dismissed H-1B Case: Computer Science

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
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 U. S. Citizenship 
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PWLIC COPY 
FILE: LIN 04 251 54421 Office: NEBRASKA SERVICE CENTER Date: 
IN RE: 
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. 3 1 101 (a)(lS)(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, Chief 
Administrative Appeals Office 
LIN 04 25 1 5442 1 
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DISCUSSION: The service center 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 computer software development and consulting company that seeks to employ the beneficiary 
as a computer programmer analyst. The petitioner endeavors to classify the beneficiary as a nonimmigrant 
worker in a specialty occupation pursuant to section 101 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 8 1101(a)(l5)(H)(i)(b). 
The director determined that the petitioner did not demonstrate that it had H-1B caliber work available for the 
beneficiary during the three-year time period sought by the petitioner in the Form 1-129 petition, and the petition 
was not, therefore, approvable. The director also determined that the petitioner did not qualify as a United States 
employer in ths instance. On appeal the petitioner submits a brief and additional information to establish that the 
proffered position qualifies as a specialty occupation, and that the petitioner will be the employer of the 
beneficiary with H-1B caliber employment available for him in the United States. The record contains a contract 
between the petitioner and Inforide Technologies, as well as a work order, whereby the beneficiary will provide 
computer consulting services for Inforide Technologies client, McGraw Hill in Dubuque, Iowa, for a period of 
three months (extendable). 
The first issue to be determined is whether the petitioner qualifies as a United States employer 
Pursuant to 8 C.F.R. 8 214.2(h)(4)(ii), United States employer means a person, fm, 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 record establishes that the petitioner will be the employer of the beneficiary, and the director's finding to 
the contrary shall be withdrawn. The petitioner submitted a Professional Services Agreement Master 
Agreement which it entered into with Inforide Technologies. Under the terms of this agreement the petitioner 
acts as an independent contractor in providing services. The services to be provided to Inforide Technologies7 
clients will be performed by employees of the petitioner. The petitioner will hire the beneficiary, will pay the 
beneficiary, has the right to fire the beneficiary and will otherwise have control over the beneficiary's work. 
The fact that the beneficiary may perform services at a third party client's facility and is subject to that 
client's work rules and regulations does not change the employer/employee relationship existing between the 
petitioner and beneficiary. The petitioner will engage the beneficiary to work in the United States, has an 
employer-employee relationship with the beneficiary, and has an Internal Revenue Service Tax identification 
number. The petitioner qualifies as a United States employer in this instance, and the director's finding to the 
contrary is withdrawn. 
The final issue to be determined is whether the proffered position qualifies as a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 
 1184(i)(l), defines the term "specialty occupation7' as an occupation that 
requires: 
LIN 04 25 1 5442 1 
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(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 fbrther defined at 8 C.F.R. 9 214.2(h)(4)(ii) as: 
An occupation which requires theoretical and practical application of a body of hlghly 
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. 
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 above criteria to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position. 
The petitioner seeks the beneficiary's services as a programmer analyst. Evidence of the beneficiary's duties 
includes the Form 1-129 petition with attachment and the petitioner's response to the director's request for 
evidence. According to evidence provided by the petitioner the beneficiary would: 
Analyze software requirementsluser problems to determine the feasibility of design within time and 
cost constraints. 
Formulate and define the scope and objectives through research and fact-finding to develop or modify 
complex software programming applications or information systems; 
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Consult with hardware engineers and other engineering staff to evaluate interface between hardware 
and software, and operational and performance requirements of the overall system; 
Formulate and design the software system, using scientific analysis and mathematical models to 
predict and measure the outcome and consequences of design; 
Prepare functional specifications and design software programs; 
Build detailed design specifications and programs for scientific, engineering, and business 
applications; 
Design data conversion software programs; 
Perform QA testing; 
Develop and direct software systems testing procedures, programming and documentation including 
testing units and computer software systems; 
Coordinate the installation of software systems; and 
Consult with the client concerning maintenance of the software system. 
The petitioner requires a minimum of a bachelor's degree in computer science or a related field for entry into 
the proffered position. 
The director found that the petitioner did not establish that it would employ the beneficiary in a specialty 
occupation for the three-year period requested on the petition. The period of time requested on the Form 1-129 
petition is from October 1, 2004 through September 30, 2007. As the employer may place the beneficiary in 
multiple work locations, the record should establish the existence of specialty occupation work available to the 
beneficiary throughout the three-year period. 
Pursuant to the language at 8 C.F.R. 3 214.2(h)(2)(i)(B), employers must submit an itinerary' with the dates 
and locations of employment if the beneficiary's duties will be performed in more than one location. 
In his request for evidence, the director asked for copies of contracts between the petitioner and its clients for 
whom the beneficiary would perform services and an itinerary for the beneficiary's employment. In the 
Aytes memorandum cited at footnote 1, the director has the discretion to request that the employer who will 
employ the beneficiary in multiple locations submit an itinerary. Upon review, the director properly 
exercised his discretion to request the contracts described above. In response to the director's request for 
evidence, the petitioner provided a Professional Services Agreement Master Agreement entered into between 
1 
 See 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-IB 
Nonimmigrant ClassiJication, HQ 7016.2.8 (December 29, 1 995). 
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it and Inforide Technologies with an accompanying work order. The documentation submitted by the 
petitioner does not establish a complete itinerary for the beneficiary from October 1, 2004 through 
September 30, 2007. Under the terms of the work order, the beneficiary would provide services for Inforide 
Technologies at its client's (McGraw Hill) facility in Dubuque, Iowa. The work order further provides that 
the beneficiary's services will be performed for a period of "3+ months (Extendable)." The petitioner states 
that the contract under which the beneficiary will work is for an initial period of 90 days, but extendable for 
the remainder of the beneficiary's term under the Form 1-129 petition (until September 30, 2007). The 
petitioner's unsubstantiated statement that the contract will be extended after the initial 90 day term is not 
sufficient to establish a work itinerary for the beneficiary until September 30, 2007. The record contains no 
additional statement from Inforide Technologies indicating that the work orderlcontract will be extended. 
The work order simply indicates that the contract may be extended beyond 90 days. Simply going on the 
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 (Comm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N 190 (Reg. Comm. 1972)). Accordingly, the petitioner has failed to comply with the 
requirements at 8 C.F.R. 3 214.2(h)(2)(i)(B) and the petition must be denied.2 
The beneficiary's position has been identified by the petitioner as a programmer analyst, The Department of 
Labor's Occupational Outlook Handbook (Handbook) notes that although there are many training paths 
available for programmers due to varied employer needs, the level of education and experience employers 
seek has been rising due to the growing number of qualified applicants and the specialization involved with 
most programming tasks. Bachelor's degrees are commonly required, although some programmers may 
qualify for certain jobs with 2-year degrees or certificates. The associate degree is a widely used entry-level 
credential for prospective computer programmers. In the absence of a degree, substantial specialized 
experience or expertise may be needed, and employers appear to place more emphasis on previous experience 
even when hiring programmers with a degree. Some computer programmers hold a college degree in 
computer science, mathematics, or information systems, while others have taken special courses in computer 
programming to supplement degrees in other fields. Thus, it is evident that while some programmer positions 
justify the hiring of an individual with a baccalaureate level education, others require only an associate's 
degree or some other form of certification. 
The petitioner, however, has provided no contracts, work orders or statements of work from the party for 
whom the beneficiary will actually perform services (McGraw Hill) specifically describing the duties the 
beneficiary would perform and, therefore, has not established the proffered position as a specialty occupation. 
The court in Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 2000) held that for the purpose of determining 
whether a proffered position is a specialty occupation, the petitioner acting as an employment 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 the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the basis of the 
-- 
2 
 As noted by Assistant Commissioner Aytes in the cited 1995 memorandum, "[tlhe purpose of this particular 
regulation is to [elnsure 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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requirements imposed by the entities using the beneficiary's services. As the record does not contain any 
documentation from the end user of the beneficiary's services that establishes the specific duties the 
beneficiary would perform under contract, the AAO cannot analyze whether these 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 as a 
specialty occupation under any of the criteria at 8 C.F.R. 9 214.2(h)(4)(A) or that the beneficiary would be 
coming temporarily to the United States to perform the duties of a specialty occupation pursuant to 8 C.F.R. 
9 214.2(h)(l)(B)(I). For this additional reason, the petition must be denied. 
The petitioner also asserts that previous agency decisions have classified the offered position as a specialty 
occupation. This reference will not sustain the petitioner's burden of establishing H-1B qualification in the 
petition now before the AAO. This record of proceeding does not contain the entire record of proceedings in 
the petitions referred to by counsel. 
 Accordingly, no comparison of the positions can be made. 
 Each 
nonirnrnigrant petition is a separate proceeding with a separate record. See 8 C.F.R. 9 103.8(d). In making a 
determination of statutory eligibility, the AAO is limited to the information contained in the record of 
proceeding. See 8 C.F.R. $ 103.2(b)(16)(ii). It warrants noting that Congress intended this visa classification 
for aliens that are to be employed in an occupation that requires the theoretical and practical application of a 
body of highly specialized knowledge. Congress specifically stated that such an occupation would require, as 
a minimum qualification, a baccalaureate or higher degree in the specialty. 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 specialty occupation as a minimum for entry into the occupation and fairly represent the types of 
professions that Congress contemplated when it created that visa category. In the present matter, the 
petitioner has offered the beneficiary a position as a programmer analyst. For the reasons discussed above, 
the proffered position does not require attainment of a baccalaureate or higher degree in a specific specialty as 
a minimum for entry into the occupation, and approval of a petition for another beneficiary based on identical 
facts would constitute material error, gross error, and a violation of 8 C.F.R. 9 214.2 paragraph (h). 
Finally, counsel makes reference to a memorandum prepared by Terry E. Way, former director of the 
Nebraska Service Center, concerning programmer/analyst positions and whether or not such positions may 
qualify as a specialty. occupation. That memorandum, which was issued as guidance for service center 
adjudicators, is not a national policy memorandum for CIS. Further, the referenced memorandum does not 
state that all such positions qualify as specialty occupations. A determination as to whether any particular 
position so qualifies must be made based upon the evidence of record and in accord with applicable 
regulations. As noted above, the record of proceeding in this instance does not establish that the proffered 
position is a specialty occupation. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
9 1361. The petitioner has failed to sustain that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.