dismissed H-1B Case: Software Development

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U.8. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
DEe 182006
FILE: LIN 04 212 53016 Office: NEBRASKA SERVICE CENTER Date:
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:
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
www.uscis.gov
LIN 04 212 53016
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 petitioner is a software development and consulting company. It seeks to employ the beneficiary as an
analyst and endeavors to classify her as a nonimmigrant worker in a specialty occupation pursuant to section
10I(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b).
The director denied the petition, in part, because the record did not establish that the beneficiary was qualified to
perform the duties of a specialty occupation. On December 15, 2004, the director requested additional evidence
from the petitioner in order to adjudicate the Form 1-129 petition. The director requested, in part, that the
petitioner provide an advisory evaluation of the beneficiary's foreign academic credentials in order to determine
the level and major field of educational attainment in terms of equivalent education in the United States. On
January 25, 2005, the petitioner responded to a portion of the director's request for evidence. The petitioner did
not, however, respond to the director's request for an evaluation of the beneficiary's foreign education and
provided no evidence in this regard.
The petitioner appealed the director's decision denying the present petiuon on March 22, 2005. The
petitioner submitted for the first time on appeal, an evaluation of the petitioner's foreign education by a
credentials evaluation service. The purpose of a request for evidence is to elicit further information that
clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See
8 C.F.R. §§ 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of
inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14).
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on appeal.
See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter ofObaigbena, 19 I&N Dec. 533 (BIA
1988). If the petitioner had wanted the submitted evidence to be considered, it should have submitted the
documents in response to the director's request for evidence. Id. 'Under these circumstances, the AAO need not
and does not consider the sufficiency of the evidence submitted on appeal. Consequently, the appeal will be
dismissed as the record at the time the director adjudicated the petition did not establish that the beneficiary was
qualified to perform the duties of a specialty occupation.
The director further determined that the petitioner's failure to produce an itinerary' for the beneficiary's period of
employment in the United States and failure to produce client contracts establishing that the petitioner had
employment in a specialty occupation available for the beneficiary upon arrival in the United States precluded
approval of the petition. The AAO agrees.
Section 214(i)(1) of 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
1 See 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-1B
Nonimmigrant Classification, HQ 70/6.2.8 (December 29, 1995).
LIN 04 212 53016
Page 3
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:
An 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.unathematics, 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:
(1) 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.
The beneficiary is a software development and consulting C0111pany that supplies employees to work on its
client projects or the client projects of other consulting firms. As noted 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
the contracts described above. However, the documentation submitted does not establish a complete itinerary
for the beneficiary from October 1, 2004 through October 1, 2007. The petitioner submitted a letter from the
accounts manager at TEK Systems which indicates that it has a business relationship with the petitioner and
that it projects the need for several additional IT professionals in the year 2005 which will be provided by the
petitioner. The petitioner provided no contracts or purchase orders establishing that work in a specialty
occupation will be available for the beneficiary upon arrival in the United States. Further, the petitioner
provided no documentary evidence to establish that it has employment in a specialty occupation available for
the beneficiary on any in-house project of its own. The petitioner's uncorroborated statement to the contrary
is not sufficient to establish that any such work exists. Simply going on the record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California,
LIN 04 212 53016
Page 4
14 I&N 190 (Reg. Comm. 1972)). Accordingly, the petitioner has failed to comply with the requirements at
8 C.F .R. § 214.2(h)(2)(i)(B) and the petition must be denied.'
As previously noted, 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 th 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.
§ 214.2(h)(1)(B)(1). For this additional reason, the petition must be denied.
The burden of proof in this proceeding 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.
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 corning
to the United States for speculative employment."