dismissed H-1B Case: Information Technology

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prev~t clearly unwarranted
invulon ofpersonalprivac}
PU8LJCCOPY
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
SEO 11 ZW7
FILE: WAC 05 222 52248 Office: CALIFORNIA SERVICE CENTER Date:
IN RE: Petitioner:
Beneficiary:
1
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(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 05 222 52248
Page 2
DISCUSSION: The service center 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 an IT development and consulting services firm that seeks to employ the beneficiary as a
software programmer. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a
specialty occupation pursuant to section 101(aXI5XH)(iXb)of the Immigration and Nationality Act (the Act),
8 U.S.c. § 1101(aX15XH)(iXb).
The director determined that the petitioner had not established that the proffered position qualified as a specialty
occupation, and that the petitioner did not qualify as a United States employer in this instance. On appeal counsel
submits a brief and additional information contending that the proffered position qualifies as a specialty
occupation, and that the petitioner will be the employer of the beneficiary with H-IB caliber employment
available for him in the United States.
The first issue to be determined is whether the petitioner qualifies as a United States employer.
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.
The petitioner provided copies of two contracts that it maintains with companies which enable the petitioner
to provide its employees for completion of various work projects on behalf of the contracting company's
clients. Under the terms of these contracts, the petitioner acts as an independent contractor in providing
services. The performance of the services to be provided are performed by employees of the petitioner. The
petitioner will hire the beneficiary, will pay the beneficiary, has the right to fire the beneficiary and will
otherwise have control over the beneficiary's work. The fact that the beneficiary may perform services at a
client facility and is subject to that client's work rules and regulations does not change the
employer/employee relationship existing between the petitioner and beneficiary. The petitioner will engage
the beneficiary to work in the United States, has an employer-employee relationship with the beneficiary, and
has an Internal Revenue Service Tax identification number. The petitioner qualifies as a United States
employer in this instance, and the director's decision to the contrary is withdrawn.
The next issue to be determined is whether the proffered position qualifies as a specialty occupation.
Section 214(iXl) of the Act, 8 U.S.C. § I 184(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 occupationin the United States.
WAC 05 222 52248
Page 3
The term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)(4Xii)as:
.An 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(hX4XiiiXA),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.
The petitioner seeks the beneficiary's services as a programmer analyst. Evidence of the beneficiary's duties
is set forth in the Form 1-129 petition and supporting attachment. According to evidence provided by the
petitioner the beneficiary would:
• Design, code, implement and maintain software applications using Java, JSP, J2EE, EJB, Weblogic,
Oracle, SQL Server, etc. under Windows operating systems;
• Prepare test scripts using test conditions and test cases;
• Prepare test scripts using Win Runner and Test Director;
• Convert data from project specifications and statements of problems and procedures to create or
modify computer programs;
WAC 05 222 52248
Page 4
• Analyze workflow charts and diagrams, applying knowledge of computer capabilities, subject matter,
and symbolic logic;
• Confer with superiors and representatives of departments concerned with programs to resolve
questions of program intent, data input, output requirements, and inclusion of internal checks and
controls;
• Convert detailed logical flow chart to language processable by computer;
• Enter program codes into computer systems;
• Write instructions to guide operating personnel during production runs;
• Analyze, review, and rewrite programs to increase operating efficiency or to adapt programs to new
requirements;
• Compile and write documentation of program development and subsequent revisions;
• Assist other workers in use of programs;
• Analyze project specifications and flow charts; and
• Coordinate with teams to write, test, and modify computer programs.
The petitioner requires a minimum of a bachelor's degree in engineering, or a bachelor's degree with a
concentration in computer science for entry into the proffered position.
In the director's decision, he noted that the petitioner had not provided contract documentation from specific
clients where the beneficiary would perform services detailing (from the end user of the beneficiary's
services) the specific duties to be performed by the beneficiary. Two contracts were provided, but neither
indicated that the beneficiary was required to perform work on those contracts. Essentially, the director
indicated that the petitioner had not provided a complete itinerary) for the beneficiary's work to be performed
from October 1,2005 through September 30,2008. Pursuant to the language at 8 C.F.R. § 214.2(hX2XiXB),
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.
The petitioner stated that the beneficiary would perform work on in-house projects upon arrival to the United
States (thus not requiring an itinerary of employment for multiple work locations), but may at some future
date, be assigned to outside client projects. In the Aytes memorandum cited at footnote 1, the director has the
discretion to request that the employer who will employ the beneficiary in multiple locations submit an
I See Memorandum from Michael L. Aytes, Assistant Commissioner, INS Office of Adjudications,
Interpretation oj 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 52248
Page 5
itinerary. The documentation contained in the record does not establish a complete itinerary for the
beneficiary from October 1, 2005 through September 30, 2008. Accordingly, the petitioner has failed to
comply with the requirements at 8 C.F.R. § 2I4.2(h)(2Xi)(B) and the petition must be denied.2
The petitioner provided a three page description of an in-house project that it was "poised" to engineer and
market, stating that the project was on the "drawing board." That documentation is insufficient to establish
that the petitioner has in-house development projects ready for the beneficiary to immediately begin work on
upon arrival in the United States. An idea for future development is not equivalent to presently available
H-IB caliber employment. Thus, the beneficiary would either arrive in the country waiting for the
development of that in-house project, or be assigned to outside client projects which requires that the
petitioner, upon request by the director, establish an itinerary for the beneficiary's intended period of stay in
the country.
The beneficiary's position has been identified by the petitioner as a computer programmer. The Department
of Labor's Occupational Outlook Handbook (Handbook) notes that although there are many training paths
available for programmers due to varied employer needs, the level of education and experience employers
seek has been rising due to the growing number of qualified applicants and the specialization involved with
most programming tasks. Bachelor's degrees are commonly required, although some programmers may
qualitY for certain jobs with 2-year degrees or certificates. The associate degree is a widely used entry-level
credential for prospective computer programmers. In the absence of a degree, substantial specialized
experience or expertise may be needed, and employers appear to place more emphasis on previous experience
even when hiring programmers with a degree. Some computer programmers hold a college degree in
computer science, mathematics, or information systems, while others have taken special courses in computer
programming to supplement degrees in other fields. Thus, it is evident that while some programmer positions
justitY the hiring of an individual with a baccalaureate level education, others require only an associate's
degree or some other form of certification.
The petitioner, however, has provided no contracts, work orders or statements of work from any petitioner
client for whom the beneficiary will actually perform services specifically describing the duties the
beneficiary would perform and, therefore, has not established the proffered position as a specialty occupation.
As previously noted, the petitioner states that initially the beneficiary will work on in-house projects at its
work location in California. The petitioner did not, however, provide sufficient evidence of any such
in-house project so it is impossible to determine the nature or complexity of the duties to be performed.
Simply going on the record without supporting documentary evidence is not sufficient for purposes 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 ofCalifornia, 14I&N 190 (Reg. Comm. 1972».
The court in Defensor v. Meissner, 201 F. 3d 384 (5th 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
2 As noted by Assistant Commissioner Aytes in the cited 1995 memorandum, "[t]he purpose of this particular
regulation is to [e]nsure that alien beneficiaries accorded H status have an actual job offer and are not coming
to the United States for speculative employment."
WAC 05 222 52248
Page 6
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 from the end users of the beneficiary's services (the petitioner's clients) that establish the
specific duties the beneficiary would perform under contract, 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)(lXB)(l). For this additional reason, the petition must be denied.
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 failed to sustain that burden.
ORDER: The appeal is dismissed. The petition is denied.