sustained H-1B Case: Software Development

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PUBLIC-COPY
U.S. Department of Homeland Security
20 Mass . Ave., NW., Rm. 3000
Washington , DC 20529
u.s.Citizenship
and Immigration
Services -
FILE: EAC 0500354101 Office: VERMONT SERVICE CENTER Date: JUl 26 2006
INRE: Petitioner:
Beneficiary :
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8U.S.C. § 1101(a)(15)(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
"
,
!
www.uscis.gov
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EAC 05003-54101
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 appeal will be sustained. The petition will be
approved.
The petitioner is a software development firm that seeks to etpploy the beneficiary as a software engineer. The
petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to
section 101 (a)(l5)(H)(i)(b) of the Immigration and NationalityAct (the Act), 8 U.S.C. § 1101(a)(l5)(H)(i)(b).
The director determined that the proffered position qualifies as a specialty occupation, but denied the petition on
the ground that the employment contract between' the petitioner and beneficiary contained a clause that violates
Department of Labor (DOL) regulations at 20 c.P.R. § 655.73l(c)(9) (incorrectly identified by the director as 20
C.P.R. Part 655.73(c)(9)) in that it required the beneficiary to provide the petitioner with a promissory note to
cover the fees associated with obtaining HI-B status.' .
/-
, On appeal the petitioner submits a revised employment contract in which the disputed clause does not appear.
The AAO finds that the director erred in denying the petition for apparent violation of 20 c.P.R.
§ 655.731(c)(9). The provisions Of 20 c.P.R. § 655.731 address wage requirements related to the Labor
Condition Application (LCA) filed with the Department of/Labor. The issues of violation of LCA conditions,
misrepresentation of material facts on an LCA, and appropriate penalties are matters for DOL adjudication
pursuant to the complaint, investigation, and disposition provisions of section 212(n) of the Act, 8 U.S.c.
§ 1182(n). Violation of 20 C.P.R. § 655.73 I (c)(9) is not a legitimate ground for denial of an HvlB petition by
Citizenship and Immigration Services (CIS). In addition, the revised employment contract appears to remedy'
the violation upon which the director's denial is based.
1 The portion of20 c.P.R. § 655.731(c)(9) relied on by the director states as follows:
(9) "Authorized deductions," for purposes of the employer's satisfaction of the H-lB required
, wage obligation, means a deduction from wages in complete compliance with one of the
following three sets of criteria (i.e., paragraph (c)(9)(i), (ii), or (iii))--
(ii) Deduction which is authorized by a collective bargaining agreement, or is reasonable and
customary in the occupation and/or area of employment (e.g., union dues; contribution to
premium for health insurance policy covering all employees; savings or retirement fund
contribution for plan(s) in compliance with the Employee Retirement Income Security Act, 29
U.S.c. 1001, et seq.), except that the deduction may not recoup a business expense(s) ofthe
employer (including attorney fees and other costs connected to the performance ofH-I B program
functions which are required to be performed by the employer, e.g., preparation and filing of
LeA and H-I B petition); the deduction must have been revealed to the worker prior to the
commencement of employment and, if the deduction was a condition of employment, had been
clearly identified as such; and the deduction must be made against wages of U.S. workers as well
as H-IB nonimmigrants (where there are U.S. workers) .... (emphasis added)
EAC 05003 '54101
Page 3
The AAO turns now to the issues of whether the proffered position qualifies as a specialty occupation and, if
so, whether the beneficiary is qualified to perform the duties of the proffered position.
Section 101(a)(15)(H)(i)(b) of the Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b), provides, in part, for the
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform
services in a specialty occupation.
Section 214(i)(l) of 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 ofa bachelor's or higher degree in the 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.P.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.P.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
(4) The nature of the specific duties are 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.P.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 proffered position.
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EAC 05 003 54101
Page 4
The record of proceeding before the AAO contains: (1) the Form 1-129 and supporting documentation; (2)
the director's denial letter; and (5) the Form 1-290B. The AAO reviewed the record in its entirety before
issuing its decision.
The petitioner is seeking the beneficiary's services as a software engineer. Evidence of the beneficiary's
duties includes the Form 1-129 petition and supporting documents. According to this.evidence the beneficiary
would work on the functional specifications, technical design and code implementation for nEE-based
enterprise software applications; and cover the entire software development process including clarification of
the requirement details with the Business Analysts, implementation, coordination with the data base analysts .
and system administrators to deploy changes, testing, performance tuning and communication. The
petitioner requires a minimum of a bachelor's degree in engineering, computer science or a related field for
entry into the proffered position.
TheAAO concurs with the director that the proffered position qualifies as a specialty occupation: The AAO
routinely consults the U.S. Department of Labor's Occupational Outlook Handbook, 2006-2007 edition
(Handbook) for information about the duties and educational requirements of particular occupations. The
Handbook notes that "most employers prefer to hire persons who have at least a bachelor's degree and broad
knowledge of, and experience with, a variety of computer systems and technologies," but that individuals who
receive certification through computer training programs also find jobs as software engineers. 'The petitioner
has not, therefore, established that a baccalaureate or higher degree in a specific specialty, or its equivalent, is, i .
normally the minimum requirement for entry into the proffered position. 8 C.F.R. § 214.2(h)(4)(iii)(A)(l).
The petitioner has established, however, that the nature of the specific duties is so specialized and complex
that the knowledge required to perform them is usually associated with the attainment of a baccalaureate or
higher degree. The duties are specialized and complex in nature and are normally performed by individuals
who have obtained a baccalaureate level education, or its equivalent, in such fields as computer science or
management iriformation systems. As noted in the Handbook, abachelor's degree is a prerequisite for many
software engineer positions. The duties of the proffered position, which include elements of the entire
software development process, require the theoretical and practical application of a body of highly specialized
knowledge. The duties of the proffered position .go beyond the duties of mere testing and verifying of
ongoing designs, duties which the Handbook ascribh ..tp entry-level software engineer positions, to the more
advanced duties of designing and developing of sof~are. The petitioner has, therefore, satisfied the
requirements of 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). The proffered position is a specialty occupation.
The director did not make a determination as to the beneficiary's qualifications to perform the duties of the
proffered position. The record is sufficient, however, for the AAO to make this determination.
To' prove that a beneficiary is qualified to perform the duties of a specialty occupation, a petitioner must
establish that the beneficiary meets one of the requirements set forth atSection 214(i)(2) of the Act, 8 U.S.c.
§ 1184(i)(2) -- full state licensure to practice in the occupation, if such licensure is required; completion of a
degree in the specific specialty; or experience in the specialty equivalent to the completion of such degree and
recognition of expertise in the specialty through progressively responsible positions relating to the specialty.
..
EAC 0500354101
Page 5
Further discussion of how an alien qualifies to perform services in a specialty occupation is found at 8 C.F.R.
§ 214.2(h)(4)(iii)(C), and requires the individual to:
(l) 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, 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.
At the time of filing, the petitioner submitted an evaluation from the Trustforte Corporation to establish that the
.beneficiary holds a foreign degree that is the equivalent of a U.S. Master of Science degree in information
systems and engineering. Thus, the beneficiary is qualified to perform the duties of the specialty occupation.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C.
§ 1361. The petitioner has sustained that burden and the petition shall accordingly be sustained.
ORDER: Thy decision of the director is withdrawn and the appeal is sustained. The petition is approved.