dismissed H-1B Case: Computer Science

U.S. Department of Homeland Security
20 Massachusetts Avenue NW, Room 3000
Washington, DC 20529
US. Citizenship
and Immigration
Services
OCT! 9 •
Office: CALIFORNIA SERVICE CENTER Date: am I ~ titWAC 04 15650635
PUBLICCOpy
identifyingdatadeletedto
preventclearlyunwarranted
invasionofpersonalprivacy .
FILE:
IN RE: Petitioner:
Beneficiary:
PETITION: Petition fora Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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
www.uscis.gov
WAC 0415650635 '
Page 2
DISCUSSION: The director denied the nonimmigrant visa petition and the matter is now before the
Administrative Appeals , Office (AAO) on appeal. The appe~l will be dismissed. The petition will be
denied.
, "
The petitioner is a systems integration and software development compan y that seeksto employ the
beneficiary as a computer programmer. The petitioner, therefore , endeavors to classify the beneficiary as a
nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration
, and Nationality Act (the Ac9 , 8 U.S.C. § II 01(a)(15)(H)(i)(b). ,
The record of proceeding before the AAO contains (1) the Form 1-129 and supporting documentation; (2) the
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the
director's denial letter; and (5) the Form 1-290B and supporting documentation . The AAO reviewed the
record in its entirety before issuing its decision .
The director denied the petition on three grounds: (1) that the petitioner had failed to demonstrate that it
meets the regulatory definition of an "employer" and that it will engage in an employer-employee
relationship with the beneficiary ; (2) that the petitioner had failed to demonstrate the existence of a specialty
occupation , as it had not submitted an itinerary of services to be performed ; and (3) that the petitioner had not
established that it would comply with the terms and conditions of the labor condition application (LCA)
:certified for the location of intended employment. .
On appeal , counsel contends that the director erred in deriying the petition.
Section 214(i)(1) of the Immigration and Nationality Act (the Act) , 8 U .S.c. § I I84(i)(1), defines the term
"specialty occupat.ion" 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.:, , '
The term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)(4)(ii) as:
[A]n ' 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 science s, social sciences, medicine and
health, education , business specialties, accounting.Taw, theology , and the arts , and which
requires the attainment of a bachelor 's degree or higher in aspecific specialty, or its
equivalent , as a minimum for entry into the occupation in the United States .
/
Pur~uant to 8 C.F.R. § 2l4.2(h)( 4)(iii)(A);.to qualify as a 'specialty occupation , the position must meet one of
the following criteria: ' . i , 1
(1) A baccalaureate or higher degree or its equivalent is normally the rmrnmum
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 .
·WAC 04 15650635
Page 3
. position is so complex or unique thatit 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. § 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 proposed position .
)
The term "employer" is defined at 8 C.F.R § 214.2(h)(4)(ii):
United States employer means a person , firm, .corporation ,' contractor , or other .
association , or organization in the United States which:
(1) ' Engages a person to work within the United States;
(2) . Has an employer-employee relationship with respect to emplo yees under
this part , as indicated by the fact that it may hire, pa y, fire, supervise, or .
otherwise control the work of any such employee ; and .
(3) Has an Internal Revenue Service 'Tax identification number .
The AAO disagrees with the ' director's finding that the petitioner would not act as the beneficiary 's
. employer. The evidence of record establishes that the petitioner will act as the beneficiary's employer in
, that it will hire, pay , fire, or otherwise control the workof the beneficiary. I See 8 C.F.R. § 214.2(h)(4)(ii).
In view of this evidence , the AAO finds that the petitioner will be the employer of the beneficiary and
withdraws the director's decision to the contrary. '
The petition may not be approved, however, as the petition does not establish that the beneficiary will be
employed in a specialty occupation or that the employer has submitted an itinerary of employment.
, .
As the petitioner notes on appeal, the beneficiary would not perform his duties at the petitioner 's place of
business. Rather , he would be "assigned to these client projects outside its place of business," as "[t]he needs
of each project is dictated and prescribed by the client. " Further, the AAO notes that , at .page 2 of the
Form 1-129, in the field entitled "Address where the person(s) will work ," the petitioner stated that
subsequent work locations for the beneficiary were unknown at the time of the filing. .
Accordingly, the AAO concludes that, although the petitioner will act as the beneficiary 's emplo yer, the
evidence of record' establishes that the petitioneris an emplo yment contractor in that the petitioner will
place the beneficiary at work locations to perform services established by contractual agreements for
third-party companies . . '
, ) See also Memorandum from Assistant Commissioner, INS Office of Adjudications ,
Interpretation of the T erm "Itinerary " Found in 8 C.P.R. 214.2(h)(2)(i)(B) as it Relates to theH-1B
Nonimmigrant Classification, HQ 70/6.2.8 (December 29, 1995). '
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Page 4
Pursuant to the language at 8 C.F.R. § 214.2(h)(2)(i)(B) , employers must submit an itinerary with the
dates and locations ofemployment in such situations. While the Aytes memorandum cited at footnote I
broadly interprets the term "itinerary," it provides CIS the discretion to require that the petitioner submit
the dates and locationsof the proposed employment. As the evidence contained in the record at the time
. .the petition was filed did not establish that the petitioner had three years of work for the beneficiary to
perform , the director properly exercised his'discretion to require an itinerary of employment.' .
In its May 4, 2004 letter of support, the petitioner stated the following:
We respectfully requestthat the USCIS approve this petition for the entire period listed
on the 1-129. For various reasons, our company may assign [the beneficiary] to a project
for a period less than requested on the petition. However, we fully believe that [the
beneficiary] shall be employed for the period requested on the petition. There are various
reasons why our projects are not projected for 3-year periods. Good business sense
dictates that we must re-evaluate the project periodically and make the necessary
changes .
In his July 20 , 2004 request for additional evidence , the director stated the following:
From the evidence provided it appears that the petitioner 's business is to outsource
computer consultants to clients outside the petitioner 's work site.
. .
Include a complete itinerary of services or engagements where the beneficiary will
perform those services . The itinerary should specify ,the .dates of each service or
engagement , the names and addresse s of the actual employers , and the names and
addresses of the establishment, venue , or locations where the service will be performed
.by the beneficiary . The itinerary should include all service planned for the period of time
requested - in this case until 9/2l/07. .
."' .,
In its October 11, 2004 response to the director's request for additional evidence , the petitioner stated that
it would be the beneficiary 's actual employer, that the beneficiary would always be its employee, and that
it would comply with the LCA. . The petitioner did not submit the requested itinerary, stating the
following: .
[I]t is difficult for [the petitioner] to perfectly respond to this request beca use [th e
beneficiary 's] employment is based on the approval of the petition and [is] somewhat
speculative. .
. . .
As noted previously , the petitioner's failure to submit an itinerary of services to be .performed, which
covers the entire period of requested employment , was one ofthe grounds ofthe director 's denial of the
petition.
2 As noted by Assistant Commissioner Aytes in the cited 1995 memorandum , "[t]he purpose of this
particular regulation is to [e ]nsure that alien beneficiaries accorded H status have an actual job offer and
are not coming to the United States for speculative employment."
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On appeal , th~ petitioner states, in response to this portion of the denial , that it is not an agent and is
therefore not required to, submit an itinerary. ' However , as noted , previously , the regulation at
8 'C.F.R. § 214.2(h)(2)(i)(B) requires employers to submit an itinerary with the dates and locations of
employment in situations where the employment will occur in more than one location.
On appeal , counsel submits contracts from the following companies : (l) Wells Fargo; (2) Intuit ;
(3) Oracle ;and (4) MBNA. However , none of these documents specifically request the services of the
beneficiary, and do not indicate that the beneficiary .was selected from the petitioner's qualified workers .
None of these contracts have any effect until work orders (referred to as "assignment memorandums ," in
the case of the contract with Wells Fargo and "statements of work" in the case ofthe contracts with Intuit,
Oracle, and MBNA) are issued. The record contains 'no work orders with the beneficiary's itinerary.
Absent such information , the, petitioner has not established that it has three years' worth of H-IB-Ievel .
work for the beneficiary to 'perform. The contracts between the petitioner and Logitech and Marvell,
submitted with the petitioner 's initial filing, fail to establish eligibility for the same ,reason. The evidence '
contained in the record does not satisfy 8 C.F .R. §,214.2(h)(2)(i)(B) as it does not cover the entire period
of the beneficiary 's employment by the petitioner. Thus, the petitioner has not complied with the
requirements at8 C.F.R. § 214.2(h)(2)(i)(B) and the petition was properly denied . ,
. . . .
, The record also does not establish that the proposed position is a specialty occupation. . The .court in
Defensor v. Meissner , 201 F ..3d 384 (5 th Cir. 2000) held that for the purpose of determining whether a
proposed position is a specialty occupation, the petitioner acting as an emplo yment 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 thestatute and regulations as
requiring the petitioner to produce evidence that a proposed position qualifies as aspecialty 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 any of the petitioner's clients, the AAO cannot analyze whetherthese
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 for classification as a specialty occupation under any of the criteria at
8 'C.F.R. § 214.2(h)( 4)(iii)(A) or that the beneficiary would be coming temporarily to the United States to '
perform the duties ofa specialty occupation pursuant to 8 C.F.R. § 214.2(h)(l)(B)(l ) .
, The director also found that therecord did not establish that the LCA was valid for all work locations. As
the record .does not .contain an itinerary covering the period of employment, it cannot be'determ ined that
the 'LCA is valid for the work locations, For this additional reason, the petition may not be approved.
" '
The petitioner 's'assertion that denial of the petition constituted a due process violation fails. The petitioner
has failedto overcome the director 's denial, and it has demonstrated no prejudice on the part of the director
that would constitute a due .process violation. See Vides-Vides v. INS~ 783 F.2d 1463 , 1469-70 (9th Cir.
1986); Nicholas v. INS, 590 F.2d 802 , 809-10 (9th Cir. 1979); Martin-Mendoza v. INS, 499 F .2d 918; 922
' (9th Cir. 1974) , cert. denied,419 U.S. 1113 (1975) . As discussed previously , the petitioner has not met
its burden of proof, and the denial was the proper result under the regulation . ' .
3 On appeal, counsel submits a copy of regulations that were proposed III 1998. However, those
regulations were never published and have no legal effect here.
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Page 6 "
Th'e petitioner cites to 8 C.ER. §. 103.3(c) on appeal, and states that the "hundreds of petitions" that the
petitioner has had approved in the past should serve as precedents, However , the petitioner has misread '
8 C.F.R. § 103.3(c), which states the following :
Service precedent decisions, The Secretary of Homeland Security , or specific officials of
the Department of Homeland Security designated by the Secretary with the concurrence .
of the Attorney General , may file with the Attorney General decisions relating to the
administration of the immigration laws of the United States for publication as precedent
in future proceedings , and upon approval of the Attorney General as to the lawfulness of
such decision, the Director of the Executive Office for Immigration Review shall cause
such decisions to be published in the same manner ~s decisions of the Board and the
Attorney General. '..[D]esignated Service decisions are to 'serve as precedents in all
proceedings involving the same issue(s) ... . ' . .
The petitioner 's prior approval notices are not precedent decisions. The petitioner submits no e vidence , '
that its previous approvals have been designated ' by . the Secretary of Homeland Security, with the
concurrence of the Attorney General , as precedent decisions , and published by the Director of the
Executive Office for Immigration Review. While -8 C.F .R. § 103.3(c) provides that AAO precedent
decisions are binding on all CIS employees in the administration of the Act, unpublished decisions are not
similarly binding.
Regarding the petitioner's previous approvals , the AAO notes that each nonimmigrant' petition is a
separate proceeding with a separate record . See 8 C.F .R. § 103.2(b )(16)(ii). If the petitioner 's previous
petitions were approved based upon the sameevidence contained in this record , their approval would
constitute error 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 ma y have been
erroneous. See, e.g. Matter ofChurch 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).
Furthermore , the AAO 's authority .over the service centers is comparableto the relationship between a
court of appeals and a district court. Even if a service center director did approve a nonimmigrant petition
similar to the one at issue here , 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.) , aff'd, 248 F.3d
1139 (5th Cir. 200t) , cert. denied, 122 S.Ct. 51 (2001) .
Finally ; the AAO notes that the petitioner has requested .oralargument before the AAO, citing to "the
issues being decided herein and public policy at stake." The AAO disagrees. CIS has the sole authority
to grant or deny a request for oral argument and will grant argument only in cases involving unique
factors or issues of law that cannot be adequately addressed in writing. See 8 C.F.R . § 103.3(b). .The
instant petition does not involve unique factors or issues of law, and the written record of proceedings
fully represents the facts and issues in this matter. Consequently, the request for oral argument is denied.
The petitioner has failed to establish that it has an itinerary of employment for the beneficiary , that it has '
three years of work for the beneficiary , that the proposed position qualifies for classification as a specialty
occupation , that the beneficiary would be coming temporarily to the United States to perform the duties of
WAC 0415650635
Page?
aspecialtyoccupation, or that the LCA is valid for the work locations. Accordingly, theAAO will 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 isdismissed. The petition is denied.