dismissed H-1B Case: Software Technology

U.S. Department of HomelandSecurity
20 Mass. Ave., N.W., Rm. 3000
Washington,DC 20529
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U.S.Citizenship
and Immigration
Services
FILE: SRC 05 221 50408
PUBLIC COpy
._/
s£.~ 11 2007
Office: TEXAS SERVICE CENTER Date:
IN RE: Petitioner:
Beneficiary:
" H' ,PETITION: Petition for a gr l(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
'.
SRC 05 221 50408
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 technology finn. It seeks to employ the beneficiary as a systems analyst and
endeavors to classify him as a nonimmigrant worker in a specialty occupation pursuant to section
10I(aXI5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(aX15)(H)(i)(b).
The director determined that the petitioner failed to establish that the proffered position qualified· as a specialty
occupation and accordingly denied the petition. The director further noted that the petitioner had not provided an
itinerary (Extent of Service letted for the beneficiary indicating that the petitioner had a specialty occupation
available for the beneficiary as of the date the Form 1-129 petition was filed. On appeal, the petitioner asserts that
the proffered position qualifies as a specialty occupation and that the petition should be approved.
Section 214(iXI) of the Act, 8 U.S.c. § I I84(iXI), defines the term "specialty ~upation" 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 thespeciflc 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)(4Xii) 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(hX4XiiiXA), 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
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).
SRC 05 221 50408
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.
The beneficiary is a software consulting company 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 I, the director
has the discretion to request that the employer who will employ the beneficiary in multiple locations submit
an itinerary. In this instance, the director asked the petitioner to supply contracts with its client for whom the
beneficiary would ultimately perform services, and a purchase order establishing a specific job offer for the
beneficiary. 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, 2005 through September 30, 2008. The petitioner submitted a subcontracting agreement
dated June 17, 2005 between it and Pillar Technology Group, LLC (Pillar), whereby the petitioner would
provide information technology services to Pillar. The agreement provides that the services to be provided
shall be specifically described in an Extent of Service letter for each assignment. The petitioner did not
provide an Extent of Service letter detailing the duties to be performed by the beneficiary, the project the
beneficiary would be assigned to, or the length of the project. 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. 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, 14I&N 190 (Reg. Comm.
1972». Accordingly, the petitioner has failed to comply with the requirements at 8 C.F.R. § 214.2(h)(2XiXB)
and the petition must be denied?
The beneficiary's position has been identified by the petitioner as a systems analyst. The Department of
Labor's Occupational Outlook Handbook (Handbook), a resource upon which the AAO relies to determine
the educational opportunities for occupations, notes that there is no universal way to prepare for a job as a
systems analyst, but that most employers place a premium on some formal college education. Many
employers seek applicants who have at least a bachelor's degree in computer science, information science, or
management information systems. Despite employers preference for those with technical degrees, persons
with degrees in a variety of majors find employment as systems analysts. The level of education and type of
training that employers require depend on their needs. Again, while many employers seek applicants with a
bachelor's degree, others do not. Thus, whether or not a position as a systems analyst qualifies as a specialty
occupation depends on the requirements of that particular position.
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 with 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,
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."
\
SRC 05 221 50408
Page 4
has not established the proffered position as a specialty occupation. 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, 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 detailing the duties the beneficiary would perform, from the
petitioner's client for whom the beneficiary would ultimately perform services, 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 ofthe criteria at 8 C.F.R § 214.2(hX4Xiii)(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(hXIXB)(1). For this additional reason, the petition,mustbe 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.