dismissed H-1B Case: Computer Software

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: LIN 04 259 50239 Office: NEBRASKA SERVICE CENTER Date: AUG 0 7 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1 10 1(a)(l S)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 04 259 50239 
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 software consulting business 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 5 lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the petitioner has not demonstrated that an employer-employee 
relationship exists or that it has a specialty occupation available for the beneficiary at the location specified on 
the Labor Condition Application (LCA). On appeal, the petitioner submits a letter. 
The AAO will first address the director's conclusion that the petitioner has not demonstrated that an 
employer-employee relationship exists. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(ii), a United States employer is defined as follows: 
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 director found that a bona fide employer-employee relationship does not exist because the petitioner has 
not provided contractual agreements between the petitioner and its clients that specify the beneficiary as the 
person to be performing the services. 
The record contains evidence including a sample employment agreement, which is signed by the petitioner 
and its employees after such employees are approved for H-1B status, and a quarterly federal tax return with 
the petitioner's Employer Identification Number, to show that it meets the definition of U.S. employer, 
pursuant to 8 C.F.R. tj 214.2(h)(4)(ii). In view of the foregoing, the petitioner has established an employer- 
employee relationship with the beneficiary. The petitioner, therefore, has overcome this portion of the 
director's objections. 
The AAO will now address the director's conclusion that the petitioner has not demonstrated that the 
proffered position is a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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 
LIN 04 259 50239 
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 in the United States. 
Pursuant to 8 C.F.R. tj 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. tj 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 
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 programmer analyst. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's September 16, 2004 letter in support of the petition; and the 
petitioner's response to the director's request for evidence. According to the petitioner's September 16, 2004 
letter, the beneficiary would perform duties that entail: requirement analysis; function design; software 
development; software testing; software implementation; and software maintenance. In its response to the 
director's request for evidence, the petitioner also described the proposed duties as follows: 
Carry out design of the systemlapplication at a high level and finalization of the same with the 
clientlstake holders; 
Carry out detailed system design and generate inputs for the software development phase; 
Develop the software using the specifications generated in the detailed design stage; 
Carry out unit, system, regression, and acceptance testing on the application developed; 
Deploy the software and provide implementation support to the client; and 
LIN 04 259 50239 
Page 4 
Provide support on the application as per user requirements. 
The petitioner indicated that a qualified candidate for the job would possess a bachelor's degree in 
information systems, computer science, or an equivalent thereof. 
The director found that the proffered position was not a specialty occupation because the petitioner had not 
provided sufficient documentation of the beneficiary's specific duties to be performed while working for the 
third party end-client. 
On appeal, the petitioner states, in part: 
We know for sure that Hoffman Estates is one place where the beneficiary will perform work. 
Hence the LCA states the same. . . . It is not possible to specify the exact places and times 
where the beneficiary will work besides at Hoffman Estates, since clients themselves cannot 
project their specific requirements so much ahead of time, and whether the work has to be 
carried out at our offices or theirs, let alone the fact that neither they nor we can fix professional 
assignments ahead of time for a person who is not yet a legal worker in the US, It should also 
be recognized that as we obtain new corporate clients new workplaces will come up; When the 
beneficiary has to move to a new place we will obtain a fresh LCA for the same. 
At the outset, the record contains deficiencies regarding the petitioner's claimed revenue. The petitioner's 
president asserts on appeal that the petitioner's revenue for 2004 was $3.7 million. He, however, does not 
provide any evidence in support of his assertion such as federal income tax returns. Simply going on record 
without supporting documentary evidence is not sufficient for the purpose of meeting the burden of proof in 
these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Moreover, information on the petition that was signed by 
the petitioner's president on September 17, 2004, reflects the petitioner's gross annual income as $0.925 
million. The record contains no explanation for this inconsistency. Doubt cast on any aspect of the petitioner's 
proof may, of course, lead to a reevaluation of the reliability and suficiency of the remaining evidence 
offered in support of the visa petition. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent 
competent objective evidence pointing to where the truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N 
Dec. 582, 591-92 (BIA 1988). 
The AAO routinely consults the Department of Labor's Occupational Outlook Handbook (Handbook) for its 
information about the duties and educational requirements of particular occupations. The AAO does not concur 
with the petitioner that the proffered position is a specialty occupation. A review of the Computer Programmers 
job qualifications in the Handbook, 2006-2007 edition, finds that there are many training paths available for 
computer programmers, and the associate degree is a widely used entry-level credential. No evidence in the 
Handbook indicates that a baccalaureate or higher degree, or its equivalent, is required for a 
programmer/programmer analyst job. Further, although the petitioner asserts that the beneficiary will perform 
work at its premises in Hoffman Estates, the proposed duties indicate that she will also be performing duties 
for the petitioner's clients. As such, the petitioner must provide a comprehensive description of the proposed 
duties from an authorized representative of the petitioner's client, where the beneficiary will ultimately 
perform the proposed duties. The court in Defensor v. Meissner, 201 F. 3d 384 (5' Cir. 2000) held that for the 
LIN 04 259 50239 
Page 5 
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. Without a comprehensive description of the proposed duties from an authorized representative of the 
petitioner's client, where the beneficiary will ultimately perform the proposed duties, it cannot be determined 
whether the beneficiary will work in a specialty occupation. 
The evidence of record, including the subcontractor agreements and work orders, establish 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. 8 214.2(h)(4)(ii). 
Pursuant to the language at 8 C.F.R. 8 214.2(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 copies of contractual agreements and the beneficiary's 
employment itinerary, listing the locations and organizations where the beneficiary would be providing 
services. 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 contracts reflecting the dates and locations of employment and an 
employment itinerary. The itinerary submitted by the petitioner does not satisfy 8 C.F.R. 8 214.2(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. 8 214.2(h)(2)(i)(B), the petition must be denied. 
The director also found that the LCA was not valid for all work locations. The AAO agrees. The LCA lists the 
work location as Hoffinan Estates, Illinois. The letter of support filed with the petition indicates that the 
beneficiary will work both on-site and off-site. When the beneficiary is working off-site, the petitioner has not 
demonstrated that she will be working within the geographical area covered by the LCA. The record contains 
contracts and work orders for various locations including Oklahoma, Missouri, and Maryland. To the extent that 
beneficiary will provide services in locations such as those reflected in the contracts and work orders, the work 
would not be covered by the Hoffman Estates location on the LCA. 
As related in the discussion above, 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. 
Beyond the decision of the director, the petitioner has not established that the beneficiary is qualified to 
perform the services of a specialty occupation. The record contains a credentials evaluation from a company 
that specializes in evaluating academic credentials concluding that the beneficiary's foreign Bachelor of 
' See also Memorandum from Michael L. Aytes, Assistant Commissioner, INS Office of Adjudications, 
Interpretation of the Term "Itinerary" Found in 8 C.F.R. 214.2@)(2)(i)(B) as it Relates to the H-IB 
Nonimmigrant ClassiJication, HQ 7016.2.8 (December 29, 1995). 
LN 04 259 50239 
Page 6 
Science degree is the U.S. equivalent of a bachelor's degree in computer information systems. The record, 
however, does not contain a copy of the beneficiary's educational credentials. Thus, the evaluator's 
conclusions about the beneficiary's coursework carry no weight in these proceedings. CIS uses an evaluation 
by a credentials evaluation organization of a person's foreign education as an advisory opinion only. Where an 
evaluation is not in accord with previous equivalencies or is in any way questionable, it may be discounted or 
given less weight. Matter of Sea, Inc., 19 I&N Dec. 817 (Comm. 1988). For this additional reason, the 
petition may not be approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.