sustained H-1B Case: Computer Science

- gentifying data deleted to 
prevent clearly unwarranted 
invasion of pemd privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 091 502 10 Office: CALIFORNIA SERVICE CENTER Date: JAN 2 0 2006 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 3 I 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 documents 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 04 091 50210 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. The petition will be 
approved. 
The petitioner is digital solutions provider that seeks to employ the beneficiary as a programmer-level 3. The 
petitioner, therefore, endeavors to classify the beneficiary as a nonirnrnigrant 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)(l5)(H)(i)(b). 
The director denied the petition because the petitioner failed to establish that: (I) the petitioner met the 
definition of "agent" at 8 C.F.R. 214.2(h)(2)(i)(F), or the definition of "United States employer" at 
fj 214.2(h)(4)(ii); and (2) the beneficiary's employment would comply with the terms of the Labor Condition 
Application (LCA). 
On appeal, the petitioner submits additional evidence. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 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. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(ii): 
Specialty occupation means an occupation which requires theoretical and practical 
application of a body of highly specialized knowledge in field 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@)(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 
WAC 04 091 502 10 
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(3) Has an Internal Revenue Service Tax identification number. 
Pursuant to 8 C.F.R. 2 14.2(h)(2)(i)(F): 
A United States agent may file a petition in cases involving workers who are traditionally 
self-employed or workers who use agents to arrange short-term employment on their behalf 
with numerous employers, and in cases where a foreign employer authorizes the agent to act 
on its behalf. A United States agent may be: the actual employer of the beneficiary, the 
representative of both the employer and the beneficiary, or, a person or entity authorized by 
the employer to act for, in place of, the employer as its agent. A petition filed by a United 
States agent is subject to the following conditions; 
(I) An agent performing the function of an employer must guarantee the wages and 
other terms and conditions of employment by contractual agreement with the 
beneficiary or beneficiaries of the petition. The agent/employer must also provide an 
itinerary of definite employment and information on any other services planned for 
the period of time requested. 
(2) A person or company in business as an agent may file the H petition involving 
multiple employers as the representative of both the employers and the beneficiary 
or beneficiaries if the supporting documentation includes a complete itinerary of 
services or engagements. The itinerary shall specify the dates of each service or 
engagement, the names and addresses of the actual employers, and the names and 
addresses of the establishment, venues, or locations where the services will be 
performed. In questionable cases, a contract between the employers and the 
beneficiary or beneficiaries may be required. The burden is on the agent to explain 
the terms and conditions of the employment and to provide any required 
documentation. 
(3) A foreign employer who, through a United States agent, files a petition for an H 
nonimrnigrant alien is responsible for complying with all of the employer 
sanctions provisions of section 274A of the Act and 8 CFR part 274a. 
In denying the petition, the director conceded that the proposed position met the definition of a specialty 
occupation. However, the director stated that the petitioner did not need the services of an in-house computer 
programmer and that the petitioner "is in the business of locating aliens with computer backgrounds and 
placing these aliens in positions with firms that use computer programmers to complete their projects." The 
director further stated that the petitioner failed to submit requested evidence of valid contracts with clients 
that would have demonstrated the existence of a specialty occupation for the beneficiary to occupy upon entry 
into the United States. The director stated that in order to petition for aliens to enter the country in the H-1B 
classification, the petitioner must establish that it is a U.S. employer. In concluding that the petitioner did not 
meet the definition of a United States employer, the director stated, "the rule for determining whether an 
WAC 04 091 502 10 
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individual is employed by an employer is stated in 53 Am.Jur.2d, Master and Servant, S.2." The director 
stated further that, according to the Master and Servant definition, the most important factor is not which 
entity pays the alien's wages, but which entity controls the alien's work. The director concluded that the 
petitioner is not a computer-programming firm that uses the services of an in-house computer programmer, 
thus, the petitioner will not exercise control over the beneficiary and, therefore, cannot be considered a United 
States employer. 
When discussing whether the petitioner was an agent, the director stated that the definition of agent at 
8 C.F.R. 9 214.2(h)(2)(i)(F) provides for two types of agents: (1) "[aln agent performing the function of an 
employer"; and (2) "[a] company in the business as an agent involving multiple employers as the 
representative of both the employers and the beneficiary." The director stated that, because the petitioner 
functioned as the second type of agent, the petitioner "would need to provide contracts showing any 
arrangements and including [sic] a complete itinerary of [services]." The director concluded that, because the 
petitioner failed to submit the requested contracts and itinerary, its status as an agent could not be determined. 
Finally, the director stated that the absence of contracts and an itinerary rendered it impossible to determine 
that a specialty occupation will exist if the beneficiary should enter the United States in H-IB status. The 
director determined further that, without contracts, Citizenship and Immigration Services (CIS) was unable to 
determine whether the petitioner had complied with the terms of the labor condition application (LCA). 
On appeal, the petitioner states that it is the beneficiary's employer: the beneficiary will work out of its 
Encinitas office, the beneficiary's salary will be paid by the petitioner, and the control over the beneficiary 
and the authority to hire and fire him rests with the petitioner. The petitioner further states that it develops 
software products in-house that are licensed to and customized for clients, and that clients are not involved in 
selecting who will work on the product. The petitioner asserts that it did not submit the requested evidence 
because it does not engage in contracting work. The petitioner submits into the record two March 27, 2003 
documents "Specifications Document, Gift Certificate Specifications," and "Quote, Gift Certificate Quote," 
and a February 25,2004 document "Specifications Document, Restaurant Stream Site Design, Phase 2 (Level 
2 and 3). The petitioner also submits invoices, brochures, and the beneficiary's timesheets for work 
performed in August 2004. 
Based upon the evidence submitted on appeal, the AAO finds that the petitioner qualifies as the U.S. 
employer of the beneficiary according to 8 C.F.R. 5 214.2(h)(4)(ii). The timesheets show that the beneficiary 
will be employed at the petitioner's worksite, the specifications documents and the brochure reveal that the 
petitioner develops and customizes software products for clients, and the timesheets suggest that the petitioner 
has control over the beneficiary and the authority to hire and fire him. Thus, the evidence reveals that the 
petitioner has an employer-employee relationship with the beneficiary, and that it has an Internal Revenue Service 
Tax identification number. As such, the petitioner qualifies as a United States employer pursuant to 8 C.F.R. 
9 214.2@)(4)(ii). 
The certified LCA reflects the location of work will be at the petitioner's address in Encinitas, California. The 
petitioner has established that it will comply with the terms of the LCA. 
t WAC 04 091 50210 
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The AAO will now address whether the beneficiary is qualified for the proposed position. 
The petitioner seeks to employ the beneficiary based on his experience and master's degree in computer 
engineering. The record contains an educational evaluation from Education Evaluators International, Inc. that 
states that the beneficiary's diploma, HB Bs the educational equivalent of a master of science in 
computer systems engineering awarded by regionally accredited colle es and universities in the United States. 
The record also contains copies of the beneficiary's diploma, HB script; and translations of 
these documents into the English language. Based on this evidence, the beneficiary is qualified for the 
proposed position of programmer-level 3. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. 
The petitioner has sustained that burden. 
ORDER: The appeal is sustained. The petition is approved.