dismissed H-1B Case: Information Technology

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 083 50099 Office: CALIFORNIA SERVICE CENTER Date: 2 5 2006 
PETITION.: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 lOl(a)(lS)(H)(i)(b) 
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 04 083 50099 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now before 
the Administrative Appeals Ofice (AAO) on appeal. The appeal will be dismissed. The petition will be denied. 
The petitioner is an IT development and consulting business that seeks to employ the beneficiary as an 
"engineer - network." The petitioner endeavors to,classify the beneficiary as a nonimmigrant worker in a 
specialty occupation pursuant to 5 lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 8 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation, as the petitioner 
did not establish that it would have an employer-employee relationship with the beneficiary. The director 
found further that the petitioner did not establish that it would comply with the terms of the labor condition 
application. On appeal, the petitioner submits a brief and a letter from the petitioner. 
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. 
Pursuant to 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. 3 214.2(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 additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
WAC 04 083 50099 
Page 3 
The petitioner is seeking the beneficiary's services as an "engineer - network." Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's January 28, 2004 letter in support of the petition; and the 
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform the following duties: 
[The beneficiary] will be assigned to SIFY International, Inc., located in Santa Clara, 
California. [The petitioner] is in the business of providing consulting and managed services in 
the areas of Information Technology. Specifically, they are involved in Network Management, 
Systems Management, Security Management, Mail Management and Facilities Management. 
These services are provided by [the petitioner] to its customers in the United States making it a 
Managed Services Provider. 
[The beneficiary] will be a member of the Network Implementation and Maintenance project 
team. His job duties will include: Configuration of Cisco 7603, 7206 VXR routers and Cisco 
3550 LAN switches; Configuration, analysis and trouble-shooting of OSPF and BGP routing 
protocols; Analyze and troubleshoot network related issues; Ensure a high network up time of 
internet gateway links; Ensure optimal and efficient flow of traffic; Configure, manage and 
maintain OSPF and BGP routing protocols; Ensure Network parameters such as latency and 
packet loss are controlled and maintained. 
On appeal, counsel asserts that an employer-employee relationship exists between SIFY International, Inc. 
and the beneficiary, that the beneficiary will be working for the petitioner, on the petitioner's premises, under 
the petitioner's full control at all times. Counsel references a letter from the petitioner's director, asserting that 
this letter establishes the employer-employee relationship between the petitioner and the beneficiary. Counsel 
further asserts that the proffered position is a specialty occupation. 
Upon review of the record, the petitioner has established that an employer-employee relationship exists 
between the petitioner and the beneficiary. 
Pursuant to 8 C.F.R. $2 14.2(h)(4)(ii), United States employer means a person, firm, corporation, contractor, or 
other association, or organization in the United States which: 
(I) 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 
To qualify as a United States employer, all three criteria must be met. The quarterly wage reports indicate that 
the petitioner engages persons to work in the United States, and the Form 1-129 indicates that it has an 
Internal Revenue Service Tax Identification Number. The petitioner has demonstrated that it would have an 
employer-employee relationship with the beneficiary with the authority to hire, pay, fire, supervise, or 
otherwise control the work the beneficiary would perform. 
WAC 04 083 50099 
Page 4 
The director also found that the petitioner is an agent. The AAO disagrees. 
Pursuant to 8 C.F.R. 5 214.2(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, in place of, the employer as its agent. A petition filed by a United 
States agent is subject to the following conditions; 
(I) An agent performing the function of an employer must guarantee the wages and 
other terms and conditions of employment by contractual agreement with the 
beneficiary or beneficiaries of the petition. The agentlemployer must also provide an 
itinerary of definite employment and information on any other services planned for 
the period of time requested. 
(2) A person or company in business as an agent may file the H petition involving 
multiple employers as the representative of both the employers and the beneficiary 
or beneficiaries if the supporting documentation includes a complete itinerary of 
services or engagements. The itinerary shall specifL the dates of each service or 
engagement, the names and addresses of the actual employers, and the names and 
addresses of the establishment, venues, or locations where the services will be 
performed. In questionable cases, a contract between the employers and the 
beneficiary or beneficiaries may be required. The burden is on the agent to explain 
the terms and conditions of the employment and to provide any required 
documentation. 
(3) A foreign employer who, through a United States agent, files a petition for an H 
nonimmigrant alien is responsible for complying with all of the employer 
sanctions provisions of section 274A of the Act and 8 CFR part 274a. 
In the petitioner's April 8, 2004 response to the director's request for additional evidence, the petitioner's 
director stated as follows: 
The nature of the questions posed by the Service regarding "consulting services" implies that 
the primary purpose of the position is to supply consultants to the industry. It is pointed out at 
the end of the job description, Exhibit G, that [the beneficiary] is an employee of SIFY 
International and as such will not be billed out to clients per se. The services provided by the 
Petitioner are such that their employees are dedicated to their employer but, as a necessary 
function of the service, will have a great deal of contact with their customers. 
The AAO determines that the petitioner will not be an agent as defined in the regulation. 
WAC 04 083 50099 
Page 5 
The director also found that the petitioner had not provided an itinerary of employment. On appeal, the 
petitioner states that the beneficiary "will spend NO time on client premises." In response to the WE, the 
petitioner states: "When the project is completed, the employee will be reassigned to new projects and/or will 
return to the parent corporation to take part in new projects." Further, the April 8, 2004 letter indicates that the 
beneficiary will have a great deal of customer contact. Thus the evidence is inconsistent as to whether or not 
the beneficiary will provide services off-site as well as on-site. 
The evidence of record, including the petitioner's tax documentation and offer of employment to the 
beneficiary, 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.' See 8 C.F.R. fj 214.2(h)(4)(ii). 
Pursuant to the language at 8 C.F.R. fj 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. 
In his request for evidence, the director asked for the beneficiary's employment itinerary and contracts of 
work to be performed. 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 itinerary. Upon review, 
the director properly exercised his discretion to request contracts reflecting the dates and locations of 
employment and an employment itinerary. However, the record contains no documentation regarding the 
dates and locations of the beneficiary's employment or contracts of work to be performed. Accordingly, the 
petitioner has failed to comply with the requirements at 8 C.F.R. fj 214.2(h)(2)(i)(B) and the petition must be 
denied.2 
Therefore, the petitioner has failed to establish that it meets the regulatory requirements for an employer who will 
employ the beneficiary in multiple work locations. Therefore, the petition may not be approved. 
The director also found that the petitioner had not demonstrated that has complied with the terms of the labor 
condition application. As discussed above, the petitioner's April 8, 2004 letter indicates that the beneficiary will 
work both on site and off site. When the beneficiary works off site, the record contains no evidence indicating that 
he will be working within the geographical area covered by the LCA. For this additional reason, the petition may 
not be approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied. 
' 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 
Nonirnrnigrant Classzj?cation, HQ 7016.2.8 (December 29, 1995). 
As noted by Assistant Commissioner Aytes in the cited 1995 memorandum, "[tlhe purpose of this particular 
regulation is to [elnsure that alien beneficiaries accorded H status have an actual job offer and are not coming 
to the United States for speculative employment."