dismissed H-1B Case: Information Technology

U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: LIN 04 186 52521 Office: NEBRASKA SERVICE CENTER Date: Jut 1 4 2006 
IN RE: Petitioner: 
Beneficiary: 
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. 3 1 10 l(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 
LIN 04 186 52521 
Page 2 
DISCUSSION: The service center director denied the nonirnmigrant 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 services company that seeks to employ the beneficiary as a 
programmer/analyst. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a 
specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. $ 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the petitioner did not establish that the ultimate employer of the 
beneficiary would be employing the beneficiary in a specialty occupation. On appeal, the petitioner submits a 
brief. 
Section 214(i)(l) of 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. 
Pursuant to 8 C.F.R. 3 2 14.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(I) 
 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 

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director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a programmerlanalyst. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's June 11, 2004 letter in support of the petition; and the 
petitioner's response to the director's request for evidence. In its letter of support, the petitioner stated that 
the beneficiary would perform duties that entail: analyzing client information systems, client business and 
financial management procedures; identifying any hardware, software and organizational problems; 
designing, developing, testing, implementing and participating in the quality assurance process for business 
systems software applications using various hardware and software; designing, coding and implementing 
different applications using information security tools and routing technologies; and working on a team on 
in-house project to design, implement, document and perform the necessary upgrades. The petitioner 
submitted a labor condition application (LCA) stating that the beneficiary would be working in Mt. Prospect, 
IL. In response to the director's request for evidence, the petitioner stated that the beneficiary's duties would 
entail: studying and analyzing customer specifications; documenting discussions and software problems from 
customers; designing the solutions and code and implementing the different computer applications by using 
the latest computer skills and techniques; and handling all types of correspondence and communication with 
the client by meeting and visiting its customers and understanding the function of the products. The petitioner 
provided a purchase order from a client, indicating that the beneficiary would be working at the client site in 
Massachusetts, performing services for the client's client. The petitioner also provided a new LCA for the 
Massachusetts location. On appeal, the petitioner provides another agreement with a different client, which 
states that the beneficiary would be performing services at the petitioner's office for the client, with a 
different set of duties from those in the previous two descriptions. The petitioner stated in its letter of support 
that a qualified candidate would possess a bachelor's degree in computer science, engineering, math, physics, 
or business. 
The director stated that CIS must examine the ultimate employment of the alien to determine whether the 
position qualifies as a specialty occupation. The director referred to the contract submitted in response to his 
request for evidence and stated that it provided no information regarding the business where the beneficiary 
would ultimately work. The director referred to the case of Defensor v. Meissner, 201 F. 3d 384 (5' Cir. 
2000), which found that absent a contract with the actual employer stating the duties to be performed pursuant to 
the contract, CIS cannot determine that a position qualifies as a specialty occupation. The court found that a 
petitioner that is an employment contractor is merely a "token employer." The entity ultimately employing the 
alien or using the alien's services is the "more relevant employer." Defensor v. Meissner, id. In other words, the 
employment contractor's client is the "more relevant employment," whether the alien will be worlung within the 
employment contractor's operations on projects for the client or whether the alien will work at the client's place 
of business. 
Thus, when a petitioner is an employment contractor, the petitioner must submit a detailed job description of the 
duties that the alien will perform and the qualifications that are required to perform the job duties from the 
entity ultimately employing the alien or using the alien's services. From this evidence, CIS will determine 
whether the duties require the theoretical and practical application of a body of highly specialized knowledge, 
LIN 04 186 52521 
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and the attainment of a baccalaureate or higher degree, or its equivalent, in the specific specialty as the 
minimum for entry into the occupation as required by the ~ct.' 
On appeal, the petitioner states that it is the actual employer of the beneficiary, with responsibility for paying, 
hiring, firing and providing benefits for the beneficiary, and that it is not an agent. The petitioner also states 
that the duties to be performed by the beneficiary "clearly demonstrate the specialist nature of the position 
offered." 
As noted above, the petitioner provided LCA's for two different work locations (with the original petition and 
in response to the director's request for evidence) and contracts with two different companies (in response to 
the director's request for evidence and on appeal), and three different descriptions of the position (with each 
of the petitioner's submissions). The AAO cannot determine based on this record where the beneficiary 
would actually be performing services or what duties he would perform, and therefore, whether the position is 
a specialty occupation under any of the criteria specified in 8 C.F.R. fj 214.2(h)(4)(iii)(A). It is incumbent 
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
As the petitioner has not established that the beneficiary will be employed in a specialty occupation, 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. 
1 
 The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an 
additional requirement that a position must meet, in addition to the statutory and regulatory definition." See 
id. at 387.