remanded H-1B Case: Computer Software Consulting

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal pivacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC 05 055 50230 Office: VERMONT SERVICE CENTER Date: A& 2 9 2006 
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. 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 materials have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiernann, Chief 
Administrative Appeals Office 
EAC 05 055 50230 
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 The director's decision will be withdrawn.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 software consulting company. It seeks to employ the beneficiary as a 
programmer analyst and to continue his classification as a nonimmigrant 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. 
§ 1 lOl(a)(15>(H)(i)(b). 
The director denied the petition on the ground that the record failed to establish that the beneficiary is 
qualified to perform services in a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 3 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. 
Section 214(i)(2) of the Act, 8 U.S.C. 5 1184(i)(2), provides that an alien must have the following credentials 
to be qualified to perform the services of a specialty occupation: 
(A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in paragraph (l)(B) for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such degree, and (ii) 
recognition of expertise in the specialty through progressively responsible positions 
relating to the specialty. 
As further explained in 8 C.F.R. 5 214.2(h)(4)(iii)(C), an alien must meet one of the following criteria to 
qualify to perform the services of a specialty occupation: 
(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 
EAC 05 055 50230 
Page 3 
(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 director's decision; and 
(5) Form I-290B, an appeal brief, and supporting materials. 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 fledgling software development and consulting company, established in 2004, with two employees and 
projected gross annual income of $250,000. The petitioner stated that it provides a variety of services ranging 
from turnkey projects, to outsourcing, maintenance, and contract services, and requires experienced 
information technology professionals to complete its contractual obligations to clients. The petitioner 
proposes to hire the beneficiary as a programmer analyst for three years, at an annual salary of $45,000, and 
provided the following description of the job in its initial letter: 
As a programmer analyst, the beneficiary will plan, develop, test, and document computer 
programs and apply broad knowledge of programming techniques and computer systems to 
evaluate user requests for new or modified programs. More specifically, the beneficiary will 
formulate plans outlining steps required to develop programs using structured analysis and 
design in addition to preparing flowcharts and diagrams to convert project specifications into 
detailed instructions and logical steps for coding into languages processed by computers. The 
beneficiary may also write manuals and document operating procedures and assist users to 
solve problems. The beneficiary will also replace, delete and modify codes to correct errors, 
analyze, review, and oversee the installation of software and provide technical assistance to 
clients. Furthermore, the beneficiary will be assigned to various projects, which will require 
him to maintain client networks and software builds. He will also coordinate with various 
locations during transitioning, oversee network administration and create test scripts and 
applications to manage and test the various functionality of builds and network 
administration. 
According to the petitioner, the proffered position requires a baccalaureate degree or its equivalent in 
information systems, engineering, or a related quantitative, technical or business discipline. The beneficiary 
is qualified for the position, the petitioner declares, by virtue of his three-year bachelor of engineering degree 
in metallurgical engineering from Andhra University in Visakhapatnam, India, in October 1997; his post- 
graduate diploma in computer applications from the Intel Computer Training Centre in Hyderabad, India, on 
December 18, 1998; and his one-year master of technology degree in the field of industrial metallurgy from 
Bakatiya University in Warangal, India, in August 2000. As evidence of the beneficiary's U.S. degree 
equivalency, the petitioner cites the report of an academic credentials evaluation service which concludes that 
the beneficiary's two degrees and computer training diploma in India are equivalent to a bachelor's degree in 
computer information systems from a U.S. college or university. 
In response to the RFE, the petitioner provided a more detailed description of the duties of the programmer 
analyst position, and the percentage of time required by each duty. It reads as follows: 
EAC 05 055 50230 
Page 4 
10% Project Planning: Defining the scope of the project, deliverables and milestones. These 
will also involve interaction and coordination of various people and organizations to further 
define and finalize requirements. Updating progress reports. Managing the scope to deliver 
the project on time. 
20% IT Requirements: Interaction with the end users, engineering and technical personnel to 
formulate the problem. The beneficiary will use techniques such as block diagrams, flow 
charts and other techniques to elicit requirements for the business information technology 
solutions. The formulations will be further refined and validated with the appropriate 
members of the organization. 
20% Designs: The beneficiary will design technical architecture based on the business 
requirements. Designs will include detailed definition of modules, subroutines, and user 
interfaces that will aid in solving the problem. Details will include application program 
interfaces and programs sequence that will result in solving the business problem. 
20% Construction (Coding): Taking the above designs, and writing programs that will 
functionally enable the designs to work on the computer systems. The beneficiary will 
develop modules, sub-routines, user interfaces and other programmatic logic to deliver the 
business information solution. He will understand the limitations of the computer systems 
and the associated languages to accomplish the design. 
20% Testing: The beneficiary will test for functionality and robustness of the system developed 
during the coding/construction activity. This will also involve working with the end users 
and engineering to validate the programs. He will work on the refinements of the programs 
to gain acceptability of the business solutions by the end users. 
20% User Support and Trouble Shooting: The beneficiary will provide comprehensive 
technical support to users. 
Supplementing the documentation submitted with the petition - which included the petitioner's articles of 
incorporation, employer tax identification number, business credit card issuance, and a consulting services 
agreement between the petitioner and a client to which the beneficiary was assigned as consultant - the 
petitioner submitted additional evidence in response to the RFE that its business is a going enterprise - 
including another consulting services agreement with a client, several phone bills, a company brochure, and 
photographs of the business premises. 
In his decision the director found that the academic credentials evaluation report submitted by the petitioner 
was not persuasive evidence that the beneficiary's metallurgical engineering degrees and computer training 
diploma in India are equivalent to a bachelor's degree in computer information systems from a U.S. college or 
university. Nor did the record establish that the beneficiary has a combination of education and work 
experience that is equivalent to a bachelor's degree in a computer-related field. The director concluded that 
the evidence of record failed to establish that the beneficiary is qualified to perform services in a specialty 
occupation, in accordance with section lOl(a)(lS)(H)(i)(b) of the Act. 
EAC 05 055 50230 
Page 5 
On appeal counsel reiterates the petitioner's contention that the beneficiary's academic degrees qualify him to 
perform the duties of a programmer analyst because an information technology professional providing 
computer software consulting services must utilize the same kinds of quantitative analysis methodologies 
employed in the engineering field. Counsel refers to information in the Department of Labor (D0L)'s 
Occupational Outlook Handbook (Handbook) identifying engineering as one of the preferred degrees among 
employers of computer programmers and systems analysts. 
CIS routinely consults the DOL Handbook as an authoritative source of information about the duties and 
educational requirements of particular occupations. The duties of the proffered position, as described by the 
petitioner, reflect two occupational categories in the Handbook - computer programmers and computer 
systems analysts. With respect to the educational requirements for computer programmers, the Handbook , 
states, in pertinent part, as follows: 
[Tlhere are many training paths available for programmers, mainly because employers' needs 
are so varied . . . . Bachelor's degrees are commonly required, although some programmers 
may qualify for certain jobs with two-year degrees or certificates. The associate degree is a 
widely used entry-level credential for prospective computer programmers. Most community 
colleges and many independent technical institutes and proprietary schools offer an associate 
degree in computer science or a related information technology field. 
[I]n the absence of a degree, substantial specialized experience or expertise may be needed. 
Even when hiring programmers with a degree, employers appear to place more emphasis on 
previous experience. 
Some computer programmers hold a college degree in computer science, mathematics, or 
information systems, whereas others have taken special courses in computer programming to 
supplement their degree in a field such as accounting, inventory control, or another area of 
business . . . . 
[E]mloyers using computers for scientific or engineering applications usually prefer college 
graduates who have degrees in computer or information science, mathematics, engineering, 
or the physical sciences . . . . Employers who use computers for business applications prefer 
to hire people who have had college courses in management information systems and 
business and who possess strong programming skills. 
Handbook, 2006-07 edition, at 105-06. As for the educational requirements for computer systems analysts, 
the Handbook states, in pertinent part, as follows: 
[Wlhile there is no universally accepted way to prepare for a job as a systems analyst, most 
employers place a premium on some formal college education. Relevant work experience 
also is very important . . . . 
Many employers seek applicants who have at least a bachelor's degree in computer science, 
information science, or management information systems (MIS) . . . . Employers are 
increasingly seeking individuals with a master's degree in business administration (MBA), 
EAC 05 055 50230 
Page 6 
with a concentration in information systems, as more fums move their business to the 
Internet. 
Despite employers' preference for those with technical degrees, persons with degrees in a 
variety of majors find employment as system analysts . . . . 
Employers usually look for people who have broad knowledge and experience related to 
computer systems and technologies, strong problem-solving and analytical skills, and good 
interpersonal skills. Courses in computer science or systems design offer good preparation 
for a job in these computer occupations. For jobs in a business environment, employers 
usually want systems analysts to have business management or closely related skills, while a 
background in the physical sciences, applied mathematics, or engineering is preferred for 
work in scientifically oriented organizations. 
Id. at 117. As indicated in the foregoing excerpts, numerous combinations of education, training, and work 
experience can lead to jobs in computer programming and systems analysis. Academic degrees in a variety of 
fields - including engineering - are suitable for entry into many computer programmer and systems analyst 
positions. 
As previously discussed, the beneficiary has a three-year bachelor of engineering degree in metallurgical 
engineering from the Faculty of Engineering at Andhra University in Visakhapatnam, India, and a one-year 
master of technology degree in the field of industrial metallurgy from the Faculty of Engineering & 
Technology at Bakatiya University in Warangal, India. The academic credentials evaluation report in the 
record concluded that those two degrees, together with the beneficiary's one-year post-graduate diploma in 
computer applications from the Intel Computer Training Centre in Hyderabad, India, are equivalent to a 
bachelor's degree in computer information systems from a U.S. college or university. After analyzing the 
beneficiary's baccalaureate and master's coursework and noting the lack of evidence that the computer 
training diploma was worth any college credit, the director concluded that the beneficiary's university study 
in India was not directly related to the proffered position. The director discounted the evaluator's conclusion 
that the beneficiary's university studies and computer training diploma are equivalent to a U.S. bachelor's 
degree in computer information systems. The AAO agrees that a credentials evaluation service, as specified 
in 8 C.F.R. 5 214.2(h)(4)(iii)(D)(3), may only evaluate education, not training. Accordingly, the AAO will 
discount that portion of the evaluation that includes the beneficiary's one year of computer training at a non- 
academic institution. Nevertheless, the evaluation implicitly states that the beneficiary's four years of 
academic coursework in India, culminating in a bachelor's degree in metallurgical engineering and a master's 
degree in industrial metallurgy, are equivalent to a U.S. baccalaureate degree in metallurgical engineering. 
Engineering is one of the academic fields favored by employers hiring computer programmers and systems 
analysts, as the DOL Handbook indicates, and the AAO agrees with the petitioner that the quantitative 
analysis methodologies utilized in engineering are directly applicable to the duties of a programmer analyst in 
the computer field. 
Based on the foregoing analysis, the AAO determines that the beneficiary is qualified to perform the duties of 
the proffered position - a programmer analyst. Accordingly, the petitioner has overcome the grounds for 
denial discussed in the director's decision. The petition may not be approved, however, unless the petitioner 
can establish that the proffered position is a specialty occupation. This issue was not addressed in the 
director's decision. 
EAC 05 055 50230 
Page 7 
As provided in 8 C.F.R. 8 214.2(h)(4)(iii)(A), to qualify as a specialty occupation the position must meet one 
of the following criteria: 
(I) 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 
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. 
The evidence of record establishes that the petitioner is an employment contractor in that the petitioner will 
place the beneficiary at multiple locations to perform services established by contractual agreements for 
multiple third-party companies. In Defensor v. Meissner, 201 F.3d 384, 387 (5h Cir. 2000), a federal appeals 
court 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 court recognized that evidence of the 
client companies' job requirements is critical when the work is to be performed for entities other than the 
petitioner, and held that the legacy Immigration and Naturalization Service reasonably interpreted the statute 
and the regulations when it required the petitioner to show that the entities ultimately employing the alien 
workers in a particular position require a bachelor's degree for all employees in that position. 
The record contains copies of two consulting services agreements between the petitioner and client 
companies, dated and signed in December 2004, only one of which identifies the beneficiary as the consultant 
who will be providing services to the client. Neither agreement provides any details about the services to be 
provided. More importantly, there is no description of the beneficiary's job duties from the client company or 
companies, as required to show that the beneficiary is performing services that require a baccalaureate or 
higher degree in a specific specialty. 
Furthermore, the record is unclear as to where the beneficiary would be working. Though the petitioner 
identified the beneficiary's work location as Worcester, Massachusetts in its labor condition application 
(Form ETA 9035E) certified by the Department of Labor, the consulting services agreements in the record 
appear to indicate that the services will be performed at the clients' work sites in Michigan and California, 
respectively. Though the agreements do not name the work locations, they specify that the governing law is 
Michigan and California - the clients' respective home states - not Massachusetts, where the petitioner is 
located. Moreover, both agreements appear to give the clients the discretion, through the issuance of work 
orders, of deciding where the work will be performed. Based on the current record, it is difficult to determine 
whether the petitioner is in compliance with the work location condition of its DOL-certified labor condition 
application. 
. - 
EAC 05 055 50230 
Page 8 
The petition is remanded for consideration of the foregoing issues by the director - i.e., whether the proffered 
position qualifies as a specialty occupation and whether the petitioner is in compliance with the terms and 
conditions of its labor condition application. 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. $ 1361. 
ORDER: The director's decision of June 8, 2005 is withdrawn. The petition is remanded to the diitor 
for entry of a new decision. If adverse to the petitioner, the decision shall be certified to the 
AAO for review.