dismissed H-1B Case: Software Development

prevent deariy unwarranted 
invoa%iQg OC personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
bz 
FILE: LIN 04 261 52293 Office: NEBRASKA SERVICE CENTER Date: AN 2 4 2006 
rN RE: 
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 lOl(a)(lS)(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 04 261 52293 
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 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 nonimmigrant worker 
in a specialty occupation pursuant to section 10 ](a)( 1 5)(H)(i)(b) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 
 1 lOl(a)(l S)(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, or that it would employ the beneficiary in a specialty occupation. 
The record of proceeding before the AAO contains (1) the Form 1-129 and supporting documentation; (2) the 
director's request for evidence (WE); (3) the petitioner's RFE response and supporting documentation; 
(4) the director's denial letter; and (5) the Form I-290B and supporting documentation. The AAO reviewed 
the record in its entirety before issuing its decision. 
Section 2 14(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 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. 3 214.2(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. tj 2 14.2(h)(4)(iii)(A), to qualifj 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; 
LIN 04 261 52293 
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. 9 214.2(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 and 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 applications and specifying identifiers to 
manage the system; implementing and conducting unit and system testing for quality assurance; 
reviewing project requests describing user needs, estimating time and costs required for accomplishing 
completion of projects; and providing technical training to users and information technology staff. 
In his October 4, 2004 request for evidence, the director 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 1,2004 through November I, 2007. 
In his request, the director noted the following: 
The H1B program was not intended to provide an avenue for nonimmigrants to enter the 
U.S. and await work. The HlB program's purpose is to enable employers to employ 
fully qualified workers for when employment opportunities currently exist. 
In response, counsel submitted a letter from 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, finding that the petitioner had not demonstrated that a position involving 
work at the H-1B level in fact existed: 
In this instance the petitioner has not submitted any documentary evidence that clearly 
establishes that sufficient work at the H-1B level presently exists for the beneficiary to be 
immediately employed at the location listed on the Labor Condition Application, Form 
ETA 9035. The petitioner has failed to provide evidence of an active contract or work 
order, specifying parhcular H1B level duties at the time of the filing of this petition. As 
such, it does not appear that H1B level employment currently exists for this beneficiary. 
LIN 04 261 52293 
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On appeal, 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. 
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. tj 214.2(h)(4)(ii): 
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. 
To qualify as a United States employer, all three criteria must be met. 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.' 
Pursuant to the language at 8 C.F.R. tj 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. 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 perfonned 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 I, 2007. 
The itinerary submitted by the petitioner is deficient, as the record does not demonstrate that an itinerary 
for the proposed position existed at the time the petition was filed. As noted by the director in his denial, 
the "Master Sub-Contractors' Agreement" submitted by the petitioner in response to the director's request 
for evidence did not identifjr any specific work to be completed. This agreement clearly stated that ""[a]ll 
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.' 
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 CEassiJication, HQ 7016.2.8 (December 29, 1995). 
2 
 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 
first submitted to CIS on December 1,2004, this signature was not present. 
LIN 04 261 52293 
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The AAO notes further that this itinerary did not exist at the time the petition was filed, which precludes 
the petitioner fi-om 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 24, 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 for the position existed on September 24,2004. 
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. 8 103.2(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 Michelin Tire 
Corporation, 17 I&N Dec. 248, 249 (Reg. Comm.). Moreover, as stated in Matter of Izummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm. 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 submits a work order on appeal. However, that work order is also dated November 3, 2004, 
subsequent to the date the petition was filed, so the petitioner cannot use this work order to establish 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. 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). 
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. 
LIN 04 261 52293 
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The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 3 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.