dismissed H-1B Case: Computer Science

MATTER OF G-I- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 29,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology services company, seeks to temporarily employ the 
Beneficiary as a "computer programmer analyst" under the H-1 B nonimmigrant classification. See 
Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The Director, California Service Center, denied the petition. The matter is now before us on appeal. 
The appeal will be dismissed. 
I. ISSUES 
The Director denied the petition, finding that the evidence of record did not establish that the 
proffered position qualifies as a specialty occupation. As an additional basis, we will also address 
whether the Petitioner has an employer-employee relationship with the Beneficiary. 
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II. SPECIALTY OCCUPATION 
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. 
1 We conduct appellate review on a de novo basis. Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015); see 
also 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the issues on notice or by rule."); Dar v. INS, 891 F.2d 997, 
I 002 n.9 (2d Cir. 1989). 
Matter ofG-I- Inc 
The regulation at 8 C.P.R. § 214.2(h)( 4 )(ii) states, in pertinent part, the following: 
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.P.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.P.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.P.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 
oflanguage which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed 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.P.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.P.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 P.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.P.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. 
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Matter ofG-1- Inc 
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 
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 -1 B petitions for qualified 
individuals 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 individual, 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 or 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, 2·01 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. See Defensor v. Meissner, 201 F.3d at 387-88. 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. !d. 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. Analysis 
We find that the record of proceeding does not contain sufficient information regarding the 
substantive nature of the proffered position. Specifically, the proffered duties and minimum 
requirements for the position are not consistent throughout the record. For example, in its support 
letter dated March 12, 2015, the Petitioner describes the Beneficiary's day-to-day responsibilities as 
follows: 
• Involved in full life cycle of project including planning sessions with project 
managers and business analysts to analyze business requirements in Java. [15%] 
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(b)(6)
Matter ofG-1- Inc 
• Performed analysis and development of implementation tasks using Java, Struts, 
Oracle and UNIX scripting language on Web Logic servers. [20%] 
• Developed the HTTP based Web Service Client which calls up the existing web 
service to get the application related data which comes in XML format. [20%] 
• Designed various tables required for the project in Oracle 9i database and used stored 
procedures and Triggers in the application. [20% ] 
• Involved .in maintenance and documentation of the application installed and 
configured Weblogic in development and testing environment. [15%] 
• Building, testing and deploying the application on Web logic server. [10%] 
However, according to a statement of work (SOW) from 
client), the Beneficiary is responsible for: 
(purported end 
• Development of web application for manage creating and modifying pricing group 
module using Spring MVC, J2EE, JSF, CSS 
• Develop[ing] the UI layout and front-end programming for web application that 
matched requirements using hand written HTML, CSS and JavaScript. 
• Implement[ing] various Validation Controls for form validation and implemented 
custom validation controls with JavaScript and jQuery 
Then, in response to the Director's request for additional evidence (RFE), the Petitioner changed the 
proffered day-to-day responsibilities to: 
• Implement Data Model Extensions for various Entities as per requirement. And 
implemented the integration points in the custom configuration and development. 
[15%] 
• Work on different Java Server pages, Use different techniques and skills related to 
Java, 
J2ee, XML, PLISQL technologies [20%] 
• Create Integration DB and populated different entries of Disbursements going to 
legacy systems and coming back to web as part of reports generation [20%] 
• Work on various Integration requirements between systems for Reports and 
Document Managements. [20%] 
• Worked on Defects the development of the application [15%] 
• Worked on Enhancements, project deliverables, production support issues. [ 10%] 
This, again, differs from the responsibilities provided in the addendum to employment contract, 
which breaks down the Beneficiary's duties into the following: (1) requirement 
gathering and 
leading workshops (10%); (2) system configuration (10%); (3) documentation (15%); (4) source 
code writing (30%); (5) development (20%); and (6) end user support, knowledge transfer (15%). 
In short, the Petitioner has submitted several different descriptions of day-to-day responsibilities for 
the proffered position. Consequently, we are unable to determine what the Beneficiary will actually 
. be doing on a day-to-day basis. 
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(b)(6)
Matter ofG-1- Inc 
There are additional other discrepancies throughout the petition. Specifically, the Petitioner has 
provided inconsistent information regarding the minimum educational requirement for the proffered 
position. 
For example, on appeal, the Petitioner states that the position requires a minimum of a "Master's or 
Bachelor's of Science in any discipline in Engineering, or computer science or information systems 
or a related analytic or scientific discipline or its equivalent in education or work-related 
experience." However, in another letter submitted on appeal, the Petitioner states: "[i]n order to 
work on this position a Baccalaureate or higher degree is the requirement for this position. The 
position demands the solid educational background with couple of years industry experience in the 
market. ... " The Petitioner provided yet another description of minimum requirements in the letter 
from the purported end client, which states that the position "typically requires a person with a 
Bachelor's Degree in Science, Engineering, Information Technology, Mathematics, or Science, or 
other related field in addition to relevant work experience." No explanation for the variances was 
provided by the Petitioner. "[I]t is incumbent upon the petitioner to resolve the inconsistencies by 
independent objective evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to 
explain or reconcile such inconsistencies will not suffice ·unless the Petitioner submits competent 
objective evidence pointing to where the truth lies. !d. at 591-92. With the conflicting information 
regarding the minimum requirements, we cannot determine whether the proffered position requires 
at least a bachelor's deg.ree in a specific specialty. 
Moreover, the Petitioner provided inconsistent information regarding the place of employment for 
the Beneficiary. Specifically, the Petitioner indicated that the Beneficiary would work either at its 
offices in IL or the purported end client site in IL. However, the 
subcontractor services agreement implies that the purported end client is a vendor and not the 
ultimate end client. Specifically, the agreement states in pertinent part, "[the purported end client] 
wishes to have [the Petitioner] supply temporary workers to perform labor for [the purported end 
client]'s clients, and [the Petitioner] wishes to provide these temporary services." It also states "at 
[the purported end client]'[s] request from time to time, [the Petitioner] agrees to supply temporary 
workers for services to be performed for [the purported end client]'s client(s) at client sites." 
Further, while the Petitioner stated that the Beneficiary would be employed in Illinois, the records 
reflect that the Beneficiary lives in another state. For example, the Petitioner stated in its support 
letter that the Beneficiary was "presently working with [the Petitioner] ." The SOW stated that the 
project for the Beneficiary is located in Illinois, to begin on July .1, 2015.2 
However, the pay stub dated July 15, 2015, indicates that the Beneficiary lived in VA on 
that date. An additional pay stub dated August 15, 2015, indicates the Beneficiary's home address 
was in AZ. The Petitioner has not explained how the Beneficiary could be working in 
Illinois while living in either Virginia or Arizona. 
2 USCIS records indicate that the Beneficiary has an optional training authorization valid from June 25, 2015 to 
November 24, 20 16. 
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(b)(6)
Matter ofG-1- Inc 
Moreover, the Petitioner submitted a subcontract between the purported end client and another 
company. While this document references another consultant who is not the Beneficiary and 
appears to have been submitted in error, the document lists the same project as the Beneficiary's 
SOW, but identifies a different location, PA, and a different end client. 
These inconsistencies undermine the Petitioner's claim regarding the Beneficiary's place of 
employment. Again, "it is incumbent upon the petitioner to resolve the inconsistencies by 
independent objective evidence." Matter of Ho, 19 I&N Dec. at 591. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the Petitioner submits competent objective 
evidence pointing to where the truth lies. !d. at 591-92. · 
While the Petitioner indicated that the Beneficiary will be employed either in-house or at the 
purported end client's site in IL, the Petitioner did not submit evidence that it 
develops its own software, and its work appears to be dependent on contracts with clients. 
Moreover, the Petitioner submitted a few existing contracts; however, the SOW is from July 1, 2015, 
for 24 months, and is not valid for the duration of the Beneficiary's requested employment period. 
Further, the Petitioner did not demonstrate that it submitted contracts with the ultimate end client. 
Without further information regarding specific projects to which the Beneficiary would be assigned 
that covers the duration of the period of employment requested, we are not able to ascertain what the 
Beneficiary would do, where the Beneficiary would work, as well as how this would impact 
circumstances of her relationship with the Petitioner. A petition must be filed for non-speculative 
work for the Beneficiary, for the entire period requested, that existed as of the time of the petition's 
filing. The Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 
8 C.F.R. § 103.2(b)(1). A visa petition may not be approved at a future date after the Petitioner or 
Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N 
Dec. 248, 249 (Reg'l Comm'r 1978). 3 
3 The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 8 classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 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 8 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) ofthe 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 8 classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). 
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Matter ofG-1-lnc 
Based on all of the above reasons, including the lack of reliable, detailed information and 
documentation regarding the client projects and the specific duties the Beneficiary will perform, as 
well as the conflicting information regarding the minimum requirements for the position, we find 
that the evidence of record is insufficient to establish the substantive nature of the work to be 
performed by the Beneficiary. 
The inability to establish the substantive nature of the work to be performed by the Beneficiary 
consequently precludes a finding that 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 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, 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. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
As an additional basis, we note that the petition cannot be approved because the Petitioner has not 
demonstrated that it qualifies as a United States employer. As detailed above, the record of 
proceeding lacks sufficient documentation evidencing what exactly the Beneficiary would do for the 
period of time requested or where exactly and for whom the Beneficiary would be providing 
services. Given this specific lack of evidence, the Petitioner has not corroborated who has or will 
have actual control over the Beneficiary's work or duties, or the condition and scope of the 
Beneficiary's services. In other words, the Petitioner has not established whether it has made a bona 
fide offer of employment to the Beneficiary based on the evidence of record or that the Petitioner, or 
any other company which it may represent, will have and maintain the requisite employer-employee 
relationship with the Beneficiary for the duration of the requested employment period. See 8 C.F .R. 
§ 214.2(h)( 4 )(ii) (defining the term "United States employer" and requiring the Petitioner to engage 
the Beneficiary to work such that it will have and maintain an employer-employee relationship with 
respect to the sponsored H-lB nonimmigrant worker). Again and as previously discussed, there is 
insufficient evidence detailing where the Beneficiary will work, the specific projects to be performed 
by the Beneficiary, or for which company the Beneficiary will ultimately perform these 
services. Therefore, the petition cannot be approved for this additional reason. 
IV. CONCLUSION 
As discussed, the evidence of record does not demonstrate: (1) that the proffered position is a 
specialty occupation; and (2) that the Petitioner has a valid employer-employee relationship with the 
Beneficiary. Consequently, the appeal will be dismissed. 
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Matter ofG-1-lnc 
We may deny an application or petition that does not comply with the technical requirements of the 
law even if the Director does not identify all of the grounds for denial in the initial decision. See 
Spencer Enters., Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001); see also Matter 
ofSimeio Solutions, LLC, 26 I&N Dec. 542. 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enters., Inc. v. United States, 229 F. Supp. 2d at 1037; see also BDPCS, Inc. 
v. FCC, 351 F.3d 1177, 1183 (D.C. Cir. 2003) ("When an agency offers multiple grounds for a 
decision, we will affirm the agency so long as any one of the grounds is valid, unless it is 
demonstrated that the agency would not have acted on that basis if the alternative grounds were 
unavailable."). 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe 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. 
Cite as Matter ofG-I- Inc, ID# 15776 (AAO Jan. 29, 2016) 
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