dismissed H-1B Case: Software Development

identifying data deleted to 
prevent clearly unwarrantd 
invasion of personal psivac) 
t7.S. Department of Homeland Security 
20 Mass Ave.. N.W.. Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
FILE: LIN 04 264 50573 Office: NEBRASKA SERVICE CENTER Date: AUG 3 0 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(l 5)(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 04 264 50573 
Page 2 
DISCUSSION: The director of the service center 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 
programmer analyst. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker 
in a specialty occupation pursuant to section I Ol(a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 3 I lOl(a)(l S)(H)(i)(b). 
The director denied the petition finding that the petitioner failed to establish that it met the definition of a 
"United States employer" at 8 C.F.R. 5 214.2(h)(4)(ii), and show that the proposed position qualifies as a 
specialty occupation. Counsel submits a timely appeal. 
The AAO will first consider the director's finding that the petitioner failed to establish that it met the 
definition of an U.S. employer. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(ii), United States employer means a person, firm, 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 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 finds that the evidence of record establishes that the petitioner will act as the beneficiary's U.S. 
employer as defined at 8 C.F.R. 5 214,2(h)(4)(ii). The petitioner seeks to engage the beneficiary to work in the 
United States as a programmer analyst; the submitted contractual agreements convey that the petitioner will 
hire, pay, fire, supervise, or otherwise control the work of the beneficiary1; and the petitioner has an Internal 
Revenue Service Tax identification number. Thus, the petitioner satisfied the definition of an U.S. employer. 
The AAO will now consider whether the offered position is a specialty occupation. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 11 84(i)(l), defines the term 
"specialty occupation" as an occupation that requires: 
I 
 See also Memorandum from Michael L. Aytes, Assistant Commissioner, INS Office of Adjudications, 
Interpretation of the Tern? "Itineraly" Found in 8 C.F.R. 214.2(h)(2)(i)(B) as it Relates to the H-1B 
Nonimmigrant Classrfication, HQ 7016.2.8 (December 29, 1995). 
LIN 04 264 50573 
Page 3 
(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. # 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. # 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. 
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 if the beneficiary's duties will be performed in more than one location. Here, 
the evidence in the record reveals that the beneficiary will work in more than one location as the petitioner's 
September 20, 2004 letter indicates that the beneficiary will perform services "at various client sites in 
Northville, Michigan." 
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 I, 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 or an employment itinerary. The record contains a statement of work entered into by Thought 
Creek, Inc. and the petitioner that indicates that the beneficiary will provide consulting services to 
Interwoven, Inc. for 1 year with possible extensions. Because the Form 1-129 petition indicates that the 
beneficiary will be employed by the petitioner for 2 % years, the evidence of record is insufficient in 
establishing the dates and locations of the beneficiary's employment for the 2 1/2 year period while in the 
LIN 04 264 50573 
Page 4 
United States. Thus, the petitioner failed to comply with the requirements at 8 C.F.R. # 214.2(h)(2)(i)(B) and 
the petition must be denied.l 
The AAO observes that the record contains a document entitled "Design Specifications for UI, DCT, TPL, 
CGI, Script, IPL, Workflow Script, DD and OD." This document, which the beneficiary authored, describes 
the job duties that the consultant will perform for Interwoven, Inc. Although the document is written by the 
beneficiary on behalf of Interwoven, Inc., no evidence of record reflects that the beneficiary was ever 
employed by Interwoven, Inc., or was authorized by Interwoven to write the document. 
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"' 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. 9 214.2(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. 
9 2 14.2(h)( 1 )(B)U). 
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. 
* 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."