dismissed H-1B Case: Software Consulting

identifying data deleted to 
preveiii clearly unwmted 
invasion of personal privacy 
U.S. Department of Ifomeland Security 
20 Mass Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
FILE: WAC 04 245 50423 Office: CALIFORNIA SERVICE CENTER Date: AuG 3 0 2006 
PETITION: 
 Petition for a Noniminigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 IOl(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 
WAC 04 245 50423 
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 software consulting and development company that seeks to employ the beneficiary as 
programmer analyst. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker 
in a specialty occupation pursuant to section 1 Ol(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. $ 1 1 Ol(a)(lS)(H)(i)(b). 
The director denied the petition finding that the petitioner failed to establish that: (1) it met the definition of a 
"United States employer" at 9 214.2(h)(4)(ii) or an "agent" at 8 C.F.R. § 214.2(h)(2)(i)(F); (2) the Labor 
Condition Application (LCA) was valid as to the beneficiary's location of employment; and (3) the offered 
position qualified as a specialty occupation. Counsel submits a timely appeal. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1184(i)(l), defines the tern1 
"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. 
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 proffered position. 
WAC 04 245 50423 
Page 3 
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 
The evidence of record, including the contractual agreements with various companies such as 3Di, Inc., 
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. 5 214.2(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. 
In his request for evidence, the director asked for the beneficiary's employment itinerary and contractual 
agreements between the petitioner and the companies for which the beneficiary will be providing consulting 
services. 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. 
In response to the director's request for evidence, the petitioner submitted a document entitled "Itinerary" that 
reflects 3D1, Inc. as the client. The document lists the services to be performed and the client's location; 
however, the document is not signed by the parties, does not provide the dates of the beneficiary's 
assignment, and does not reference the beneficiary by name other than as "the beneficiary." The petitioner 
also submitted Statements of Work (SOW) that the petitioner entered into with GE Process Solutions LLC. 
The SOWS relate to employees other than the beneficiary; they are therefore not relevant to the beneficiary. 
Furthermore, the SOW documents in the record suggest that the petitioner (known as the "supplier") entered 
into a Master Servicing Agreement, dated November 18, 2003, with GE Process Solutions LLC, whereby the 
petitioner will provide consulting services to a third-party customer and GE Process Solutions LLC will be 
paid by the third-party customer. The Master Services Agreement entered into between the petitioner and 
3Di, which was submitted on appeal, indicates that 3Di will attempt to locate a client who requires temporary 
staffing and that the petitioner will attempt to supply professional services by way of its employees or 
contractors. Thus, the Master Services Agreement does not specifically identify the beneficiary as assigned to 
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 
Nonimmigrant Classzj?cation, HQ 7016.2.8 (December 29, 1995). 
WAC 04 245 50423 
Page 4 
provide programmer analyst services for 3Di. 
 Consequently, the record of evidence does not contain 
contracts pertaining to the beneficiary or an itinerary listing the dates and locations of definite employment of 
the beneficiary that cover the entire period of time requested in the petition. Accordingly, the petitioner has 
failed to comply with the requirements at 8 C.F.R. 5 214.2(h)(2)(i)(B) and the petition must be denied.* 
The evidence of record establishes that the petitioner is an employment contractor in that the petitioner will 
place the beneficiary at multiple work locations to perform services established by contractual agreements for 
third-party companies. The petitioner, however, has provided no contracts, work orders or statements of work 
describing the duties the beneficiary would perform for its clients and, therefore, has not established the 
proffered position as a specialty occupation. 
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. 
9 214.2(h)(l)(B)U). 
As discussed earlier in this decision, the submitted evidence fails to identify the names and addresses of the 
beneficiary's actual employers, and the names and addresses of the establishment, venues, or locations where the 
beneficiary's services will be performed. Therefore, the AAO cannot determine the validity of the submitted 
LCA, which lists the beneficiary's work location as Brea, California. 
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. 
- 
 - - 
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."