dismissed H-1B Case: Software Development

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u.s.Department of Homeland Security
20 Massachusetts Avenue NW, Room 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
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FILE: WAC 04 24153818 Office: CALIFORNIA SERVICE CENTER Date: SEP 20 2.001
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(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
WAC0424153818
Page 2
DISCUSSION: The 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 systems integration and software development company that seeks to employ the
beneficiary as a computer programmer. The petitioner, therefore, endeavors to classify the beneficiary as a
nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration
and Nationality Act (the Act), 8 U.S.c. § 1101(a)(15)(H)(i)(b).
The record of proceeding before the AAO contains (1) the 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
director's denial letter; and (5) the Form 1-290B and supporting documentation. The AAO reviewed the
record in its entirety before issuing its decision.
The director denied the petition on three grounds: (1) that the petitioner had failed to demonstrate that it meets
the regulatory definition of an "employer" and that it will engage in an employer-employee relationship with
the beneficiary; (2) that the petitioner had failed to demonstrate the existence of a specialty occupation, as it
had not submitted an itinerary of services to be performed; and (3) that the petitioner had not established that
it would comply with the terms and conditions of the labor condition application (LCA) certified for the
location of intended employment.
On appeal, counsel contends that the director erred in denying the petition.
Section 214(i)(1) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1184(i)(1), 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 including, 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 higher 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. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of
the following criteria:
WAC 04 241 53818
Page 3
(1) A baccalaureate or higher degree or its equivalent IS normally the rmmmum
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 proposed position.
The term "employer" is defined at 8 C.F.R. § 214.2(h)(4)(ii):
United States employer means a person, finn, corporation, contractor, or other
association, or organization in the United States which:
(1) 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 AAO disagrees with the director's finding that the petitioner would not act as the beneficiary's
employer. The evidence of record establishes that the petitioner will act as the beneficiary's employer in
that it will hire, pay, fire, or otherwise control the work of the beneficiary.' See 8 C.F.R. § 214.2(h)(4)(ii).
In view of this evidence, the AAO finds that the petitioner will be the employer of the beneficiary and
withdraws the director's decision to the contrary.
The petition may not be approved, however, as the petition does not establish that the beneficiary will be
employed in a specialty occupation or that the employer has submitted an itinerary of employment.
1 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 Classification, HQ 70/6.2.8 (December 29, 1995).
WAC 04 241 53818
Page 4
As the petitioner notes on appeal, the beneficiary would not perform his duties at the petitioner's place of
business. Rather, he would be "assigned to these client projects outside its place of business," as "[t]he needs
of each project is dictated and prescribed by the client." Further, the AAO notes that, at page 2 of the Form
1-129,in the field entitled "Address where the person(s) will work," the petitioner stated that subsequent work
locations for the beneficiary were unknown at the timeof the filing.
Accordingly, the AAO concludes that, although the petitioner will act as the beneficiary's employer, the
evidence of record establishes that the petitioner is an employment contractor in that the petitioner will
place the beneficiary at work locations to perform services established by contractual agreements for
third-party companies.
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 in such situations. While the Aytes memorandum cited at footnote 1
broadly interprets the term "itinerary," it provides CIS the discretion to require that the petitioner submit
the dates and locations of the proposed employment. As the evidence contained in the record at the time
the petition was filed did not establish that the petitioner had three years of work for the beneficiary to
perform, the director properly exercised his discretion to require an itinerary of employment.'
In its August 27, 2004 letter of support, the petitioner stated the following:
We respectfully request that the USCIS approve this petition for the entire period listed
on the 1-129. For various reasons, our company may assign [the beneficiary] to a project
for a period less than requested on the petition. However, we fully believe that [the
beneficiary] shall be employed for the period requested on the petition. There are various
reasons why our projects are not projected for 3-year periods. Good business sense
dictates that we must re-evaluate the project periodically and make the necessary
changes.
In his November 29,2004, request for additional evidence, the director stated the following:
From the evidence provided it appears that the petitioner is engaged in the business of
software development and consulting and is seeking the beneficiary's services as a
computer programmer to perform work for clients outside the petitioner's work site. As
such, it is requested that the petitioner submit an itinerary of definite employment, listing
the location(s) and organization(s) where the beneficiary will be providing services. The
itinerary should specify 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
locations where the service will be performed by the beneficiary....
The itinerary should include all service planned for the period of time requested - in this
case until 11/30/2007.
2 As noted by Assistant Commissioner Aytes in the cited 1995 memorandum, "[t]he purpose of this
particular regulation is to [e]nsure that alien beneficiaries accorded H status have an actual job offer and
are not coming to the United States for speculative employment."
WAC 04 24153818
Page 5
In its February 15, 2005 response to the director's request for additional evidence, the petitioner stated
that it would be the beneficiary's actual employer, that the beneficiary would always be its employee, and
that it would comply with the LCA. The petitioner did not submit the requested itinerary, stating the
following:
In the past, [the petitioner] has provided itinerary attestations to the CIS. To support
these attestations, [the petitioner] has included copies of our contracts with our clients to
demonstrate to the government that we are an active and on-going concern with active
business activities. In this way, we felt the CIS would understand that we are much like
the law firm who works with clients but is the actual employer. Lately, the CIS has asked
for such specific information and documentation that is relatively impossible for [the
petitioner] to provide.
As noted previously, the petitioner's failure to submit an itinerary of services to be performed, which
covers the entire period of requested employment, was one of the grounds of the director's denial of the
petition.
On appeal, the petitioner states, in response to this portion of the denial, that it is not an agent and is
therefore not required to submit an itinerary.' However, as noted previously, the regulation at 8 C.F.R.
§ 214.2(h)(2)(i)(B) requires employers to submit an itinerary with the dates and locations of employment
in situations where the employment will occur in more than one location.
On appeal, counsel submits contracts from the following companies: (1) Wells Fargo; (2) Intuit;
(3) Oracle; and (4) MBNA. However, none of these documents specifically request the services of the
beneficiary, and do not indicate that the beneficiary was selected from the petitioner's qualified workers.
None of these contracts have any effect until work orders (referred to as "assignment memorandums," in
the case of the contract with Wells Fargo and "statements of work" in the case of the contracts with Intuit,
Oracle, and MBNA) are issued. The record contains no work orders with the beneficiary's itinerary.
Absent such information, the petitioner has not established that it has three years' worth of H-IB-level
work for the beneficiary to perform. The evidence contained in the record does not satisfy
8 C.F.R. § 2l4.2(h)(2)(i)(B) as it does not cover the entire period of the beneficiary's employment by the
petitioner. Thus, the petitioner has not complied with the requirements at 8 C.F.R. § 214.2(h)(2)(i)(B)
and the petition was properly denied.
The record also does not establish that the proposed position is a specialty occupation. The court in
Defensor v. Meissner, 201 F. 3d 384 (5
th
Cir. 2000) held that for the purpose of determining whether a
proposed 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
3 On appeal, counsel submits a copy of regulations that were proposed In 1998. However, those
regulations were never published and have no legal effect here.
WAC 04 241 53818
Page 6
requiring the petitioner to produce evidence that a proposed position qualifies as a specialty occupation on
the basis of the requirements imposed by the entities us ing the beneficiary 's services.
As the record doe s not contain any documentation that establishes the specific duties the beneficiary
would perform under contract for any of 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. Accord ingly, the petitioner has not established that the
proposed position qualifies for classification as a specialty occupation under any of the criteria at
8 C.F.R. § 214.2(h)(4)(iii)(A) or that the beneficiary would be coming temporarily to the United States to
perform the duties ofa specialty occupation pursuant to 8 c.P.R. § 214.2(h)(1)(B)(1) .
The director also found that the record did not establish that the LCA was valid for all work locations. As
the record does not contain an itinerary for the period of employment, it cannot be determined that the
LCA is valid for the work locations. For this additional reason, the petition may not be approved.
The petitioner 's assertion that denial of the petition constituted a due process violation fails. The petitioner
has failed to overcome the director's denial , and it has demonstrated no pre judice on the part of the director
that would constitute a due process violation. See Vides-Vides v. INS, 783 F.2d 1463 , 1469-70
(9th Cir. 1986) ; Nicholas v. INS, 590 F.2d 802 , 809-10 (9th Cir. 1979) ; Martin-Mendoza v. INS,
499 F.2d 918 , 922 (9th Cir. 1974), cert. deni ed, 419 U.S. 1113 (1975). As discussed previously, the
petitioner has not met its burden of proof, and the denial was the proper result under the regulation.
The petitioner cites to 8 c.P.R. § 103.3(c) on appeal , and states that the "hundreds of petitions" that the
petitioner has had approved in the past should serve as precedents. However , the petitioner has misread
8 C.F.R. § 103.3(c), which states the following:
Service precedent decisions. The Secretary of Homeland Security, or specific officials of
the Department of Homeland Security designated by the Secretary with the concurrence
of the Attorney General, may file with the Attorney General decisions relating to the
administration of the immigration laws of the United States for publication as precedent
in future proceedings , and upon approval of the Attorney General as to the lawfulness of
such decis ion, the Director of the Executive Office for Immigration Review shall cause
such decisions to be published in the same manner as decisions of the Board and the
Attorney General . . .[D]esignated Service decisions are to serve as precedents in all
proceedings invol ving the same issue(s) .. . .
The petitioner 's prior approval notices are not precedent decisions . The petitioner submits no e vidence
that its previous approvals have been designated by the Secretary of Homeland Security, with the
concurrence of the Attorney General , as precedent decisions , and published by the Director of the
Executive Office for Immigration Review. While 8 C.F.R . § 103.3(c) provides that AAO precedent
decisions are binding on all CIS employees in the administration of the Act, unpublished decisions are not
similarly binding.
WAC 04 24153818
Page 7
Regarding the petitioner's previous approvals, the AAO notes that each nonimmigrant petition is a
separate proceeding with a separate record. See 8 C.F.R. § 103.2(b)(16)(ii). If the petitioner's previous
petitions were approved based upon the same evidence contained in this record, their approval would
constitute error on the part of the director. The AAO is not required to approve applications or petitions
where eligibility has not been demonstrated, merely because of prior approvals that may have been
erroneous. See, e.g. Matter ofChurcb Scientology International, 19 I&N Dec. 593,597 (Comm. 1988). It
would be absurd to suggest that CIS or any agency must treat acknowledged errors as binding precedent.
Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008
(1988).
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a
court of appeals and a district court. Even if a service center director did approve a nonimmigrant petition
similar to the one at issue here, the AAO would not be bound to follow the contradictory decision of a
service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd,
248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001).
Finally, the AAO notes that the petitioner has requested oral argument before the AAO, citing to "the
issues being decided herein and public policy at stake." The AAO disagrees. CIS has the sole authority
to grant or deny a request for oral argument and will grant argument only in cases involving unique
factors or issues of law that cannot be adequately addressed in writing. See 8 C.F.R. § 103.3(b). The
instant petition does not involve unique factors or issues of law, and the written record of proceedings
fully represents the facts and issues in this matter. Consequently, the request for oral argument is denied.
The petitioner has failed to establish that it has an itinerary of employment for the beneficiary, that it has
three years of work for the beneficiary, that the proposed position qualifies for classification as a specialty
occupation, that the beneficiary would be coming temporarily to the United States to perform the duties of
a specialty occupation, or that the LCA is valid for the work locations. Accordingly, the AAO will not
disturb the director's denial of the petition.
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.