dismissed H-1B Case: Computer Science

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U$; DepartmentofHomeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 205 29
u.s.Citizenship
and Immigration
Services
.PUBLICCQP'r
FILE: LIN 04 194 50340 Office: NEBRASKA SERVICE CENTER Date: OECO 4 ZGU5
INRE: Petitioner :
Benefic iary:
PETITION :
,
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b ) of the
Immigration and Nationality Act, S U.S .C. § 1101(a)(l5 )(H)(i)(b)
ON BEHALF OF P ETITION ER: . \
INSTRUCTIONS :'
This is the decision of the Administrative Appeals Office in your case. All documents have been returned t o
the office that originally decid ed your case. Any further inquiry must be made t o that office.
9TAA 'lfJc~ M 'n~ .;t ,,~ ~ ~ ~ 110"'~
Robert P. Wiemann , Chief
Administrati ve Appeals Office
www.uscls.gov
LIN 04 19450340
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 petitioner is a staffing service company . It seeks to employ the beneficiary as a programmer analyst and
endeavors to classify her as a nonimmigrant worker in a specialty occupation pursuant to section
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act); 8 U.S.c. § 11 01(a)(15)(H)(i)(b).
The director determined that the petitioner failed to establish that the proffered position qualified as a specialty
occupation and accordingly denied the petition. On appeal, the petitioner asserts that the proffered position
qualifies as a specialty occupation and that the petition should be approved.
The director further determined that the petitioner's 'failure to produce an itinerary) for the beneficiary's period of
employment in the United States and failure to produce client contracts establishing that the petitioner had
employment in a specialty occupation available for the beneficiary upon arrival in the United States precluded
approval of the petition. The AAO agrees.
Section 214(i)(1) of the Act , 8 U.S.c. § 1184(i)(1), defines the term "specialty occupation " as an occupation that
requires:
(A) theoretical and practical application ofa 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 8C.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 norinally the mmimum
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; . .
I See Memorandum from Michael L. Aytes, Assistant Commissioner, INS Office of Adjudications,
Interpretation of the Term "Itinerary" Found in 8 C.F.R. 2I4.2(h)(2)(i)(B) as it Relates to the H-1B
Nonimmigrant Classification , HQ 70/6.2.8 (December 29, 1995).
LIN 04 194 50340
Page 3
(3) The emplo yer 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.
The benefici~ryis a staffing service company that supplies employees to work on its client projects or the
client projects of other consulting firms. As noted 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. However, the documentation submitted does not establish a complete itinerary for the beneficiary
from July 1, 2004 through June 16, 2007. Whil~ the petitioner did submit, on appeal, sample copies of
consulting agreements it has with two clients, the record does not establish that the contracts are related to
work to be performed by the beneficiary . The petitioner provided no contracts or purchase orders establishing
that work in a specialty occupation will be available for the beneficiary upon arri val in the United State s.
Further , the petitioner provided no documentary evidence to establish that it has employment in aspecialty
occupation available for the beneficiary on any in-house project of its own. The petitioner's uncorroborated
statement to the contrary is not sufficient to establish that any such work exists. Simply going on the record
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in
these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft 0/
California,' 14 I&N 190 (Reg . .Comm . 1972)). Accordingl y, the petitioner has failed to comply with the
requirements at 8 C.F .R. § 214 .2(h)(2)(i)(B) and the petition must be denied .'
The beneficiary's position has been identified by the petitioner as a programmer analyst. The Department of
Labor's Occupational Outlook Handbook (Handbook), a resource upon which the AAO relies to determine,
the educational opportunities for occupations, 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, sub stantial specialized experience or
expertise may be needed , and employers appear to ;place more emphasis on previous experience even when
hiring programmers w ith 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 .
As previously noted , 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
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. "
LIN 04 194 50340
Page 4
contractual agreements for third-party companies . This was stated by counsel in his brief on appeal. The
petitioner, however, has pro vided no contracts , work orders or statements of work describing the duties the
beneficiary would perform for its clients and, therefore , has not established the proffered position as a
specialty occupation. The court in Defensor v. Meissn er, 201 F. 3d 384 (5 th 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 dutie s 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. §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)(l)(B)(1). For this additionalreason, the petition must be denied. '
1
The burden of proof in this proceeding 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.