dismissed H-1B Case: Information Technology

identifyingdatadeletedto
preventclearly'unwarranted
invasionof personalprivac)
U.S. Department of Homeland Security
20 Mass Ave., N.W., Rm.3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
PUBLICCOpy
'01
SEP 052007
FILE: WAC 05 19850328 Office: CALIFORNIA SERVICE CENTER Date:
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l5)(H)(i)(b) ofthe
Immigration and Nationality Act, 8 U.S.C. § 1101 (a)(l5)(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
www.uscis.gov
...._-~--_._-----------------_-1
WAC 05 19850328
Page 2
DISCUSSION: The director of the service center 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 an information technology consulting and software development business that seeks to
employ the beneficiary as a programmer analyst. It states that it employs eight personnel and had an estimated
gross annual income of $350,000 when the petition was filed. Accordingly, the petitioner endeavors to classify
the beneficiary 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. § 1101(a)(l5)(H)(i)(b).
The record includes: (1) the Form 1-129 and supporting documents; (2) the director's August 25, 2005 request
for further evidence (RFE); (3) counsel's September 25,2005 response to the director's RFE; (4) the director's
October 6, 2005 denial decision; and (5) the Form I-290B, counsel's letter, and supporting documents. The
AAO reviewed the record in its entirety before issuing its decision.
On October 6, 2005, the director denied the petition determining that the petitioner had not established that it
qualified as the beneficiary's United States employer and that the petitioner had not provided sufficient
evidence of the specific duties to be performed by the beneficiary while working for a third party end client.
The director concluded that the petitioner had not established that at the time of filing the petition, or at the
present time, it had a specialty occupation position available for the beneficiary in the location identified on
the Form ETA 9035, Labor Condition Application (LCA).
On appeal, the petitioner's president asserts that the petitioner controls the beneficiary's duties and activities
and has sole authority to pay, hire, and fire the beneficiary. He also states that although the beneficiary was
originally slated to work on a project in California, the beneficiary would now work at the petitioner's
headquarters on a software development project that will be marketed to potential clients upon completion.
Section 2l4(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 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.
Pursuant to 8 C.F.R. § 214.2(h)(4)(ii):
Specialty occupation means an occupation which requires theoretical and practical
application of a body of highly specialized knowledge in field 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,
WAC 05 19850328
Page 3
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 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 above criteria to mean not just
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered
position.
Pursuant to 8 C.F.R. § 214.2(h)(4)(ii), 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.
In a July 7, 2005 letter submitted in support of the petition, the petitioner described the proposed duties of the
proffered programmer analyst position at its client site Buena Vista Datacasting (Division of The Walt Disney
Company) as follows:
• Developing and executing a system and component test plans and test cases for new Video-on­
Demand service;
WAC 05 198 50328
Page 4
• Integration testing on Set-Top boxes, Conditional Access systems (NAGRA), content
management systems and end-to-end system testing;
• Set-top box content (Video, Audio) delivery testing over air using Sky Stream Networks
systems;
• Performing Functional, VI, white box, black box, stress and regression testing on Set-Top-box
Software;
• Performing Software upgrade testing on Set-Top box over air;
• Vsing Test Director 8.0 for Testing Planning, Test Designing, Test Analysis, Test Execution,
Defect Tracking and Test Evaluation; and
• Reporting defects to the team leader and helping the developer resolve the technical issues.
The record also includes an LCA submitted at the time of filing listing the beneficiary's work locations in
Alameda, California and Farmington Hills, Michigan as a programmer analyst.
On August 25, 2005, the director requested additional evidence from the petitioner, including copies of contracts
between the petitioner and its clients for whom the beneficiary would be performing services, along with any
statements of work/work orders, and/or an itinerary for the beneficiary.
In a September 25, 2005 response, counsel for the petitioner stated that the LCA for Alameda, California and
Farmington Hills, Michigan had been erroneously submitted, and submitted a new LCA for Burbank, California.
The petitioner's president stated that the beneficiary would be working on a project at Buena Vista Datacasting,
Inc. (BVD) in Burbank, California, in conjunction with TechTalent Consulting and TeamBuilding, Inc. The
petitioner submitted an agreement, dated June 24, 2005, between TechTalent Consulting and Teambuilding, Inc.
and the petitioner indicating that the petitioner would provide digital video integration and engineering services to
BVD and named the beneficiary to provide such services. The petitioner also submitted a supplemental terms
rider for the beneficiary to perform onsite services at BVD as a "Business Intelligence Consultant," beginning
October 1, 2005. The supplemental terms rider listed the beneficiary's duties at BVD as: "[Ajnalyze, design,
develop, implement, and maintain Decision Support and Analytical applications in support of agency reporting
requirements for BVD programs." The supplemental terms rider also listed the "On Site Availability Constraints"
as follows:
The Subcontractor shall be required to attend scheduled and impromptu meetings and conferences
at the BVD facility on a regular basis. The Subcontractor shall also be required to perform tasks
that require their physical presence within the BVD data center and satellite communications
rooms on a scheduled and impromptu basis... It is estimated these types of activities for this task
could potentially consume 75% - 100% of their normal workday tour of duty for a business day.
WAC 05 198 50328
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The director denied the petition on October 6, 2005 finding that the petitioner failed to provide valid client
contracts establishing the availability of a programmer analyst position. The director also found that BVD is
not a programming and analysis business that utilizes programmer analysts to complete its projects. The
director concluded that the petitioner does not control the beneficiary's work, and thus had not established that
it is qualified as a United States employer. The director also concluded that the petitioner had not established
that it had a specialty occupation position available for the beneficiary in the location identified on the LCA.
On appeal, counsel for the petitioner asserts that the petitioner is the beneficiary's sole employer and that the
beneficiary will be working for the petitioner in a specialty occupation. Counsel submits a letter from the
petitioner's president who asserts that the petitioner controls the beneficiary's duties and activities and has
sole authority to pay, hire, and fire the beneficiary. He also states that although the beneficiary was originally
slated to work on a project in California, the beneficiary would now work at the petitioner's headquarters on a
software development project entitled "Dimensional Data Warehouse" that will be marketed to potential
clients upon completion.
On appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title,
its level of authority within the organizational hierarchy, or the associated job responsibilities. The petitioner
must establish that the position offered to the beneficiary when the petition was filed merits classification as a
managerial or executive position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978).
A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to
CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). In this matter, the
proffered position, as reflected on the petition and in the petitioner's July 7, 2005 letter, is that of a
programmer analyst with the petitioner's client BVD.
The arguments raised by counsel and the petitioner on appeal relate to the new associated job responsibilities
as a programmer analyst on the petitioner's in-house software development project entitled "Dimensional
Data Warehouse." If the petitioner wishes to employ the beneficiary as a programmer analyst on its in-house
software development project entitled "Dimensional Data Warehouse," it must file a new petition, with fee.
Pursuant to 8 c.P.R. § 214.2(hX4Xii), United States employer means a person, firm, corporation, contractor, or
other association,or organization in the United Stateswhich:
(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 identificationnumber.
The AAO finds that the evidence of record is sufficient to 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
WAC 05 198 50328
Page 6
beneficiary. I See 8 C.F .R. § 214.2(h)(4)(ii). However, the court in Defensor v. Meissner, 201 F. 3d 384 (5 th
Cir. 2000) held that for the purpose of determining whether a proffered position is a specialty occupation, a
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.
Thus, when a petitioner is an employment contractor, the entity ultimately employing the alien or using the alien's
services must submit a detailed job description of the duties that the alien will perform and the qualifications
that are required to perform the job duties. From this evidence, CIS will determine whether the duties require
the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a
baccalaureate or higher degree, or its equivalent, in the specific specialty as the minimum for entry into the
occupation as required by the Act.
As discussed above, the agreement between the petitioner and TechTalent Consulting and TeamBuilding,
Inc., and the corresponding supplemental terms rider do not indicate that the beneficiary would perform the
duties of a programmer analyst. Rather, the beneficiary may spend 75% - 100% of his normal workday
attending scheduled and impromptu meetings and conferences at the BVD facility . Thus, as the nature of the
proposed duties are unclear, the AAO is precluded from determining whether the offered position is one that
would normally impose the minimum of a baccalaureate degree in a specific specialty. Accordingly, the
petitioner has not established the proffered position as a specialty occupation under 8 C.F .R.
§ 214.2(hXiii)(A)(l) .2
In that the record does not demonstrate that the beneficiary would perform the dutiesof a programmer analyst, the
petitioner is also precluded from meeting the requirements of the three remaining alternate criteria at 8 C.F.R.
§ 214.2(h)(4)(iii)(A). Without a job description entailing programmer analyst duties, the petitioner may not
establish the position's duties as parallel to any degreed positions within similar organizations in its industry or
distinguish the position as more complex or unique than similar, but non-degreed, employment, as .required by
I 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(h)(2)(i)(B) as it Relates to the H-IB
Nonimmigrant Classification, HQ 70/6.2.8 (December 29, 1995).
2 The AAO observes that the Department of Labor's Occupational Outlook Handbook reports that there are
many training paths available for programmers and that althoughbache1or's degrees are commonly required,
certain jobs may require only a two-year degree or certificate; that most employers prefer to hire persons who
have at least a bachelor's degree and broad knowledge of a variety of computer systems and technologies for
positions of computer software engineer ; and that there is no universally accepted way to prepare for a job as
a systems analyst,although most employers place a premium on some formal college education.
WAC 05 198 50328
Page 7
alternate prongs of the second criterion. Absent a descriptive listing of the programmer analyst duties the
beneficiary would perform under contract, the petitioner cannot establish that it previously employed degreed
individuals to perform such duties, as required by the third criterion. Neither can the petitioner satisfy the
requirements of the fourth criterion by distinguishing the proffered position based on the specialization and
complexity of its duties.
Upon review of the totality of the record, the record fails to reveal sufficient evidence that the offered position
requires a bachelor's degree, or its equivalent, in a specific discipline. Accordingly, it is concluded that the
petitioner has not demonstrated that the offered position is a specialty occupation within the meaning of the
regulations.
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(B), the petitioner shall submit the following with an H-lB petition
involving a specialty occupation:
1. A certification from the Secretary of Labor that the petitioner has filed a labor condition
application with the Secretary,
2. A statement that it will comply with the terms of the labor condition application for the duration
of the alien's authorized period of stay,
3. Evidence that the alien qualifies to perform services in the specialty occupation ....
In his decision, the director also found that the petitioner had not established that a specialty occupation is
available at the location specified on the labor condition application.
On appeal, the petitioner states, in part: "As noted on the LCA, the secondary work site is located in
Farmington Hills, Michigan at our place of business."
Upon review of the record in its entirety, the AAO finds that the LCAs filed by the petitioner are not valid. The
LCA submitted at the time of filing lists the work locations as Alameda, California and Farmington Hills,
Michigan. The LCA submitted in response to the director's RFE lists the work location as Burbank, California.
The letter of support filed with the petition indicates that the beneficiary will work off-site in Burbank, California.
The letter of support filed with the appeal indicates that the beneficiary will work on-site at the petitioner's
worksite in Farmington Hills, Michigan. As the beneficiary's actual duties and ultimate worksite are unclear, it
has not been shown that the work would be covered by the locations on the LCAs. For this additional reason, the
petition may not be approved.
In view of the foregoing, the petitioner has not overcome the director's objections. For these reasons, the petition
may not be approved. Accordingly, the AAO shall not disturb the director's denial of the petition.
WAC 05 19850328
Page 8
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.