dismissed H-1B Case: Software Engineering

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 245 50206 Office: CALIFORNIA SERVICE CENTER Date: AUG 2 9 2006 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(] 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 l(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 
WAC 04 245 50206 
Page 2 
DISCUSSION: The director of the California 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 design development and consulting firm, with two employees. It seeks to employ 
the beneficiary as a software engineer pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. $ 1 lOl(a)(lS)(H)(i)(b). The director denied the petition because he 
determined that the record did not establish the proffered position as a specialty occupation or that the 
beneficiary was qualified to perform the duties of a specialty occupation. He also found the record to contain 
inconsistent information concerning the size of the petitioner's workforce. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence; (3) the petitioner's response to the director's request for evidence; (3) the 
director's denial letter; and (4) Form I-290B, with a statement from the petitioner, and new and previously 
submitted evidence. The AAO reviewed the record in its entirety before issuing its decision. 
The initial issue before the AAO is whether the duties of the proffered position establish it as a specialty 
occupation. To meet its burden of proof in this regard, the petitioner must establish that the job offered to the 
beneficiary meets the following statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. 3 1 184(i)(l) defines the term "specialty occupation" as one 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. $ 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, 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. 3 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a petitioner must establish that 
its position meets one of four criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
WAC 04 245 50206 
Page 3 
(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 above criteria to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position. 
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a 
position's title. The specific duties of the proffered position, combined with the nature of the petitioning 
entity's business operations, are factors to be considered. CIS must examine the ultimate employment of the 
alien, and determine whether the position qualifies as a specialty occupation. CJ: Defensor v. Meissner, 201 
F. 3d 384 (5'h Cir. 2000). The critical element is not the title of the position nor an employer's self-imposed 
standards, but whether the position actually requires the theoretical and practical application of a body of 
highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty 
as the minimum for entry into the occupation as required by the Act. 
The petitioner states that it seeks the beneficiary's services as a software engineer. At the time of filing, the 
petitioner indicated that the beneficiary would be engaged in the design, programming and analysis of 
software programs for its clients, working on its premises and at the offices of VTEKH, Inc., a client located 
in Schaumberg, Illinois. To establish the beneficiary's employment, the petitioner has submitted an August 
23, 2004 letter of employment addressed to the beneficiary; the petitioner's August 5, 2004 listing of the 
beneficiary's duties; an August 9, 2004 contract with VTEKH; and a November 30, 2004 work order issued 
under that contract listing the beneficiary's duties for VTEKH. 
Although the petitioner has indicated that some of the beneficiary's duties would be performed at its offices 
under its direct control, the record also establishes the petitioner as an employment contractor in that it intends 
to place the beneficiary at another work location to perform services under a contract with a third-party 
company. 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, a 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. Accordingly, in the 
WAC 04 245 50206 
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instant case, the AAO must consider the duties the beneficiary would perform in providing contractual 
services to VTEKH clients, as well as those he would carry out on an in-house basis. 
To establish the beneficiary's work for VTEKH, the petitioner, at the time of filing, submitted copies of pages 
from a signed three-year contract with VTEKH, Inc., dated August 9, 2004 but effective as of August 4, 2004. 
This document, although it is incomplete, indicates that VTEKH is also a consulting business that offers 
software development services under contract and is in need of individuals "on a contract basis," who are 
skilled in application development and customizations of enterprise resource planning and customer 
relationship management applications. Although the petitioner offered the contract as confirmation of the 
beneficiary's employment at VTEKH, it does not identify the beneficiary. Instead, it refers to "multiple 
candidates" and the "software engineer." The contract outlines the services to be provided to VTEKH but not 
the clients to which VTEKH would pass along these services. 
In response to the director's request for evidence, the petitioner submitted a statement of work and a 
November 30, 2004 work order executed under the VTEKH contract. The work order identifies the 
beneficiary and lists the duties for a position described as a programmer analyst. 
Based on the evidence of record, the AAO does not find the petitioner to have submitted sufficient 
documentation to establish the nature of the duties the beneficiary would perform for VTEKH clients. The 
contract submitted by the petitioner at the time of filing does not identify the beneficiary, nor is it 
accompanied by subcontracts/work orders covering the beneficiary's services and describing the duties he 
would perform for VTEKH's clients. The November 30, 2004 work order, which does identify the 
beneficiary and the duties he would perform for VTEKH, is dated nearly three months after the filing of the 
Form 1-129 and may not used to establish the duties of the proffered position. A petitioner must establish 
eligibility at the time of filing a nonimmigrant petition. A visa petition may not be approved at a future date 
after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 
17 I&N Dec. 248 (Reg. Comm. 1978). Moreover, like the contract submitted by the petitioner at filing, the 
work order is not supplemented with contracts or statements of work identifying the duties the.beneficiary 
would perform for VTEKH clients, the actual users of the beneficiary's services. Therefore, the AAO finds 
the record to offer no evidence that would establish the beneficiary's duties under contract to VTEKH. 
In the itinerary of employment provided by the petitioner in response to the director's request for evidence, 
the beneficiary is identified as working at VTEKH's Illinois office between October 1, 2004 and December 1, 
2006, performing in-house projects for the petitioner in California only from December 1, 2006 until October 
1, 2007. Therefore, the petitioner has failed to document the duties to be performed by the beneficiary during 
all but 11 months of the three-year period requested on the Form 1-129. Accordingly, it has not established 
the proffered position as a specialty occupation under any of the alternate criteria at 8 C.F.R. 
tj 214.2(h)(4)(iii)(A) for the entire three years. Neither has it established that it would employ the beneficiary 
in a specialty occupation for this period. Pursuant to section IOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 
tj 1 10 1 (a)(lS)(H)(i)(b), 8 C.F.R. 5 2 14.2(h)(l)(ii)(B), an H-1 B alien must be coming temporarily to the 
United States to perform services in a specialty occupation. 
WAC 04 245 50206 
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The AAO also finds that the record fails to establish that the petitioner has provided an itinerary of definite 
employment, required of U.S. employers when a beneficiary's duties will be performed in multiple locations. 
See 8 C.F.R. $8 214.2(h)(2)(i)(B). The dates of employment in the itinerary submitted by the petitioner are 
not consistent with those in the November 30.2004 work order. The work order indicates that the beneficiary 
is to provide services to VTEKH from December 6, 2004 to September 29, 2007 rather then during the 
October I, 2004 to December 1, 2006 period indicated in the itinerary. The record offers no explanation for 
the inconsistent dates. Accordingly, the itinerary submitted by the petitioner in response to the director's 
request for evidence will be discounted. It is incumbent upon the petitioner to resolve any inconsistencies in 
the record with independent objective evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Accordingly, the record does not establish the petitioner's compliance with the requirements at 8 C.F.R. 5s 
2 14.2(h)(2)(i)(B). 
On appeal, counsel submits a copy of its November 8, 2004 contract with Raven Software Solutions, Inc., in 
support of the petitioner's contention that the beneficiary would work on in-house projects for this particular 
client, as well as VTEKH, Inc. The AAO notes, once again, that this contract was entered into by the 
petitioner after its filing of the Form 1-129. Accordingly, the petitioner may not rely on it to establish the 
duties of the proffered position. A petitioner must establish eligibility at the time of filing a nonimmigrant 
visa petition. A visa petition may not be approved at a future date after the petitioner or beneficiary becomes 
eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
In light of its finding that the petitioner's proffered position is not a specialty occupation, the AAO will not 
proceed with an analysis of the beneficiary's qualifications to perform the duties of a specialty occupation 
under the regulatory requirements at 8 C.F.R. 8 214.2(h)(4)(iii)(C). A beneficiary's credentials to perform a 
particular job are relevant only when a job is found to be a specialty occupation. 
With regard to the director's finding that the petitioner's misrepresentation of the size of its staff has undermined 
the reliability of all the evidence in the record, the AAO accepts counsel's explanation of the reasons that the 
petitioner listed two employees on the Form 1-129 but submitted an organizational chart in response to the 
director's request for evidence that identifies the petitioner's president and three staff members. The petitioner's 
hiring of a third employee during the period of time separating its September 2004 filing of the petition and its 
December 2004 response to the director's request for evidence and its inclusion of the petitioner's president on its 
organizational chart are sufficient explanation of the discrepancy identified by the director. 
Beyond the decision of the director, the AAO notes that the beneficiary's performance of the in-house duties of 
the proffered position at the petitioner's new location in Cupertino, California violates the terms of the certified 
Labor Condition Application (LCA) submitted at the time of filing. On the date it filed the Form 1-129, the 
petitioner's offices were located in Belmont, California and the LCA reflects that location and its prevailing wage 
rate. Belmont and Cupertino do not, however, fall within the same metropolitan statistical area and have different 
wage rates for software engineers, as reported by Employment & Training Administration of the U.S. Department 
of Labor. Accordingly, the petitioner's employment of the beneficiary in Cupertino does not comply with the 
conditions of the LCA submitted at filing. See 8 C.F.R. 214.2(h)(4)(iii)(B)(2). For this reason as well, the 
petition will be denied. 
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For reasons related in the preceding discussion, the record does not establish the duties of the proffered 
position as a specialty occupation under any of the criteria at 8 C.F.R. tj 214.2(h)(4)(iii)(A) or that the 
petitioner has complied with the filing requirements at 8 C.F.R. 9 214.2(h)(2)(i)(F)(I) or at 8 C.F.R. 
9 214.2(h)(4)(iii)(B)(2). Therefore, 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.