dismissed H-1B Case: Computer Science

identity nalg tiaka ileieii3d to 
prevent dearly unwammted 
-elprmealprivw 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
b, 
Immigration and Nationality Act, 8 U.S.C. 
 1 10 l(a)(l S)(H)(i)(b) 
I 
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 
WAC 04 205 53891 
Page 2 
DISCUSSION: The director denied the nonirnrnigrant visa petition and the matter is now before the 
Administrative Appeals Office (MO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a computer project services and software consulting company that seeks to employ the 
beneficiary as a programmer-analyst. The petitioner, therefore, endeavors to .classify the beneficiary as a 
nonirnmigrant 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. § I lOl(a)(lS)(H)(i)(b). 
The director denied the petition, finding that the petitioner was not the employer of the beneficiary, and that 
the petitioner has not established the valid@ of the labor condition application (LCA). The director also 
found that the petitioner had not established that it would employ the beneficiary in a specialty occupation. 
The record of proceeding before the MO contains (1) the Form 1-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's RFE response and supporting documentation; 
(4) the director's denial letter; and (5) the Form I-290B and supporting documentation. The MO reviewed 
the record in its entirety before issuing its deci,sion. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 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. 
The term "specialty occupation" is further defined at 8 C.F.R. 9 214.2(h)(4)(ii) as: 
[A]n occupation which requires the~retical and practical application of a body of hghly 
specialized knowledge in fields of human endeavor including, but not limited to, 
archttecture, 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 hlgher 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 
WAC 04 205 53891 
Page 3 
(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. 5 214.2(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. 
In its July 1, 2004 letter of support, the petitioner stated that the duties of the proposed position would 
include custom program design, development, and implementation of software applications and systems 
to meet clients' needs and specifications. The beneficiary would analyze users' requirements, procedures, 
and problems to automate processing or improve existing customer systems; confer with personnel 
involved to analyze current operational procedures and identify problems; write detailed descriptions of 
user needs, program functions, and the steps required to develop or modify computer programs; review 
system capabilities, workflow, and study existing information processing systems to evaluate their 
effectiveness and develop new systems to improve productivity; provide software support, including 
testing, debugging, and modifjring software according to the needs of clients. 
In the director's September 13, 2004 request for evidence, he requested an itinerary of definite 
employment, which was to include the names and addresses of the organizations where the beneficiary 
would be working during the three-year period of requested nonirnrnigrant classification. If any duties 
were to be completed at the petitioner's place of business, the petitioner was to submit evidence that it 
required other programmer-analysts working in-house to possess the same skills as those working at 
client sites. The director requested copies of any contractual agreements between the petitioner and the 
beneficiary, as well as any contractual agreements between the petitioner and companies for whom the 
beneficiary would be providing services. The director also requested evidence to support the petitioner's 
assertion that the beneficiary qualified to perform the duties of a specialty occupation. 
In response, the petitioner provided an evaluation of the beneficiary's foreign education. The petitioner 
submitted its June 15, 2004 offer of employment letter to the beneficiary, an "Itinerary of In-House 
Projects," and a "Statement of Work" agreement between the petitioner and Accruent Inc. 
Counsel's October 5, 2004 response to the director's request stated that the beneficiary "will be working 
on the IN-house project until October 1, 2007" (emphasis in original), and the projects named on the 
itinerary were described as being in-house projects. However, the offer of employment letter stated that 
the beneficiary would be working either at the petitioner's office or at a client site. The letter further 
noted that such client sites could be anywhere in North America. No independent information was 
submitted to resolve this contradiction. 
The director noted this discrepancy, and ultimately found that the petitioner had not established that it 
would be the employer of the beneficiary: 
Since the petitioner has provided conflicting information, it has not met the burden in 
proving that the petitioning entity is in fact the beneficiary's employer. There may be no 
programmer analyst position for beneficiary when he/she enters the United States. In 
effect the beneficiary may be coming to the United States and be waiting (not employed) 
in a specialty occupation, until such employment has been secured. 
WAC 04 205 5389 1 
Page 4 
On appeal, counsel states the following: 
The contract between the [pletitioner and the beneficiary was submitted which clearly 
stated that he is offered a job as a programmer [alnalyst and services will be utilized in 
developinglmaintaining applications/systems at our office [emphasis in original]. . . . 
The AAO will first consider the issue of whether the petitioner meets the definition of a United States 
employer. The term "employer" is defined at 8 C.F.R. Cj 214.2(h)(4)(ii): 
United States employer means a person, firm, 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 evidence of record establishes that the petitioner will act as the beneficiary's employer in that it will 
hire, pay, fire, supervise, or otherwise control the work of the beneficiary.' See 8 C.F.R. tj 214.2(h)(4)(ii). 
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 more than one location. 
In his request for evidence, the director asked for the beneficiary's employment itinerary. This itinerary 
was to list the locations and organizations where the beneficiary would be providing services. The 
itinerary was to specify the dates of each service or engagement, the names and addresses of the actual 
employers, and the names and addresses of the establishment, venue, or location where the service would 
be performed. The itinerary was to include all service planned for the period of requested 
employment-through October 2007. 
In response, the petitioner submitted an "Itinerary of In-House Projects." The petitioner's statement on 
the itinerary that the beneficiary would work on the Accruent project from 2002 through 2007 is not 
supported by the record. According to the Statement of Work agreement submitted by the petitioner, the 
petitioner would provide services at Accruent's office and in Chennai, India. The agreement does not 
mention any work to be performed at the petitioner's office. According to this agreement, there would be 
two projects at Accruent's office: one lasting from January 1, 2004 through May 31, 2004, and another 
lasting from January 1,2004 through December 3 1,2004. 
' See also Memorandum fiom Michael L. Aytes, Assistant Commissioner, INS Office of Adjudications, 
Interpretation of the Term "Itinerary" Found in 8 C.F.R. 21#.2@)(2)(i)(B) as it Relates to the H-IB 
Nonimmigrant ClassiJication, HQ 7016.2.8 (December 29, 1 995). 
WAC 04 205 53891 
Page 5 
Moreover, the AAO notes that the offer of employment letter stated that the beneficiary would work for 
the petitioner for a period of 18 months. 
Pursuant to the Aytes memorandum cited at footnote I, the director has the discretion to request that that 
the employer who will employ the beneficiary in multiple locations submit an itinerary. Upon review, the 
director properly exercised his discretion to request an employment itinerary. The itinerary submitted by 
the petitioner 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. As the petitioner has not complied with the requirements at 
8 C.F.R. $ 214.2(h)(2)(i)(B), the petition must be denied. 
The director found that that petitioner did not establish that the beneficiary would perform services in a 
specialty occupation. The AAO agrees. 
The evidence of record establishes that the petitioner is an employment contractor in that the petitioner 
will place the beneficiary at multiple work locations to perform services established by contractual 
agreements for third-party companies. The petitioner, however, has provided no contracts, work orders or 
statements of work describing the duties the beneficiary would perform for its clients and, therefore, has 
not established the proposed position as a specialty occupation. 
The court in Defensor v. Meissner, 201 F. 3d 384 (5" 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 does not contain any documentation that establishes the specific duties the beneficiary 
would perform under contract for the petitioner's clients, 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. 5 214.2@)(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. 5 214.2(h)(l)(B)(l). 
The director also found that the petitioner had not established the validity of the LCA, which was certified for 
work in Cerritos and Los Angeles, California. However, as noted previously, the petitioner has not 
established where the beneficiary would provide his services. As such, the AAO agrees with the director's 
findings regarding the validity of the LCA. 
The petitioner has failed to submit an itinerary, proof that the position is a specialty occupation, and a 
valid LCA, as required by the regulations and requested by the director. 
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.