remanded H-1B Case: Software Development

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. u.s.Department of HomelandSecurity
20 Massachusetts Avenue NW, Room 300 0
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
FILE: SRC 0521751724 Office: TEXAS SERVICE CENTER Date: MAR 0'/\2007
INRE: Petitioner :
Beneficiary :
PETITION : Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the ­
Immigration and Nationalit y Act, 8 U.S.C. § 1101(a)(15)(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.
/JJideu/T~Robert P. Wiema , C -
Administrative Appeal Office
www.uscis.gov
SRC 0521751724
Page 2
DISCUSSION: The 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 The director's decision will be withdrawn and the
petition remanded to the service center for entry of a new decision.
The petitioner is a software development and consulting company that seeks to employ the beneficiary as
a programmer analyst. The petitioner, therefore, endeavors to extend the beneficiary 's classification 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. § 1101(a)(l5)(H)(i)(b).
( ,
The director denied the petition on the basis of her determination that the petitioner had failed to demonstrate
the existence of an employer-employee relationship between the petitioner and the beneficiary.
The record of proceeding before the AAO contains (1) the Form 1-129 and supporting documentation; (2) the
director's request for additional evidence; (3) the petitioner 's response to the director's request; (4) the
director 's denial letter; and (5) the Form 1-290B and supporting documentation . The AAO reviewed the
record in its entirety before issuing its decision.
Section 214(i)(1) of the Immigration and Nationality Act (the Act), 8 U.S.c. § I I84(i)(1), "defines the term
"specialty occupation " as an occupation that requires: .
J
(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 aminimum for entry into the occupation in the United States.
The term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)(4)(ii) as:
[A]n occupation which requires theoretical and practical application of a body of highly
specialized knowledge in fields of human endeavor including, but not limited to,
architecture, engineering, mathematics, physical sciences, social sciences, medicine and
health, education , business specialties, accounting , law, theology, and the arts, and which
requires the attainment of a bachelor's degree or higher in a specific specialty, or its
equivalent, as a minimum for entry into the occupation in the United States.
Pursuant to 8 C .F.R. §,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
SRC 05 217 51724
Page 3
(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 proposed position.
The term "employer" is defined at 8 C.F.R. § 2l4.2(h)(4)(ii):
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 AAO disagrees with the director's finding that the petitioner would not act as the beneficiary's
employer. The evidence of record establishes that the petitioner will act as the beneficiary's employer in
that it will hire, pay, fire, or otherwise control the work of the beneficiary.' See 8 C.F.R. § 214.2(h)(4)(ii).
In view of this evidence, the AAO finds that the petitioner will be the employer of the beneficiary and
withdraws the director's decision to the contrary.
The petition may not be approved, however, as the petition does not establish that the beneficiary will be
employed in a specialty occupation or that the employer has submitted an itinerary of employment, or that
the petitioner will comply with the terms of the labor condition application (LCA).
The record is clear that the beneficiary would not perform his duties at the petitioner's place of business.
Rather, the beneficiary would perform them for ~ a company located in.Louisville, Kentucky.
The AAO concludes that, although the petitioner will act as the beneficiary's employer, the evidence of
record: including the August 9, 2005 "Master Services Agreement" between the petitioner and 7 7 F
Inc. and counsel's appellate brief, establishes that the petitioner is an employment contractor in that the
petitioner will place the beneficiary at work locations to perform services established by contractual
agreements for third-party companies.
Pursuant to the language at 8 C.F.R. § 2l4.2(h)(2)(i)(B), employers must submit an itinerary with the
dates and locations of employment if the beneficiary's duties will be performed in more than one location:
-
, See also Memorandum from Michael L. Aytes, Assistant Commissioner, INS Office of Adjudications,
Interpretation of the Term "Itinerary" Found in 8 C.F.R. 214.2(h)(2)(i)(B) as it Relates to the H-1B
Nonimmigrant Classification, HQ 70/6.2.8 (December 29, 1995).
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While the Aytes memorandum cited at footnote 1 gives broadly interprets the term "itinerary," it provides
CIS the discretion to require that the petitioner submit the dates and locations of the proposed
employment. As neither the petitioner's contract with lor the Task Order provide a timeline
of how long the engagement is expected to last, the director should exercise her discretion in this case to
require an itinerary of employment for the three-year period of requested employment.'
The evidence contained in therecord does not satisfy 8 C.F.R. § 214.2(h)(2)(i)(B) as it does not cover the
entire period of the beneficiary's employment by the petitioner. The Master Services Agreement and
Task Order do not state for how long the engagement is expected last. Thus, the petitioner has not
complied with the requirements at 8 C.F.R. § 214.2(h)(2)(i)(B) and the petition, as presently constituted,
must be denied.
The record also does not establish that the proposed position is a specialty occupation. The court in
Defensor v. Meissner, 201 F.3d 384 (5 th Cir. 2000) held that for the purpose of determining whether a
proposed 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 Defensor court recognized that evidence of the client companies' job requirements is
critical where the work is to be performed for entities other than the petitioner. The court held that the
legacy Immigration and Naturalization Service had reasonably interpreted the statute and regulations as
requiring the petitioner to produce evidence that a proposed position qualifies as a specialty occupation on
the basis of the requirements imposed by the entities using the beneficiary's servi~es.
As the record does not contain any documentation .that establishes the specific duties the beneficiary
would perform under contract for the petitioner's clients, specifically SmartIMS, the AAO cannot
analyze whether these duties would require at least a baccalaureate degree or the equivalent in a specific
specialty, as required for classification as a specialty occupation. Accordingly, the petitioner has not
established' that the proposed position qualifies for classification 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 aspecialty occupation pursuant to 8 C.F.R. § 214.2(h)(1)(B)(I). The
petition, therefore, may not be approved.
The AAO notes further that the work order between the petitioner and Smart IMS indicates that the
beneficiary will work at "or some other suitable location that is mutually agreed to by the
parties." The work location specified on the LCA is Louisville, Kentucky. If the petitioner will place the
beneficiary at a work location other than Louisville, the LCA is not valid for the proposed work location.
As the work order does not cover the entire period of employment, and is ambiguous about the location of
work to be performed, it cannot be determined that the LCA is valid for the work location.
Based on the foregoing analysis, the AAO has determined that the record fails to establish that the
beneficiary would be performing services in a specialty occupation, as defined in section 214(i)(l) of the
Act, 8 U.S.C. § 1184(i)(l), that the employer has submitted an itinerary of employment, or that the LCA is
valid for the work location: However, the director did not address these issues. Therefore, the director's
decision will be withdrawn and the matter remanded for the entry of a new decision'. The director may
afford the-petitioner reasonable time to provide evidence pertinent to the issue of whether the proposed
2 As noted by Assistant Commissioner Aytes in the cited 1995 memorandum, "[t]he purpose of this
particular regulation is to [e]nsure that alien beneficiaries accorded H status have an actual job offer and
are not coming to the United States for speculative employment."
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position qualifies for classification as a specialty occupation and to provide an itinerary of services to be
performed with the dates and locations of the proposed employment. 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 rests solely with the petitioner . Section
291 of the Act, 8 U .S.c. § 1361.
ORDER: The director's November 3, 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.