dismissed H-1B Case: Software Development

U.S. Department of Homeland Security 
20 Mass Ave , N W , Rrn 3000 
Washington, DC 20529 
identifLing data deleted to 
prevent dearly unwarranted U.S. Citizenship 
invasion of personal privacy and Immigration 
PUBLIC COPY 
FILE: WAC 04 800 59605 Office: CALIFORNIA SERVICE CENTER Date: AUG 2 5 2006 
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. fj 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OE 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 
WAC 04 800 59605 
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 sohare development and consulting business that seeks to employ the beneficiary as an 
Axapta programmerlanalyst. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a 
specialty occupation pursuant to 8 lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 8 I lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the petitioner has not demonstrated that an employer-employee 
relationship exists or that it has a specialty occupation available for the beneficiary. On appeal, counsel 
submits a letter from the petitioner's president and additional documentation including website and financial 
information related to the petitioner. 
The AAO will first address the director's conclusion that the petitioner has not demonstrated that an 
employer-employee relationship exists. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(ii), a United States employer is defined as follows: 
United States employer means a person, firm, 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 director found that a bona fide employer-employee relationship does not exist because the petitioner is 
not the actual employer having control over the beneficiary's work. On appeal, the petitioner states, in part, 
that the proposed duties will be performed internally on the petitioner's premises and will be "driven by our 
internal team." 
The evidence of record reflects that the petitioner, which provides leading-edge IT consulting and software 
services to eBusiness and corporate clients, has filed a work petition on behalf of the beneficiary and has an 
IRS 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. 5 214.2(h)(4)(ii). 
Pursuant to the language at 8 C.F.R. 8 214.2(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. 
' 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@)(2)(i)(B) as it Relates to the H-1B 
Nonimmigrant ClassiJication, HQ 7016.2.8 (December 29, 1995). 
WAC 04 800 59605 
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In his request for evidence, the director asked for the beneficiary's employment itinerary and contracts of 
work to be performed. 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. However, the record contains no documentation regarding the dates and 
locations of the beneficiary's employment or contracts of work to be performed. 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.2 
The director also found that the petitioner would not employ the beneficiary in a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 1184(i)(I), 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. 5 214.2(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. 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. 
The record of proceeding before the AAO contains: (1) 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 
* 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." 
WAC 04 800 59605 
Page 4 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as an Axapta prograrnmerlanalyst. Evidence of the 
beneficiary's duties includes: the 1-129 petition; the petitioner's September 24, 2004 letter in support of the 
petition; and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform the following duties: 
[The beneficiary] will be responsible for application analysis, designing, Axapta X++ 
development, Axapta Reports development, Axapta Modifications using the MorphX IDE, 
testing, implementing and maintaining Microsoft Business Solution - Axapta Version 3.0. In 
addition, he will be responsible for upgrading existing implementations of Axapta 2.50 to 
Axapta 3.0. [The beneficiary] will also help with integration of our ecommerce product with 
Axapta versions 2.50 and Axapta 3.0 and Axapta 4.[O](when available in December 2004). 
Axapta Version 4.0 is slated for release in December 2004 and [the beneficiary] will work 
towards upgrading existing customizations and enhancements to the products from the current 
version of Axapta 3.0 to 4.0 as well as enhancing our existing ecommerce product capabilities 
to integrate new features that become available in Axapta 4.[0]. 
The petitioner indicated that a qualified candidate for the job would possess a bachelor's degree in computer 
science, mathematics, engineering, or a related major. 
The AAO also finds that, based upon the evidence in the record, the petitioner will not employ the beneficiary in 
a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. 
Factors often considered by CIS when determining these criteria include: whether the Department of Labor's 
Occupational Outlook Handbook (Handbook) reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or affidavits from 
firms or individuals in the industry attest that such firms "routinely employ and recruit only degreed individuals." 
See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 15 1, 1 165 (D. Minn. 1999)(quoting Hird/Blaker Corp. v. Suva, 7 12 F. 
Supp. 1 095,1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. While a review of the Handbook, 2006-2007 edition, finds that a programmerlanalyst may 
qualify as a specialty occupation, the AAO does not concur with counsel or the petitioner that the proffered 
position is a specialty occupation. The petitioner's assertion that proposed duties will be performed internally 
on the petitioner's premises and will be "driven by our internal team," is noted. The petitioner's 2003 federal 
tax return for the period from April 1, 2003 through March 31, 2004, reflects that the petitioner was 
incorporated in 1999 and paid only $31,672 in salaries and wages. As such, the nature of the petitioner's 
"internal team" with whom the beneficiary will work is unclear. Simply going on record without supporting 
documentary evidence is not sufficient for the purpose of meeting the burden of proof in these proceedings. 
WAC 04 800 59605 
Page 5 
Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of Cali$ornia, 14 
I&N Dec. 190 (Reg. Comm. 1972)). As discussed above, the proposed duties indicate that the beneficiary will 
be performing duties for the petitioner's clients. 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 (5'h 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 companies7 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. $ 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)(I). 
The record contains an opinion letter from a university professor who states, in part, that the proffered position 
requires a bachelor's degree in engineering and 12 months of related, professional experience. The director did 
not state that the job of an "Axapta programmer/analyst" is not a specialty occupation. The director concluded 
correctly that, due to deficiencies in the record, the petitioner has not demonstrated that the proffered position 
is a specialty occupation, or that the petitioner would employ the beneficiary in a specialty occupation. 
Regarding parallel positions in the petitioner's industry, the petitioner submitted Internet job postings for 
positions related to programmer analysts. This information is not convincing evidence that the proffered 
position is a specialty occupation in this case, as the petitioner has not established the duties that the 
beneficiary would perform. In view of the foregoing, the petitioner has not demonstrated that a baccalaureate 
or higher degree in a specific specialty is the industry standard for the proffered position. 
The record also does not include any evidence from firms, individuals, or professional associations regarding 
an industry standard, or documentation to support the complexity or uniqueness of the proffered position. 
The petitioner, therefore, has not established the criteria set forth at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. As neither counsel nor the petitioner addresses this issue on appeal, it will 
not be discussed further. The evidence of record does not establish this criterion. 
WAC 04 800 59605 
Page 6 
Finally, the AAO turns to the criterion at 8 C.F.R. 8 214,2(h)(4)(iii)(A)(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. 
To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). 
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. 
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.