remanded H-1B Case: Computer Services

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rrn. 3000 
Washington, DC 20529 
FILE: WAC 05 056 52058 Office: CALIFORNIA SERVICE CENTER Date: AUG 2 9 2006 
IN RE: 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 3 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 materials 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 05 056 52058 
Page 2 
DISCUSSION: The service center director denied the nonirnmigrant visa petition. The matter is now on appeal 
before the Administrative Appeals Office (AAO). The director's decision will be withdrawn. The matter will be 
remanded for entry of a new decision. 
The petitioner is a computer services and sales company. It seeks to employ the beneficiary as a software 
engineer and to continue his classification as a nonirnmigrant worker in a specialty occupation pursuant to 
section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the grounds that the record failed to establish whether the petitioner is the 
employer of the beneficiary or his agent. Assuming the petitioner was acting as an agent, the director stated 
that the record lacked evidence of contracts with client companies demonstrating that the beneficiary would 
be performing work in a specialty occupation, that the beneficiary has an itinerary of definite employment for 
the requested period of H-1B classification, and that the petitioner is in compliance with its labor condition 
application (LCA) certified by the Department of Labor. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 
As provided in 8 C.F.R. 5 214.2(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. 
8 214.2(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. 
To qualify to perform services in a specialty occupation an alien must meet one of the following criteria set 
forth in 8 C.F.R. § 214.2(h)(4)(iii)(C): 
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(I) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or 
higher degree required by the specialty occupation from an accredited college or 
university; 
(3) Hold an unrestricted State license, registration or certification which authorizes him 
or her to fully practice the specialty occupation and be immediately engaged in that 
specialty in the state of intended employment; or 
(4) Have education, specialized training, and/or progressively responsible experience 
that is equivalent to completion of a United States baccalaureate or higher degree in 
the specialty occupation, and have recognition of expertise in the specialty through 
progressively responsible positions directly related to the specialty. 
The record of proceeding before the AAO contains (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the notice of decision; and 
(5) Form I-290B and an appeal brief. The AAO reviewed the record in its entirety before issuing its decision. 
In its initial submission, including the Form 1-129 and an accompanying letter, the petitioner described itself 
as a local resource for computer network sales, service support and integration in the Fresno, California area. 
The petitioner stated that it was established in 1996, had 17 employees and gross revenues of $2.3 million in 
2003, and wished to hire the beneficiary as a software engineer for three years at an annual salary of $36,000. 
The duties of the proffered position were listed as follows: 
Support or install operating systems and applications. 
Connect customers to Internet and provide network solutions for them, including 
instructional, configuration and custornization. 
Install and configure Wireless LAN for our customers to extend network [from] one location 
to another location. 
According to the petitioner, the minimum educational requirement for the proffered position is a bachelor's 
degree in computer science, engineering, or the equivalent. The beneficiary is qualified for the position, the 
petitioner declares, by virtue of his bachelor of commerce degree in 1990 from the University of Dhaka, in 
Bangladesh, a two-year computer training diploma from NCS Computer Systems, a series of certificates from 
other computer companies, and twelve years of computer experience in Bangladesh and Sri Lanka. 
In response to the RFE counsel explained that the petitioner is not a staffing company that provides software 
engineers to client companies for a fee and pays its engineers out of the collected fee. Counsel stated that its 
software engineers are not consultants farmed out to clients, but employees who work at the petitioner's 
facility and provide the services described in the company's brochure to customers. The referenced brochure, 
submitted with the response to the RFE, lists the petitioner's services selection as follows: 
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Network Consulting Design & Integration: Planning, design, implementation and support of 
simple systems to highly fault-tolerant networks. We offer a complete solution, including 
acquisition and integration and support of hardware and software systems running Windows, 
Citrix, Unix, and Novell. Our LAN/WAN expertise ranges from wireless to secure, gigabit- 
based firewalled systems. 
Outsourced Network Management: We monitor and act proactively to keep your computer 
network alive and healthy. 
Warranty and Repair Services: We are an authorized repair center for Compaq, HP, IBM and 
Xerox products, and can provide repair services for most computer products and printers. 
Computer Telephony: We specialize in today's leading computer-based telephony and voice- 
over IP systems such as solutions from Cisco and Avaya. 
Infrastructure Services: Design and implementation of Category 5el6 cabling and fiber-optic 
systems, and rack-based solutions from small offices, to enterprise level systems. All VNS 
Infrastructure Services are tested, and certified according to ANSI\EIA\TIA standards, and 
carry a LIFETIME warranty for workmanship. 
Counsel submitted a photocopy of the "Employment Agreement" between the petitioner and the beneficiary, 
dated December 7, 2004, which provides that the "[elmployee shall devote such time as necessary or is 
deemed necessary by the Company to carry out [his] duties and will devote substantially full time to the 
Company during normal business hours." Also submitted in response to the RFE were photographs of the 
petitioner's business premises, a year's worth of quarterly wage and withholding reports (Form DE-6) listing 
the company's employees, including the beneficiary as of the fourth quarter of 2004, and an organizational 
chart identifying the proffered position as a "systems engineer" in the company's technical services team. 
In his decision the director stated that it appeared the petitioner places computer personnel in companies 
requiring computer programmers, and that the petitioner had failed to furnish any contracts with client 
companies to demonstrate that it had definite employment for the beneficiary. Without such contracts, the 
director determined, the petitioner could not show that the beneficiary would be performing work in a 
specialty occupation. The director also declared that without such contracts it could not be determined 
whether the petitioner is acting as the beneficiary's employer or as his agent, and whether the petitioner is in 
compliance with the wage and work location conditions of its LCA. 
On appeal counsel reiterates that the petitioner is the employer of the beneficiary, pays him directly, and does 
not place him with client companies. The petitioner does not act as an agent or a staffing company, counsel 
declares, and does not operate by means of services contracts with clients. The petitioner's business, counsel 
explains, is providing a local resource for customers in the Fresno area to hire for the purpose of maintaining 
and servicing their computers. All of the evidence in the record establishes that the petitioner is the 
beneficiary's employer, counsel concludes, and the director's decision should therefore be overturned. 
Based on the entire record in this proceeding, the AAO determines that the petitioner is the beneficiary's 
employer, meeting the definition of a U.S. employer at C.F.R. 5 214.2(h)(4)(ii): 
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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 director's decision must therefore be withdrawn. The petition cannot be approved, however, unless the 
petitioner can establish that the proffered position qualifies as a specialty occupation, under one of the criteria 
enumerated at 8 C.F.R. 5 214.2(h)(4)(iii)(A), and that the beneficiary is qualified to perform services in a 
specialty occupation under one of the criteria enumerated at 8 C.F.R. 5 214.2(h)(4)(iii)(C). The director did 
not address these issues in his decision. 
The petition will be remanded for a determination by the director as to whether the proffered position 
qualifies as a specialty occupation and whether the beneficiary is qualified to perform services in a specialty 
occupation. The director may afford the petitioner reasonable time to provide evidence pertinent to those 
issues, as well as any other evidence the director may deem necessary. The director shall then issue a new 
decision based on the evidence of record. As always, the burden of proof rests with the petitioner. See 
section 291 of the Act 8 U.S.C. 5 1361. 
ORDER: The director's decision of June 2, 2005 is withdrawn. The petition is remanded to the director 
for entry of a new decision. If adverse to the petitioner, the decision shall be certified to the 
AAO for review.