sustained H-1B Case: Software Development

identifling dats deleted to 
prevent cluarly unwarranted 
invasicm of personal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 149 50544 Office: CALIFORNIA SERVICE CENTER Date: MAk 2 8 
Immigration and Nationality Act, 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All materials have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
I( 
, . , ... .'I"@ &.-s- 
d 
Robert P. Wiernann, Director 
Administrative Appeals Office 
WAC 04 149 50544 
Page 2 
DISCUSSION: The service center director denied the nonimrnigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Ofice (AAO). The appeal will be sustained. The petition will be 
approved. 
The petitioner is a software development and consultancy company. It seeks to employ the beneficiary as 
a software engineer and to extend his classification 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. 5 1101 
(a>( l5)(H)(i)(b>. 
The director denied the petition on the ground that the record failed to establish that the proffered position 
qualifies as a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 1184(i)(l), defines the term "specialty occupation1' 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. 
As provided in 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. 
3 214.2(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 
director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the notice of decision; 
and (5) Form I-290B, an appeal brief, and supporting materials. The AAO reviewed the record in its 
entirety before issuing its decision. 
WAC 04 149 50544 
Page 3 
The petitioner describes itself as a software development and consulting firm that provides a broad range 
of technological services to Fortune 500 and blue chip companies in the United States and Europe. The 
petitioner states that its business was established in 1998, has 26 employees, and earns a gross annual 
income of $3 million. The petitioner seeks to employ the beneficiary as a software engineer to provide 
services to a client company 
 pursuant to a technical services agreement between the 
petitioner and the client. 
 agreement identifies the beneficiary as the "consultant" 
who will provide the services, specifies the starting date and expected completion date of the project, and 
states that the client will pay the petitioner for the beneficiary's services. An addendum to the agreement 
indicates that the beneficiary's services will be performed at the petitioner's work location in Santa Clara, 
California, and explains that the beneficiary "will be responsible for design, development, analysis, 
implementation and maintenance of software applications to meet clients' needs and specifications." 
According to the petitioner, the proffered position requires an individual with a degree in computer 
science, engineering, mathematics, or a related field, plus relevant experience. The beneficiary is 
qualified for the position, the petitioner declares, by virtue of the bachelor of science in physics he 
received in 1994 from Bharathidasan University, in India, the master of computer applications he 
received from the same university in 1997, and more than seven years of IT experience. The record 
shows that the beneficiarv was granted H-1B status on Se~tember 9. 2003. valid until Februarv 17. 2006. 
In his decision the director stated that there was no evidence in the record of the specific project where the 
beneficiary would work. In particular, there was no comprehensive description of the beneficiary's 
proposed duties and work location from an authorized representative of the client company. Without 
such information, the director declared, the petitioner had not demonstrated that a specialty occupation 
exists for the beneficiary. Accordingly, the petition was denied. 
On appeal counsel indicates that the beneficiary, who was already in H-1B status, began working for the 
petitioner May 1, 2004 on the "ShipGenie Datasheet" project for the client company, Neptium, Inc. 
Counsel submits a letter from the CEO o . explaining the nature of the beneficiary's work: 
[The beneficiary] is working on critical ShipGenie product version 2.0 beta for 
ShipGenie is a complete shipping and transportation product used by several companies 
including [the] Federal government for shipping products. 
.... 
[The beneficiaryl's role involves design and development of shipment measurement unit, 
as soon as the label in the package is scanned the weight of the package is loaded into the 
system and package is delivered to the destination. [Wlhen the package is received in the 
destination again the package is weighed and the label is scanned. [I]f the difference in 
weight is out of range of tolerance weight the system will indicate with different color. 
The system will be developed as web application using Java, J2EE, struts, JSP, EJB, 
servlets, JDBC, Oracle, XML, weblogic. [The beneficiary] is also involved in the R&D 
Project for the next version of ShipGenie. 
The project is dealing with quote and application creation for asset lease management 
vendor. Design the architecture of creating application and wizard for adding a related 
WAC 04 149 50544 
Page 4 
party to the application. As soon as the quote is accepted the system will create the 
application and process through adding related parties to the application. When the 
customer is added the system will check for required parties for the customer and wizard 
will help the customer to all the required parties like partner, director, etc. and also allow 
the user to add additional parties like co-borrower, introducer, etc. The UML notations 
are used to create Use case, sequence and class diagrams. These modules are developed 
using Java, J2EE, struts, JSP, sewlets, JDBC, XML, Oracle, Tomcat. 
Attached to the CEO's letter is a product datasheet with more detailed information on the project, entitled 
"ShipGenie -An Integrated Solution for Transportation Management and Export Compliance." 
In determining whether a position meets the statutory and regulatory criteria of a specialty occupation, 
CIS routinely consults the DOL Handbook as an authoritative source of information about the duties and 
educational requirements of particular occupations. Factors typically considered are whether the 
Handbook indicates a degree is required by the industry; whether the industry's professional association 
has made a degree a minimum entry requirement; and whether letters or affidavits from firms or 
individuals in the industry attest that such firms "routinely employ and recruit only degreed individuals." 
See Shanti, Inc. v. Reno, 36 F.Supp. 2d 1151, 1165 (D.Minn. 1999) (quoting Hird/Blaker Corp. v. Suva, 
712 F.Supp. 1095, 1102 (S.D.N.Y. 1989)). CIS also analyzes the specific duties and complexity of the 
position at issue, with the Handbook's occupational descriptions as a reference, as well as the petitioner's 
past hiring practices for the position. See Shanti Inc. v. Reno, id., at 1165-66. 
The duties of a computer engineer are described as follows in the DOL Handbook, 2006-07 edition: 
Computer engineers design, develop, test, and evaluate computer hardware and related 
equipment, software programs, and systems. Although programmers write and support 
programs in new languages, much of the design and development now is the 
responsibility of software engineers or software developers. Software engineers in the 
systems design and related services industry . . . are more concerned with developing 
algorithms and analyzing and solving programming problems for specific network 
systems . . . . Computer systems software engineers primarily write, modify, test, and 
develop software to meet the needs of a particular customer. They develop software 
systems for control and automation in manufacturing, business, and other areas. 
The AAO determines that the duties of the proffered position, working on the ShipGenie project, accord 
with the Handbook's description of a computer systems software engineer. 
Based on the comprehensive job description of the work the beneficiary performs for the client company 
pursuant to its technical services agreement with the petitioner, the specialized and complex nature of the 
project, and the other documentation of record, the AAO determines that the proffered position requires 
baccalaureate or higher level knowledge in a computer-related specialty and therefore qualifies as a 
specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). The record also establishes that the work is 
to be performed in-house at the petitioner's business premises in Santa Clara, California. Accordingly, 
the petitioner has overcome the grounds for denial discussed in the director's decision. The decision must 
therefore be withdrawn. 
WAC 04 149 50544 
Page 5 
The AAO agrees with the director's conclusion, based on the documentation of record, that an employer- 
employee relationship exists between the petitioner and the beneficiary. The petitioner meets the 
definition of a United States employer at 8 C.F.R. 5 214.2(h)(4)(ii). 
To qualify to perform the services of a specialty occupation an alien must meet one of the following 
criteria set forth in 8 C.F.R. 5 214.2(h)(4)(iii)(C): 
(1) 
 Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States 
baccalaureate or higher degree required by the specialty occupation from an 
accredited 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, andlor 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. 
The record includes copies of the beneficiary's academic degrees and transcripts which show that he earned a 
bachelor of science in physics in 1994 and a master of computer applications in 1997, both from 
Bharathidasan University in India. The record also includes a report from a foreign academic credentials 
evaluation service in Bothell, Washington, declaring that the beneficiary's education is equivalent to a 
master's degree in computer science from an accredited university in the United States. Based on the 
foregoing documentation, the AAO determines that the beneficiary is qualified, under 8 C.F.R. 5 214.2 
(h)(4)(iii)(C)(2), to perform the services of the specialty occupation. 
Thus, the record establishes that the proffered position is a specialty occupation and that the beneficiary is 
qualified to perform services in that occupation. 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has met that burden. Accordingly, the AAO will sustain the appeal and approve the petition. 
ORDER: 
 The appeal is sustained. The petition is approved.