dismissed H-1B Case: Education

U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. 3000 
Washington, DC 20529 
identifyhg data deleted to U. S. Citizenship Pmvent clearly unwarranted and Immigration 
invasion of personal pri~cy 
PUBLIC COPY 
F~E: SRC 04 220 5 1776 Office: TEXAS SERVICE CENTER Date: AN 1 5 2306 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 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 materials have been returned to 
the office that originally decid'ed your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
SRC 04 220 5 1776 
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DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is now on appeal 
before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be denied. 
The petitioner is a provider of teacher recruitment, employment, and placement services. It seeks to employ 
the beneficiary as a teacher and to classify her as a nonirnmigrant worker in a specialty occupation pursuant to 
section 10 l(a)( 1 S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 10 1 (a)( 1 5)(H)(i)(b). 
The director denied the petition on the ground that the record failed to establish that the petitioner had a valid 
teaching position for the beneficiary at the time the petition was filed and for the three years of requested 
H- IB classification. 
Section 214(i)(l) of the Act, 8 U.S.C. fj 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. 
As provided in 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 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. 
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 proffered position. 
The record of proceeding before the AAO contains (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's response to the RFEi; (4) the notice of decision; and 
(5) Form I-290B, an appeal brief, and supporting materials. The AAO reviewed the record in its entirety 
before issuing its decision. 
SRC 04 220 5 1776 
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In its initial submission, including Form 1-129 and an accompanying letter, the petitioner described its 
business as recruiting, orienting, providing and relocating mathematics and science teachers from India and 
other English-speaking Asian countries to underserved inner city and rural locations in the United States. The 
petitioner stated that it was established in 2001, has 25 employees and a gross annual income of $318,414 (in 
2002), and proposed to employ the beneficiary as a math and science teacher for three years, at an annual 
salary of $36,000. The duties of the proffered position were listed as follows: 
Teach math and science to school students using educational tools including use of films, computer 
resources such as educational software and the Internet, slides, overhead projectors and the latest 
technology in teaching, including computers, telecommunication systems and videodiscs. 
Develop and maintain long range and daily instructional plans for students. 
Use a variety of teaching methodslstrategies such as group work, lecture, mini-lessons, exploration, 
questioning, discussion, and other cooperative teaching techniques. 
Use appropriate techniques to encourage active participation in decision-making regarding such 
things as classroom rules, organization and topics of study, which communicate a caring attitude and 
trust of students. 
Develop healthy self-esteem in students and promote interactive learning habit among students. 
Design classroom presentations to meet student needs and abilities and work if necessary with 
students individually to assist students where a student needs help. 
Evaluate a student's performance and potential and use a variety of assessment strategies and prepare, 
administer and grade tests. 
Prepare report cards, meet with parents and school staff to discuss a student's academic progress or 
problems where necessary. 
The petitioner stated that the minimum educational requirement for the proffered position is a baccalaureate 
degree in education and sciences or the equivalent thereof. The beneficiary is qualified for the position, the 
petitioner declared, by virtue of the three degrees she earned at Osmania University in Hyderabad, India 
during the 1990s, including a bachelor of science, a master of science in applied mathematics, and a bachelor 
of education specializing in physical science, mathematics, and computer education. 
In response to the RFE the petitioner submitted its articles of incorporation; various tax and payroll 
documentation, including its federal income tax return for 2003 recording gross receipts of over $770,000 for 
that year; a statement from Fulton County Schools, dated December 3, 2004, confirming that it has a 
"Teaching Service Agreement" with the petitioner to furnish teachers to the school system; and a letter to the 
beneficiary from the State of Georgia, Professional Standards Commission, stating 
that she was "currently eligible for a Nonrenewable Science (6-12) and Mathematics (6-12) Level 4" teaching 
certificate in a Georgia school system, and advising her of the steps that must be taken "to qualify for Clear 
Renewable certification" as a Georgia teacher. 
In her decision the director referred to tatement from Fulton County Schools to the 
petitioner as a services contract between the parties, which postdated the filing of the instant petition in 
August 2004 by four months. The director noted that the document did not identify a specific location where 
the beneficiary would be working during her three years of requested H-1B classification. The director 
concluded that the proffered teaching position did not exist at the time the petition was filed, as required for 
the beneficiary to be eligible for H-1B classification, and that the record thus failed to demonstrate an 
employer-employee relationship between the petitioner and the beneficiary, as defined in the regulations. 
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On appeal counsel asserts that the petitioner is the beneficiary's employer and meets the definition of a U.S. 
employer at 8 C.F.R. 3 214.2(h)(4)(ii). Counsel submits copies of two identically-worded "Teaching Services 
Agreements" signed by the petitioner and Fulton County Schools in January 2002 and June 2004, and refers 
to various provisions therein - one of which states that "[all1 Teachers placed in the SCHOOL SYSTEM 
through GTRR shall be employees or independent contractors of GTRR" - as evidence of the employer- 
employee relationship between the petitioner and the employer. In conformance with the Teaching Services 
Agreement counsel indicates that the petitioner cannot designate a work location for the beneficiary at the 
time the petition is filed because the school system has that role and does not assign a teacher to a specific 
location until (s)he is physically present in the United States. As further evidence of the school system's role 
in determining work location counsel refers to several communications submitted on appeal from school 
systems in South Carolina requesting information about the availability of teachers from GTRR. 
The Teaching Services Agreements submitted on appeal are one-year contracts between the petitioner and 
Fulton County Schools, with one-year renewal options, to provide teachers on an as-needed basis. The 
second of the two contracts, dated June 30, 2004, was in force at the time the instant H-1B petition was filed 
in August 2004. ' Key provisions of the agreement read as follows: 
WHEREAS the SCHOOL SYSTEM sometimes encounters difficulty filling all of its 
teaching positions . . . GTRR will recruit and hire certified teachers . . . 
Art. 2(a): [GITRR shall supply the SCHOOL SYSTEM with Teachers on an "as-needed" 
basis . . . . [Tlhis agreement does not obligate the SCHOOL SYSTEM to accept any GTRR 
teachers and that the SCHOOL SYSTEM shall have the right, in its sole discretion, to 
determine whether it needs any GTRR teachers. 
Art. 2(d): GTRR shall ensure that each Teacher has and maintains a current Georgia teaching 
license/certification for the position in which the Teacher is placed. 
Art. 2(n): All Teachers placed in the SCHOOL SYSTEM through GTRR shall be employees 
or independent contractors of GTRR. GTRR shall enter into a separate teacher contract with 
each teacher. . . . 
Art. 3(b): The SCHOOL SYSTEM will pay GTRR a monthly rate for each Teacher teaching 
in the SCHOOL SYSTEM . . . . GTRR will submit monthly invoices to the SCHOOL 
SYSTEM. . . . 
Art. 8: Teachers assigned to the SCHOOL SYSTEM under this Agreement shall not be 
employees or agents of the SCHOOL SYSTEM. GTRR shall comply with all applicable 
federal, state, and local laws relating to payment of wages . . . and other employment-related 
laws. 
' The director erred in finding that the letter of December 3, 2004, verifying the existence of the Teaching 
Services Agreement between Fulton County Schools and GTRR, represented a contract between the parties. 
SRC 04 220 5 1776 
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The foregoing provisions clearly state that any teacher placed with the school system remains an employee of 
and will be paid by the petitioner. The Teaching Services Agreement stablishes that the 
petitioner will act as the beneficiary's employer and meets the definition of a U.S. employer at 8 C.F.R. 
5 214.2(h)(4)(ii). The Agreement between the petitioner and Fulton County Schools gives the school system 
total discretion to decide how many teachers, if any, it wishes to use, for how long it wishes to use them, and 
where it wishes to place them in the system. Under the Agreement the school system could, if it wished, use 
one GTRR teacher for numerous assignments in different schools, with different locations, and for limited 
periods of time interrupted by periods of no work. The school system may also choose not to use the services 
of any particular teacher(s). 
Pursuant to the language at 8 C.F.R. 5 214.2(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. The 
AAO determines that this regulation applies to the instant petition because the Teacher Services Agreement, 
as discussed above, would allow the beneficiary to be assigned to numerous work locations during the period 
of requested H-1B status. 
In her RFE the director asked for the beneficiary's employment itinerary including where and in what 
school(s) the work would be performed. As indicated in the Aytes Memorandum, cited at footnote 2, the 
director has the discretion to request that an employer who will employ the beneficiary in multiple locations 
submit an itinerary. "The purpose of this particular regulation [8 C.F.R. 5 214.2(h)(2)(i)(B)]," the 
memorandum noted, "is to insure that alien beneficiaries accorded H status have an actual job offer and are 
not coming to the United States for speculative employment." Upon review of the instant petition, the AAO 
determines that the director properly exercised her discretion to request an employment itinerary. No such 
employment itinerary was produced by the petitioner. 
Thus, the evidence of record does not contain a comprehensive description of the proposed duties from an 
authorized representative of the petitioner's client, Fulton County School System, where the beneficiary will 
ultimately perform the proposed duties. Without this description, the petitioner has not demonstrated that the 
proffered position meets the statutory definition of a specialty occupation. Moreover, as noted by the director 
in her decision, the employment location and the exact nature of the beneficiary's teaching assignment are 
unclear. The record contains a letter, dated December 3, 2004, from the director of the Fulton County 
Schools Employment Services, who states, in part: "The Fulton County School System does not assign 
teachers to specific schools until after their arrival in the United States. Assignment of teachers is a concrete, 
not a virtual activity." The petitioner bears the burden of proof, however, to establish that the beneficiary will 
be coming to the United States to perform services in 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 
2 See also Memorandum from Michael L. Aytes, Assistant Commissioner, INS Office of Adjudications, 
Interpretation of the Term "Itinerary" Found in 8 C.F.F. j 214.2(h)(#)(ii) as it Relates to the H-IB 
Nonimmigrant Classijication, HQ 7016.2.8 (December 29, 1995). 
SRC 04 220 5 1776 
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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 establishing the specific duties the beneficiary would 
perform under contract for the petitioner's client, 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. Thus, the petitioner has not established that the proposed position qualifies as specialty 
occupation under any of the criteria at 8 C.F.R. $ 214.2(h)(4)(iii)(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)(I). Accordingly, the AAO will not disturb the director's denial of the petition. 
Beyond the decision of the director, the petitioner has not demonstrated that the beneficiary is qualified for 
the position. The record does not contain an evaluation of the beneficiary's credentials from a service that 
specializes in evaluating foreign educational credentials, as required by 8 C.F.R. $ 214.2(h)(4)(iii)(D)(3). Nor 
does the record show that the beneficiary is certified to teach in the Fulton County Public Schools. The 
petitioner submitted a letter from the State of Georgia Professional Standards Commission advising the 
beneficiary that she was eligible for a Nonrenewable Science (6-12) and Mathematics (6-12) Level 4 teaching 
certificate upon employment in a Georgia school system. The record does not reflect that the beneficiary is 
qualified to perform the services of a certified teacher in Georgia, as the proposed employment has not been 
proven. The petitioner has not identified the school where the beneficiary will be employed, nor has the 
Georgia School System guaranteed the beneficiary employment as a biology teacher. For this additional 
reason the petition must be denied. 
The petitioner bears the burden of proof in these proceedings. See section 29 1 of the Act, 8 U.S.C. $ 136 1. The 
petitioner has not sustained that burden. Accordingly, the AAO will dismiss the appeal. 
ORDER: The appeal is dismissed. The petition is denied.