dismissed H-1B Case: Information Technology

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 I Ol(a)(l S)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Off~ice 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 04 126 50498 
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 a high technology business that seeks to employ the beneficiary as a systems analyst. The 
petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation 
pursuant to section 10 1 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
The petitioner submitted a timely Form I-290B on December 3, 2004 and indicated that a brief and/or additional 
evidence would be submitted to the AAO within 30 days. The record contains a fax, dated March 14, 2006, 
indicating that the petitioner did not file a brief or evidence in support of the appeal as indicated on Form I-290B. 
Therefore, the record as constituted is complete. 
The director denied the petition because the petitioner failed to establish that the offered position is a specialty 
occupation. 
Counsel submits a timely appeal. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 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. 8 214.2(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. 
WAC 04 126 50498 
Page 3 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 
8 C.F.R. 5 214.2(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. 
Pursuant to 8 C.F.R. 5 214.2(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. 
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 specify 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. 
WAC 04 126 50498 
Page 4 
(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 denying the petition, the director found that the petitioner established the employer/employee relationship 
with the beneficiary. However, the director stated that the record did not contain evidence showing that the 
position that the beneficiary would ultimately perform qualified as a specialty occupation. 
On appeal, the petitioner states that the beneficiary will work at its office; that no customer contract pertains 
to the beneficiary; that the petitioner has the ability to pay the beneficiary; and that in the past it had received 
H- 1 B approvals for other employees. 
Based on the evidence in the record, the AAO concurs with the director's conclusion that the petitioner failed to 
establish that the beneficiary will ultimately perform a specialty occupation. 
The July 30, 2004 letter from the petitioner indicates that the petitioner provides consulting services involving 
onsite and offsite projects, and develops software offshore. In Defensor v. Meissner, 201 F. 3d 384 (5" Cir. 
2000), the court held that the Immigration and Naturalization Service, now CIS, reasonably interpreted the statute 
and the regulations when it required the petitioner to show that the entities ultimately employing the foreign 
nurses require a bachelor's degree for all employees in that position. The court found that the degree requirement 
should not originate with the employment agency that brought the nurses to the United States for employment 
with the agency's clients. 
With the situation here, the director's June 12, 2004 request for evidence sought evidence of the contractual 
agreements between the petitioner and the companies for which the beneficiary would provide consulting 
services. In response, the petitioner submitted an unsigned contract addressed to Sola International, Inc. The 
unsigned contract, the AAO notes, does not describe the beneficiary as providing services to Sola International, 
Inc., and the record does not contain a comprehensive description of the beneficiary's proposed duties from an 
authorized representative of Sola International, Inc. Without this evidence, the petitioner cannot demonstrate 
that the work that the beneficiary will ultimately perform for Sola International, Inc. will qualify as that of a 
specialty occupation. Thus, the petitioner fails to establish that the work to be performed by the beneficiary 
is that of a specialty occupation. 
Based on the evidence of record, the AAO concludes that the petitioner satisfied none of the criteria at 
8 C.F.R. tj 2 14.2(h)(4)(iii)(A). 
The AAO is not persuaded by the petitioner's assertion that the proposed position is a specialty occupation 
because CIS has approved other, similar petitions in the past. Each nonimmigrant petition is a separate 
proceeding with a separate record. See 8 C.F.R. tj 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. tj 103.2(b)(16)(ii). 
WAC 04 126 50498 
Page 5 
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. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.