remanded H-1B Case: Software Development

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
.PUBUCCOPY
FILE:
INRE:
EAC 05 15850435
Petitioner:
Beneficiary:
Office: VERMONT SERVICE CENTER Date: O£C 04 2006
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality 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.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
· .
EAC 05 15850435
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 The director's decision will be withdrawn.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 software development and consulting 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 Iriunigration and Nationality Act (the Act) , 8 U.S.C. § 1101(a)(15)(H)(i)(b).
The director denied the petition stating that the petitioner was not qualified to perform the duties of the proffered
position. On appeal, counsel submits a brief stating that the petitioner is qualified to perform the duties of the .
proffered position.
The first issue to be determined is whether the beneficiary is qualified to perform the duties of a specialty
occupation.
Section 214(i)(2) of the Act,8 U.S .c. § 1184(i)(2) , states that an alien applying for classification as an H-l B
nonimmigrant worker must possess:
(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 (1)(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 .
Pursuant t08 C.F.R. § 214.2(h)( 4)(iii)(C), to qualify to perform services in a specialty occupation, the alien
must meet one of the following criteria:
(1) Hold a United States baccalaureate or higher degree required by the specialty occupation
from an accredited college or university ;
(2) Hold a fore ign degree determined to be equivalent to a United States baccalaureate or '
'higher degree required by the specialty . occupation from an accred ited 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 , 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.
EAC05 15850435
Page 3
Pursuant to 8 C.F.R. § 2l4.2(h)(4)(iii)(D), for purposes of paragraph (h)(4)(iii)(C)(4) of this section,
equivalence to completion of a United States baccalaureate or higher degree shall mean achievement of a
level of knowledge , competence , and practice in the specialty occupation that has been determined to be equal
to that of an individual who has a baccalaureate or higher degree in the specialty and shall be determined by
one or more of the following: '
(1) An evaluation from an official who has authority to grant college-level credit for
training and/or experience in the specialty at an accredited college or university which
has a program for granting such credit based on an individual 's training and/or work
expenence;
(2) The results of recognized college-level equivalency examinations or special credit
programs, such as the College Level Examination Program (CLEP), or Program on
Noncollegiate Sponsored Instruction (PONSI);
(3) An evaluation of education by a reliable credentials evaluation service which specializes
in evaluating foreign educational credentials;
(4) Evidence of certification or registration from a nationally-recognized professional
association or society for the ' specialty that is known to grant certification or
registration to persons in the occupational specialty who have achieved a certain level
, of competence in the specialty;
(5) A determination by the Service that the equivalent of the degree required by the
specialty occupation has been acquired through a combination of education, specialized
training, and/or work experience in areas related to the specialty and that the alien has
achieved recognition of expertise in the specialty occupation as a result of such training
and experience . '
The duties of the proffered position, as detailed by the petitioner, are those of a computer programmer. The AAO
routinely consults the U.S. Department of Labor's Occupational Outlook Handbook (Handbook) for information
about the duties and educational requirements of particular occupations. The Handbook notes that there are many
paths available for becoming a computer programmer because employers' needs are varied. Employers 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. The petitioner holds a
master's degree in mechanical engineering fromthe University of Colorado. That degree is closely related to the
field of computer science and computer engineering as confirmed by the Handbook 's statement concerning the
educational requirements for the position. The beneficiary is, therefore, qualified to perform the duties of the
offered position . 8 c.P.R. § 214.2(h)(4)(iii)(C)(l).
The petition may not be approved , however, as the record does not establish that the position is a specialty
occupation. The petition will be remanded .in order for the director to make thatdetermination. .
Section 2l4(i)(1) of the Act, 8 U.S.c. § 1184(i)(1), defines the term "specialty occupation" as an occupat ion that
requrres: .
(A) theoretical and practical application of a body of highly specialized knowledge, and
EAC 05 15850435 .
Page 4
(B) attainment of a bachelor's or higher degree inthe specific specialty (or its equivalent) as
a minimum 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:
An 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, med icine 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 t08 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 rmmmum
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 adegree 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 beneficiary's position has been identified by the petitioner asa programmer analyst. The Handbook
notes that although there are many training paths available for programmers due to varied employer needs , the
level of education and experience employers seek has been rising due to the growing number of qualified
applicants and the specialization involved with most programming tasks. Bachelor 's degrees are commonly
required , although some programmers may qualify for certain jobs with 2-year degrees or certificates . The
associate degree is a widely used entry-level credential for prospective computer programmers. In the
absence of a degree , substantial specialized experience or expertise may be needed , and employers appear to
place more emphasis on previous experience even when hiring programmers with a degree. Some computer
programmers hold a college degree in computer science, mathematics, or information systems, while others
have taken special courses in computer programming to supplement degrees in other fields. As previously
noted , employers 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 .
Thus, it is evident that while some programmer positions justify the hiring of an individual with a
baccalaureate level education , other s require only an associate 's degree or some other form of certification.
EAC 05 158 50435
Page5
As previously noted, the evidence of record establishes that the petitioner is an employment contractor in that
the petitioner will place the beneficiary at multiple work locations to' perform services established by
contractual agreements for third-party companies. The petitioner, however, has provided no contracts, work
orders orstatements of work describing the duties the beneficiary wouldperform for its clients and, therefore,
has not established the proffered position as a specialty occupation. The court in Defensor v. Meissner, 201 F.
3d 384 (5 th Cir. 2000) held that for the purpose ofdete~ining 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 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
proffered position qualifies as a specialty occupation ~n the basis of the requirements imposed by the entities
using the beneficiary's services.
, - '
As the record does not contain any documentation that establishes the specific duties the beneficiary would
perform under contract for the petitioner's clients (the end user of the beneficiary's services), 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 record does not presently establish that
the proposed 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. § 214.2(h)(l )(B)(l) ..
The beneficiary is a software development and consulting company that supplies employees to work on its client
. projects or the client projects of other consulting firms. As' noted in the Aytes memorandum cited at footnote 1,
the director has the discretion to request that the employer who will employ the beneficiary .in multiple locations
submit an itinerary. I ·The regulation at 8 C.F.R. 214.2(h)(2)(i)(B) indicates that when services or training are to
be performed in more than one location, the petitioner must submit an itinerary with the dates and locations of the
services. The documentation of record does not establish a complete itinerary for the beneficiary from August 7, '
2005 through August 6, 2008, the dates of intended employment. 2 The record contains no contracts or purchase
orders establishing.that work in a specialty occupation will be available for the beneficiary during the dates of
intended employment. Further, the petitioner providedrio documentary evidence to establish that it has,
employment in a specialty occupation available for the beneficiary on any in-house project of its own.
The director may request such additional 'evidence as he deems necessary in rendering his opinion.
I See 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-IB
,Nonimmigrant Classification, H:Q 70/6.2.8 (December 29, 1995).
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.';'
EAC 05 15850435
Page 6
As always, the burden of proof in this proceeding rests solely with the petitioner. Section 291 of the Act,
8 U.S.c. § 1361.
ORDER: The director's decision is withdrawn. The petition is remanded to the director to enter a new
decision commensurate with the directives of this opinion, which, if adverse to the petitioner,
shall be certified to the AAO for further review.