dismissed H-1B Case: Software Engineering

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PUBLIC COpy
u.s. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE: WAC 06 14951057 Office: CALIFORNIA SERVICE CENTER Date:
Petitioner:
Beneficiary
SEP 10 2001
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 1 01(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(H)(i)(b)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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
WAC 06 149 51057
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 petition will be denied.
The petitioner is a computer software development and consulting company that seeks to employ the beneficiary
as a software engineer. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a
specialty occupation pursuant to section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act),
8 U.S.C. § 1101(a)(l5)(H)(i)(b).
The director denied the petition stating that: the record did not establish that the beneficiary was coming to the
United States to perform work in a specialty occupation; the proffered position did not qualify as a specialty
occupation; and that the petitioner's failure to provide contracts for the work to be performed by the beneficiary at
various petitioner client locations precluded a determination of whether the petitioner had a valid Labor Condition
Application (LCA) for the beneficiary's intended work locations. On appeal, the petitioner submits a statement
from another subcontractor indicating that the beneficiary is employed for one of its clients (American Family
Insurance), and copies of earnings statements. The petitioner states that the petition should be approved.
The issue to be determined is whether the proffered position qualifies as a specialty occupation.
Section 214(i)(1) of the Act, 8 U.S.C. § 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. § 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. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the
following criteria:
(l) A baccalaureate or higher degree or its equivalent IS normally the rmmmum
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
WAC 06 14951057
Page 3
(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.
The petitioner seeks the beneficiary's services as a software engineer. Evidence of the beneficiary's duties
includes the Form 1-129 petition with attachment and the petitioner's response to the director's request for
evidence. According to the evidence provided by the petitioner the beneficiary would:
• Analyze existing programs and systems;
• Design and develop programs and systems;
• Administer software installations, tune performance and monitor system resources;
• Test, repair and modify software programs to ensure the technical accuracy of the programs;
• Use COBOL, VSAM, CICS, DB2, TSO, REXX, C++, CA-7, JCL and Mainframes in design,
modeling, application development and system architecture.
The petitioner requires a minimum of a bachelor's degree in engineering with work experience in research,
design, implementation, and testing of computer systems for entry into the proffered position.
The director determined that the petitioner had not provided contracts for the period of time requested on the
petition. The AAO agrees that the petitioner has not provided an itinerary' for the beneficiary's work to be
performed from March 30, 2006 through March 30, 2009, the period of requested stay in the United States.
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.
In his request for evidence, the director asked for copies of contracts between the petitioner and its clients for
whom the beneficiary would perform services and an itinerary 'for the beneficiary's employment. 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 the contracts described above.' In response to the director's request for
evidence, the petitioner provided an independent contractor agreement entered into between it and the Exacta
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).
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 coming
to the United States for speculative employment."
WAC 06 14951057
Page 4
Corp. (Exacta) accompanied by a statement from Exacta which indicates that the beneficiary will be
employed at American Family Insurance. The statement does not list the length of the beneficiary's
employment on the American Family Insurance project. The regulation at 8 C.F.R. § 214.2(h)(2)(i)(B) states
that the itinerary shall establish the dates and locations of employment. The documentation submitted by the
petitioner from Exacta does not provide that information. Nor does the record establish other locations where
the beneficiary will be employed during the remainder of any authorized period of stay in the United States
should the beneficiary's employment through Exacta on the American Family Insurance project end prior to
the end of any authorized stay. The documentation submitted does not satisfy the cited regulation requiring
an itinerary of employment.
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 from whom the beneficiary will provide services that
establishes the specific duties the beneficiary would perform under contract for any of the petitioner's clients
(here, American Family Insurance), 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)(l )(8)(1).
Finally, the petitioner's failure to provide contracts establishing the beneficiary's work locations during his
entire period of intended stay in the United States precludes CIS from determining whether an LCA valid for
all work locations was certified by the Department of Labor prior to the filing of the Form 1-129 petition. For
this additional reason, the petition must be denied.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C.
§ 1361. The petitioner has failed to sustain that burden.
ORDER: The appeal is dismissed. The petition is denied.