dismissed H-1B Case: Computer Science

identifying da~a deleted to 
prevent -1 ,3 .$ ':?warranted 
invasj-2 i ?::rrLd privacy 
PUBLIC COPY 
U.S. Department of Elomeland Security 
20 Massachusetts Avenue, NW, Rm. 3000 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: LIN 04 186 50900 Office: NEBRASKA SERVICE CENTER Date: JUL 1 4 2006 
Immigration and Nationality Act, 8 U.S.C. 8 1 10 1 (a)(l 5)(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 04 186 50900 
Page 2 
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 software consulting company that seeks to employ the beneficiary as a systems analyst. 
The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant 
to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 lOl(a)(l5)(H)(i)(b). 
The director denied the petition because the petitioner did not establish it had a specialty occupation available 
for the beneficiary to fill at the time the petition was filed. On appeal, counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. § 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. 
Pursuant to 8 C.F.R. 
 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. 
$ 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. 
The record of proceeding before the AAO contains: (1) 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 
LIN 04 186 50900 
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director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a systems analyst. Evidence of the beneficiary's duties 
includes: the 1-129 petition; the petitioner's June 10, 2004 letter in support of the petition; and the petitioner's 
response to the director's request for evidence. According to this evidence, the beneficiary would perform 
duties that entail: designing software modules and integrated software systems to accommodate multiple 
business information functions and Internet data transactions; consulting with management to prepare a cost- 
effective design plan, after studying and analyzing the company's management information needs, their data 
port capacities, their electronic data processing requirements and their computer hardware specifications; 
preparing detailed specifications from which programs will be written; designing, coding, testing and 
debugging and documenting those programs; generating and supervising the continued generation of 
fundamental reports; analyzing user requirements and proposing alternative solutions; developing a thorough 
knowledge of existing electronic data processing operations, including data structures and usage; analyzing 
the design, software structure, administration of information systems and their adaptation to the specific 
requirements; analyzing operating systems, identifying bottlenecks, configuration and networking issues; 
studying requests for enhancements and new business functions and determining what new or adapted 
software and hardware would best fit the proposed software solutions; designing schematics of the proposed 
system and directing development teams to translate it into hardware, software, networking and operating 
system specifications; consulting with management regarding design of software modules; designing data 
models for technical reference and a process for functional reference; determining database level changes for 
enhancements of new programs; designing scripts to perform database changes, design of software modules, 
design of integrated software systems and development of prototypes; preparing designs for the creation of 
necessary graphical user interfaces; creating forms, queries, functions and menus; designing testing 
methodology for and implementing testing for individual software modules, systems, programs, reports, 
queries and filters; coding the required security constraints within the programs; writing scripts to load data 
for testing or for regular production use; testing and debugging the programs; creating high-level test data and 
completing the execution of all follow-up test plans which are required; ensuring proper analytical and design 
communications with management; and designing and implementing management information and 
administrative functions, including necessary management information systems. The petitioner stated that a 
qualified candidate would possess a bachelor's degree in a field related to computer science. 
In the request for evidence, the director requested that the petitioner provide evidence related to its "contracts, 
agreements or work orders to verify the availability of H-1B level work at the location identified in the Labor 
Condition Application, [LCA] Form ETA 9035 at the time of filing of the petition." The record reflects that 
the petitioner did not provide this evidence. In his decision, the director found that, in the absence of this 
evidence, the petitioner did not establish that it had or will have a specialty occupation position available for 
the beneficiary in the location identified in the LCA. On appeal, counsel states that there is "ample proof of 
availability of H-1B work available for the beneficiary," and submits copies of several contracts and work 
orders. 
The regulation states that the petitioner shall submit additional evidence as the director, in his or her 
discretion, may deem necessary. The purpose of the request for evidence is to elicit further information that 
LIN 04 186 50900 
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clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 
8 C.F.R. $4 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. 4 103.2(b)(14). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 
(BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have submitted 
the documents in response to the director's request for evidence. Id. Under the circumstances, the AAO need 
not and does not consider the sufficiency of the evidence submitted on appeal. The AAO will base its 
decision on evidence that was before the director. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AA0 turns first to the criteria at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or 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 Department of Labor's 
Occupational Outlook Handbook (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 1 15 1, 1 165 (D. Minn. 1999) (quoting 
Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. 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 Handbook states: 
While there is no universally accepted way to prepare for a job as a systems analyst, most 
employers place a premium on some formal college education. . . . Despite employers' 
preference for those with technical degrees, person with degrees in a variety of majors find 
employment as systems analysts. 
As noted above, CIS interprets the term "degree" in the criteria at 8 C.F.R. 4 214.2(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 
LIN 04 186 50900 
Page 5 
position. The Handbook clearly indicates that one can enter this field with less than a baccalaureate degree, 
and there is no requirement for a degree in a specific specialty. 
In response to the director's request for evidence, the petitioner submitted a December 22, 2000 memorandum 
from the director of the Nebraska Service Center of the former Immigration and Naturalization Service, now 
CIS, providing guidance for adjudicating computer-related positions. It states that CIS would recognize most 
programmers and systems analysts as specialty occupations. It also states, however: 
[Tlhat examination for eligibility as a specialty occupation is not based on the job title, but is 
centered on reviewing the actual duties to be performed. A careful review of the duties to be 
performed should be the focus of attention when determining whether or not the position 
offered qualifies as a specialty occupation. 
As discussed previously, the petitioner has not established where the beneficiary would be working, or in 
what capacity. The petitioner provided no evidence beyond the Service Center memorandum regarding 
parallel positions among similar organizations. 
The AAO notes that CIS must examine the ultimate employment of the alien to determine whether the 
position qualifies as a specialty occupation. The director referred to the petitioner's lack of response to the 
director's request for contracts, agreements or work orders to establish the availability of work in a specialty 
occupation. There is no evidence in the record regarding the business where the beneficiary would ultimately 
work. The court in Defensor v. Meissner, 201 F. 3d 384 (5' Cir. 2000) found that absent a contract with the 
actual employer stating the duties to be performed pursuant to the contract, CIS cannot determine that a position 
qualifies as a specialty occupation. The court found that a petitioner that is an employment contractor is merely a 
"token employer." The entity ultimately employing the alien or using the alien's services is the "more relevant 
employer." Defensor v. Meissner, id. In other words, the employment contractor's client is the "more relevant 
employment," whether the alien will be worlung within the employment contractor's operations on projects for 
the client or whether the alien will work at the client's place of business. 
Thus, when a petitioner is an employment contractor, the petitioner must submit a detailed job description of the 
duties that the alien will perform and the qualifications that are required to perform the job duties from the 
entity ultimately employing the alien or using the alien's services. From this evidence, CIS will determine 
whether the duties require the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate or higher degree, or its equivalent, in the specific specialty as the 
minimum for entry into the occupation as required by the ~ct.' As the petitioner did not submit a contract or 
job description from the entity where the beneficiary will be working, CIS is unable to determine that the job 
duties to be performed will require a baccalaureate degree in a specialty, or that the position will qualify as a 
specialty occupation. 
1 
 The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 3 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an 
additional requirement that a position must meet, in addition to the statutory and regulatory definition." See 
id. at 387. 
LIN 04 186 50900 
Page 6 
The record does not include any evidence from professional associations regarding an industry standard, or 
documentation to support the complexity or uniqueness of the proffered position. The petitioner has, thus, not 
established the criteria set forth at 8 C.F.R. tj 214.2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 
 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. The record contains no evidence of the petitioner's previous hiring 
practices. 
Finally, the AAO turns to the criterion at 8 C.F.R. tj 214.2(h)(iii)(A)(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. 
To the extent that they are depicted in the record, and combined with the evidence of record, the duties do not 
appear to be so specialized and complex as to require the highly specialized knowledge associated with a 
baccalaureate or higher degree, or its equivalent, in a specific specialty. The AAO notes, once again, that the 
petitioner has not established where the beneficiary would be working or what duties he would be performing. 
The petitioner has not related the listed duties to the business operations of the entity where the beneficiary 
will be working, and CIS cannot determine that a baccalaureate degree will be required to perform the duties. 
Counsel states that the beneficiary will perform complex tasks, requiring software design and analysis, and 
which require at least a bachelor's degree in a field related to computer science. The Handbook reveals that 
the duties of the proffered position would be performed by a computer systems analyst, an occupation that 
does not require a specific baccalaureate degree as a minimum for entry into the occupation. Thus, the 
petitioner fails to establish the fourth criterion at 8 C.F.R. 
 214.2(h)(4)(iii)(A). 
Therefore, for the reasons related in the preceding discussion, 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. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.