remanded H-1B Case: Software Development

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Kim ofmpciy 
PUBLIC copy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: LIN 04 156 50624 Office: NEBRASKA SERVICE CENTER Date: JuL 1 2 20@ 
IN RE: Petitioner: 
Beneficiary: 
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. fj 1 lOl(a)(lS)(H)(i)(b) 
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. 
‘A &?<LF Administrative Appe s Office 
LIN 04 156 50624 
Page 2 
DISCUSSION: The director of the service center denied the nonirnmigrant 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withdrawn: The petition will be remanded for the entry of a new decision. 
The petitioner is a software development and consulting staffing firm that seeks to employ the beneficiary 
as a programmer analyst. The petitioner endeavors to classify the beneficiary as a nonimrnigrant 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)(lS)(H)(i)(b). 
The director denied the petition because the petitioner failed to respond to a notice of intent to deny. The 
director's decision to deny the petition cited a letter, dated August 18, 2004, in which the director notified 
the petitioner that the petition may be denied on the basis of the following adverse information: 
Independent research conducted by the Service revealed that a corporation by the 
name of Deltasoft was involuntarily dissolved by the State of Illinois. A search 
conducted on the State of Illinois website failed to reveal that Deltasoft, Inc. was 
registered to conduct business in that state. 
In his denial the director noted that the petitioner failed to respond to the August 18,2004 letter.' 
On appeal, counsel submits a letter brief stating that the petitioner never received a notice of intended 
denial, and therefore, did not have an opportunity to rebut the adverse information. 
The AAO finds, however, that information to the effect that the petitioning corporate entity was not 
registered in Illinois is not determinative of the petitioner's eligibility to file an H-1B petition. See 
8 C.F.R. 9s 214.2(h)(4)(i)(B), (iii), and (iv). Therefore, the director's decision does not have a proper basis, 
and will be withdrawn. 
As the director did not determine whether the proffered position is a specialty occupation and whether the 
beneficiary is qualified to perform the services of a specialty occupation, the petition will be remanded for 
the director's determination on these issues. 
Section 214(i)(l) of the Act, 8 U.S.C. 8 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 hgher degree in the specific specialty (or its equivalent) as 
a minimum for entry into the occupation in the United States. 
1 
The AAO notes that, per the CorporateILLC Information Search database at the Internet site of the 
Illinois Secretary of State, the information about dissolution appears to relate not to the petitioner here, 
but to a different entity, 
 Also, the Division of Corporations section on the 
-ware's Internet site reveals that the petitioner has been incorporated in that state since May 
LIN 04 156 50624 
Page 3 
Pursuant to 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: 
(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. 
5 214.2(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. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) 
the petitioner's letter of support; (3) the director's request for additional evidence (WE), dated June 4, 
2004; (4) the petitioner's response to the WE; (5) the director's letter, dated August 1 ath 2004; and (6) 
Form I-290B and supporting documentation, and counsel's letter brief. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner states that it is seeking the beneficiary's services as a programmer analyst. Evidence of the 
beneficiary's duties includes: the Form 1-129 petition, and the petitioner's letter in response to the 
director's WE. The petitioner stated that 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. 
Upon review of the record, the petitioner has established that an employer-employee relationship exists 
between the petitioner and the beneficiary. 
The AAO turns to the issue of whether or not the petitioner would be the beneficiary's employer. Pursuant 
to 8 C.F.R. tj 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. 
LIN 04 156 50624 
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To qualify as a United States employer, all three criteria must be met. The payroll records indicate that 
the petitioner engages persons to work in the United States, and the Form 1-129 indicates that it has an 
Internal Revenue Service Tax Identification Number. The record contains an at-will employment contract 
between the petitioner and the beneficiary. The petitioner has demonstrated that it would have an 
employer-employee relationship with the beneficiary with the authority to hire, pay, fire, supervise, or 
otherwise control the work the beneficiary would perform. 
However, the petition may not be approved at this time because the director did not make a determination 
whether the proffered position is a specialty occupation under 8 C.F.R. 214.2(h)(4)(iii)(A), and whether 
the beneficiary is qualified to perform the duties of a specialty occupation under any of the criteria at 
8 C.F.R. 9 21 4.2(h)(4)(iii)(C). 
The director's decision will be withdrawn and the matter remanded for entry of a new decision. The director 
may afford the petitioner reasonable time to provide evidence pertinent to the issues of whether the 
proffered position is a specialty occupation, and whether the beneficiary is qualified to perform the duties 
of the specialty occupation. 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. 
 1361. 
ORDER: 
 The director's January 21, 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.