dismissed H-1B Case: Information Technology

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PUBLIC COpy
U.S. Department ofJ-lomeland Security
20 Massachusetts Avenue NW, Room 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: WAC 06 151 53075 Office: CALIFORNIA SERVICE CENTER Date: Sfj 1 2· 2001
INRE: 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 PETITIQNER:
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
WAC 06 151 53075
Page 2
DISCUSSION: The director 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 engaged in information technology consulting, and it seeks to employ the beneficiary as
a programmer analyst. The petitioner, therefore, endeavors to extend the beneficiary's classification 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 director denied the petition finding that the petitioner did not meet the statutory definition of a "United
States employer" or an agent, and had not demonstrated the existence of a specialty occupation.
The record of proceeding before the AAO contains (1) the Form 1-129 and supporting documentation; (2) the
director's request for additional evidence; (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.
Section 214(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.
The term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)(4)(ii) as:
[A]n occupation which requires theoretical and practical application of a body of highly
specialized knowledge in fields 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.
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 rrummum
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
WAC 06 151 53075
Page 3
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 proposed position.
The term "employer" is defined at 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 response to the director's request for evidence, the petitioner asserts that it will be the "actual
employer" of the beneficiary. On appeal, counsel for the petitioner further asserts that the petitioner
"determines where the beneficiary is to be placed, and can choose to remove him from the position and
transfer him elsewhere at any time," and will "retain full control over the alien and his job duties." The
evidence of record establishes that the petitioner will act as the beneficiary's employer in that it will hire,
pay, fire, or otherwise control the work of the beneficiary.' See 8 C.F.R. § 214.2(h)(4)(ii). The petition
may not be approved, however, as the record does not establish that the beneficiary will be employed in a
specialty occupation, that the employer has submitted an itinerary of employment for the entire period of
employment requested by the petitioner on the Form 1-129, or that the beneficiary is qualified to perform
the duties of the specialty occupation.
The petitioner's letter of support dated April 4, 2006, indicated that the beneficiary's duties would include
analyzing the needs of its clients and developing software solutions. On appeal, counsel for the
petitioner asserts that the petitioner "determines where the beneficiary is to be placed, and can choose to
! 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 06 151 53075
Page 4
remove him from the petition and transfer him elsewhere at any time." Counsel further stated that if the
programmer analyst is not placed at a specific site, he will be placed at the petitioner's worksite and will
be "utilized for [the petitioner's] own programming needs." Thus, the evidence of record establishes that
the petitioner is an employment contractor in that the petitioner will place the beneficiary at work
locations to perform services established by contractual agreements for third-party companies.
Pursuant to the language at 8 C.F.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.
As noted above, the petitioner asserts that the beneficiary will be placed at several client sites, however,
the petitioner failed to submit an itinerary with the dates and locations of the client work sites in which
the beneficiary will be placed.
The AAO agrees with the director that the petition does not establish that the beneficiary will be
employed in a specialty occupation. Again, the evidence of record establishes that the petitioner is an
employment contractor in that the petitioner will place the beneficiary at work locations to perform
services established by contractual agreements for third-party companies. However, the petitioner did not
provide a job description for the duties the beneficiary will perform for the third-party companies. The
petitioner also failed to submit a contract or work order evidencing the duties to be performed by the
beneficiary. The court in Defensor v. Meissner, 201 F. 3d 384 (5
th
Cir. 2000) held that for the purpose of
determining whether a proposed 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 proposed position qualifies as a specialty
occupation on the basis of the requirements imposed by the entities using the beneficiary's services.
Moreover, the director requested, in his April 21, 2006 request for additional evidence, several documents
to describe the conditions of employment, such as contracts, works order, service agreements or letters
from authorized officials of the ultimate client company; however, the petitioner did not submit any of the
requested documentation. The regulation states that the petitioner shall submit additional evidence as the
director, in his or her discretion, may deem necessary. The purpose of the request for evidence is to elicit
further information that clarifies whether eligibility for the benefit sought has been established, as of the
time the petition is filed. See 8 C.F.R. §§ 103.2(b)(8) and (12). The failure to submit requested evidence
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14).
As the record does not contain 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 for classification 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). Thus, the petition
may not be approved.
WAC 06 151 53075
Page 5
Beyond the decision of the director, the petitioner failed to demonstrate that the beneficiary qualifies to
perform the duties of the specialty occupation.
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 petitioner seeks to establish that the beneficiary is qualified under 8 C.F.R. § 214.2(h)(4)(iii)(C)(4).
The petitioner may also establish that the beneficiary qualifies to perform the duties of a specialty
occupation if he holds a foreign degree determined to be equivalent to a United States baccalaureate
degree pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(C)(2). Accordingly, the AAO turns to the governing
regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D). Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(D), equating a
beneficiary's credentials to a United States baccalaureate or higher degree is determined by one or more
of the following:
(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 (PONSI);
(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
WAC 06 151 53075
Page 6
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 ofsuch training and experience.
The petitioner submitted the beneficiary's resume; a copy of the bachelor of computer science
engineering degree awarded to the beneficiary by Nagarjuna University, located in India; copies of grade
reports for the beneficiary from Nagarjuna University; and one employment reference letter on behalf of
the beneficiary.
As the beneficiary was awarded a bachelor's degree from a University in India, and the petitioner did not
submit documentation as required under 8 C.F.R. § 214.2(h)(4)(iii)(C) or 8 C.F.R~ § 214.2(h)(4)(iii)(D),
equating a beneficiary's credentials to a United States baccalaureate or higher degree, the record does not
establish that the beneficiary is qualified to perform the duties of a specialty occupation position. 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 Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001),
affd. 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 reviews appeals on a de novo basis).
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 met this burden.
ORDER: The appeal is dismissed. The petition is denied.