dismissed H-1B Case: Information Technology

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PUBLI<;COpy
u.S. Department of Homeland Security
20 Mass Ave., N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
SEP 05 ZOul
FILE: WAC 05 222 51569 Office: CALIFORNIA SERVICE CENTER Date:
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section l01(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(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
WAC 0522251569
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 a provider of information technology solutions. It states that it employs three personnel and
has a projected gross annual income of $500,000. It seeks to employ the beneficiary as a systems
administrator. 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)(15)(H)(i)(b).
The record includes: (1) the Form 1-129 and supporting documents; (2) the director's October 17, 2005
request for further evidence (RFE); (3) counsel's January 2, 2006 response to the director's RFE; (4) the
director's February 10, 2006 denial decision; and (5) the Form I-290B, counsel's brief, and supporting
documents. The AAO reviewed the record in its entirety before issuing its decision.
On February 10, 2006, the director denied the petition determining that the petitioner had not established that
it qualifies as the beneficiary's United States employer, that the record contains sufficient evidence of the
specific duties to be performed by the beneficiary while working for a third-party end client, or that the
proffered position qualifies as a specialty occupation.
On appeal, counsel for the petitioner asserts that the petitioner's focus is on software product development
and is not a consulting business. Counsel contends that the beneficiary will work on the petitioner's internal
product development and will not work at client sites. Counsel also contends that the petitioner qualifies as a
U.S. employer, as it has the right to hire, pay, fire, supervise, and control the work ofthe beneficiary.
Section 214(i)(I) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(1), defines the term
"specialty occupation" as an occupation that requires:
(A) theoretical and practical application ofa 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,
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.
WAC 05 222 51569
Page 3
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), UnitedStates employermeans 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 an August 6,2005 letter submitted in support of the petition, the petitioner described the proposed duties of
the proffered position as follows:
1. Analyze, plan, design, install, maintain and monitor LANIWAN based computer networks and
enterprise management systems;
2. Coordinate effective installation and performance of all Windows operating system hardware ;
maintain and monitor computer system security;
WAC 05 222 51569
Page 4
3. Administer lIS Server for intranet projects; install and maintain Oracle server and other
application software such as IBM Visual Age Java and MS Visual Studio;
4. Formulate plans outlining steps to develop programs using structured analysis and design;
5. [Formulate] instructions and logical steps for coding into language processable by computer,
applying knowledge of computer programming techniques and computer languages; and
6. Write documentation to describe program development, logic, coding, and corrections; write
manual for users to describe installation and operating procedures.
In response to the director's RFE, the petitioner further described the proposed duties as developing and
customizing a software system for maintaining and tracking all activities at hospitals in the U.S. healthcare
industry.
The record also includes an LCA listing the beneficiary's work location in Sacramento, California as a systems
administrator.
On October 17,2005, the director requested additional evidence from the petitioner, including copies of contracts
between the petitioner and the beneficiary and between the petitioner and its clients for whom the beneficiary
would be performing services, along with a completeitinerary for the beneficiary.
In a January 2, 2006 response, counsel for the petitioner indicated that the beneficiary would work on the
petitioner's in-house software development projects and would not be assigned to work at a client location at
the present time.
As discussed above, 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.
Counsel for the petitioner asserts on appeal that the petitioner's focus is on software product development and
is not a consulting business. Counsel contends that the beneficiary will work on the petitioner's internal
product development and will not work at client sites. Counsel also contends that the petitioner qualifies as a
U.S. employer, as it has the right to pay, hire, fire, supervise, and control the work of the beneficiary.
The AAO finds that the evidence of record, including the service agreements, 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 beneficiary as set out in the undated employment agreement between the beneficiary and the
petitioner.' See 8 C.F.R. § 214.2(h)(4)(ii).
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 70/6.2.8 (December 29, 1995).
WAC 05 222 51569
Page 5
Turning to the criteria to establish the proffered position as a specialty occupation, the AAO will first discuss
the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) whether a baccalaureate or higher degree or its equivalent is
the normal minimum requirement for entry into the particular position. The AAO routinely consults the
Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) for its information about the
duties and educational requirements of particular occupations. A review of the Computer Support Specialists
and Systems Administrators category in the Handbook, 2006-07 edition, finds that the proffered position is
primarily that of a computer systems administrator. According to the DOL, network administrators and computer
systems administrators perform the following duties:
[D]esign, install, and support an organization's local-area network (LAN), wide-area network
(WAN), network segment, Internet, or intranet system. They provide day-to-day onsite
administrative support for software users in a variety of work environments, including professional
offices, small businesses, government, and large corporations. They maintain network hardware
and software, analyze problems, and monitor the network to ensure its availability to system users.
These workers gather data to identify customer needs and then use the information to identify,
interpret, and evaluate system and network requirements. Administrators also may plan,
coordinate, and implement network security measures.
No evidence in the Handbook indicates that a baccalaureate or higher degree in a specific specialty, or its
equivalent, is required for computer systems administrator jobs. Many employers seek applicants with bachelor's
degrees, although not necessarily in a computer-related field. Further, although counsel asserts in the RFE and
on appeal that the beneficiary would work in-house as an integral part of the product development team on a
product for the U.S. healthcare industry, with duties that entail developing and customizing a software system
for maintaining and tracking all activities at U.S. hospitals, the record contains no evidence demonstrating
that the petitioner has any contracts with the U.S. healthcare industry requiring the beneficiary's in-house
services as a systems administrator.i Without documentary evidence to support the claim, the assertions of
counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N
Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Moreover, although the
petitioner claims on the petition a projected gross annual income of $500,000 for 2005, the record contains no
evidence, such as federal income tax returns, that the petitioner generates this level of income. Going on
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof
in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft
of California, 14 I&N Dec. 190 (Reg. Comm. 1972». In view of the foregoing, the record does not establish
that a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the
generally described position. Accordingly, the petitioner has not established the criterion at 8 C.F.R.
§ 214.2(h)(4)(iii)(A)(l).
2 The petitioner's website at: ltttp:JP'~ Yi.je~l1aAt~eBRglQgies.e9ffi lists "health management software" under
its products category; the record, however, contains no evidence of any U.S. healthcare clients.
WAC 05 222 51569
Page 6
The record does not include any evidence from firms , individuals, or professional associations regarding an
industry standard . In the alternative, the petitioner may show that the proffered position is so complex or
unique that only an individual with a degree can perform the work associated with the position. In the instant
petition, the described duties are the duties of a computer systems administrator, duties that are not associated
with a bachelor's degree in a specific discipline . The petitioner has not identified any specific duties that
elevate the position to one that would require the education obtained through a four-year university program.
The petitioner has not established that a baccalaureate or higher degree or its equivalent is common to the
industry in parallel positions among similar organizations or, in the alternative, is so complex or unique that it can
be performed only by an individual with a degree in a specific discipline. The petitioner has failed to establish
the alternative prongs of the criterion at 8 C.F.R. § 2l4.2(h)(4)(iii)(A)(2).
The AAO now turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3) - the employer normally requires a
degree or its equivalent for the position . In response to the director's RFE, the petitioner submitted an approval
notice as evidence that it currently employs one H-I B nonimmigrant employee. The record, however, contains no
evidence that this individual is employed by the petitioner in the capacity of a computer systems administrator.
Moreover, the AAO notes that while a petitioner may believe that a proffered position requires a degree , that
opinion cannot establish the position as a specialty occupation. Were CIS limited solely to reviewing a petitioner's
self-imposed requirements , then any individual with a bachelor's degree could be brought to the United States to
perform any occupation as long as the employer required the individual to have a baccalaureate or higher degree.
See Defensor v. Meissner, 201 F. 3d at 384 . The petitioner has not sufficiently described the duties of the
proffered position or provided other documentary evidence that would establish the referenced criter ion at
8 C.F.R. § 214.2(h)(4)(iii)(A)(3) based on its normal hiring practices.
Finally, the AAO turns to the criterion at 8 C.F.R. § 214 .2(h)(4)(iii)(A)(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.
Counsel states, in response to the RFE, that the completion of the petitioner 's software development projects
requires the hiring of software professionals. The petitioner, however, has not established that the proposed
duties exceed in scope, specialization, or complexity those usually performed by systems administrators , an
occupat ional category that does not require a baccalaureate or higher degree in a specific specialty. Further , as
indicated earlier in this decision , the petitioner's unsupported claims regarding contracted software development
work with the U.S . healthcare industry do not establish a requirement for the level of knowledge requisite for
this criterion. Therefore , the evidence does not establish that the proffered position is a specialty occupation
under 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).
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.
Although the director did not make a specific determination regarding the eligibility of the beneficiary to
perform H-IB level services, the AAO observes beyond the decision of the director, that the record does not
contain an evaluation of the beneficiary's foreign education or other evidence demonstrating the beneficiary's
WAC 05 222 51569
Page 7
qualifications as required by 8 C.F.R. § 214.2(h)(4)(iii)(C). 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 ofthe grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229
F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 FJd 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d
997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). For this additional
reason, the petition will not be approved.
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered 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.
ORDER: The appeal is dismissed. The petition is denied.