dismissed H-1B Case: Software Consulting

identllptag data deleted to 
prevent deady unwarranted 
invasion of personal priwcy 
U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
%% 
PUBLIC COPY 
FILE: LIN 05 001 52433 Office: NEBRASKA SERVICE CENTER Date: 2 4 2006 
PETITION: 
 Petition for a Nonimnligrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 
 1 101(a)(l S)(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 
LIN 05 001 52433 
Page 2 
DISCUSSION: The director denied the nonimrnigrant 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 software consulting and development company that seeks to employ the beneficiary as 
a systems analyst. The petitioner, therefore, endeavors to classify the beneficiary as a nonirnrnigrant 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. fj 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition, finding that the petitioner had failed to submit evidence that a position 
involving work at an H-1B level actually exists. The director found that the petitioner had not provided a 
contract of definite work and implicitly found that the petitioner had failed to provide an itinerary of services 
or engagements. The director also found that the petitioner had not established that the petitioner would 
employ the beneficiary at the location listed on the certified labor condition application. 
The record of proceeding before the A40 contains (1) the Fo11n 1-129 and supporting documentatio11; (2) the 
director's request for evldence (RFE); (3) the petitioner's RFE response and supporting documentation; 
(4) the director's denial letter; and (5) the Fonn 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 includmg, 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 hgher 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. 5 214.2@)(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; 
LIN 05 001 52433 
Page 3 
(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. 
.. 
In its November 23, 2004 response to the director's request for evidence, the petitioner stated that the 
duties of the proposed position would include writing logical Bnd physical data base descriptions 
involving location, space, access method, and security; analyzing software requirements to determine the 
feasibility of the design within time and cost constraints; formulating and designing new software systems 
using scientific analysis and mathematical models; developing applicatiogs and specifying identifiers to 
inailage the system; implementing and conducting unit and systeill testing for cluality assurance; 
reviewing project requests describing user needs, estimating time and costs required for accomplishing 
completion of projects; and providing technical training t.o users and information technology staff. 
In his October 7, 2004 request for evidence, the direct05 requested an itinerary of definite employment, 
which was to include the dates of each service or engagement, the names and addresses of the actual 
employers, and the names and addresses of the establishment, venue, or location where the beneficiary's 
services would be performed. If services were to be performed at the petitioner's worksite, the petitioner 
was to indicate as such on the itinerary. The itinerary was to include all service planned for the entire 
requested period of employment-November I, 2004 through November 1,2007. 
In order to ascertain whether a position actually existed, the director also requested copies of any 
contractual agreements, as well as any related work orders between the petitioner and the companies for 
whom the beneficiary would provide services. The director also requested a copy of the beneficiary's 
most recent tax return and a copy of each employee's Form W-2. 
In response, counsel submitted a letter f?~m the petitioner, a copy of a "Master Sub-Contractors' 
Agreement," a "Contract Agreement" between the petitioner and the beneficiary, copies of the 
petitioner's tax returns, a copy of the petitioner's business plan, and a letter from Automatic Data 
Processing, Inc. (ADP), which indicated that the petitioner had contracted with ADP to provide payroll 
services for the petitioner. 
The director denied the petition, essentially finding that the petitioner had not demonstrated that it would 
employ the beneficiary in a specialty occupation, and that the petitioner had failed to submit an itinerary 
of services or engagements. 
On appeal, counsel asserts that the proposed position qualifies for classification as a specialty occupation, 
and submits evidence to demonstrate that the duties of the proposed position qualify for such 
classification. For example, counsel submits job postings from various companies to prove that the 
petitioner's baccalaureate degree requirement is an industry standard. 
LIN 05 001 52433 
Page 4 
Counsel also resubmitted the certified labor condition application on appeal. However, the director's 
denial did not state that the record lacked this document.' Rather, the director found that the petitioner 
had not demonstrated that there was a full-time position available at the location listed on the labor 
condition application-Leawood, Kansas. 
The AAO will first consider the issue of whether the petitioner meets the definition of a United States 
employer. The term "employer" is defined at 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 ally such employee; and 
(3) 
 Has an Internal Revenue Service Tax identification number. 
The evidence of record establishes 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. S 214.2(h)(4)(ii). 
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 previously, the director asked for the beneficiary's employment itinerary in his request for 
evidence. The itinerary was to include the dates of each service or engagement, the names and addresses 
of the actual employers, and the names and addresses of the establishment, venue, or location where the 
beneficiary's services would be performed. If services were to be performed at the petitioner's worksite, 
the petitioner was to indicate as such on the itinerary. The itinerary was to include all service planned for 
the entire requested period of employment-November 1,2004 through November 1,2007. 
The itinerary submitted by the petitioner is deficient, as the record does not demonstrate that the proposed 
position existed at the time the petition was filed. As noted by the director in his denial, the "Master 
Sub-Contractors' Agreement7' submitted by the petitioner in response to the director's request for 
evidence did not identify any specific work to be completed. This agreement clearly stated that "[all1 
services to be performed by Subcontractor shall be described in a Purchase Order." However, no 
purchase orders (other than a blank form) were submitted. Moreover, the director noted that both parties 
to the agreement had not signed it.3 
1 
 In his appellate brief, counsel stated the following: "Since your decision seems to indicate that the 
certified ETA 9035 was missing or misplaced, I have enclosed a duplicate copy of the document." 
2 
 See also Memorandum fiom Michael L. Aytes, Assistant Commissioner, INS Office of Adjudications, 
Interpretation of the Term "Ilinerary" Found in 8 C.F.R. 214.2@)(2)(i)(B) as it Relates to the H-IB 
Nonimmigrant Classijkation, HQ 7016.2.8 (December 29, 1995). 
3 
 Counsel submits a signed copy of this agreement on appeal. The AAO notes that the representative of 
Infinite Computer Solutions' signature is dated November 3, 2004. However, when this agreement was 
LIN 05 00 1 52433 
Page 5 
The AAO notes further that this contract did not exist at the time the petition was filed, which precludes 
the petitioner from using it to establish that a position in fact existed at the time the petition was filed. 
The Form 1-129 was received at the service center on September 30, 2004, and the petitioner signed the 
"Master Sub-Contractors' Agreement" on November 3, 2004. Therefore, it cannot use this agreement to 
demonstrate that an itinerary of employment existed on September 30, 2004. 
CIS regulations require a petitioner to establish eligibility for the benefit it is seeking at the time the 
petition is filed. See 8 C.F.R. 9 103.2(b)(12). A visa petition may not be approved at a future date after 
the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelirz Tir-e 
Corporatio~l, 17 I&N Dec. 248, 249 (Reg. Comm.). Moreover, as stated in Matter- of Izunz~~zi, 22 T&N 
Dec. 169, 176 (Assoc. Con~m. 1998), "[tlhe AAO cannot consider facts that come into being only 
subsequently to the filing of the petition." The record fails to establish that the petitioner had an itinerary 
of services or engagements for the beneficiary at the time the instant petition was filed. 
Counsel subinits a work order 011 appeal. Ho~cever, that work order is also dated Novenlber 3, 21)b-l. 
subsequent to the date the petition was filed, so the petitioner cannot use this work order to estabhsh an 
Itinerary of services or engagements. 
The director also implicitly found that the petitioner would not employ the beneficiary in a specialty 
occupation. The AAO agrees with the director that the record does not establish that the beneficiary 
would be employed in a specialty occupation. There is no description of the beneficiary's job duties from 
the client company, as required to show that the beneficiary would be performing services that require a 
baccalaureate or higher degree in a specific specialty. 
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 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 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 as a specialty occupation under any of the criteria at 8 C.F.R. 5 214.2(h)(4)(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. 5 214.2(h)(l)(B)(l). 
Accordingly, the petitioner has not demonstrated that, on the date the petition was submitted, it would 
employ the beneficiary in a specialty occupation for the three years specified on the petition. The record 
fails to establish that the petitioner had an itinerary of services or engagements for the beneficiary at the 
time the petition was filed. For these reasons, the petition must be denied. 
first submitted to CIS on December 1,2004, this signature was not present. 
LIN 05 001 52433 
Page 6 
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 sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.