AAO Reverses NSC Denial of Computer Contractor H-1B

In an H-1B case certified to the Administrative Appeals Office by the Nebraska Service Center, the AAO touched on a number of H-1B issues that have been raised in a recent rash of NSC decisions.  The NSC had denied the petition, finding that the software design engineer position had not been proven to be a specialty occupation and that the petitioner, a software development and support firm that provides computer consulting services, had not provided the documentation required of “an agent acting as an employer.”

The AAO, relying on the Occupational Outlook Handbook, found the position to be a specialty occupation.  It also acknowledged in connection with the beneficiary’s engineering degree that “use of computers is an integral part of the contemporary study of engineering.” 

The NSC also was found to have erred in requiring production of contracts between the employer and the worksite, and in introducing the concept of  “speculative employment,” which the AAO found to have no basis in statute or regulation.  The AAO further determined that an “agent’ situation did not exist here, and that the employer’s ability to pay the offered wage is within the purview of the Department of Labor, not INS.

-Courtesy of Robert Free, counsel for Petitioner.