dismissed H-1B Case: Computer Science

U.S. Department of Homeland Security 
, 
 20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
i&@&q~ data deleted to 
pvmt clearly unwarran& 
invasion of personal primcy 
U. S. Citizenship 
and Immigration 
Services 
- 
LIC COPY 
FILE:, EAC 04 267 50764 Office: VERMONT SERVICE CENTER Date: OK 1 9 2006 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 lOl(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 
I EAC 04 267 50764 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Vermont Service Center. 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 company that provides IT consulting and computer software development services. The petitioner 
seeks to employ the beneficiary as a Software Engineer, and endeavors to classify him as a nonirnmigrant worker in a 
specialty occupation pursuant to section 10 1 (a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 8 1 lOl(a)(lS)(H)(i)(b). 
The director determined that the petitioner had failed to establish that the beneficiary met the educational 
requirements to perform the duties of the proffered position. The director determined further that the petitioner had 
failed to establish that the proffered position qualified as a specialty occupation. 
Section 214(i)(l) of the Act defines the term "specialty occupation" as an occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, and 
I 
(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 defined at 8 C.F.R. 8 214.2(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. 
The record of proceeding before the AAO contains: (1) Form 1-129, Petition for a Nonimrnigrant Worker (Form 
1-129) and supporting documentation; (2) the director's request for additional evidence (RFE); (3) the petitioner's 
response to the director's request; (4) the director's denial letter; and (5) the Form I-290B, Notice of Appeal to 
the Administrative Appeals Unit, with counsel's brief 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 computer software engineer. 
 Evidence of the 
beneficiary's duties was included with the 1-129 petition, in the petitioner's response to the director's request for 
evidence, and on appeal. According to this evidence the beneficiary would: 
Analyze application issues, make software programming changes and drive the evolution 
of software application as a process of optimization; 
Participate in software design efforts and keep up to date on the latest relevant 
technologies to develop new software. 
Specifically the petitioner would: 
Design, test, document and develop software, computer systems and perform 
programming to meet project and business requirements (25% of daily work time); 
EAC 04 267 50764 
Page 3 
r 
Apply techniques and principles of computer application, engineering and mathematical 
analysis to resolve technical issues related with computer aided engineering (15% of 
daily work time); 
Work with users to-formulate best software plans for computer aided engineering systems 
(15% of daily work time); 
Develop, maintain and implement database applications using PLISQL (15% of daily 
work time); 
Formulate and design software systems using mathematical and scientific analysis to 
predict and measure outcome of computer aided design and drafting (10% of daily work 
time); 
Use necessary software tools, languages, databases and operating systems, including 
Oracle 7.218.0, C, C++, MS SQL Server, UNIX, AutoCAD, ProE, and other tools (10% 
of daily work time). 
The AAO routinely consults the U.S. Department of Labor's Occupational Outlook Handbook (Handbook) for 
information about the duties and educational requirements of particular occupations. The Handbook (2006-2007 
Edition) provides on page 11 1 that: 
Computer software engineers apply the principles and techniques of computer science, 
engineering, and mathematical analysis to the design, development, testing, and evaluation of 
the software and systems that enable computers to perform their many applications. 
The Handbook discusses two types of software engneer positions: (1) computer applications software engineers; 
and (2) computer systems software engineers. While the duties described in the present case are essentially those 
of a computer applications software engineer, the AAO cannot determine from the record what the beneficiary 
will be doing for the proposed end user. 
The record reflects that the petitioner provides IT consulting and computer software development to off-site 
clients, and the Labor Condition Application (LCA) contained in the record indicates that the petitioner will place 
the beneficiary at a work site in Reston, Virginia. The evidence of record thus 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. 
Accordingly, the petitioner 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 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 
EAC 04 267 50764 
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occupation under any of the criteria at 8 C.F.R. 5 214.2(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. 5 
214.2(h)(l)(B)(I). 
The AAO notes that it is unpersuaded by the petitioner's assertion that CIS has previously determined that the 
proffered position is a specialty occupation because CIS approved similar petitions filed by the petitioner in the 
past. The present record of proceeding does not contain all of the supporting evidence submitted to the service 
center in the prior cases, and in the absence of all of the corroborating evidence contained in that record of 
proceeding, the documents submitted in the present matter are not sufficient to enable the AAO to determine 
whether the positions offered in the prior cases were similar to the position in the instant petition. Moreover, each 
nonimmigrant petition is a separate proceeding with a separate record. See 8 C.F.R. 5 103.8(d). In making a 
determination of statutory eligibility, CIS is limited to the information contained in the record of proceeding. See 
8 C.F.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. 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 of Church Scientology International, 
19 I&N Dec. 593, 597 (Comm. 1988). Neither CIS nor any other agency must treat aclinowledged 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 director also determined that the petitioner failed to establish that the beneficiary is qualified to perform the 
services of a software engineer. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation, the alien must 
meet one of the following criteria: 
(I) Hold a United States baccalaureate or hgher degree required by the specialty occupation 
from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or 
higher degree required by the specialty occupation from an accredited college or 
university; 
(3) Hold an unrestricted State license, registration or certification which authorizes him or her 
to fully practice the specialty occupation and be immediately engaged in that specialty in 
the state of intended employment; or 
(4) Have education, specialized training, andlor progressively responsible experience that is 
equivalent to completion of a United States baccalaureate or higher degree in the specialty 
occupation, and have recognition of expertise in the specialty through progressively 
responsible positions directly related to the specialty. 
The record contains a copy of the beneficiary's bachelor's degree in Mechanical Engineering, with an emphasis in 
Production Mechanics, from Osmania University in India. The record also contains a copy of the beneficiary's 
EAC 04 267 50764 
Page 5 
master's degree in Mechanical Engineering, and transcripts from Northern Illinois University, in the United 
States. 
The Handbook states that, for computer software engineers, most employers prefer to hire persons who have at 
least a bachelor's degree and broad knowledge of, and experience with, a variety of computer systems and 
technologies. The usual degree concentration for applications software engineers is computer science or software 
engineering. The usual degree concentration for systems software engineers is computer science or computer 
information systems. Mathematics and systems design knowledge are increasingly important, and persons 
interested in jobs as computer software engineers must have strong problem-solving analytical skills. 
The beneficiary's academic record indicates a concentration in design, mathematics, and computer coursework at 
the master's degree level at Northern ~ll'inois University. Thus the beneficiary is qualified to perform the services 
of a software engineer. 
The petition may not be approved, however, as the record does not establish that the 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. 6 1361. 
The petitioner has failed to sustain its burden in the present matter. The appeal shall be dismissed accordingly. 
ORDER: The appeal is dismissed. The petition is denied.