dismissed H-1B Case: Computer Consulting

(b)(6)
DATE: JUL 3 0 2015 
IN RE: Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service' 
Administrative Appeals Offic,e 
20 Massac husetts Ave., N.W ., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section I 01 (a)( IS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U .S.C. § 110 I (a)( IS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § I 03.5. 
Motions must be filed on a Notice of Appeal or Motion (Form 1-2908) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis .gov/i-290b) contains the latest information on fee, filing 
location , and other requirements . Please do not mail any motions directly to the AAO. 
Ron Rosen berg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. 
The matter is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. 
I. PROCEDURAL BACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
12-employee "Computer Consulting" firm established in In order to continue to employ the 
beneficiary in what it designates as a "Programmer Analyst" position, the petitioner seeks to classify 
him as a nonimmigrant worker in a specialty occupation pursuant to section 101(a)(l5)(H)(i)(b) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(H)(i)(b). 
The Director denied the petition, finding the evidence insufficient to establish that the proffered 
position qualifies for classification as a specialty occupation position. On appeal, the petitioner 
asserts that the Director's basis for denial was erroneous and contends that the petitioner satisfied all 
evidentiary requirements. 
The record of proceeding before us contains: (1) the petitioner's Form I-129 and the supporting 
documentation filed with it; (2) the service center's request for additional evidence (RFE); (3) the 
petitioner's response to the RFE; ( 4) the Director's denial letter; and (5) the Notice of Appeal or 
Motion (Form I-290B) and the petitioner's submissions on appeal. We reviewed the record in its 
entirety before issuing our decision. 1 
II. SPECIALTY OCCUPATION 
The issue is whether the evidence of record establishes that the petitioner will employ the 
beneficiary in a specialty occupation position. 
A. 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. 
The regulation at 8 C.F .R. § 214.2(h)( 4 )(ii) states, in pertinent part, the following: 
1 Weconductappellatereviewonadenovobasis. SeeSoltanev.DOJ,381 F.3d 143, 145(3dCir.2004). 
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Specialty occupation means an occupation which [(1)] 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 [(2)] 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.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed 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 [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F .R. § 214.2(h)( 4 )(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp ., 489 U.S. 561 (1989); Matter 
ofW-F- , 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result 
in particular positions meeting a condition under 8 C.F .R. § 214.2(h)( 4 )(iii)(A) but not the statutory 
or regulatory definition . See Defensor v. Meissn er, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
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term "degree" in the criteria at 8 C.F.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. 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"). Applying this standard, USCIS regularly approves H-1B petitions for qualified aliens 
who are to be employed as engineers , computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly 
been able to establish a minimum entry requirement in the United States of a baccalaureate or higher 
degree in a specific specialty or its equivalent directly related to the duties and responsibilities of the 
particular position, fairly represent the types of specialty occupations that Congress contemplated 
when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations , are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry 
into the occupation, as required by the Act. 
We note that, as recognized by the court in Defensor, supra, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. See 
Defensor v. Meissner , 201 F.3d at 387-388. 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. at 384. 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. 
B. The Proffered Position and Employment Locations 
The Form I-129 requests employment from September 30, 2014 to September 29, 2017. The 
petitioner indicated that it is located in NJ, but the beneficiary would work at 
2A . The Labor Condition Application (LCA) submitted to support the visa 
petition is certified for employment both at the petitioner's address in NJ, and at the 
California location. The LCA also states that the proffered position corresponds to 
~tanaara Occupational Classification (SOC) code and title 15-1131, Computer Programmers, from 
the Occupational Information Network (O*NET), at a wage level I (entry). 
In a letter dated September 24, 2014, the petitioner stated that the beneficiary "will perform the job 
duties as a Programmer Analyst for being implemented by through on H-
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lB until 09117/2017" and identified the work location as CA 
The petitioner described the parties involved in the project as follows: 
a) End User Client 
b) Implementation Partner 
c) -~econaary v enaor 
d) [The petitioner]-Petitioner Company 
However, later in the letter, the petitioner also stated that "the certified LCA ... clearly indicates that 
the beneficiary will be employed bv the petitioner to work in-house as a Programmer Analyst on its 
POM project" at its location in NJ. 
The petitioner provided a letter from dated Sentember 22, 2014 which states that the 
beneficiary will be working as an "ETL lead" at the CA location from September 2, 2014 
to September 1, 2017. The petitioner also provided a letter from dated September 16, 2014, 
which states that the beneficiary is a "contractor at m ' CA, and 
that the "anticipated need for [the beneficiary] is for 3 years." However , also provided a 
purchase order dated August 29, 2014, which indicates that the beneficiary will be at 
for "2+ months with possible extension" for its client, 
In response to the RFE, the petitioner reiterated that the beneficiary will be assi12:ned at for 
the duration of the employment and submitted letters from and that validated its 
claims. The petitioner also provided an itinerary which identified address in , CA, 
as the venue where 100% of the beneficiary's time will be spent. 
On appeal, the petitioner states that the beneficiary's assignment at was terminated 
"unexpectedly" on November 26, 2014, and the beneficiary will be employed in-house for the 
duration of the requested employment period. 
C. Analysis 
To ascertain the intent of a petitioner , USCIS must look to the Form I-129 and the documents filed 
in support of the petition . It is only in this manner that the agency can determine the exact position 
offered , the location of employment, the proffered wage, et cetera. Pursuant to 8 C.F.R. 
§ 214.2(h)(9)(i), the Director has the responsibility to consider all of the evidence submitted by a 
petitioner and such other evidence that he or she may independently require to assist his or her 
adjudication. Further, the regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that "[a]n H-1B petition 
involving a specialty occupation shall be accompanied by [d]ocumentation .. . or any other required 
evidence sufficient to establish ... that the services the beneficiary is to perform are in a specialty 
occupation." 
Upon review of the totality of the record, we find that the record lacks substantive evidence 
establishing that, at the time the petition was filed, the petitioner had secured non-speculative work 
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for the beneficiary that corresponds with its claims regarding the work to be performed for 
Specifically, while the petitioner asserted that the beneficiary would be assigned at m 
CA for the duration of the requested employment, the purchase order from indicates 
that the project duration is "2+ months with possible extension." On appeal, the petitioner 
submitted copies of emails from which indicate that the beneficiary's report date at was 
September 2, 2014, and that they received notification that the last day of service for the beneficiary 
at is November 26, 2014. This is consistent with purchase order describing the 
project duration as "2+ months with possible extension." Further, there is no information in the 
record to establish that the beneficiary's assignment at was intended for the duration of the 
requested employment, and the termination in November 2014 was "unexpected." Notably, the 
petitioner did not submit documents such as contracts, statements of work, work orders, service 
agreements, or letters from the end-client to validate its claim. On appeal, the petitioner submitted a 
copy of email from who appears to work for However, the purpose 
of the email is to recognize the beneficiary's effort in the project ana does not provide any 
information about project ending "unexpectedly" or its originally intended duration. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Sojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). Therefore, 
the petitioner has not overcome the Director's decision on this issue. 
On appeal, the petitioner 
claims that the beneficiary would work in-house at its location. 
However, we find that the petitioner did not provide sufficient, credible evidence to establish in­
house employment for the beneficiary for the validity of the requested H-1 B employment. 
The petitioner described the beneficiary's in-house projects as follows: 
1. Petitioner's (through affiliate 1 own 
product, Purchase Order Management (POM); and 
2. , pursuant to a valid contract executed between the 
petitioner (through affiliate Inc) and 
Notably, while the petitioner asserts that is an affiliate, there is no rP.f'.nrrl in the proceeding 
to establish its relationship with we note that the petitioner and lfe located in 
the same building, but their suite numbers are different. Specifically, the petitioner is located at 
and is located at . Further, there is 
no evidence that has agreed to use the petitioner's personnel in developing the projects. 
To corroborate the assertion that it is developing the POM project, the petitioner provided 
documents entitled Business Requirements Specification, Software Requirements Specification, 
High Level Design, System Test Plan, Kick Off Presentation - PO Mana!!ement System V2. 
Notably, all the documents except Business Requirements Specification are or letterhead. 
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To corroborate the assertion that it is developing the , the petltwner provided 
documents including a statement of work (SOW), invoice, and confidentiality agreement. However, 
the documents are executed between and 
and there is no evidence that the 
petitioner is a party to this project. 
However, assuming arguendo that the is an affiliate, the evidence still does not establish 
that the petitioner has in-house project tor the duration of requested employment period. For 
example, the SOW from indicates that it is "in effect from Nov-14-2014 until the later of 
completion and acceptance of the work or Dec-05-2015." Likewise, on appeal, the petitioner 
indicates that POM project is "projected to continue until December 31, 2015." The petitioner did 
not provide further evidence to establish that the petitioner would have additional projects for 
duration of the requested employment period. 
Moreover, there are inconsistencies in the record that undermine the petitioner's credibility 
re2:arding the proffered position. For example, while the petitioner submitted the invoice from 
to claim that the beneficiary will work on the project, the invoice explicitly states that it was 
paid for "offshore IT resources to support various IT projects" and there is no indication that the 
project was to be performed in the United States. 
Further, the wage level designated by the petitioner does not correspond to the job description. As 
mentioned, the petitioner designated the proffered position on the LCA as a Level I (entry) position. 
In designating the proffered position at a Level I wage, the petitioner has indicated that the proffered 
position is a comparatively low, entry-level position relative to others within the occupation? 
2 A Level I wage rate is described in DOL's "Prevailing Wage Determination Policy Guidance" as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have 
only a basic understanding of the occupation. These employees perform routine tasks that 
require limited, if any, exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices, and programs . The employees may 
perform higher level work for training and developmental purposes . These employees work 
under close supervision and receive specific instructions on required tasks and results 
expected. Their work is closely monitored and reviewed for accuracy. Statements that the 
job offer is for a research fellow, a worker in training , or an internship are indicators that a 
Levell wage should be considered. 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _1 I_ 2009 .pdf 
Thus, in accordance with the above DOL explanatory information on wage levels, the Level I wage rate 
indicates that the beneficiary is only required to have a basic understanding of the occupation and carries 
expectations that the beneficiary perform routine tasks that require limited , if any , exercise of judgment ; that 
he would be closely supervised; that his work would be closely monitored and reviewed for accuracy; and 
that he would receive specific instructions on required tasks and expected results. 
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However, in its support letter dated September 24, 2014, the petitioner indicated that fot 
project, the beneficiary will "lead the offshore team and work[sic] on complex problems where 
analysis of situation requires in-depth fault analysis and trouble shooting skills" For the POM 
project, the petitioner indicates that the beneficiary will "[£]unction as the Onsite/Offshore 
Coordinator and Team Lead." Further, described the beneficiary's project role as "ETL 
Lead." The petitioner's designation of the proffered position as a Level I, entry-level position is 
inconsistent with the job description, and raises additional questions regarding the substantive nature 
of the proffered position. 3 
A petition must be filed for non-speculative work for the beneficiary for the entire period requested 
that existed as ofthe time of the petition's filing. USCIS regulations affirmatively require a petitioner 
to establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. 
103.2(b)(1). Again, a visa petition may not be approved based on speculation of future eligibility or 
after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin 
Tire Corp., 17 I&N Dec. 248. Here, the petitioner did not submit sufficient credible documentary 
evidence that it had specialty occupation work available for the beneficiary for the duration of the 
requested time period.4 
3 The issue here is that the petitioner's designation of this posrtron as a Level I, entry-level posrt10n 
undermines its claim that the position is relatively higher than other positions within the same occupation. 
Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an 
entry-level position would still require a minimum of a bachelor's degree in a specific specialty , or its 
equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation 
qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a 
bachelor's degree in a specific specialty or its equivalent. That is, a position's wage level designation may be 
a consideration but is not a substitute for a determination of whether a proffered position meets the 
requirements of section 214(i)(1) of the Act. 
4 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For 
example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative , or 
undetermined , prospective employment. The H-1 B classification is not intended as a vehicle 
for an alien to engage in a job search within the United States, or for employers to bring in 
temporary foreign workers to meet possible workforce needs arising from potential business 
expansions or the expectation of potential new customers or contracts. To determine whether 
an alien is properly classifiable as an H-1 B nonimmigrant under the statute, the Service must 
first examine the duties of the position to be occupied to ascertain whether the duties of the 
position require the attainment of a specific bachelor's degree. See section 214(i) of the 
Immigration and Nationality Act (the "Act") . The Service must then determine whether the 
alien has the appropriate degree for the occupation. In the case of speculative employment, 
the Service is unable to perform either part of this two-prong analysis and, therefore, is 
unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
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We further find that the evidence of record does not establish (1) the actual work that the beneficiary 
would perform, (2) the complexity, uniqueness and/or specialization of the tasks, and/or (3) the 
correlation between that work and a need for a particular level education of highly specialized 
knowledge in a specific specialty. These material omissions preclude a determination that the 
petitioner's proffered position qualifies as a specialty occupation under the pertinent statutory and 
regulatory provisions. There is a lack of probative evidence substantiating the petitioner's claims 
with regard to the proffered position. 
That the petitioner did not establish the substantive nature of the work to be performed by the 
beneficiary precludes a finding that the proffered position is a specialty occupation under 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 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. 
As the petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. We affirm the Director's determination that the petitioner has not provided a description 
of the actual work the beneficiary will perform and has not established that it has sufficient H-lB 
work for the requested period of intended employment. The appeal will be dismissed and the petition 
denied. 
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; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
63 Fed. Reg. 30419 , 30419 - 30420 (June 4, 1998). While a petitioner is certainly permitted to change its 
intent with regard to non-speculative employment, e.g., a change in duties or job location, it must nonetheless 
document such a material change in intent through an amended or new petition in accordance with 8 C.F.R . § 
214.2(h)(2)(i)(E).