multiple employers as the representative of both the employers and the beneficiary or 
beneficiaries if the supporting documentation includes a complete itinerary of 
services or engagements. The itinerary shall specify the dates of each service or 
engagement, the names and addresses of the actual employers, and the names and 
addresses of the establishment, venues, or locations where the services will be 
performed. In questionable cases, a contract between the employers and the 
beneficiary or beneficiaries may be required. The burden is on the agent to explain 
the terms and conditions of the employment and to provide any required 
documentation. 
The record is inconsistent as to whether that the petitioner had a service agreement with the client at the 
time the instant petition was filed on July 19, 2004. The contract in the record contains multiple dates. 
The opening paragraph includes language reading: 'This service agreement entered into by both parties 
on 01/22/2004." At the end of the document the signature of the petitioner's president is followed by the 
date "01/22/2004" and the signature of the client's executive vice president is followed by the date 
"09/08/2003." In the sentence just prior to the signatures, however, the service agreement reads as 
follows: "These provisions are accepted and agreed by both parties as of 22nd day of September 2004." 
This latter date indicates that the service agreement providing the beneficiary work in the United States 
was not executed until two months after the instant H-1B petition was filed. It is incumbent upon a 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Attempts to 
explain or reconcile such inconsistencies will not suffice without competent evidence pointing to where 
the truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-92, (BIA 1988). 
 No such competent evidence 
has been submitted by the petitioner to establish that the service agreement was in effect on the date the 
H-1B petition was filed. 
WAC 04 205 5272 1 
Page 6 
CIS regulations require a petitioner to establish eligibility for the benefit it is seeking at the time the 
petition is filed. See 8 C.F.R. 5 103.2(b)(12). A visa petition may not be approved at a future date after 
the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire 
Corporation, 17 I&N Dec. 248, 249 (Reg. Comm.). Moreover, as stated in Matter of lzummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm. 1998), "[tlhe AAO cannot consider facts that come into being only 
subsequently to the filing of the petition." The record fails to establish that the petitioner, acting as the 
beneficiary's agent, had an itinerary of definite employment for the beneficiary at the time the instant 
petition was filed. The AAO determines that the petition is deniable on this ground as well. 
The director found that the petitioner's compliance with the terms of the LCA could not be determined 
due to conflicting evidence as to the beneficiary's work location. As the director pointed out in his 
ent neglected to identify the client's exact locale, providing an address 
I 
and a zip code in California (95014), but failing to name the town. The 
; address is in Cupertino, a town located in Santa Clara County, California. 
While the service agreement and the petitioner's offer letter both seem to indicate that the beneficiary 
would work at the client's address, the petitioner stated on Form 1-129 and in subsequent correspondence 
that the beneficiary would work at its home office in Pleasanton, California (which is located in Alameda 
County, adjacent to Santa Clara County). The petitioner's LCA allows work at both locations, since it 
identifies Pleasanton as the first work location and Santa Clara County (home of Cupertino) as the 
additional or subsequent work location. Thus, the LCA is valid for either work location. 
Beyond the decision of the director, the record does not establish that the beneficiary will be employed in 
a specialty occupation. There is no description of the beneficiary's job duties from the client company, as 
required to show that the beneficiary would be performing services that require a baccalaureate or higher 
degree in a specific specialty. In Defensor v. Meissner, 201 F. 3d 384 (5" Cir. 2000), a federal appeals 
court held that the Immigration and Naturalization Service (now Citizenship and Immigration Services) 
reasonably interpreted the statute and the regulations when it required the petitioner to show that the 
entities ultimately employing the alien workers in a particular position require a bachelor's degree for all 
employees in that position. The court determined 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. In the instant proceeding, the record includes a service agreement between the petitioner and its 
client, Information Security Systems & Services, Inc. The service agreement does not specify what duties 
are to be performed by the beneficiary, however, or that a particular degree is required for the position. 
(Two attachments are referenced in the service agreement, but they were not submitted with the document 
and their contents are not explained.) Nor does the record contain any other description of the 
beneficiary's proposed duties from an authorized representative of the client. Thus, the petitioner has not 
demonstrated that the work the beneficiary would perform for the client requires a bachelor's degree in a 
specific specialty, which would qualify the position as a specialty occupation. 
Based on the foregoing analysis, the AAO determines that the record fails to establish that the beneficiary 
would be performing services in a specialty occupation, as defined in section 214(i)(l) of the Act, 
8 U.S.C. 3 1184(i)(l). For this additional reason the petition must be denied. 
WAC 04 205 52721 
Page 7 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
denying the petition. 
ORDER: 
 The appeal is dismissed. The petition is denied.