dismissed H-1B Case: Computer Science

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PUBUCCOpy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
FILE: WAC 05 083 50548 Office: CALIFORNIA SERVICE CENTER Date: DEC 0 4Zot'I
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:
...•
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 05 083 50548
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 computer project services and software consulting firm that seeks to employ the beneficiary as
a programmer analyst. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a
specialty occupation pursuant to section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act),
8 U.S.c. § 1101(a)(15)(H)(i)(b).'
The director determined that the petitioner did not demonstrate that it had H-IB caliber work available for the
beneficiary during the one year time period sought by the petitioner in the Porm I-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 this instance, and that without contracts, it could not be determined that the petitioner had filed an
LCA valid for all locations of employment. On appeal the petitioner submits a brief and additional information
indicating that the proffered position qualifies as a specialty occupation, and that the petitioner will be the
employer of the beneficiary with H-IB caliber employment available for him in the United States.
The first issue to be determined is whether the,petitioner qualifies as a United States employer.
Pursuant to 8 c.P.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 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 an independent contractor agreement which it
entered into with Global Software Resources (GSR). Under the terms of this agreement the petitioner will act
as an independent contractor in providing services. The performance of the services to be provided to GSR
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 client facility and is subject to that client's work rules
and regulations does not change the employer/employee relationship existing between the petitioner and the
. 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 next 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. § I I 84(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
WAC 05 083 50548
Page 3
(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as
a minimum for entry into the occupation inthe United States.
The term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)(4)(ii) as:
An 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.
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:
(1) A baccalaureate or higher degree or its equivalent IS normally the rmmmum
requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel posinons among
similaf 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;
(3F 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 the evidence provided by the petitioner the beneficiary would:
• Be responsible for custom program design, development and implementation of software applications
and systems to meet clients' needs and specifications;
• Analyze user requirements, procedures; and problems to automate processing or to improve existing
computer systems;
• Confer with personnel to analyze current operational procedures and identify problems;
WAC 05 083 50548
Page 4
• Write detailed descriptions of user needs; program functions, and steps required to develop or modify
computer programs;
• Review computer system capabilities, workflow, and study existing information processing systems
to evaluate effectiveness, and develop new systems to improve productivity; and
• Provide software support, which includes testing, debugging and modifying software per client needs.
The petitioner requires a minimum of a bachelor's degree in computer science, engineering or a related field
for entry into the proffered position.
The director determined that the petitioner had not provided contracts for the period of time requested on the
petition. The AAO agrees that the petitioner has not provided an itinerary! for the beneficiary's work to be
performed from March 1,2005 through March 25,2006.
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 if.the beneficiary's duties will be performed in morethan 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 an independent contractor agreement entered into between it and GSR with
an accompanying purchase order which indicates that the petitioner will provide the beneficiary's services to
work on a project for one of 6SR's clients (Robert Half International - Pleasanton, CA) from February 1,
2005 through March 31, 2006. The petitioner states on appeal that Robert Half International is a staffing
company. The purchase order does not state where the beneficiary will perform services or for whom. The
work order states "Contractor and Client will discuss and determine the hours and location(s) for performance
by Contractor or its personnel." The regulation at 8 C.F.R. § 214.2(h)(2)(i)(B) states that the itinerary shall
establish the dates and locations of employment. The work order submitted by the petitioner establishes
neither the duties nor the locations of proposed employment and does not satisfy the cited regulation requiring
an itinerary of employment.
The next issue to be determined is whether the proffered position qualifies as a specialty occupation.
I 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-1B
l
Nonimmigrant Classification, HQ 70/6.2.8 (December 29, 1995).
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."
WACOS 083 SOS48
Page S
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 prospectivecoI?puter 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 '(Robert Half International) specifically describing the
duties the beneficiary would perform and, therefore , has not established the proffered position as a specialty
occupation. The petitioner did provide a letter from GSR which identified the "scope of work" to be
performed by the beneficiary on an unidentified project in Pleasanton, CA from September of 2004, until.
October of 200S. It is not clear , however, for what entity the beneficiary would perform services within the'
"scope of work" set forth in this letter. The dates of service provided on that letter do not coincide with the
dates of service requested for the beneficiary 's employment. The "scope of work" to be performed , is not
described in specific detail and does not specifically describe the nature and/or complexity of the precise
duties the beneficiary would perform on a daily basis. " '
The petitioner is an employment contractor in that it will place the beneficiary in multiple work locations to
provide services for a third party. The court in Defensor v. Meissner, 201 F. 3d 384 (Sth 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 requirements imposed by the entities using the beneficiary 's
services. As the record doe s 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 bacc ~laureate 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. § 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: § 214.2(h)(1)(B)(1) . The petition must , therefore, be denied .
, ,
The director also determined that without contracts, it could not be determined that the petitioner had
provided a valid LCA for the locations of employment. The LCA states that the work locations include
WAC 05 083 50548
Page 6
Cerritos and Los Angeles, CA. However, the work order with oes not indicate
where the beneficiary will be placed. The AAO agrees that the record does not establish the LCA is valid for
the location of employment. For this additional reason, the petition may not be approved.
The AAO notes that the petition seeks an extension of previously approved employment. Each nonimmigrant
petition is a separate proceeding with a separate record. See 8 C.P.R. § 103.8(d). In making a determination
of statutory eligibility, CIS is limited to the information contained in the record of proceeding. See 8 C.P.R. §
103.2(b)(16)(ii). Although the AAO may attempt to hypothesize as to whether the prior case was similar to
the proffered position or was approved in error, no such determination may be made without review of the
original record in its entirety. If the prior petition was approved based on evidence that was substantially
similar to the evidence contained in this record of proceeding, however, the approval of the prior petition
would have been erroneous. qtizenship and Immigration Services (CIS) is not required to approve petitions
where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous.
See, e.g., Matter ofChurch Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). Neither CIS nor
any other 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).
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 failed to sustain that burden.
ORDER: The appeal is dismissed. The petition is denied.