sustained H-1B Case: Software Engineering

identieing &a &la 
prevent clearly unwmtd 
invasion of pe- primy 
L.S. Departme~~t of Homeland Security 
20 Mass Ave , N W , Rm A3042 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l S)(H)(i)(b) of the 
- - - - - - - - 
Immigration and Nationality Act, 8 U.S.C. 9 I 10 l(a)(l S)(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 oftice. 
*dxg& 
Robert P. Wiernann, 
0 
Administrative Appeals &ffice 
LIN 04 258 52035 
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 an information technology services company that seeks to employ the beneficiary as a 
software engineer and to classify her as a nonimmigrant worker in a specialty occupation pursuant to section 
lOl(a)(l5)(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 on the basis that the petitioner failed to establish that it would act as the 
beneficiary's employer and that the proposed position was a specialty occupation. On appeal, counsel 
submits a brief and previously submitted evidence. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation and 
certified Labor Condition Application (LCA); (2) the director's request for additional evidence (WE); (3) 
the petitioner's response to the RFE; (4) the director's denial letter; and (5) the Form I-290B with 
accompanying letter. The AAO reviewed the record in its entirety before issuing its decision. 
The petitioner seeks the beneficiary's services as a software engineer. Evidence of the beneficiary's 
duties includes Form 1-129 with attachments, the petitioner's response to the RFE, and the petitioner's 
appeal letter. According to this evidence, the beneficiary's duties would include: implementing complex 
web-based Business Performance Management solutions; researching, designing, developing, and testing 
complex software for web-based Business Performance Management; maintaining and customizing 
software; directing multiple and on-going software engineering application projects and assignments; 
providing engineering expertise to implement, develop, support, and maintain complex software 
applications; performing complex research and analysis on core server and device driver software; 
performing detailed software planning, evaluation, and recommendations; analyzing highly complex 
engineering problems and situations concerning software application by acquiring and analyzing 
diagnostic output documentation, identifying errors and incorrect procedures to aid in resolving 
system/application related errors and problems, and debugging in an embedded environment; providing 
information and technical expertise to resolve or clarify technical issues pertaining to software 
applications; developing detailed software and application project plans and coordinating project 
activities by directing and monitoring project tasks to ensure successful implementation; evaluating 
proposed and existing system applications by systematic analysis of their efficiency of design and 
resource utilization to assure performance within company service level agreements; and traveling to the 
petioner's client sites located throughout the San Francisco area to oversee installation, maintenance, 
troubleshooting, and proper implementation of the petitioner's systems and solutions. The petitioner 
stated that the position required at least a bachelor's degree or foreign equivalent in computer science, 
computer engineering, information technology, software applications, or a related area. 
The director believed the beneficiary would be performing services pursuant to a third-party contract and 
asked the petitioner to submit contracts with its clients that included addendums, work orders, dates of the 
project's or contract's duration, the location, and the name of the beneficiary. The director found that the 
petitioner's failure to submit the requested contracts showed that the petitioner did not, at the time of 
filing, have sufficient work at the H-1B level to employ the beneficiary at the location listed on the LCA. 
The director also found that the record did not contain sufficient evidence to establish that the proposed 
position was a specialty occupation. 
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In response to the WE, the petitioner submitted a contract it has with the designer and manufacturer of 
the Business Performance Management software the beneficiary would implement for the petitioner's 
clients. On appeal, counsel asserts that the petitioner does not intend to act as the beneficiary's agent, and 
therefore, is not subject to the regulations for agents. Counsel asserts that just because the petitioner 
provides consulting services as one of its business activities does not make it an agent subject to the 
regulations on agents. Counsel asserts that the proposed position is a specialty occupation under three of 
the four specialty occupation criteria listed in the regulations. 
If the petitioner intends to act as the beneficiary's agent, the petitioner may file the H-IB but must include 
an itinerary of definite employment and information on any other services planned for the period of time 
requested. 8 C.F.R. 9 214.2(h)(2)(i)(F). As noted in Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 2000)' 
CIS must examine the ultimate employment of the beneficiary to determine whether the position qualifies 
as a specialty occupation. When a petitioner will employ the beneficiary in multiple work locations, the 
regulations require that the petitioner submit an itinerary with the names and addresses of the locations 
where the beneficiary will work. 8 C.F.R. 9 214.2(h)(2)(i)(B). 
The petitioner provided documentation to establish that it will not act as the beneficiary's agent. As such, 
the petitioner is not subject to the requirements of 8 C.F.R. 214.2(h)(2)(i)(F). The petitioner provided 
sufficient detail regarding the beneficiary's specific duties under the requirements set forth in Defensor. 
Finally, the petitioner satisfied the requirement of 8 C.F.R. 5 2 14.2(h)(2)(i)(B) by providing the following 
detailed explanation of how the beneficiary would perform her day-to-day duties: 
The employees of [the petitioner], meet monthly at [the petitioner's] principal office, and 
the remaining work duties are performed from their home office or at client sites. [The 
petitioner] equips its employees with computers and equipment required for their work 
production off-site and communicates with them telephonically or via e-mail daily. The 
petitioner asserts that although the beneficiary would travel to clients' sites, she would be 
employed by the petitioner. 
The petitioner stated the following regarding its employer/employee relationship with the beneficiary: 
The beneficiary will be solely employed as a direct employee of [the petitioner] in the 
position of software engineer; 
The beneficiary will be paid on our payroll submitted to the appropriate SESA on 
Quarterly Wage and Withholding Reports or other wage reporting documents required by 
state andlor federal law; 
The beneficiary will be paid at least the full salary shown on the LCA for no less than 40 
hours per week and the offered salary is the annual rate of pay; and 
Any and all engineering duties performed, on or off-site, are performed on behalf of [the 
petitioner]. 
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The petitioner also established, through documentation, that it resells the Business Performance 
Management software designed and manufactured by Hyperion Solutions Corporation and that the 
beneficiary would be customizing, designing, and implementing this software for the petitioner's clients. 
The petitioner provided the names of several of its clients, including Sempra Energy, Sony Computer 
Entertainment, and Yahoo. 
The AAO finds that the petitioner satisfied the requirement at 8 C.F.R. 5 214.2(h)(2)(i)(B). The petitioner 
established that it will not act as the beneficiary's agent and is not subject to the regulations regarding 
filing as an agent. The record offers a meaningful description of the proposed duties and establishes that 
position is that of a software engineer. 
Section 214(i)(l) of the Act, 8 U.S.C. tj 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)(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 bachelor's or higher degree, but one in a specific field of study 
that is directly related to the proposed position. 
The petitioner need only satisfy one of the criterion at 8 C.F.R. 214.2(h)(4)(iii)(A) to establish that a 
position is a specialty occupation. Upon a thorough review of the record, the AAO concludes that the 
petitioner has established that its proposed position is a specialty occupation pursuant to 8 C.F.R. 
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§214.2(h)(4)(iii)(A)(l) - a bachelor's or higher degree or its equivalent is the normal minimum 
requirement for entry into the particular position. 
An important factor CIS considers to determine whether or not this criterion has been met, is if the 
Department of Labor's Occupational Outlook Handbook (Handbook) reports that the industry requires at 
least a bachelor's degree in a specific field of study. See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 151, 1 165 
(D.Minn. 1999)(quoting HirdIBlaker Corp. v. Sava, 764 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). The 
2006-'07 Handbook states that for a software engineer position, a bachelor's degree in computer science 
or a related field is normally required. Thus, the proposed position is a specialty occupation under 
8 C.F.R. fj 2 14.2(h)(4)(iii)(A)(l). 
The burden of proving eligibility for the benefit sought rests entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. 
 1361. The petitioner has sustained that burden. 
ORDER: 
 The appeal is sustained. The petition is approved.