dismissed H-1B Case: Software Development

U.S. Depadment of Homeland SesuriQ 
20 Mass, Wm. A3042,425 I Street, W.W. 
Washington, DC 20529 
BB. S. Citizenship 
and Immigration 
LD-4 04 083 53 195 Office: NEBRASU SERVICE CENTER Date: Pi", 1 4 2;;; 
L" i 
PETITION: Petition for a Nonimnnigant Worker Pursuant to Section 101(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 lOl(a)(IS)(H)(i)(b) 
This is ihe decision of the Administrative Appeals Office in your case. A11 documents have been returned to 
the office that originally decided your case. Any further inquiry must be mde to that office. 
Robert -8. Wiernann, Director 
Administrative Appeals Office 
LEV 04 083 53195 
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DISCUSSION: The director of the sellrice center denied the nonianrraigrant visa petition md the matter is now 
before the Administrative Appeals Ofice (A.48) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner is an Internet technology consulting and software developer that seeks to employ the 
beneficiary as a programer analyst. The petitioner, therefore, endeavors to classify the beneficiary as a 
grant worker in a specialty occupation pmwant to section IOl(a)(BS)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1 10 l (a)(IS)(H)(i)(b). 
The director denied the petition, finding that the petitioner failed to provide sufficient evidence that it 
qualified as the beneficiary's employer, and that the proposed position is a specialty occupation. 
The record of proceeding before the MO contains: (1) Form 1-129 and supporting documentation; (23 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) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The AAO will first address the director's conclusion that the petitioner is not an employer under 8 C.F.R. 
5 214.2(h)(4)(ii). 
Section 101(a)(lS)(H)(i)(b) of the ration and Nationality Act the Act), 8 U.S.C. 
5 l lOl(a)(l5)(H)(i)(b), provides for the cation of qualified noni grant aliens who are coming 
temporarily to the United States to perform services in a specialty occupation. 
Pursxant to 8 C.F.R. 5 214.2(h)(4)(ii), United States employer means a person, fi 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 my hire, pay, fie, supervise, or otherwise control the work of my 
such employee; 
(3) Has an Internal Revenue Service Tax icfentification number. 
Under the regulation at 8 C.F.R. 5 214.2(h)(2)(i)(F), the term agent is discussed and the section states that: 
A United States agent may file a petition in cases involving workers who are traditionally 
sejf-employed or workers who use agents to mange short-term employment on their behalf 
with numerous employers, and in cases where a foreign employer authorizes the agent to act 
on its behalf. A United States agent may be: the actual employer of the beneficiary, the 
representative of both the employer and the beneficiary, or, a person or entity authorized by 
the employer to act for, os in place of, the employer as its agent. A petition filed by a United 
States agent is subject to the following conditions: 
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(1) An agent performing the function of an employer must guarantee the wages and 
other term and conditions of employment by contractual agreement with the 
beneficiary or beneficiaries of the petition. The ageendemployer must also provide 
an itinerary of definite employment and information on any other services 
planned for the period of time requested. 
A person or company in business as an agent my file the H petition involving 
multiple employers as the representative of both the employers and the 
beneficiq or beneficiaries if the supporting documentation includes a complete 
itinerary of services or engagements. The itinerary shdl specify the dates of each 
service or engagement, the names and addresses off the actnal employers, and the 
names and addresses of the establishment, venues, or locations where the services 
will be performed. h questionable cases, a contract between the employers and 
the beneficiary or beneficiaries may be required. The burden is on the agent to 
explain the tern and conditions of employment and to provide my required 
documentation. 
%n the denial letter, the director stated that according to the evidence, the petitioner often functions as a 
contractor and is a vendor to independent contracting companies, which then are brokers supplying the 
petitioner's employees to third parties at unknown locations. The director discussed Matter of Pozzsli, 
14 H&N Dec. 569 (BU 1974), and how the decision in that case applies here. The director determined that 
the record indicated that a significant portion of the petitioner's business involves providing its employees to 
third party clients that ultimately control the key factors that relate to a proper employer-employee 
relationship. The director stated that if the beneficiary were to be employed under such an arrangement, 
which are the contractual arrangements found in the record, the petitioner would not qualify as a U.S. 
employer as contemplated by the regulation. The director discussed the need of the petitioner to submit work 
orders in order to demonstrate that a specialty occupation is available for the benefaciq at the Bocation listed 
on the labor condition application. 
On appeal, counsel states that the letter from Professional Rehabilitation Services, P.C. (PRS) confirms that 
the beneficiary will provide consulting services for PRS, and counsel asserts that the submitted agreement 
specifies the beneficiary's services and the assignmnt9s duration. According to counsel, the petitioner is the 
beneficiary's employer and the terns and conditions of employment are summarized in the petitioner's 
January 3 9, 2004 letter. 
The fA0 finds that the evidence in the record establishes that the petitioner is an employer in accordance 
with the regulatory definition set forth at 8 C.F.R. 5 214,2(h)(4)(ii). Although the director stated that the record 
contains contractual agreements, none of the contractual agreements were entered into between the petitioner and 
PRS. Nevertheless, the record reflects that the petitioner has engaged the beneficiary to work within the United 
States; in the January 3 1, 2004 letter, the petitioner states that it will pay, supervise, and control the beneficiary; 
and that the petitioner has an Internal Revenue Service Tax identification number. Based on this, the AAO finds 
that the petitioner qualifies as an employer under 8 C.F.R. 5 214.2(h)(4)(ii). 
LIP4 04 083 53495 
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The AAO will now tm to the director's conclusion that the proposed position fails to qualify as a specialty 
occupation. 
Section 2P4(i)(l) of the Act, 8 U.S.C. 5 %184(i)(l), defines the term "specialty occupation" as an occupation 
that reqaakes: 
(A) thewefcal and practical application of a body o.1 highly specialized knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (w its equivalent) 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. 8 214.2(1n)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the 
following criteria: 
(I) A baccalaureate or higher degree 01- 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 dtemative, an employer may show that its particular position is 
so complex or unique that it can be perfbmed only by an individual with a degree; 
(3) The employer nomlly requires a degree or its equivalent for the position; or 
44) The nature of the specific duties is so specialized and complex that howledge required 
to perform the duties is usually associated with the attainment of a baccalaureate or 
higher degree. 
The regulation at 8 C.F.R. 5 214,2(h)(l)(ii)(B)(B) states that an H-BB classification applies to an alien who is 
coning temporarily to the United States to perform services in a specialty occupation. 
The petitioner is seeking the beneficiary's services as a progamnner analyst. The director found the petitioner 
did not establish that the beneficiary would pebfom specialty occupation duties as there was no evidence of 
cunent projects or signed contracts describing the beneficiary's duties and where they would be performed. 
The director stated that the undated letter from PRS did not provide the beneficiary's work location and the 
dates of projects. The director stated that according to the evidence, the petitioner often functions as a 
contractor and is a vendor to independent contracting companies, which then are brokers supplying the 
petitioner's employees to third parties at unknown locations. The director concluded that the beneficiary 
would not have a specialty occupation to occupy since the petitioner failed to submit a contractual agreement 
and active purchase orders with PRS. According to the director, the Department of Labor's Occupational 
Outlook Handbook (the Bandbook) reveals that employers do not require a bachelor's degree in a specific 
specialty for a computer programer. 
LIP4 04 083 53195 
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On appeal, counsel states that the PRS letter confirms that the beneficiary will provide consulting services for 
PWS, and that the submitted agreement specifies the beneficiary's services and the assignment's duration. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
8 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
h the April 27, 2004 letter, the petitioner claims that the beneficiary will work pursuant to an agreement with 
PRS on a project for PRS that will last for the duration of the beneficiary's employment with the petitioner; 
and in an undated letter, PIPS states that it entered into an agreement with the petitioner for the placement of 
personnel at "several of om business locations." However, the PRS Better does not indicate the location where 
the services will be provided by the beneficiary; and although PRS states that the beneficiary will provide 
services for thee years, the record contains no evidence of a binding contractual agreement and a work order 
between the petitioner and PRS regarding such an arrangement. Thus, this evidence does not establish that 
the beneficiary would perfom services in a specialty occupation upon entry into the United States. 
Hn addidon, the BAO finds that the duties that the petitioner states the beneficiary will perform for PRS differ 
from those described in the petitioner's January 31, 2004 letter. The A40 finds that the different job 
descriptions indicate that no defined job existed fop the beneficiary when the petitioner filed the 1-429 
petition, and that a defined job does not exist at the present time. The petitioner merely speculates on the 
types of duties that the beneficiary would perfom upon his employment with the company. While the 
beneficiary's duties involve some kind of programming work, only a detailed job description from the entity 
that requires the beneficiary's services \will suffice to met the burden of proof in these psoceedings. See 
Defensor v. Meissner, 2201 F. 3d 384 (5' Gir. 2000). The record does not contain such a job description from 
PRS. Going on record without supporting documentsery evidence is not sufficient for purposes of neeting the 
burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Corn. 1998) (citing Matter 
of Treasure Craft of Calijbrnia, 14 I&N Dec. 190 (Reg. Com. 1972)). 
For these reasons, the AAO concurs with the director's determination that no evidence establishes that upon 
entry in the United States the beneficiary will perform services in a specialty occupation as required by the 
regulation at 8 C.F.R. 5 214.2(h)(l)(ii)(B)l(1). Consequently, the petitioner fails to establish that the proposed 
position is a specialty occupation under any of the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
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 on this 
ground. 
The bwden of proof in these proceedings rests solely with the petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361. 
The petitioner has not sustained that bwden. 
0mEW: The appeal is dismissed. The petition is denied.