dismissed H-1B Case: Computer Science

PUBLIC COpy
identifying data deleted to
prevent clearly unwa~ted
invasionofpersonalprivacy
U.S. Department of Homeland Security
20 Massachusetts Avenue NW, Room 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
D2.
FILE: WAC 04181 50262 Office: CALIFORNIA SERVICE CENTER Date: OCT 2 52007
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a 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 ofthe 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
WAC 04 181 50262
Page 2
DISCUSSION: The director denied the nonimmigrant visa petition and the matter is now before the
Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be
denied.
The petitioner is a systems integration and software development company that seeks to 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 Act), 8 U.S.C. § 1101(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; and (4) the
director's denial letter. The AAO reviewed the record in its entirety before issuing its decision. Although the
record does not contain the petitioner's brief or supporting documentation, the AAO has reviewed the brief
and supporting documentation for a similar petition filed by the petitioner, file number WAC 04 129
50372, and references those documents in this 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 denying the petition.
Section 214(i)(1) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1184(i)(1), 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.
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 sciences, social sciences, medicine and
health, education, business specialties, accounting, law, theology, and the arts, and which
requires the attainment of a bachelor's degree or higher in a specific specialty, or its
equivalent, as a minimum for entry into the occupation in the United States.
WAC 04 181 50262
Page 3
Pursuant 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:
(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.
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 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 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 work of the beneficiary.' 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.
I See also Memorandum from Michael L. Aytes, Assistant Commissioner, INS Office of Adjudications,
Interpretation of the Term "Itinerary" Found in 8 C.F.R. 214.2(h)(2)(i)(B) as it Relates to the H-1B
Nonimmigrant Classification, HQ 70/6.2.8 (December 29, 1995).
WAC 0418150262
Page 4
The petition may not b e appro ved, however , as the petition does not establi sh that the beneficiary will be
employed in a specialt y occupa tion or that the emplo yer has submitted an itinerary of employment.
As the petitioner notes on appeal , the beneficiary would not perform hi s duties at the petitioner 's place of
business. Rather, he would be "assigned to these client projects outside it s 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.
The petitioner also submitted a "contractor agreement" between the petitioner and MTSI Inc. ("MTSI ") .
The contract states that the petitioner will perform services and achieve results "as per discussions with
the client." The contract also states that the duration of the project will be stated in the statement of work
and that "the project requires a commitment to be at the client site." Moreover , the petitioner submitted
an addendum to the service s agreement between the petitioner and MTSI , dated June 4 , 2004 , indicating
that the beneficiary will begin a new assignment for MTSI for the period of June 14 , 2004 until
September 14, 2004. The petitioner 's agreement with MTSI calls for the petitioner to offer the beneficiary's
services to MTSL which will in turn place the b eneficiary at the end user client sites.
The petitioner also s ubmitted a "independent contractor professional service agreement " between the
petitioner and DAZ Systems, Inc. C'DAZ"). The contract states that DAZ de sires to "retain [the
petitioner] as an ind ependent contractor to provide professional service s in the area of systems
development including systems maintenance and other related work, for one or more of DAZ 's
customer(s ) (the Customer) a s more particularl y described in Attachment A." The petitioner did not
submit a cop y of Attachment A or an y other attachments listing the beneficiary or ajob description for the
duties that .the beneficiary will perform for DAZ .
The AAO agrees with the director that the p etition does not establish that the beneficiary will be
employed in a specialty occupation. The evid ence of record establishes that the petitioner is an
employment contractor in that the petitioner will place the beneficiary at work locations to perform
services established by contractual agreements for third -party companies.
The petitioner did n ot describe the duties to be performed for the clients of MTSI or DAZ . The court in
Defensor v. Meissner , 20 I F . 3d 384 (5 th Cir. 2000) held that for the purpo se of determining whether a
proposed position is a specialty o ccupation , the petitioner acting as an empl oyment contractor is merely a
"token employer ," while the entity (the end u ser, i n thi s case) for which the services are to be performed
is the "more rel evant employer." The Defensor court recognized that e vidence of the client companies '
job requirements is critical where the work i s to be performed for entities other than the petitioner. The
court held that the legacy Immigration and Natu ralization Service had rea sonably interpreted the statute
and regulation s as requiring the petitioner to produc e evidence that a proposed position qualifies as a
specialty occupation on t he basis of the requir ements imposed b y the entities using the beneficiary 's
services.
As the record does not contain documentation that establishes the specific duties the beneficiary would
perform under contract for MTSI's or DAZ's client s, the AAO cannot analyze whether these duties would
WAC 04 181 50262
Page 5
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)(I)(B)(1). Thus, the petition may not
be approved.
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 of employment in such situations. While the Aytes memorandum cited at footnote 1
broadly interprets the term "itinerary," it provides CIS the discretion to require that the petitioner submit
the dates and locations of the proposed employment. As the evidence contained in the record at the time
the petition was filed did not establish that the petitioner had two years of work for the beneficiary to
perform, the director properly exercised his discretion to require an itinerary of employment?
On appeal, the 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: (I) 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 of the 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 two years' worth of H-l B-level
work for the beneficiary to perform. Moreover, the contract between the petitioner and MTSI, DAZ, and
Cisco Systems, Inc., submitted with the petitioner's initial filing, failed to establish two years of work in a
specialty occupation with the proposed end user(s) of the beneficiary's services. 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
at 8 C.F.R. § 214.2(h)(2)(i)(B) and the petition was properly denied.
The director also found that the record does not establish that the LCA is valid for all work locations. As
the record does not contain an itinerary of employment, it cannot be determined 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 failed to overcome the director's denial, and it has demonstrated no prejudice on the part of the director
2 As noted by Assistant Commissioner Aytes in the cited 1995 memorandum, "[tjhe 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."
3 On appeal, counsel submits a copy of regulations that were proposed in 1998. However, those
regulations were never published and have no legal effect here.
WAC 04 181 50 262
Page 6
that would constitute a due process v iolation. 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. 1 979) ; Marlin-Mendoza v. INS,
499 F.2d 918 , 922 (9 th Cir. 197 4), cert. denied, 4 1 9 U,S. 1113 ( 1975). As discussed previously, the
petition er has n ot met its burden of proof, and th e den ial was the pr oper result under the regulation.
The petitioner cites t o 8 C.F.R. § 103.3(c) o n appeal, and states that the "hundr eds o f petition s" that the
petitioner has had approved in th e past s hould serve as precedent s. However , the petitioner has misread
8 C.F.R. § I0 3.3(c) , which states the f ollowing :
Service precedent d ecisions. The S ecretary of Homeland Securi ty, or s pecific officials of
the Department of Homeland Securit y designated by the Secret ary with the concurrence
of the Attorne y G eneral, may file with the Attorney General decisions relating to the
administrati on of the immigration laws of the United States for publi cation as precedent
in futur e proceedings, and upon approval of t he Attorney General as to the lawfulness of
such de cision, the D irector of the E xecutive Office f or Immigr ation Review s hall cau se
such d ecisions to be publ ished in th e sa me mann er as deci sions of the Board and the
Attorne y Ge neral . . .[D]esignated Service decisions are t o s erve as preced ents in all
proce edin gs invo lving the same i ssue(s) .. . .
The petitione r' s prior a pproval notice s are not precedent decision s. The petit ioner s ubmits no e vidence
that it s previous a pprova ls ha ve been de signated by the S ecretary o f Homeland Securit y, w ith the
concurrence of th e Attorney General, a s preceden t decisions, and publi shed by the Director of the
Executive Offi ce for Immigration Review. W hile 8 C. F.R. § 103.3(c) provides that AAO precedent
decision s are bindin g o n all CIS empl oyees in the administration of the Ac t, unpubli shed decisions are not
similarly bindin g.
Regarding the p etitioner ' s previous appro vals , the AAO notes that e ach nonimmi grant petition i s a
separate proceedin g 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 sam e evidence contained in thi s record , their approval would
constitute error on th e part of the director. The A AO is not required to approve applications or petitions
where eligibility has not been demonstrated , merely because of prior app rova ls that may have been
erroneous. See, e.g. Matter of Church Sci entology International, 19 I&N D ec. 593, 59 7 (Comm. 1988). It
would be absurd to s uggest th at C IS or any age ncy mu st treat ackno wled ged errors as binding prec edent.
Sussex Engg. Ltd v. Montgomery, 825 F.2d 10 84, 1090 (6th Cir. 1 987 ), eert. denied,
485 U.S. 1008 ( 1988).
Furthermore , the A AO's authority o ver the se rvice centers i s comparabl e to the relation ship between a
court of appeal s and a district court . Ev en if a serv ice center director did approve a nonimmigrant petit ion
similar to the on e a t i ssue here, the AAO would n ot be bound to f ollow the con tradictory de cision of a
service cent er. Louisiana Philharmoni c Or chestra v. INS, 2000 W L 2 82785 (E.D. La.), aff'd,
248 F. 3d 1139 (5th Cir. 200 I), cert. denied, 122 S .Ct. 5 1 (200 I).
Finall y, the AAO notes t hat th e petitioner has requested oral ar gument before the AAO, citing to "the
issues being decid ed herein a nd publi c policy a t stake." Th e AAO disagrees. C IS has the s ole auth ority
to grant or den y a reque st for oral argument and w ill grant argument only in ca ses involving unique
WAC 04181 50262
Page 7
factors or issues of law that cannot be adequately addressed in writing. See 8 C.F.R. § l03.3(b). The
instant petition does not involve unique factor s 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
two 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
a specialty occupation, or that the LCA is valid for the work locations. Accordingly, the AAO 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 is dismissed. The petition is denied.