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by Cyrus D. Mehta

On May 23, 2000, the Administrative Appeals Office (AAO) overturned a decision of the Nebraska Service Center (NSC) and approved an H-1B petition on behalf of a software design engineer. Matter of Shanmukam, LIN 99 243 50365 (AAO May 23, 2000).

Although the decision has not been designated as a precedent, it is nevertheless important as it may avoid future inconsistent or irrational decisions concerning computer professionals from the four INS Service Centers. The INS Service Centers often upon seeing a petition from an IT firm, issue a Notice of Action, also popularly known as a "kickback." This notice requests extensive evidence about the petitioning entity, the nature of the position, and also alleges that the position is speculative. The INS requests such evidence even if it has approved several other H-1B petitions and the petitioning entity has substantial revenues and a large workforce. There are occasions where the INS is not satisfied with the evidence it has requested, and denies the petition.

This was the case in Matter of Shanmukam. The H-1B petitioner, Aditi Corporation, was a software development and support firm with 161 employees and gross annual income of more than $ 8 million. Aditi Corporation requested that the beneficiary be classified as an H-1B1 nonimmigrant alien to perform services in the specialty occupation of Software Engineer Designer. The NSC denied the petition demonstrating that the petitioner had not established that the position was a specialty occupation. The NSC also found that the petitioner was an agent, and had therefore, not provided satisfactory evidence that is required of such employers when filing an H-1B petition.

In its appeal, Aditi Corporation argued that the position was indeed a specialty occupation and the beneficiary was qualified to perform the duties of the specialty occupation.

The NSC had ostensibly objected to the beneficiary's credentials as he did not hold a U.S. baccalaureate degree in a computer field. However, a credential evaluation service found the beneficiary's foreign education equivalent to a bachelor's degree in electrical and electronic engineering from an accredited U.S. institution. The AAO noted that "the use of computers is an integral part of the contemporary study of engineering," and therefore, the beneficiary was qualified to perform the duties of the position.

The AAO next analyzed the duties of the proffered position to determine whether the beneficiary would be providing services in a specialty occupation. The AAO agreed with the petitioner. It is worth extracting the following from the AAO decision :
"The beneficiary will be working at Microsoft, will be designing, developing, and/or testing COM objects. The name of the project on which the beneficiary will be working at the Microsoft Corporation is the "Internet Project." The purpose of the project is to develop new components that will enable software users to more efficiently interact with the internet…The beneficiary will be working as a member of a team, the size of the team varies from between five and ten software design engineers, working under a lead engineer, who in turn works under a Microsoft product manager. The specific duties of the beneficiary will be to design ActiveX controls which work in web browsers such as Intenet Explorer 3.0 and 4.0. the beneficiary will work with other software engineers who will be building and designing the internet applications. The software design engineers will be designing various components such as ActiveX controls and COM objects and other internet components. Approximately 70% of the beneficiary's time is spent working directly with other software design engineers designing tools and enhancements and writing code. Another 20% of the time is spent evaluating reports and receiving feedback on bugs and problems resulting from the testing of the software…and then finding solutions to the bugs and problems. Finally, 10% of the time is spent in attending general meetings and working on administrative matters…"
Even Microsoft provided the following additional description, which the AAO noted:

"The duties to be performed by the engineers…at Microsoft will entail developing and/or testing software programs of a complex nature, including operating systems, applications (and/or) network products. The engineers will design and perform analysis on company programs and systems and will contribute to the development of processes and methodology…"

The AAO further referred to the 1998-1999 edition of the Department of Labor's Occupational Outlook Handbook, which "finds that the usual requirement for employment as a computer scientist or engineer is a baccalaureate degree in computer engineering, electrical engineering, or computer science."

In view of the above, the AAO found that the proffered position qualified as a specialty occupation.

The NSC raised several other objections, which the AAO did not validate. The NSC questioned that the Microsoft standard contract provided for a 31-day break in assignment after a one-year assignment. The AAO agreed with Aditi's response that the beneficiary could be placed with another firm in a similar capacity. The AAO further noted that "this issue is peripheral to the matter at hand."

The NSC also categorized the employer, Aditi Corporation, as an agent because it was a "job shop." As an agent, the NSC asserted that Aditi Corporation did not fulfil its requirements under the regulations for providing a precise itinerary of services planned for the period of time requested. The AAO, however, viewed the petitioner as an actual employer and not as an agent, even though the NSC had categorized the petitioner as a "job shop." Aditi was the beneficiary's actual employer, which would pay, hire, fire and provide medical benefits to the employee.

The NSC's requirement of providing specific contracts between Aditi and third parties was also challenged by the AAO. The AAO cited an earlier memo, indicating that the submission of such contracts should not be a normal requirement for the approval of an H-1B petition filed by an employment contractor.

The NSC also alleged "speculative employment," although the AAO said that "there is no support for the explanation of this concept per se in either the statute or regulations." Furthermore, challenging the petitioner's ability to pay the beneficiary's proffered wage was solely the Department of Labor's responsibility and not the INS', according to the AAO.

Finally, the AAO also disagreed with the NSC's finding that the petitioner had not provided an itinerary of definite employment as the regulations require, noting that the petitioner indicated on several occasions that the beneficiary will work at its facility in Washington state, as well as at Microsoft in Redmond, Washington.

In Matter of Shanmukan, the AAO invalidated many of the standard boilerplate language allegations that one sees in INS "kickbacks" on H-1B petition for IT firms. It accepted the fact that an engineering degree, instead of a computer degree, would quality the H-1B beneficiary for a computer job. It further invalidated the requirement that detailed contracts and itineraries were required as well as reaffirmed the fact that the INS was not responsible for determining an employer's ability to pay the proffered wage. What is also interesting is that it debunked the notion of "speculative employment," which the INS often alleges despite voluminous evidence to the contrary. It is hoped that the INS Service Centers adjudicate such H-1B petitions more reasonably following Matter of Shanmukam.

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City.He is the trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award.He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or