dismissed H-1B Case: Information Technology

lllaMtfliag..·cIeI... to
prI\IeJltcJearlyun~
invasionof personalprivac'Y,
.PUBLICCOpy
u.s. Department of 110meland Security
20 Mass Ave., N,W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
INRE:
LIN 04 225 50446
Petitioner:
Beneficiary:
Office: NEBRASKA SERVICE CENTER Date: DtC 05 2006
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOI(a)(l5)(H)(i)(b) of the
('
Immigration and Nationality Act, 8 U.S.c. § I IOI(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
LIN 04 225 50446
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 and solutions company that seeks to employ the beneficiary as a
computer engineer. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty
occupation pursuant to section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act),
8 U.S.C. § 1101(a)(l5)(H)(i)(b).
The director denied the petition finding that the petitioner failed to establish that it would employ the
beneficiary in a specialty occupation. Counsel submitted a timely appeal.
Section 2l4(i)(1) 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 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 aminimum for entry into the occupation in the United States.
Pursuant to 8 C.F.R. § 2l4.2(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. § 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.
LIN 04 225 50446
Page 3
The record of proceeding before the AAO contains : (I) Form 1-129 and supporting documentation; (2) the
director 's request for evidence (RFE); (3) the petitioner 's response to the RFE ; (4) the director 's denial letter ;
and (5) Form 1-290B and counsel 's May 18 ,2005 letter. The AAO reviewed the record in its entirety before
issuing its decision .
The petitioner is seeking the beneficiary 's services as a computer engineer. Evidence of the beneficiary 's
duties includes: the Form 1-129; the attachments accompanying the Form 1-129 ; the petitioner's support letter;
and the petitioner's response to the director's RFE. According to the petitioner , the beneficiary will be
responsible for the research, design, development,and testing of computer systems arid networks, and solving
operating problems and supervising installation.
The director denied the petition , stating that the record contained no evidence which demonstrated that at the
time of filing the petitioner had sufficient work at the H-l B level that was immediately available for the
beneficiary at the Denver , Colorado , work location listed in the labor condition application (LCA). The
director stated that the petitioner submitted no e vidence of the beneficiary 's employment itinerary and
contractual agreements and work orders, as requested in his RFE. According to the director, the petitioner
indicates that it is unable to provide an employment itinerary and contractual agreements and work orders as
it "does not know who its clients will be as of yet, or which clients will need the beneficiary's services. " The
director noted that the emplo yment agreement between the petitioner and the beneficiary does not identify the
beneficiary 's worksite. The director stated that Defensor v. Meissner, 201 F. 3d 384 (5 th 'Cir. 2000) indicates
that the ultimate employment of the beneficiary must be examined to determine whether the position
constitutes a specialty occupation.
On appeal, counsel states that Defensor is distinguishable from the instant case . Counsel asserts that Defensor',
involves a nonspecialty occupation, a nurse; whereas the position here, a computer engineer, involves a
specialty occupation. The petitioner here, counsel states , will be the beneficiary's employer as it will hire , '
fire, and control his work and the nature of his employment. Counsel states that the petitioner in Defensor is
an employment agency. According to counsel , the petitioner, an information technology services company ,
provides human resources .on a temporary or permanent basis. Counsel states that because the needs of the
petitioner's clients are unpredictable it cannot provide an employment itinerary of the beneficiary's work.
Counsel states that 29 C .F.R. § 730(c)(l)(v) allows for variations or changes in a petitioner 's business status,
such as amending an LCA to reflect changes in the initially intended employment location. Counsel asserts
that CIS has previously found that the propo sed position qualifies as a specialty occupation as it approved .
petitions filed on behalf of the beneficiary by other employers. Citing the Memorandum from William R.
Yates , Associate Director for Operations , 'The Significance of a Prior CIS Approval of a Nonimmigrant
Petition in the Context ofa Subsequent Determination Regarding Eligibility f or Extension ofPetition Validity,
HQOPRD 72111.3 (April 23, 2004) , (the Yates memo) coun sel states that the Yates memo conveys that a
prior CIS determinati on should be given deference. According to counsel ; the veracity of the beneficiary 's
, position is attested to b y the petitioner 's income tax records and its desire to bring the beneficiary to the
United States.
LIN 04 225 50446
Page 4
Based on the evidence in the record , the AAO concurs with the director 's conclusion that the record fails to
establish that the beneficiary would be employed in a specialty occupation.
The evidence of record, which includes the petitioner 's company brochure and its response to the RFE ,
establish that the petitioner is an employment contractor in that itwill place the beneficiary at multiple work
locations to perform services established by contractual agreements for third-party companies. The petitioner ,
however, has provided no contracts, work orders, or statements of work describing the duties the beneficiary
would perform for clients. Without evidence of contracts, work orders, or statements of work describing the
"duties the beneficiary would perform for clients the petitioner fails to establish that the duties that the
beneficiary would perform are those of a specialty occupation. Simply going on record without supporting
documentary evidence is not sufficient for the purpose of meeting the burden of proof in these proceedings.
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm . 1998) (citing Matter of Treasure Craft of California,
14 I&N Dec. 190 (Reg -Comm. 1972)).
The director stated that he must examine the ultimate employment of the beneficiary to determine whether the
position constitutes a specialty occupation , as stated by the Defensor court. It is noted that the petitioner in
Defensor, Vintage Health Resources (Vintage) , is a medical contract service agency that brought foreign
nurses into the United States and located jobs for them at hospitals as registered nurses. The court in
Defensor found that Vintage had "token degree requirements ," to "mask the fact that nursing in general is not
a specialty occupation. " The court found that Vintage "is at best a token employer." In anal yzing the
regulation at8 C.F.R. § 214.2(h)(4)(ii)(2) , which provides the definition of an U .S. employer , the court stated
that: "merely being able to "hire" or "pay" an emplo yee , by itself, would be insufficient to grant employer
status to an entity that .does not also supervise or actually control the employee 's work." The Defensor court
did not determine whether Vintage qualifies as an employer under the regulations. It stated:
For even if Vintage is an employer, the hospital is also an employer of the nurses and a more
relevant employer at that. The nurses provide services to the hospitals; they do not provide
services to Vintage. Even if Vintage mails the nurses' paycheck, the nurses are paid, in the
end, by the hospital and not Vintage. The hospitals are the true employers of the nurses ,
since at root level the hospitals "hire, pay, fire, supervise, or otherwise control the work" of
the nurses , even if an employer-employee contract existed only between Vintage and the
nurses. As such , the INS interpreted "employer' : in § 2 14.2(h)(4)(iii)(A) to refer to the true
emplo yer-namely the hospitals-even though Vintage was the only "employer" petitioning for
visas. Under this interpretation, the INS required Vintage to provide information regarding
the hospitals ' requirements for the nursing positions.
To interpret the regulations any other way would lead to an absurd result. If only Vintage's
requirement s could be considered , then an y alien with a bachelor's degree could be brought
into the United States to perform a non-specialty occupation , s o long as that person's
emplo yment was arranged through an employment agency which required all clients to have
bachelor's degrees . Thus, aliens could obtain six year visas for any occupation , no matter how
unskilled , through the subterfuge of an employment agency. This result is completely
LIN 04 225 50446
Page 5
opposite the plain purpose of the statute and regulations, which is to limit H I-B visas to
positions which require specialized experience and education to perform.
Based on the above passages, the court in Defensor 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 Defensor 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.
The AAO finds that the facts in the instant case are similar to those in Defensor. The beneficiary will not
provide services to the petitioner; he will be placed at client sites to perform services established by a
. contractual agreement between the petitioner and the client.: Like the hospital that the court considers the
true employer ofthe nurses, the true employer of the beneficiary is the petitioner's clients. Thus, as Defensor
indicates that evidence of the client companies' job requirements is critical if the work is to be performed for
entities other than the petitioner, the petitioner here needed to submit evidence that the proposed position
qualifies as a specialty occupation on the basis of the job requirements imposed by the clients for whom the
beneficiary wil1 provide consulting services, and the evidence needed to indicate the duration of the
assignment and identify the beneficiary as assigned by the client to provide consulting services as a computer
engineer. As the record does not contain any documentation of the specific duties the beneficiary would
perform for the petitioner's clients, the AAO cannot analyze whether his 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.P.R. § 214.2(h)(4)(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.P.R.
§ 214.2(h)(1 )(B)(i).
The director found that the petitioner had not established that it would employ the beneficiary in Denver,
Colorado. Pursuantto the language at 8 C.P.R. § 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.l
In his RFE, the director asked for the beneficiary's employment itinerary and client contracts. In the Aytes
memorandum cited at footnote I, the director has the discretion to request that the employer who will employ
the beneficiary in multiple locations submit an itinerary. Upon review, the director properly exercised his
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).
LIN 04 225 50446
Page 6
discretion to request an employment itinerary and client contracts. As the petitioner submitted no evidence of
an employment itinerary and client contracts, and counsel indicates in his response to the RFE that "the
petitioner does not know who its clients will be as of yet, or which clients will need the beneficiary's
services," the petitioner has not complied with the requirements at 8 C.F.R. § 214.2(h)(2)(i)(B), the petition
must therefore be denied.
Further, as stated by the director, the record does not establish that the LCA is valid 'for the work location
where the beneficiary will be employed. The AAO agrees. No evidence of record establishes that the
beneficiary will be employed in Denver, Colorado, the location specified on the LCA. For this additional
reason, the petition may not be approved.
Counsel asserts on appeal that CIS has previously found that the proposed position qualifies as a specialty
occupation as it has approved petitions filed on behalf of the beneficiary by other employers. Citing the Yates
memo counsel states that the prior CIS determination should be given deference. The AAO finds counsel's
assertions unpersuasive. The Yates memo applies to cases in which CIS has previously approved an H-l B
petition filed by the petitioner on behalf of the beneficiary and the petitioner seeks to extend the H-l B
employment of the beneficiary under the same terms of employment. With the situation here, the record
does not contain evidence that CIS previously approved an H-l B petition filed by the petitioner on behalf of
the beneficiary. Thus, the Yates memo is not influential with the instant case.
Furthermore, this record of proceeding does not contain all of the supporting' evidence submitted to the
service centers in the prior cases. In the absence of all of the corroborating evidence contained in those
records of proceeding, counsel's assertions are not sufficient to enable the AAO to determine whether the
positions in the prior cases are similar to the position in the instant petition. Each nonimmigrant petition is a
separate proceeding with a separate record. See 8 C.F.R. § 103.8(d). In making a determination of statutory
eligibility, CIS is limited to' the information contained in the record of proceeding. See
8 C.F.R. § 1 03.2(b )(l6)(ii).
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 on this
ground.
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.