dismissed H-1B Case: Business Intelligence

U.S. Citizenship 
and Immigration 
Services 
InRe: 5851495 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 16, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(H)(i)(b), 8 U.S.C. § 110l(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to 
temporarily employ a qualified foreign worker in a position that requires both: (a) the theoretical and 
practical application of a body of highly specialized knowledge; and (b) the attainment of a bachelor's 
or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for entry into 
the position . 
The Director of the California Service Center denied the petition, concluding that the Petitioner did not 
establish that the proffered position qualifies as a specialty occupation . On appeal, the Petitioner 
provides a brief and additional evidence, and asserts that the Director erred in denying the petition. 
Upon de nova review , we will dismiss the appeal. 1 
I. LEGAL FRAMEWORK 
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 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. 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(]) 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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. The 
court held that the former Immigration and Naturalization Service had reasonably interpreted the 
statute and regulations as requiring the petitioner to produce evidence that a proffered position 
qualifies as a specialty occupation on the basis of the requirements imposed by the entities using the 
beneficiary's services. Id. Such evidence must be sufficiently detailed to demonstrate the type and 
educational level of highly specialized knowledge in a specific discipline that is necessary to perform 
that particular work. 
II. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the Petitioner has not established the substantive nature of the work that the Beneficiary 
will perform, which precludes a finding that the proffered position satisfies any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 2 
2 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 
The Petitioner located in Texas, indicates in the itinerary and on the certified labor condition application 
(LCA)3 that it will deploy the Beneficiary to an end-client's location in Maryland to work as a "SAS BI 
Reports Developer" (SBRD) pursuant to agreements executed, as follows: 
Petitioner ➔ C- (mid-vendor) ➔ A- (prime-vendor) ➔ M- ( end-client). 
The Petitioner provided contractual documentation to illustrate this relationship. Nonetheless, it has not 
established definitive, non-speculative employment for the Beneficiary. It initially submitted a 
consulting services agreement (CSA) executed with the mid-vendor for the provision of the 
Petitioner's services to be specifically defined within two other supporting documents. First, a "client 
addendum" to the CSA which will "contain[] the terms and conditions specific to [the mid-vendor's] 
Client." The Petitioner agreed therein to "comply with the terms of the [c]lient [a]ddendum while 
providing [s]ervices to the [c]lient." The submitted client addendum identifies the prime-vendor and 
includes several pages of information identified as "client ±lowdown terms" from the mid-vendor's 
contractual agreement with the prime-vendor. Notably, the record contains no affirmation from the 
prime-vendor regarding whether the information in the client addendum reflects the terms and 
conditions of the actual agreement between the mid-vendor and the prime-vendor. 
Second, the CSA further notes that deliverables to be provided under the agreement will be "described 
in a statement of work [SOW] and/or [w]ork [o]rder." The SOW or work order will detail "the 
particulars of the assignment including location, compensation, the name of the [Petitioner's] 
employee, duration of job performance, and associated skills required to perform the [requested] 
services." The submitted mid-vendor work order identifies the Beneficiary, the prime vendor (as the 
client), and the work location, for employment starting in March 2018, which would be in effect "until 
work is completed to the satisfaction of [the mid-vendor] or terminated pursuant to the CSA." 
However, the work order did not identify the end-client project to which the Beneficiary would be 
assigned, the actual services to be performed for the end-client or the requisite skills and knowledge 
needed to perform them. 
The Director asked in her request for evidence (RFE) for the relevant contractual documentation 
between all of the parties involved in the Beneficiary's specific assignment to evidence the terms and 
conditions of the Beneficiary's proposed employment. She also asked for evidence detailing the 
Beneficiary's proposed employment, such as information about the projects that required his services 
at the end-client location and the actual project work to which he would be assigned. In response to 
the Director's RFE, the Petitioner explained that the end-client is merging with another entity to 
"create one of the largest lodging company and strongest loyalty program[ s] in the industry," and that 
the prime-vendor's work with the end-client involves "consolidate[ing] all reservations, loyalty 
benefits and web analytics into one centralized system." 
The Petitioner provided a copy of the executed master services agreement (MSA) between the end­
client and the prime-vendor, which delegated certain end-client contractual management 
responsibilities to the prime-vendor. For example, under the terms of the MSA, the prime-vendor: (1) 
3 A petitioner submits the LCA to U.S. Department of Labor to demonstrate that it will pay an H-1 B worker the higher of 
either the prevailing wage for the occupational classification in the area of employment or the actual wage paid by the 
employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. 
§ 655.731(a). 
3 
takes on the management responsibilities for "third party contracts ( and the services, assets and 
software that are covered by such [information technology-related] contracts," giving the prime­
vendor "operational, administrative (including handling invoices on behalf of the [ end-client as set 
forth in the MSA]), and maintenance responsibility for the Managed Contracts;" (2) "shall assign an 
adequate number of personnel to perform the [services under the contract]," including ensuring that 
the contract personnel are "properly educated, trained and qualified for the [s]ervices they are to 
perform," and; (3) assumes responsibility on behalf of the end-client "for all employment-related 
issues and requirements (including immigration issues, processing visas, [ and the administration of 
payroll and other related benefits]) arising in connection with [prime-vendor managed] personnel." 
The Petitioner also provided a letter from the end-client which indicated: 
[The prime-vendor] and [the end-client] entered into an Outsourcing Services 
Agreement in 2018. We have been informed, pursuant to this Agreement, that the 
services of [ the Beneficiary], a Business Associate of [ the prime-vendor] and employee 
of [the Petitioner] are required on a temporary basis at [our offices], and with may or 
may not span the duration of [the Beneficiary's] work authorization. [The end-client] 
has no authority over, or knowledge of [the Beneficiary's] immigration status or 
petition documents. 
Considering this end-client material, it appears that the prime-vendor is performing the contractual 
management responsibilities for the end-client that form the basis of the Beneficiary's employment at 
the end-client location. We acknowledge that the Petitioner has also provided a partial copy of a 
master contractor services agreement (MCSA) between the prime-vendor and the mid-vendor, that 
consists of the first and last pages of a 64-page document, which indicates on the first page that "[ the 
mid-vendor] is in the business of providing contract placement of professional personnel trained in 
performing computer technology and other services; and [] [the prime-vendor from time to time 
desires personnel trained in performing such services." 
The Petitioner asserts that "due to confidentiality, the Petitioner is not provided with the entire 
contract, but, the 1st and signature page confirms the existence of contractual path." This material did 
not further describe the specific services to be provided by the mid-vendor through the prime-vendor 
to the end-client. We determine the Petitioner's submission of just the first and last pages of the prime­
vendor's MCSA diminishes its evidentiary value, as it deprives us of the remaining portions that may 
reveal information either advantageous or detrimental to the petitioning organization's claims, and 
therefore, is of little probative value. 4 It is the Petitioner's burden to prove by a preponderance of 
4 The claim a document is confidential does not provide a blanket excuse for a petitioner not providing such a document if 
that document is material to the requested benefit. Although a petitioner may always refuse to submit confidential 
commercial information if it is deemed too sensitive, the Petitioner must also satisfy the burden of proof and runs the risk 
of a denial. Cf Matter of Marques, 16 l&N Dec. 314 (BIA 1977) (holding the "respondent had every right to assert his 
claim under the Fifth Amendment[; however], in so doing he runs the risk that he may fail to carry his burden of persuasion 
with respect to his application."). 
Both the Freedom oflnformation Act and the Trade Secrets Act provide for the protection of a petitioner's confidential 
business information when it is submitted to USCTS. Sec 5 U.S.C. § 552(b)(4), 18 U.S.C. § 1905. Additionally, the 
petitioner may request pre-disclosure notification pursuant to Executive Order No. 12,600, "Predisclosure Notification 
Procedures for Confidential Commercial Information." Exec. Order No. 12,600, 52 Fed. Reg. 23,781 (June 23, 1987). 
4 
evidence that it is qualified for the benefit sought. Matter of Chawathe, 25 I&N Dec. at 376. In 
evaluating the evidence, eligibility is to be determined not by the quantity of evidence alone but by its 
quality. Id. 
The Petitioner also submitted a prime-vendor's work order which does mention the Beneficiary, the 
Petitioner, and the mid-vendor, and identifies that the Beneficiary will be employed as an "application 
developer" commencing in September 2017 through February 2019. We note that the work order does 
not identify the end-client or the location where the Beneficiary is employment, nor does it mention the 
duties of the proffered position, the requirements of the position, the project for which the Beneficiary 
will be assigned, and the Petitioner's role in the Beneficiary's day-to-day work for the end-client. 
Here, the lack of probative contractual documentation is important because, in this case, the existence 
of the proffered position appears dependent entirely upon the willingness of the end-client to provide 
it. If we cannot determine whether the proffered position as described will actually exist, then we 
cannot ascertain its substantive nature so as to determine whether it is a specialty occupation. 5 The 
Petitioner has not sufficiently documented the contractual terms and conditions of the Beneficiary's 
employment as imposed by the end-client. See Defensor v. Meissner, 201 F.3d 384, 387 (where the 
work is to be performed for entities other than the petitioner, evidence of the client companies' job 
requirements is critical). Overall, we determine there is insufficient evidence of an obligation on the 
part of the end-client to provide work for the Beneficiary, let alone work of specialty occupation 
caliber. In other words, the evidence of record is currently insufficient to establish the terms and 
conditions of the proffered position at the end-client location. 
Though relevant, the letters from the end-client, prime-vendor, and mid-vendor are not adequate to fill 
this gap, as they do not sufficiently describe the contractual relationship between the parties such that 
we can ascertain the nature and terms of that relationship and determine whether there is, in fact, a 
legal obligation on the part of the end-client to provide the position the Petitioner describes. For 
instance, the end-client's letter indicates that it "has no authority over, or knowledge of [the 
Beneficiary's] immigration status or petition documents." 6 Further, the prime-vendor and mid-vendor 
letters do not detail its legal obligation to offer employment to the Beneficiary beyond noting that the 
Beneficiary services are "contracted through our vendor, [the Petitioner]." Again, the record lacks 
evidence of any legal obligation on the part of the end-client to provide the position to the Beneficiary 
as described by the Petitioner in this petition, let alone determine its substantive nature so as to 
ascertain whether it is a specialty occupation. 
5 The agency made clear long ago that speculative employment is not pennitted in the H-1 B program. See, e.g., 63 Fed. 
Reg. 30419, 30419 - 30420 (June 4, 1998). 
6 We acknowledge that the Petitioner submits a new end-client letter on appeal. The end-client notes therein that the prime­
vendor "informed" the end-client about the services to be performed by the Beneficiary at its offices, while the Petitioner 
provided a description of the job duties of the position to the end-client. Since the end-client lacks knowledge of the work 
to be performed by the Beneficiary, and must obtain such information from other parties, the end-client letters are not 
probative in establishing the substantive nature of the Beneficiary's proposed employment. See Matter of Chawathe, 25 
I&N Dec. at 376. 
5 
Moreover, a crucial aspect of this matter is whether the duties of the proffered position are described 
in such a way that we may discern the actual, substantive nature of the position. When determining 
whether a position is a specialty occupation, we look at the nature of the business offering the 
employment and the description of the specific duties of the position as it relates to the performance 
of those duties within the context of that particular employer's business operations. 
Considering the evidence in its entirety, we conclude that the record lacks sufficient documentation 
regarding the end-client's project to which the Beneficiary will be assigned, and the actual work that 
the Beneficiary would perform during the intended period of employment to establish the substantive 
nature of the work the Beneficiary will be performing for the end-client, and the associated applications 
of specialized knowledge that their actual performance will require. 7 Nor does the Petitioner provide 
sufficient detail regarding the Petitioner's specific role with respect to the Beneficiary's day-to-day work 
while at the end-client site. For instance, the Petitioner provided a planned work schedule for the 
Beneficiary's "[end-client] integrated reporting" responsibilities. The document provides milestones for 
the completion of various information technology tasks organized under headings, such as "Phase 2 
Tasks: (Design)." However, the Petitioner has not identified the source of the information in this 
milestone task document. We note again that the mid-vendor and prime-vendor's purchase orders do 
not identify the end-client project to which the Beneficiary will be assigned. 
Further, the generally-stated duties provided by the Petitioner, which the mid-vendor, prime-vendor, and 
end-client repeat verbatim, without the context of a specific project and the Beneficiary's actual role in 
the project adds little to our understanding of the Beneficiary's duties. The job descriptions lack sufficient 
detail and concrete explanation to establish the substantive nature of the work the Beneficiary will be 
performing for the end-client. For instance, the Petitioner indicates that the Beneficiary will "modify 
existing reports to make sure that all the customers are accounted for in the reports," "communicate 
regularly with internal members and outside of group project to understand the interdependencies 
within projects and how to resolve data issues," and "maintain and support QA team with testing of 
reports." But, the Petitioner does not provide any detail regarding the work these duties with the end­
client will entail, and how these tasks merit recognition of the proffered position as a specialty 
occupation. The duties as described do not communicate (1) the actual work that the Beneficiary 
would perform; (2) the complexity, uniqueness, or specialization of the tasks; and (3) the correlation 
between that work and a need for a particular level education of highly specialized knowledge in a 
specific specialty. 
The Petitioner also provided a position evaluation authored byl I who concludes that the 
proffered position requires a "minimum of a bachelor's degree in computer science, information 
systems, electrical/electronic enGineering, or a related field, and suitable experience in the relevant 
technologies." I . id not, however, sufficiently identify how he gained the specific 
knowledge of the proffered position, other to note that "[t]he attorneys representing [the Petitioner] 
have provided me with t~e documents relating to this case and other pertinent evidence, required by 
me of the company." 8 _ I opines "[w]hile software development tasks in different 
organizations differ in their technical rigor, in this case the duties listed reflect on a specialized and 
7 Defensor, 201 F.3d at 387-88. 
8 ~---~provided a list of documents provided by the Petitioner's counsel, including the Director's RFE, the 
Petitioner's position descriptions and letters of support, and the Beneficiary's work and education credentials, but did not 
identify what the "other pertinent evidence, required by me of the company" specifically entailed. 
6 
technical set ofresponsibilities, ranging across all software development lifecyle activities." Notably, 
whilel !discusses the Petitioner's business operations generally, he did not mention that 
the Beneficiary will be assigned offsite working for an end-client, or otherwise discuss the nature of 
the duties of the proffered position within the context of the underlying projects to which the 
Beneficiary will be assigned at the end-client location. Instead, he largely analyzes the proffered 
position descriptions provided in support of the petition, which as we have previously discussed, absent 
the context of a specific end-client project - lack sufficient detail to establish the substantive nature of the 
work the Beneficiary will be performing for the end-client, and the associated applications of specialized 
knowledge that their performance requires. 
As a result,! Is evaluation does not assist in establishing that the proffered position 
qualifies as a specialty occupation. We may, in our discretion, use opinion statements submitted by 
the Petitioner as advisory. Matter of Caron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). 
However, where an opinion is not in accord with other information or is in any way questionable, we 
are not required to accept or may give less weight to that evidence. Id. For the sake of brevity, we will 
not address other deficiencies within his analyses of the proffered position. 
Because the Petitioner has not established the substantive nature of definite, non-speculative work that 
the Beneficiary will perform for the stated end-client, we are unable to evaluate whether the proffered 
position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of 
that work that determines (1) the normal minimum educational requirement for entry into the particular 
position, which is the focus of criterion 1; (2) industry positions which are parallel to the proffered 
position and thus appropriate for review for a common degree requirement, under the first alternate prong 
of criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of 
the second alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. Accordingly, the Petitioner has not 
established that the proffered position is a specialty occupation. 9 
III. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
9 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal. 
Additionally for this same reason, we will not address whether the Petitioner's employment contract imposes conditions 
that violate statutory and regulatory provisions related to the Petitioner's payment of the required wage, fees and costs. 
See gencral~v 20 C.F.R. ~ 655.73 l(a), (b), (c). 
7