dismissed H-1B Case: Information Technology

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PUBLICcopy
U.S. Department of Homeland Security
20 Mass Ave., N.W., Rm. 3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
FILE: EAC 06 136 50497 Office: VERMONT SERVICE CENTER Date: OCT 2 9 2001
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(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
www.uscis.gov
EAC 06 136 50497
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 consult ing business that seeks to employ the beneficiary as a
systems analyst. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a
specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigrat ion and Nationality Act (the Act),
8 U.S.C. § 1101(a)(l5)(H)(i)(b). The director denied the petition determining that the record failed to
establish that the beneficiary is qualified to perform the duties of a specialty occupation.
Section 214(i)(2) of the Act , 8 U.S.C. § 1184(i)(2) , states that an alien applying for classification as an H-IB
nonimmigrant worker must possess full state licensure to practice in the occupation , if such licensure is
required to practice in the occupation, and completion of the degree in the specialty that the occupation
requires . If the alien does not possess the required degree , the petitioner must demonstrate that the alien has
experience in the specialty equivalent to the complet ion of such degre e, and recognition of expertise in th e
specialty through progre ssively responsibl e positions relating to the specialty.
Pursuant to 8 C.F .R. § 214.2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation , an alien
must meet one of the following criteria:
(1) Hold a United States baccalaureate or higher 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, and/or 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 of proceeding before the AAO contains: (1) the 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 1-290B and supporting documentation . The AAO reviewed the
record in its entirety before issuing its decision.
EAC 06 136 50497
Page 3
The petitioner is seeking the beneficiary's services as a systems analyst. The petitioner indicated that the
beneficiary is a qualified candidate for the job because he possesses a foreign Bachelor of Commerce degree,
a foreign Master of Business Administration degree, a foreign Post Graduate Diploma in Computer
Applications, a foreign Advanced Diploma in Software Technology, and related employment.
The director found that the beneficiary was not qualified for the proffered position because the petitioner had not
submitted evidence that the evaluator of the beneficiary's credentials is an official who has authority to grant
college-level credit for training and/or experience in the specialty at an accredited college or university which has
a program for granting such credit based on an individual's training and/or work experience, as required by
8 C.F.R. § 214.2(h)(4)(iii)(D)(1). On appeal, the petitioner states, in part, that the evaluator of the beneficiary's
credentials is an official who has authority to grant college-level credit for training and/or experience in the
specialty at an accredited college or university which has a program for granting such credit based on an
individual's training and/or work experience, and submits the evaluator's resume as supporting documentation.
Upon review of the record, the petitioner has failed to establish that the beneficiary is qualified to perform an
occupation that requires a baccalaureate degree in a computer-related field. The beneficiary holds a foreign
Bachelor of Commerce degree, a foreign Master of Business Administration degree, a foreign Post Graduate
Diploma in Computer Applications, a foreign Advanced Diploma in Software Technology, and related
employment. The beneficiary, however, does not hold a baccalaureate degree from an accredited U.S. college
or university in a computer-related field of study, or a foreign degree determined to be equivalent to a
baccalaureate degree from a U.S. college or university in a computer-related field of study. Therefore, the
petitioner must demonstrate that the beneficiary meets the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(C)( 4).
The record contains the following documentation pertaining to the beneficiary's qualifications:
• A credentials evaluation from Education Evaluation and Immigration Services (E.£.I.S.), dated
April 15, 2006, based on the beneficiary's foreign education, training, and work experience,
concluding that the beneficiary holds the U.S. equivalent of a master's degree in business
administration and a bachelor's degree in computer information systems;
• A Master of Business Administration degree issued by the Indian institution
_ Open University on November 29,2003;
• A Bachelor of Commerce degree issued by the Indian institution Osmania University on
November 28, 1998;
• An Advanced Diploma in Software Technology, issued on August 18,2001, from Electronics
Corporation of India Limited;
• A Post Graduate Diploma in Computer Applications, issued on February 9, 1999, from the
Intel Computer Training Centre in India;
EAC 06 136 50497
Page 4
• A certification of Visual Basic 6.0, issued on January 19,2001 from Brainbench, an Internet
provider of certification exams; and
• A letter, dated February 27, 2006, from the Indian business Infobahn Systems, certifying that
the beneficiary worked from January 9, 2004 to the present, as a "Software
Engineer - Testing."
When determining a beneficiary's qualifications under 8 C.F.R. § 2l4.2(h)(4)(iii)(C)(4), the AAO relies upon
the five criteria specified at 8 C.F.R. § 214.2(h)(4)(iii)(D). A beneficiary who does not have a degree in the
specific specialty may still qualify for an H-lB nonimmigrant visa based on:
(1) An evaluation from an official who has authority to grant college-level credit for training and/or
experience in the specialty at an accredited college or university which has a program for
granting such credit based on an individual's training and/or work experience;
(2) The results of recognized college-level equivalency examinations or special credit programs,
such as the College Level Examination Program (CLEP), or Program on Noncollegiate
Sponsored Instruction (PONS!);
(3) An evaluation of education by a reliable credentials evaluation service which specializes in
evaluating foreign educational credentials;
(4) Evidence of certification or registration from a nationally-recognized professional association or
society for the specialty that is known to grant certification or registration to persons in the
occupational specialty who have achieved a certain level of competence in the specialty;
(5) A determination by the Service that the equivalent of the degree required by the specialty
occupation has been acquired through a combination of education, specialized training, and/or
work experience in areas related to the specialty and that the alien has achieved recognition of
expertise in the specialty occupation as a result of such training and experience.
The credentials evaluation listed above is based, in part, on the beneficiary's foreign bachelor's degree in
commerce and his foreign master's degree in business administration. Although the evaluator from E.E.I.S.
concludes that the beneficiary's foreign education, computer-related training, and related employment
experience are the U.S. equivalent of a bachelor's degree in computer information systems and a master's
degree in business administration, he has not presented a sufficient factual basis to support his conclusions
regarding this equivalency. The evidence of record does not contain transcripts for either degree. Moreover,
although the evaluator states that he is Chair of the Department of Information Systems and Decision Science
in the School of Business at Howard University, the record does not contain evidence, such as a letter from
the dean or provost, that this institution has a program for granting credit based on an individual's training
and/or work experience, and that the professor/evaluator has authority to grant college-level credit for training
and/or experience, such as a letter from the university provost. The record contains no explanation for these
deficiencies. Thus, the evaluator's conclusion that the beneficiary's foreign education combined with his
computer-related training and work experience are the U.S. equivalent of a bachelor's degree in computer
EAC 06 136 50497
Page 5
information systems and a master's degree in business administration carries no weight in these proceedings.
Citizenship and Immigration Services (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 other
information or is in any way questionable, the AAO is not required to accept or may give less weight to that
evidence. Matter of Caron International, 19 I&N Dec. 791 (Corom. 1988).
When CIS determines an alien's qualifications pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(D)(5), three years of
specialized training and/or work experience must be demonstrated for each year of college-level training the
alien lacks. It must be clearly demonstrated that the alien's training and/or work experience included the
theoretical and practical application of specialized knowledge required by the specialty occupation; that the
alien's experience was gained while working with peers, supervisors, or subordinates who have a degree or its
equivalent in the specialty occupation; and that the alien has recognition of expertise in the specialty
evidenced by at least one type of documentation such as:
(i) Recognition of expertise in the specialty occupation b y at lea st two recognized
authorities in the same specialty occupation];
(ii) Membership in a recognized foreign or United States association or society in the
specialty occupation;
(iii) Published material by or about the alien in professional publications , trade journals ,
books, or major newspapers;
{iv) Licensure or registration to practice the specialty occupation in a foreign country; or
(v) Achievements which a recognized authority has determined to be significant
contributions to the field ofthe specialty occupation.
The record contains an employment letter, indicating that the beneficiary has computer-related 'fork
experience. The record also contains diplomas and other evidence of computer-related training. The record,
however, contains insufficient evidence that this documentation is equivalent to a baccalaureate degree in a
computer-related field.
Upon review, the record does not contain evidence that the beneficiary 's prior work experience included the
theoretical and practical application of specialized knowledge required by the specialty. The record does not
contain evidence that the beneficiary's duties for his prior employer involve the theoretical and practical
1 Recognized authority means a person or organization with expertise in a particular field, special skills 'or
knowledge in that field, and the expertise to render the type of opinion requested. A recognized authority's
opinion must state: (1) the writer's qualifications as an expert; (2) the writer's experience giving such
opinions, citing specific instances where past opinions have been accepted as authoritative and by whom ;
(3) how the conclusions were reached; and (4) the basis for the conclusions supported by copies or citations of
any research material used. 8 C.F.R. § 214.2(h)(4)(ii).
EAC 06 136 50497
Page 6
application of a body of highly specialized knowledge relating to the occupation of systems analyst. The
employment letter from Infobahn Systems does not contain a description of the beneficiary's duties and thus
does not demonstrate that the beneficiary's past work experience included the theoretical and practical
application of a body of highly specialized knowledge. Further, the foreign employer does not indicate that
the beneficiary's work experience was gained while working with peers, supervisors, or subordinates who
have a degree or its equivalent in the specialty occupation. The record also contains no evidence of the
recognition of expertise required by 8 c.P.R. § 214.2(h)(4)(iii)(D)(5).
Likewise, the training diplomas/certificates submitted are insufficient to establish that the beneficiary's
computer-related training is comparable to academic courses taken at a four-year university that are a realistic
prerequisite to attaining a bachelor's degree in a specific specialty in computer science or a related field. The
record does not contain sufficient information regarding the computer training to evaluate the training as more
than vocational coursework that results in technical skill.
In short, the record provides no basis for disturbing the director's decision. The petitioner failed to establish
that the beneficiary is qualified to perform services in a specialty occupation according to the standards of
8 C.F.R. §§ 214.2(h)(4)(iii)(C) and (D).
As related in the discussion above, the petitioner has failed to establish that the beneficiary is qualified to
perform the duties of the proffered position. Accordingly, the AAO shall not disturb the director's denial of
the petition.
Beyond the decision of the director, the petitioner has provided no contracts, work orders or statements of
work describing the duties the beneficiary would perform for its clients and thus has also failed to establish
that the proffered position is a specialty occupation. 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, 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 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)(1)(B)(l). For this additional reason, the petition may not be approved.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
EAC 06 136 50497
Page 7
Spencer Enterprises, Inc. v, United States, 229 F. Supp. 2d 1025, 1043 (E.D . Cal. 2001), ajfd. 345 F.3d 683
(9th Cir . 2003); see also Dor v. INS, 891 F.2d 997 , 1002 n. 9 (2d Cir. 1989)(noting that the AAO rev iews
appeals on a de novo basis).
The petition will be den ied and the appeal d ismissed for the above stated r easons, with each cons idered as an
independent and alternative basis for the decision. In visa petition proceedings, the burden of proving
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361.
Here, that burden has not been met.
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.