dismissed H-1B Case: Software Consulting

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 090 51377 Office: CALIFORNIA SERVICE CENTER Date: a;T 2 $ 2005 
IN RE: Petitioner: 
Beneficia fi 
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. 5 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, Director 
Administrative Appeals Ofice 
WAC 04 090 5 1377 
Page 2 
DISCUSSION: The service center director 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 fm. It seeks to employ the beneficiary as a software engineer and 
endeavors to classify him as a nonimmigrant worker in a specialty occupation pursuant to section 
I Ol(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1 10 l(a)(l 5)(H)(i)(b). 
The director denied the petition because: the petitioner did not establish that the beneficiary was coming to the 
United States to work in a specialty occupation; Citizenship and Immigration Services (CIS) could not verify the 
terms and conditions of the beneficiary's employment in relation to the Labor Condition Application (LCA) since 
the petitioner did not establish that it had a valid contract under which the beneficiary would work and because 
the petitioner did not provide an itinerary covering the beneficiary's employment while in the United States; and 
the beneficiary was not qualified to perform the services of a specialty occupation. 
On appeal, the petitioner provides a contract and work order indicating that the petitioner will no longer be 
working in San Jose, California as indicated with the filing of the Form 1-129 petition. The petitioner now states 
that the beneficiary will be employed in New York and submits a new LCA covering that employment. 
The issue to be discussed in this proceeding is whether a certified LCA covering intended employment was 
obtained prior to the filing of the 1-129 petition. 
Section 10 l(a)(l S)(H)(i)(b) of the Act, 8 U.S.C. 5 I 10 l(a)(l 5)(H)(i)(b), provides, in part, for the 
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform 
services in a specialty occupation. 
Section 10 1 (a)(15)(H) of the Act defines an H- I B nonimmigrant as: 
[A]n alien who is coming temporarily to the United States to perform services . . . in a specialty 
occupation . . . and with respect to whom the Secretary of Labor determines and certifies to the 
Attorney General that the intending employer has filed with the Secretary of Labor an 
application under section 212(a)(n)(l) . . . . 
Title 8, Code of Federal Regulations, part 214.2(h)(4)(iii)(B)(l) provides that the petitioner shall submit with an 
H-1B petition "a certification from the Secretary of Labor that the petitioner has filed a labor condition 
application with the Secretary." The regulations further provide: 
Before filing a petition for H-1E: classification in a specialty occupation the petitioner shall 
obtain a certification from the Department of Labor that it has filed a labor condition 
application in the occupational specialty in which the alien(s) will be employed. 
8 C.F.R. 9 214.2(h)(4)(i)(B)(l). 
Pursuant to 8 C.F.R. 3 103.2(b)(12), "an application or petition shall be denied where evidence submitted in 
response to a request for initial evidence does not establish filing eligibility at the time the application or 
petition was filed. . . ." The Form 1-129 petition was filed February 11, 2004, accompanied by an LCA 
certified on November 25,2003 and valid from November 25,2003 through November 24,2006. On appeal, 
the petitioner indicates that the terms of the petitioner's employment have changed and that he will now be 
WAC 04 090 5 1377 
Page 3 
employed in New York under an employment contract dated August 26,2002, and associated purchase order 
dated February 6, 2004. The LCA covering the intended employment was certified by the Department of 
Labor on July 2,2004, subsequent to the filing of the Form 1-129 petition. The petition must, accordingly, be 
denied because certification was not obtained prior to the filing of the H-1B petition. 
It is further noted that the neither the employment contract, nor the related purchase order under which the 
beneficiary would be employed in New York, contain a detailed description of the work to be performed by 
the beneficiary. The purchase order states that the beneficiary would perform work for the client and 
accomplish the following end result on the client's project: "Oracle Applications Developer." This limited 
description of the work to be performed by the beneficiary is insufficient to establish that the work would 
qualify as a specialty occupation. In Defensor v. Meissner, 201 F.3d 384 (5th 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 an alien require a bachelor's 
degree for all employees in that position. The court found that the degree requiretnent should not originate 
with the employment agency that brought the alien to the United States for employment with the agency's 
clients. 
The record does contain an agency service agreement between the petitioner and its client, where the 
beneficiary will work. As previously noted, however, the record does not contain a comprehensive 
description of the beneficiary's proposed duties from an authorized representative of the client. Without such 
a description, the petitioner has not demonstrated that the work that the beneficiary will perform for the client 
will qualify as a specialty occupation. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
$ 136 1. The petitioner has failed to sustain that burden. 
ORDER: The appeal is dismissed. The petition is denied.