remanded H-1B Case: It Consulting

identifying data deleted to 
prevent clearly unw artdnted 
invasion of persona\ privac) 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
*,.""B 
g 
' t 
MAR 2 3 2007 
- 
FILE: WAC 05 01 7 50823 Office: CALIFORNIA SERVICE CENTER Date: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 
 1 101 (a)(l 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
2dd'* 
4 Robert P. Wiemann, Chief 
Administrative ~~~eals@&e 
WAC 05 01 7 50823 
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 The director's decision will be withdrawn. The petition 
will be remanded to the director for entry of a new decision. 
The petitioner is a consulting and staffing services company. It seeks to employ the beneficiary as a 
programmer analyst and endeavors to classify him as a nonimmigrant worker in a specialty occupation 
pursuant to section 101 (a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 101 (a)(l5>(H)(i)(b)- 
The director denied the petition stating that the petitioner "has not sustained the burden of proof that the 
petitioner is a United States employer who has an employer-employee relationship with respect to employees 
under 8 C.F.R. 8 214.2@)(4)(ii), indicating a fact that it may supervise or otherwise control the work of such 
employee." On appeal, the petitioner submits a brief stating that it qualifies as an employer in this instance 
and that it will control and direct the work of its employee (the beneficiary). 
The first issue to be determined is whether the petitioner qualifies as a United States employer. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(ii), 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 record establishes that the petitioner will be the employer of the beneficiary, and the director's decision to 
the contrary shall be withdrawn. The petitioner submitted an agreement whereby the petitioner would provide 
its employees as a vendor to work on projects obtained by Technical & Management Staffing Associates, 
LLC (TMSA). The agreement with TMSA specifically provides that the personnel provided by the petitioner 
under the agreement shall be the employees of the petitioner, and the petitioner is working with TMSA as a 
subcontractor. The petitioner will hire the beneficiary, will pay the beneficiary, has the right to fire the 
beneficiary and will otherwise have control over the beneficiary's work. The fact that the beneficiary may 
perform services at a client facility and be subject to that client's work rules and regulations does not change 
the employer/employee relationship existing between the petitioner and beneficiary. The petitioner will 
engage the beneficiary to work in the United States, has an employer-employee relationship with the 
beneficiary, and has an Internal Revenue Service Tax identification number. The petitioner qualifies as a 
United States employer in this instance, and the director's decision to the contrary is withdrawn. 
The director did not determine whether the proffered position qualified as a specialty occupation as the 
petition was denied on another ground. As such this petition must be remanded to the director to make that 
determination. 
WAC 05 017 50823 
Page 3 
The director must afford the petitioner reasonable time to provide evidence pertinent to the issue of whether 
the proffered position qualifies as a specialty occupation in accordance with section 101 (a)(l 5)(H)(i)(b) of the 
the Act, 8 U.S.C. 5 I lOl(a)(lS)(H)(i)(b), and the implementing regulations on H-1B petitions at 8 C.F.R. 
5 214.2(h)(4), and any other evidence the director may deem necessary. The director shall then render a new 
decision based on the evidence of record as it relates to the regulatory requirements for eligibility. As always, 
the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.C. 5 1361. 
It should be noted that the record does not contain documentation establishing the beneficiary's itinerary for 
the duration of his requested period of stay (1 0125104 - 10125107). The work order submitted with the TMSA 
agreement indicates that the period of work for the beneficiary (AOCIDeloitte project) shall be fiom October 
25, 2004 through October 1, 2005. Further, the record does not contain a detailed description of the work to 
be performed by the beneficiary for the end user of the beneficiary's services (AOCIDeloitte). Without this 
documentation, it cannot be determined that the proffered position qualifies as a specialty occupation under 
any of the criteria at 8 C.F.R. § 214.2(h)(4)(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. 5 214.2@)(l)(B)(l). The 
director may request such additional information as he deems necessary in rendering his opinion. 
As always, the burden of proof in this proceeding rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 3 1361. 
ORDER: 
 The director's February 17,2005 decision is withdrawn. The petition is remanded to the director 
for entry of a new decision which, if adverse to the petitioner, is to be certified to the AAO for 
review.