remanded H-1B Case: Information Technology

U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 073 53465 Office: CALIFORNIA SERVICE CENTER Date: OCT 2 6 2005 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality'Act, 8 U.S.C. § 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: Self-represented 
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, Director 
Administrative Appeals Office 
WAC 04 073 53465 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The director's decision will be withdrawn and the 
petition remanded for entry of a new decision. 
The petitioner is an information technology company. It seeks to employ the beneficiary as a 
programmerlanalyst and to classify him 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. 5 1101 
(a>( 15)(H>(i)(b>. 
The director denied the petition on the grounds that the record failed to establish that the petitioner is the 
beneficiary's employer, as defined in 8 C.F.R. 5 214.2(h)(4)(ii), or the beneficiary's agent within the 
meaning of 8 C.F.R. 5 214.2(h)(2)(i)(F), or that the petitioner is in compliance with the terms of the labor 
condition application (LCA) filed with 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)(i,ii)(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 
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. 
$ 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 the services of a specialty occupation, an alien must meet one of the following 
criteria in 8 C.F.R. 5 214.2(h)(4)(iii)(C): 
WAC 04 073 53465 
Page 3 
(1) 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, andlor 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 documentation, including Form 1-129 and an accompanying letter, the petitioner stated that it 
is an information technology (IT) company, in business since 1993 (originally as a computer hardware 
reseller), with 25 employees and gross annual income of approximately $1.93 million. The company 
provides technical assistance in implementing information systems, the petitioner explained, servicing 
clients with needs in the areas of contract programming, systems integration, and IT assessments. The 
petitioner indicated that it wished to hire the beneficiary as programrnerJanalyst and would be responsible 
for paying, hiring, supervising and controlling the beneficiary from its home office in San Jose. The 
duties of the proffered position were described in the petitioner's letter as: 
. . . analyzing and evaluating the following: existing and proposed systems and devices, 
computer programs and systems, as well as related procedures to process data. The 
ProgrammerJAnalyst will prepare charts and diagrams to assist in problem analysis and 
submit recommendations for solutions. [H]e will prepare program specifications and 
diagrams and develop coding logic flowcharts. Furthermore, [h]e will be responsible for 
encoding, testing, debugging and installing operating programs and procedures in 
conjunction with user development. [The beneficiary's] daily tasks will include: systems 
analysis - 50%; prepar[ing] diagrams and charts - 15%; program[ming] - 15%; test[ing] 
and cod[ing] - lo%, and install[ation] - 10%. 
The minimum educational requirement, the petitioner stated, is a bachelor's degree or the equivalent in a 
job-related field. The beneficiary is qualified for the position, the petitioner indicated, by virtue of his 
master of science degree, with a major in computer science, from Oregon State University in March.2003, 
in addition to the bachelor's and master's degrees in physics he previously earned in 1997 and 1999 from 
the Indian Institute of Technology at Kharagpur. 
WAC 04 073 53465 
Page 4 
In the RFE the director requested, among other things, evidence clarifying whether the beneficiary would 
be working at the petitioner's work site or, if the beneficiary would be providing consulting services to 
client companies at their work sites, copies of the contractual agreements between the petitioner and those 
companies. In response to the RFE the petitioner stated that the beneficiary would be working in-house 
on a product identified as the MPEG-4 Streaming Server application (mstreaming). The petitioner 
described the product as "the first open comprehensive multimedia content presentation standard" that 
"will support many multimedia industries." Key features of the product were listed as follows: 
Support open standards like RTSP, RTPRTCP & IETF recommendation rfc3036 for IP 
payload for MPEG-4. 
Able to stream on UDP or HTTP tunneled IP packets (for viewers behind firewall). 
Unicast streaming for video on demand & multicast streaming for broadcasting. 
SNMP based remote monitoring & control of streaming servers, located in different 
geographical locations. 
Can stream to MPEG-4 compliant TVs for different vendors. 
Highly scalable and less than 2% error resiliency. 
Supports LAN, WAN & extranet streaming. 
Supports for linux 7.0, Windows XP, Solaris & MacOS-X. 
The petitioner indicated that the project would last until the end of the requested H-1B validity period. 
The petitioner also submitted additional documentation including quarterly wage statements, an 
organizational chart, its articles of incorporation, a website profile of the company, federal income tax 
returns, and a list of the company's 21 other H-1B employees with their job titles, annual salaries, 
educational degrees, and petition receipt numbers. 
The director found that the petitioner failed to establish that it was the employer or the agent of the 
beneficiary, as required under the regulations. The director referred to its request for additional evidence 
clarifying whether the petitioner has contracts with companies for whom the beneficiary would be 
providing computer-related services, and stated that the petitioner had not submitted the requested 
evidence. "The petitioner does not employ computer programmers to complete computer programming 
projects at its place of business," the director stated, and without the contracts between the petitioner and 
its client companies (client contracts) the petitioner could not show that it would exercise control over the 
work being performed by the beneficiary, which is the most important factor in determining the identity 
of the beneficiary's employer. The director concluded that the petitioner did not meet the definition of a 
U.S. employer under 8 C.F.R. 5 214.2(h)(4)(ii). Likewise, failure to furnish the client contracts precluded 
a finding that the petitioner was an agent performing the function of an employer of the beneficiary within 
the meaning of 8 C.F.R. 5 214.2(h)(2)(i)(F). Finally, the director stated that without the contracts 
between the petitioner and its clients it was not possible to verify whether the petitioner was in 
compliance with the terms of the LCA in regard to the beneficiary's wage rate and work location. 
On appeal the petitioner reiterates that the beneficiary will be working exclusively on in-house projects - 
in particular, the MPEG-4 Streaming Server application - not on outside consulting projects. 
Accordingly, there are no client contracts applicable to the beneficiary or affecting the employment 
relationship between the petitioner and the beneficiary. The petitioner cites language in its employment 
contract with the beneficiary indicating its intention to utilize the beneficiary's services wherever needed, 
WAC 04 073 53465 
Page 5 
including in-house. The LCA designates San Jose, California - the petitioner's home office location - as 
the area of intended employment for the beneficiary. Finally, the petitioner points out that CIS has 
approved other H-IB petitions it has filed for similar positions on behalf of individuals with comparable 
educational backgrounds to that of the beneficiary in this petition. 
Based on the entire record, the AAO is persuaded that the petitioner would be the beneficiary's employer. 
The petitioner's response to the RFE provided detailed information about the in-house project on which 
the beneficiary will be working during the requested period of H-1B classification. Since the beneficiary 
will be working on an in-house project, the petitioner will exercise control over his work and maintain an 
employer-employee relationship with him. The LCA identifies San Jose, California, as the beneficiary's 
primary work location. Though it also lists San Francisco as "additional or subsequent work location," 
the AAO does not find that submission incompatible with the petitioner's subsequent statement, in 
response to the RFE, that the beneficiary would actually work only at the home office location in San 
Jose. The annual salary specified in the beneficiary's employment contract is consistent with the 
prevailing wage indicated in the LCA. The AAO determines that the petitioner is in compliance with the 
terms of the LCA. The AAO concludes, therefore, that the petitioner qualifies as a "United States 
employer" under 8 C.F.R. 5 2 14.2(h)(4)(ii) and has overcome that ground for denial. 
The petition cannot be approved, however, as it has not been determined whether the proffered position 
qualifies as a specialty occupation under one or more of the criteria enumerated at 8 C.F.R. 5 214.2 
(h)(4)(iii)(A), and whether the beneficiary is qualified to perform the services of a specialty occupation in 
accordance with 8 C.F.R. 5 214.2(h)(4)(iii)(C). 
As the director has not addressed these issues, the director's decision will be withdrawn and the petition 
will be remanded for a determination as to whether the proffered position is a specialty occupation and 
whether the beneficiary is qualified to perform the services thereof. The director may afford the 
petitioner the opportunity to provide pertinent evidence. 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 1, 2004 is withdrawn. The petition is remanded to the 
director for entry of a new decision, which if adverse to the petitioner, shall be certified to 
the AAO for review.