dismissed H-1B Case: Teaching

identifying data to 
prevent clearly unwmtd 
invasion of peeonal p~vacy 
U.S. Department of Homeland Securitv 
20 ~asi. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: SRC 04 137 50046 Office: TEXAS SERVICE CENTER Date: JUN 2 9 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section IOl(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 lOl(a)(lS)(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 
SRC 04 137 50046 
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 teacher recruitment and placement business that seeks to employ the beneficiary as a 
full-time teacher. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty 
occupation pursuant to 5 10 1 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1 1 Ol(a)(l S)(H)(i)(b). 
The director denied the petition because the petitioner has not demonstrated that an employer-employee 
relationship exists or that the proffered position is a specialty occupation. On appeal, counsel submits a brief 
and additional evidence including an employment agreement between the petitioner and the beneficiary, a 
teaching services agreement between the petitioner and the Fulton County School System, and payroll and tax 
documents. 
The AAO will first address the director's conclusion that the petitioner has not demonstrated that an 
employer-employee relationship exists. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(ii), a United States employer is defined as follows: 
United States employer means a person, firm, corporation, contractor, or other association, or 
organization in the United States which: 
(1) 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 director found that a bona fide employer-employee relationship does not exist because the petitioner has 
not provided sufficient evidence that it will have sole discretion to hire, pay, fire, supervise or otherwise 
control the work of the beneficiary. On appeal, counsel states, in part, that the terms of the agreement between 
the petitioner and the beneficiary demonstrate that the petitioner has clear control over the work of its 
employees. Counsel states further that the agreement between GTRR and the Fulton County School District 
expressly states that the teachers assigned to the school system under this agreement shall not be employees 
of the school system, and that the petitioner "shall comply with all applicable federal, state and local laws 
relating to payment of wages, unemployment compensation, workers' compensation, wage and hour laws, 
social security, F.I.C.A., employment discrimination, immigration, income tax, payroll taxes, and other 
employment-related laws." 
The record contains evidence including an employment agreement signed by the petitioner's vice president 
and the beneficiary, payroll sheets, and tax documents to show that it meets the definition of U.S. employer, 
pursuant to 8 C.F.R. 5 214.2(h)(4)(ii). In view of the foregoing, the petitioner has established an 
employer-employee relationship with the beneficiary. The petitioner, therefore, has overcome this portion of 
the director's objections. 
SRC 04 137 50046 
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The AAO will now address the director's conclusion that the petitioner has not demonstrated that the 
proffered position is a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. tj 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. 
Pursuant to 8 C.F.R. tj 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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 
8 C.F.R. tj 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. 
The petitioner is seeking the beneficiary's services as a full-time teacher. Evidence of the beneficiary's duties 
includes: the 1-129 petition; the petitioner's April 5, 2004 letter in support of the petition; and the petitioner's 
response to the director's request for evidence. According to this evidence, the beneficiary would perform the 
following duties: teaching science to school students; developing and maintaining long-range and daily 
instruction plans; using a variety of teaching methods and strategies; encouraging active student participation; 
developing healthy self-esteem in the students; designing classroom presentations; evaluating the students' 
performance and potential; preparing report cards; and meeting with parents. The petitioner indicated that a 
qualified candidate for the job would possess a bachelor's degree in education and sciences, or an equivalent 
thereof. 
The director found that the proffered position was not a specialty occupation because the employment 
agreement between the petitioner and the beneficiary fails to identify specifics of the beneficiary's 
employment, such as the employment location and the exact nature of the beneficiary's teaching assignment. 
On appeal, counsel states that the beneficiary will work at the Fulton County School System. As supporting 
SRC 04 137 50046 
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documentation, counsel submits a Teaching Services Agreement, signed on June 30, 2004, between the 
petitioner and Fulton County Schools. 
The Teaching Services Agreement between the petitioner and the Fulton County School System is noted. That 
contract, however, was signed on June 30, 2004, after the filing of the petition on April 14, 2004. CIS 
regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the 
petition is filed. See 8 C.F.R. 103.2(b)(12). 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). Further, the AAO notes that, even if this agreement were dated prior to the 
petition's filing date, the record still does not contain a comprehensive description of the proposed duties 
from an authorized representative of the petitioner's client Fulton County School System, where the 
beneficiary will ultimately perform the proposed duties. Without this description, the petitioner has not 
demonstrated that the proffered position meets the statutory definition of a specialty occupation. Moreover, as 
stated by the director in her decision, the employment location and the exact nature of the beneficiary's 
teaching assignment are unclear. The record contains a letter, dated December 3, 2004, from the director of 
the Fulton County Schools Employment Services, who states, in part: "The Fulton County School System 
does not assign teachers to specific schools until after their arrival in the United States. Assignment of 
teachers is a concrete, not a virtual activity." These comments are noted. The petitioner, however, bears the 
burden of establishing that the beneficiary will be coming to the United States to perform services in a 
specialty occupation. Absent a comprehensive description of the beneficiary's proposed duties including 
specific information pertaining to the beneficiary's teaching assignment, as described above, the petitioner 
has not persuasively demonstrated that the proffered position is a specialty occupation, or that a specialty 
occupation exists for the beneficiary. CIS must examine the ultimate employment of the alien, and determine 
whether the position qualifies as a specialty occupation. Cf. Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 
2000). Accordingly, the AAO shall not disturb the director's denial of the petition. 
The director also found that the petitioner failed to identify the location and name of the teaching assignment 
where the beneficiary will be placed. The AAO agrees. The regulation at 8 C.F.R. $ 214.2(h)(2)(i)(B) states 
that when a petition requires services to be performed in more than one location, it must be accompanied by 
an itinerary with the dates and locations of the services to be performed. As the petitioner has failed to 
provide an itinerary of services, the petition may not be approved. 
Beyond the decision of the director, the AAO also finds that the petitioner is an agent. Pursuant to 
8 C.F.R. § 2 14.2(h)(2)(i)(F): 
A United States agent may file a petition in cases involving workers who are traditionally 
self-employed or workers who use agents to arrange short-term employment on their behalf 
with numerous employers, and in cases where a foreign employer authorizes the agent to act 
on its behalf. A United States agent may be: the actual employer of the beneficiary, the 
representative of both the employer and the beneficiary, or, a person or entity authorized by 
the employer to act for, in place of, the employer as its agent. A petition filed by a United 
States agent is subject to the following conditions; 
(I) An agent performing the function of an employer must guarantee the wages and 
other terms and conditions of employment by contractual agreement with the 
beneficiary or beneficiaries of the petition. The agent/employer must also provide an 
SRC 04 137 50046 
Page 5 
itinerary of definite employment and information on any other services planned for 
the period of time requested. 
(2) A person or company in business as an agent may file the H petition involving 
multiple employers as the representative of both the employers and the beneficiary 
or beneficiaries if the supporting documentation includes a complete itinerary of 
services or engagements. The itinerary shall specify the dates of each service or 
engagement, the names and addresses of the actual employers, and the names and 
addresses of the establishment, venues, or locations where the services will be 
performed. In questionable cases, a contract between the employers and the 
beneficiary or beneficiaries may be required. The burden is on the agent to explain 
the terms and conditions of the employment and to provide any required 
documentation. 
(3) A foreign employer who, through a United States agent, files a petition for an H 
nonimmigrant alien is responsible for complying with all of the employer 
sanctions provisions of section 274A of the Act and 8 CFR part 274a. 
An agent performing the function of an employer must guarantee the wages and other terms and conditions of 
employment by contractual agreement with the beneficiary or beneficiaries of the petition. The agentlemployer 
must also provide an itinerary of definite employment and information on any other services planned for the 
period of time requested. 
A person or company in business as an agent may file the H petition involving multiple employers as the 
representative of both the employers and the beneficiary or beneficiaries if the supporting documentation includes 
a complete itinerary of services or engagements. The itinerary shall specifj, the dates of each service or 
engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, 
venues, or locations where the services will be performed. In questionable cases, a contract between the 
employers and the beneficiary or beneficiaries may be required. The burden is on the agent to explain the terms 
and conditions of the employment and to provide any required documentation. 
A foreign employer who, through a United States agent, files a petition for an H nonimmigrant alien is 
responsible for complying with all of the employer sanctions provisions of section 274A of the Act and 
8 CFR part 274a. 
The AAO determines that the petitioner will be the agent as defined in the regulation. The AAO also finds 
that the petitioner has not complied with the regulatory requirements for an agent in that it has failed to 
submit an itinerary of services or engagements. The petitioner states that the school system will not accept a 
teacher until that person is in the United States and after a personal interview. While the school system may 
refuse to enter into an agreement with a foreign teacher until that person is in the United States, the petitioner 
is not relieved of its regulatory obligation to provide an itinerary of services or engagements as the agent on 
an H-1B petition.' 
The AAO notes that the employer of a beneficiary who will work in multiple locations is also required to 
submit an itinerary of services with the dates and locations of services. 8 C.F.R. 5 214.2(h)(2)(i)(B). 
SRC 04 137 50046 
Page 6 
Therefore, the petitioner has failed to establish that it meets the regulatory requirements for an agent of an H-1B 
petition. 
The AAO also finds that the petitioner has not demonstrated that the beneficiary is qualified to perform a 
specialty occupation. The record does not contain an evaluation of the beneficiary's credentials fiom a service 
that specializes in evaluating foreign educational credentials as required by 8 C.F.R. 8 214.2(h)(4)(iii)(D)(3). The 
record of proceeding does not reflect that the beneficiary is certified to teach in the Fulton County Public 
~chools.~ 
For these additional reasons, the petition may not be approved. 
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. 
L 
The AAO notes that in Georgia, teachers are required to be certified, but substitute teachers are not 
required to be certified. Georgia law, 0.C.G.A 20-2-200, stipulates that "the professional Standards 
commission shall provide, by regulation, for certifying all certified professional personnel employed in the 
public schools of this state. No such personnel shall be employed in the public schools of this state unless they 
hold certificates issued by the commission certifying their qualifications and classification in accordance with 
such regulations." Under Georgia Educator Certification Rule 505-2-.36, substitute teachers are not required 
to hold state certification and may provide substitute teaching with a high school equivalency. 
htt~s://~vww.gapsc.com/Teacl~erCertificatio/Documents/Ce Rules 12 03/complete cert ruies.pdf