dismissed H-1B Case: Information Technology

identifling data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 249 5 1703 Office: CALIFORNIA SERVICE CENTER Date: JUN 2 6 
PETITION: 
 Petition for a Nonirnmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 lOl(a)( 15)(H)(i)(b) 
ON BEHALF OF PETITIONER: Self-represented 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All materials have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
,@ - I 
>- 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 04 249 5 1703 
Page 2 
DISCUSSION: The service center director denied the nonimrnigrant 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 an information technology and consultancy company. It seeks to employ the beneficiary 
as a programmer analyst and to extend his classification as a nonirnrnigrant worker in a specialty 
occupation pursuant to section 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 on the grounds that the record failed to establish that the proffered 
position qualifies as a specialty occupation or that the petitioner was in compliance with the terms of the 
Labor Condition Application (LCA) certified by the Department of Labor. 
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 
(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: 
(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 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 RFE; (4) the notice of decision; 
WAC 04 249 5 1703 
Page 3 
and (5) Form I-290B and an appeal brief. The AAO reviewed the record in its entirety before issuing its 
decision. 
In its initial submission, including Form 1-129 and an accompanying letter, the petitioner described itself 
as a business information technology company that provides enterprise resource planning ("ERP), 
e-commerce, and information technology ("IT") services to clients in the United States and around the 
world. The petitioner stated that it was established in 1968, had 18 offices and 1,700 employees at the 
time of filing, and earned gross annual income of $250 million. The petitioner indicated that it wished to 
employ the beneficiary as a programmer analyst, and described the duties of the position as follows: 
Our Programmer Analysts are responsible for analyzing a client's business technology 
needs and proposing a plan that best meets those needs. Thereafter, the Programmer 
Analyst will design and develop a computer application or system that meets the client's 
needs in the most efficient and cost effective manner. Undertalung implementation, 
installation and customization of the business solution based on the specific needs and 
goals of the client is also necessary. Finally, the Programmer Analyst is responsible for 
testing the solution to determine whether the client's objectives have been achieved. 
The beneficiary is qualified for the position, the petitioner declared, by virtue of his bachelor's degree in 
engineering (electronics and communication) in 1988 from Delhi University in India, together with his 
experience in the computer field. 
In his RFE the director advised the petitioner to submit copies of contractual agreements it had with client 
companies for which the beneficiary would be providing consulting services, including statements of 
work, work orders, or other appendices to the contracts specifying the duties the beneficiary would 
perform, his dates of service, as well as his work and pay schedules. In reply to the RFE the petitioner 
indicated that the beneficiary was assigned to a client, Conexant Systems, Inc. (Conexant), located in 
Newport Beach, California, and submitted a copy of Conexant's purchase order for 350 hours 
(approximately two months) of consulting services from the petitioner at $113/hour. The petitioner 
asserted that Conexant had committed to an additional 350 hours of consulting services, and was in the 
process of finalizing the agreement. Once the Conexant project is complete, the petitioner stated, the 
beneficiary would be placed in a new project. 
In his decision the director indicated that, although the record contained a summary of the terms of 
employment indicating that the petitioner had hired the beneficiary and would pay his salary, the 
beneficiary's services would be provided to the client company, Conexant. The purchase order did not 
identify the specific project where the beneficiary would work, however, and there was no comprehensive 
description of the beneficiary's job duties from an authorized representative of Conexant. Without such 
information, the director concluded, the petitioner had not demonstrated that the proffered position meets 
the statutory definition of a specialty occupation. The director also ruled that the purchase order from 
Conexant was insufficient evidence to determine that the petitioner was in compliance with the wage and 
work location conditions for the three-year period certified in the LCA. 
On appeal the petitioner reiterates that the beneficiary will be working at the client's offices in Newport 
Beach, California, but asserts that the petitioner has an employer-employee relationship with the 
beneficiary and meets the definition of a U.S. employer at 8 C.F.R. 3 214.2(h)(4)(ii). The petitioner 
WAC 04 249 5 1703 
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declares that the proffered position qualifies as a specialty occupation because it requires at least a 
bachelor's degree in a field such as engineering, computer science, statistics, mathematics, physical and 
life sciences, economics and commerce, or business. The duties of the programmer analyst position are 
listed by the petitioner as follows: 
Analyze a client's data processing requirements to determine the computer software that best 
meets those needs. 
Design and develop computer applications and systems using software that will process data in 
the most reliable, efficient, and cost effective manner. 
Plan, develop, test, and document computer programs, applying knowledge of programming 
techniques and computer systems. 
= 
 Analyze and develop specifications for a project to determine project feasibility, cost and time 
requirements, compatibility with the current system, and present computer capabilities. 
The petitioner describes the client company, Conexant, as a developer, integrator, and manufacturer of 
personal communications electronics, including semiconductor device sets for the broadband industry, 
and a provider of programming services for internal information technology systems. The petitioner 
states that it has a consulting agreement with the client to provide programming services to facilitate a 
change to the client's business model for its plant in Japan which involves mapping the required process 
in SAP and configuring the new process in the SAP sales and distribution (SD) model; upgrading its 
internal system from SAP version 4.6B to version 4.7; changing the programs for acknowledgement, 
delivery, and invoicing of orders; validating SD integration with materials management (MM) and FI; and 
reversing system changes for the existing business process. The petitioner asserts that it has complied 
with the terms of the LCA because, although it listed Irvine, California as the beneficiary's work location, 
rather than Newport Beach, both towns are in Orange County and are recognized by the Department of 
Labor as part of the same area. 
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 contractual 
agreements for third-party companies. The petitioner has provided no contracts, work orders, or 
statements of work, however, that describe the duties the beneficiary would perform for its clients. 
Without such evidence it cannot be determined that the proffered position is a specialty occupation. 
In Defensor v. Meissner, 201 F.3d 384, 387 (5" Cir. 2000), a federal appeals court 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 court recognized that evidence of the client companies' 
job requirements is critical when the work is to be performed for entities other than the petitioner, and 
held that the legacy Immigration and Naturalization Service reasonably interpreted the statute and the 
regulations when it required the petitioner to show that the entities ultimately employing the alien workers 
in a particular position require a bachelor's degree for all employees in that position. 
As noted by the director, the only evidence regarding the beneficiary's employment is a purchase order 
from Conexant to the petitioner for 350 hours of "SAP consulting services per the Statement of Work 
dated 9/13/04." The purchase order does not address the respective parties' relationship to the 
beneficiary, however, and while it references both a statement of work and a consulting agreement, 
WAC 04 249 5 1703 
Page 5 
neither document has been submitted in this proceeding. 
 The purchase order does not identify the 
beneficiary as the individual who would perform the services covered by the purchase order. Nor does it 
specify what those services would be. Thus, the record does not contain any document from Conexant 
identifying the beneficiary or describing the duties he would perform under the purchase order. Simply 
going on record without supporting documentation does not satisfy the petitioner's burden of proof. See 
Matter of Sofici, 22 I&N Dec. 158, 165 (Cornm. 1998) (citing Matter of Treasure Craft of California, 
14 I&N Dec. 190 (Reg. Cornm. 1972)). Furthermore, 350 hours of consulting services amount to only 
about two months of work. No evidence has been submitted to show what duties the beneficiary would 
perform, and for what client(s), during the rest of the three-year period of requested H-1B classification. 
As the record does not establish the specific duties the beneficiary would perform under contract for the 
petitioner's client(s), the AAO cannot analyze whether the 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 proffered position qualifies as a specialty 
occupation under any of the criteria enumerated at 8 C.F.R. 3 214.2(h)(4)(iii)(A). 
The director also found that the petitioner failed to show that it was in compliance with the terms of the 
LCA. On appeal the petitioner has still not submitted an itinerary of services or engagements 
demonstrating that the beneficiary would be employed in Orange County for the three-year period of 
requested H-1B classification. Accordingly, the record does not establish that the petitioner will be in 
compliance with the provisions of the LCA certified by DOL for the proffered position. 
For the reasons discussed above, the petitioner has not overcome the bases for denial discussed in the 
director's decision. 
Beyond the decision of the director, the petitioner has failed to submit the itinerary requested by the 
director in the RFE. The evidence of record establishes that the petitioner will act as the beneficiary's 
1 
employer in that it will hire, pay, fire, supervise, or otherwise control the work of the beneficiary. 
 See 
8 C.F.R. 5 214.2(h)(4)(ii). As the beneficiary will be placed at multiple work locations established by 
contractual agreements between the petitioner and third-party companies, the petitioner is also an agent, 
as described at 8 C.F.R. 3 214.2(h)(2)(i)(F): 
A United States agent may file a petition in cases involving workers who are traditionally 
self-employed or workers who use agents to arrange short-term employment on their 
behalf with numerous employers, and in cases where a foreign employer authorizes the 
agent to act on its behalf. A United States agent may be: the actual employer of the 
beneficiary, the representative of both the employer and the beneficiary, or, a person or 
entity authorized by the employer to act for, or in place of, the employer as its agent . . . . 
The regulation at 8 C.F.R. Ej 214.2(h)(2)(i)(F)(I) requires agents to submit an itinerary of definite 
employment to cover the entire period of time requested in the petition. Under the regulation at 8 C.F.R. 
1 
 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 7016.2.8 (December 29, 1995). 
WAC 04 249 5 1703 
Page 6 
5 214.2(h)(2)(i)(B), employers must also submit an itinerary with the dates and locations of employment 
if the beneficiary's duties will be performed in more than one location. 
As previously discussed, the director's RFE included a request for copies of the petitioner's contractual 
agreements with client companies for which the beneficiary would be providing consulting services, 
including statements of work, work orders, or other appendices to the contracts specifying the duties the 
beneficiary would perform, his dates of service, as well as his work and pay schedules. The only 
document furnished by the petitioner in response to the foregoing request - i.e., the purchase order from 
Conexant - does not identify the beneficiary or specify the duties he will perform, and does not cover the 
entire period of the beneficiary's proposed employment with the petitioner. As the petitioner has not 
complied with the requirements of 8 C.F.R. 5 214.2(h)(2)(i)(F)(l), the petition must be denied on this 
ground as well. 
Furthermore, the present record does not establish that the beneficiary is qualified to perform services in a 
specialty occupation. An alien must meet one of the following criteria set forth in 8 C.F.R. 
$214.2(h)(4)(iii)(C) to qualify to perform the services of a specialty occupation: 
(I) 
 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, andlor 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. 
Though the record shows that the beneficiary earned a bachelor of engineering (electronics and 
communication) degree in 1988 from Delhi University in India, there is no evidence in the record that the 
degree is equivalent to a baccalaureate degree in the field from a U.S. college or university, as required 
for the beneficiary to meet the qualifying criterion of 8 C.F.R. 214.2(h)(4)(iii)(C)(2). For this additional 
reason the petition may not be approved. 
The petitioner bears the burden of proof in these proceedings. See section 29 1 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
denying the petition. 
ORDER: 
 The appeal is dismissed. The petition is denied.