dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 84 78623 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 13, 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. § 1101(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 record did not 
establish that the proffered position qualifies as a specialty occupation . On appeal, the Petitioner 
submits additional evidence and asserts that the Director erred in denying the petition. Upon de nova 
review , we will dismiss the appeal. 1 
I. SPECIAL TY 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 follow the preponderance of the evidence standard as specified in Ma tter 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: 
( I) 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 have consistently interpreted 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 in Defensor, 201 F.3d at 387-88, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location(s) in order to properly 
ascertain the minimum educational requirements necessary to perform those duties. In other words, 
as the beneficiaries in that case would provide services to the end-client hospitals and not to the 
petitioning staffing company, the petitioner-provided job duties and alleged requirements to perform 
those duties were insufficient for a specialty occupation determination. See id. 
B. Proffered Position 
The Petitioner indicated that the proffered position is a 'TIBCO developer" arranged for through a 
series of contractual relationships with intermediary vendors and an end-client, and submitted a 
certified labor condition application (LCA) 2 for the "Software Developers, Applications" occupational 
category corresponding to the Standard Occupational Classification (SOC) code 15-1132. Within 
these proceedings the Petitioner has submitted various job descriptions for the proffered position. 3 For 
2 A petitioner submits the LCA to U.S. Department of Labor (DOL) to demonstrate that it will pay an H-IB 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. § 655.73l(a). 
3 We acknowledge that the Petitioner submitted additional information for the job duties, and have closely considered and 
reviewed this material, as with all evidence in the record. For example, the Petitioner discussed the Beneficiary's previous 
coursework for the purpose of correlating the need for the Beneficiary's education with the associated job duties of the 
2 
instance, the Petitioner initially provided a list of the job duties for the position which were largely 
reiterated by the intermediary vendors and the end-client in their letters, as follows: 
• Possess and use experience in design, development and implementation with 
emphasis on solution oriented architecture and distributed and event-driven 
computing; 
• Understand and develop web service protocols such as SOAP and REST; 
• Perform hands-on designing, deploying, monitoring, configuring and trouble­
shooting of enterprise solutions using TIBCO Business works and Business connect 
in a health care environment; 
• Use design patterns and best practices in an efficient manner so as to increase band-
width for new functionality; 
• Conduct analysis and design at various levels of complexity; 
• Follow iterative development lifecycle and methodology; 
• Use message-oriented Middleware, Java and relevant technologies []; 
• Work on Relational database management systems ( especially oracle), SQL and 
PL/SQL along with Data Query Tools[]; 
• Possess and use thorough working knowledge of LINUX, UNIX, and windows 
operating systems; 
• Work on HIPAA EDI Xl2 transaction sets: Claims submission (837); Claims 
payment (835); Enrollment (834); Eligibility inquiry (270); Eligibility response 
(271); Claim status request (276); Claim status response (277); Service review 
(278); and Group premium payment (820); 
• Understand related functional specification and technical documentation. 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not sufficiently establish that the proffered position reqmres an 
educational background, or its equivalent, commensurate with a specialty occupation. 4 
1. Minimum Requirements 
As a preliminary matter, we observe that the Petitioner has provided inconsistent information 
regarding the minimum requirements for the proffered position. The Petitioner maintains in its letters 
submitted at various times throughout the proceeding that at least "a Bachelor's degree, or the 
pos1t10n. However, we are required to follow long-standing legal standards and determine first, whether the proffered 
position qualifies for classification as a specialty occupation, and second, whether the Beneficiary was qualified for the 
position at the time the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz As.mes., 19 l&N Dec. 558, 560 
(Comm'r 1988) ("The facts of a beneficiary's background only come at issue after it is found that the position in which 
the petitioner intends to employ him falls within [a specialty occupation]."). 
4 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
3 
equivalent, in computer science, computer information systems, information systems technologies, or 
a related field" is required for entry into the proffered position. The end-client's letters submitted 
initially and on appeal, each indicate that an "[ a ]ppropriate education, experience, and skill with data 
and integration services" are required for the position, but the end-client does not specifically explain 
therein what would constitute "appropriate" requirements for the position beyond this general 
statement. The prime-vendor letter submitted in response to the Director's request for evidence (RFE) 
stipulates that the position requires "a bachelor's degree 5 or equivalent experience, plus 5 years of 
work experience beyond a degree." Finally, the mid-vendor's letter submitted on appeal states "this 
position commonly requires a [b ]achelor' s degree or higher in [ c ]omputer [ s ]cience or a closely related 
field, or work experience." The Petitioner does not explain why the position requirements in the letters 
from the intermediary vendors and the end-client differ from the position requirements that it put forth. 
The Petitioner must resolve these inconsistencies and ambiguities in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
We conclude that these material inconsistencies erode the Petitioner's ability to demonstrate the 
substantive nature of the proffered position. Unresolved material inconsistencies may lead us to 
reevaluate the reliability and sufficiency of other evidence submitted in support of the requested 
immigration benefit. 6 As the record contains numerous and material inconsistencies relative to the 
Petitioner's minimum requirements for entry into the proffered position, the documentation submitted 
in this regard to establish eligibility for the classification sought lacks probative value and overall 
credibility. 7 
As explained above, we interpret the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a 
degree in a specific specialty that is directly related to the proposed position. The requirements 
specified by the intermediary vendors and the end-client which propose that simply possessing work 
experience would be sufficient to perform the duties of the position, alone indicates that the proffered 
position is not in fact a specialty occupation. For these reasons, the petition may not be approved. 
2. Nature of the Position 
The Petitioner located in Texas, indicates in the petition and on the LCA that it will deploy the Beneficiary 
to an end-client's location in Minnesota to work as a "TIBCO developer" through two intermediary 
vendors pursuant to contractual agreements, as follows: 
Petitioner ➔ H-G- (mid-vendor) ➔ D-C- (prime-vendor) ➔ M- (end-client). 
The Petitioner provided contractual documentation to illustrate this relationship. Nonetheless, it has not 
established definitive, specialty occupation employment for the Beneficiary. 8 The Petitioner states 
that the prime-vendor operates the end-client's managed services program (MSP), and submitted 
5 The prime-vendor did not identify the specific fields of study, if any, that were required. 
6 Id. 
7 Mattero(Chawathe, 25 T&NDec. 369,376 (AAO 2010) (citing MatterofE-M-, 20 T&N Dec. 77, 79-80 (Comm'r 1989)). 
8 The Petitioner most recently employed the Beneficiary through STEM-related post-completion optional practical 
training. 8 C.F.R. § 274.a.12(c)(3)(i)(C); 8 C.F.R 214.2(t)(10)(ii)(C), and has provided copies of wage statements for his 
employment with the Petitioner. 
4 
letters from the end-client which discuss the MSP program, indicating that the prime-vendor is "an 
onsite partner [who] help[ s] coordinate our enterprise talent management strategy." In response to the 
Director's request for evidence (RFE), it submitted pages 1 and 19 of the end-client's 19-page Services 
Agreement (SA) with the prime-vendor which summarizes the arrangement, as follows: 
[The prime-vendor] is in the business of providing services related to the placement of 
temporary contractors ("Temp Contractors") as further defined below that [the prime­
vendor] evaluates, selects, and engages on behalf of [the end-client], using third party 
software applications to more efficiently and cost-effectively select and engage those 
Temp Contractors. [The end-client] wishes to obtain such services, and [the prime­
vendor] is willing to provide them pursuant to the terms that follow below. 
The rest of the document was redacted with the exception of the signatures and job titles of the end­
client and the prime-vendor officials who executed the agreement in July 2014. On appeal, the 
Petitioner provides pages 1, 14, and 19 of this agreement. While page 19 contains the signatures of 
officials for the end-client and the prime-vendor, the omitted pages and redacted text do not establish 
what the parties actually agreed to. We conclude that the Petitioner has not substantiated the relevant 
terms and conditions of the end-client's contractual arrangements with the prime-vendor for the 
administration of the end-client's MSP program through the submission of copies of the end-client's 
contractual documents which were largely omitted or substantially redacted. This is important because 
the Petitioner asserts that the Beneficiary is to be hired as a contract worker for the end-client pursuant 
to this MSP program. 
The Petitioner also submitted a copy of an August 201 7 Sub Supplier Contract for Contract Labor 
Agreement (SSC) between the prime-vendor and the mid-vendor. The SSC describes certain relevant 
attributes of the end-client's MSP program, as follows: 
Scope: [The prime-vendor] is charged with the responsibility for providing the [end­
client] with Contract Workers, [the mid-vendor] will assist [the prime-vendor] in 
discharging this responsibility .... [The mid-vendor] will screen, interview, and 
reference check Contract Workers, and will comply with any other pre-assignment 
screening criteria mutually agreed to and set forth in the requirement on the Contract 
Central tool. ... All Contract Workers assigned to [the end-client] shall be considered 
to be employees of [the mid-vendor]. ... 
[End-client] Obligations: [The end-client] will provide Contract Workers with 
instructions and supervision. [The end-client] will not substantially change the 
assignment or the job duties of Contract Workers without prior notification of [the mid­
vendor]. ... [The end-client] agrees to verify the hours worked by Contract Workers. 
5 
Time Entry: Contract Workers are to record their hours into [the end-client's time 
keeping system], or such system as [the prime-vendor] may direct. [The end-client] 
will pay negotiated rates for billable hours only if authorized [end-client] personnel 
approve such hours in advance. [The prime-vendor] will remit payment to [the mid­
vendor] based only on approved hours submitted to the [end-client]. ... 
Screening Requirements for Contract Workers: [The mid-vendor] must only identify 
and refer individuals on [the end-client's] behalf who are best qualified to perform 
Services for [the end-client.]. . . . [Listing of end-client's background check 
requirements.] 
Guarantee of Satisfaction: [The end-client] will not be charged for the unsatisfactory 
work performed, up to a maximum of sixteen (16) hours. All costs associated with 
replacing the unsatisfactory worker will be the responsibility of the [mid-vendor]. 
Considering the end-client and prime-vendor material, it appears that the prime-vendor is performing 
certain contractual management responsibilities for the end-client that in part form the basis of the 
Beneficiary's employment at the end-client location. However, the record contains no affirmation 
from the end-client that the SSC adequately reflects the terms and conditions of the actual agreement 
between the end-client and the prime-vendor. Therefore, the Petitioner has not established that the 
SSC sufficiently reflects the relevant contractual framework through which the prime-vendor will 
operate the end-client's managed services program (MSP) in order to "provid[e] services related to 
the placement of temporary contractors" with the end-client. 
The Petitioner states: 
Apru is the [prime-vendor] VMS system that [the prime-vendor uses] to [electronically] 
submit and engage contract resources. [The prime-vendor] does not execute individual 
[statements of work (SOWs)] with [the end-client] or [the mid-vendor] for contractors. 
[The prime-vendor] provide[s] on-site Mgt [f]or all temporary workers, IT and Non­
IT. [The prime-vendor] use[s] the APRU system to facilitate the work flow process 
and document/engagement management." 9 
The Petitioner submitted a mid-vendor employee's January 2019 Apru "screen shot" which lists the 
Beneficiary as a contractor for the mid-vendor for an approved end-client engagement commencing 
in August 2018 and ending in December 2019. The screen shot also lists open job requisitions with 
9 The Petitioner has not sufficiently substantiated who manages the end-client's contract workers at the end-client location. 
However, we observe that the prime-vendor's SSC reflects that the end-client, not the prime-vendor, is responsible for 
"provid[ing] Contract Workers with instructions and supervision." The Petitioner must also resolve this inconsistency with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 l&N Dec. at 591-92. 
6 
job titles, such as "Senior Java Developer," and "Sr. DW Developer." However, the screen shot does 
not identify the Petitioner, the job title or job duties of the proffered position, the requirements of the 
position, the end-client's project to which the Beneficiary will be assigned, or the Petitioner's role, if any, 
in the Beneficiary's day-to-day work for the end-client. While this material reflects that the Beneficiary 
has been assigned to work at the end-client location for a period of time, it does not substantiate the terms 
and conditions of his assignment sufficient to establish that the end-client will offer the Beneficiary 
specialty occupation caliber work through the contractual relationships described in the petition.10 
The Petitioner has also presented insufficient documentation of the contractual relationships between 
mid-vendor and the Petitioner. For instance, the Petitioner provided a copy of the mid-vendor's master 
service agreement (MSA) which indicates that the mid-vendor "acts in the role of broker," and the 
Petitioner will provide services to "[the mid-vendor's] client and clients of [the mid-vendor's] clients 
.... as agreed to in Contract Schedule A." The MSA also provides that "[p ]ayment for services will 
be made [to the Petitioner] based on client approved timesheets .... , and notes the "[e]valuation of 
[the Petitioner's employee] performance, if any, shall be made by the client." The mid-vendor's 
Contract Schedule A identifies the Beneficiary and his "on-site manager:! I" 11 and 
indicates the duration of the Beneficiary's assignment will be from February 2019 through December 
2019. The "scope of the effort" is described as "[v]arious Tibco development tasks as it relates to [the 
end-client's] Tibco integration environment," and reiterates that no payment will be made to the 
Petitioner for the Beneficiary's services absent end-client approved timesheets. In similar fashion to 
the end-client and prime-vendor material submitted, the mid-vendor's contractual documentation also 
does not adequately describe the job duties of the proffered position, the requirements of the position, 
the end-client's project to which the Beneficiary will be assigned, or the Petitioner's role, if any, in the 
Beneficiary's day-to-day work for the end-client. 
On appeal, the Petitioner asserts that this material sufficiently demonstrates "an already existing 
relationship" between the end-client and the prime-vendor, the prime-vendor and the mid-vendor, and 
the mid-vendor and the Petitioner. As discussed, the contractual material in the record does not 
adequately describe the specific services to be provided through the contractual relationships between 
and amongst the Petitioner, the intermediary vendors, and ultimately the end-client. Importantly, the 
Petitioner's submission of partial, heavily redacted agreements between the end-client and the prime­
vendor documents diminishes their 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 are of little probative value. We acknowledge that the prime-vendor's letter submitted 
on appeal indicates that it has "a master services agreement" with the end-client, which is unavailable 
"[d]ue to [a] Confidentiality Agreement: between the end-client and the prime-vendor." 12 
10 The Petitioner has also submitted photos of the Beneficiary at the end-client's premises and his end-client work badge 
as verification of his employment at the end-client location. 
11 The Petitioner has also provided an end-client "scrum team structure" organization chart which indicates that this person 
is employed by the end-client as an "advocate" for "Claims Management." Screenshots of the Beneficiary's timesheets 
reflect that I I has approved his timecards. 
12 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 satisty 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 
7 
Nonetheless, it is the Petitioner's burden to prove by a preponderance of 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 has not 
done so through the submission of these documents. 
Though requested by the Director in her RFE, the lack of complete contractual documentation specific to 
the Beneficiary's employment is important because, in this case, the existence of the proffered position 
appears entirely dependent upon the willingness of the end-client to provide it.13 Absent folly executed 
contracts and accompanying statements of work ( or similar documentation, such as copies of 
electronic requisitions and work orders) between the Petitioner and the mid-vendor; the mid-vendor 
and the prime-vendor; and, the prime-vendor and the end-client, the record lacks evidence of any legal 
obligation on the part of the end-client to provide the position described by the Petitioner in this 
petition. 14 The Petitioner did not document the contractual terms and conditions of the Beneficiary's 
employment as imposed by the end-client. See 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). 
While relevant, the letters from the end-client and the intermediary vendors are not sufficient 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 proffered position. For instance, the end­
client's letters do not detail its legal obligation to offer employment to the Beneficiary beyond noting 
that it contracted with the prime-vendor "to help coordinate our enterprise talent management 
strategy," and that "[the mid-vendor] has contracted the services of [the Petitioner] which will be 
providing the services of [the Beneficiary]. ... for a complex business diversification project." 
Significantly, the Petitioner has not sufficiently demonstrated that the signatory of the end-client letters 
was authorized by the end-client to provide such letters. The letters were written on end-client 
letterhead, and the signatory claims to be an "SVP & CIO" for the end-client. However, the signatory 
does not farther explain how he came to have knowledge of the terms and conditions of the 
Beneficiary's employment at the end-client location. 
claim under the Fifth Amendment[; however], in so doing he rnns the risk that he may fail to carry his burden of persuasion 
with respect to his application."). 
Both the Freedom of Information Act and the Trade Secrets Act provide for the protection of a petitioner's confidential 
business information when it is submitted to USCTS. See 5 U.S.C. § 552(6)(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). 
13 "Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the 
[petition]." 8 C.F.R. § 103.2(b)(14). 
14 Cf Galaxy Software Solutions, Inc. v. USCIS, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) 
(describing the petitioner's "fail[ure] to provide all of the contracts governing the relationships between the corporate 
entities in the chain" as a "material gap"). 
8 
Additionally, the signatory does not provide further narrative of his own qualifications to opine 
regarding the Beneficiary's employment, to include discussing on the end-client's behalf the specific 
observations in his letters about the nature of the contractual relationships that collectively form the 
basis of the Beneficiary's assignment at the end-client location. Therefore, these letters, without more, 
hold little probative value. 15 
On appeal, the Petitioner references a USCIS policy memorandum for the proposition that "in addition 
to contracts between the petitioner and its client for that worksite, the petitioner may be able to 
demonstrate the beneficiary has actual work assignments(s) in a specialty occupation by providing a 
combination of [evidence]." 16 The Petitioner has not done so here. In this case, the Petitioner provides 
letters and contractual material which suggest that the end-client utilizes a staff augmentation 
requisitioning and selection process whereby "sub-suppliers" such as the Petitioner are provided with 
the end-client's requisitions which identifies specific work assignments and the worker performance 
requirements for the positions being requisitioned. The "sub-suppliers" can respond to the end-client's 
requisitions by "refer[ring] individuals on [the end-client's] behalf who are best qualified to perform 
Services for [the end-client.]" 17 The "sub-supplier" is issued end-client work orders through the 
prime-vendor's "Apru VMS system" if its candidate is selected for an assignment. 
Notably, the prime-vendor's letter submitted on appeal indicates that "[a]s a managed service provider, 
[the prime-vendor [contracts] first with the [end-client] and then all sub-suppliers that will be 
providing services to the client through the MSP program .... Once a sub-supplier contract has been 
signed between the [prime-vendor] and a Sub-supplier, specific staffing augmentation and staffing 
project needs are documented in work orders. The work order for [the Beneficiary's] current project 
has been provided to USCIS." Notably, the Petitioner has not provided the end-client/prime-vendor's 
Apru requisition and work order for the Beneficiary employment." Here, the prime-vendor's 
statements on appeal about the submission of the Beneficiary's work order to USCIS are inconsistent 
with the Petitioner's claims in its RFE response and on appeal that such documentation is unavailable 
from the end-client/prime-vendor. Therefore, the Petitioner's assertion that end-client documentation 
specifically relating to the Beneficiary's assignment is unavailable seems incongruent with other 
evidence within this petition. The documentation provided is not probative towards establishing the 
terms and conditions of the Beneficiary's assignment as imposed by the end-client. See 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). 
In summary, 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. 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. 18 The Petitioner must resolve these 
inconsistencies and ambiguities in the record with independent, objective evidence pointing to where 
15 Matter of Chawathe, 25 T&N Dec. at 376. 
16 See USCTS Policy Memorandum PM-602-0157, Contracts and Itineraries Requirements for H-1 B Petitions Involving 
Third-Party Worksites (Feb.22.2018), https://www.uscis.gov/legal-resources/policy-memoranda. 
17 See generally the prime-vendor's SSC with the mid-vendor which we previously discussed. 
18 The agency made clear long ago that speculative employment is not permitted in the H-lB program. See, e.g., 63 Fed. 
Reg. 30419, 30419 - 30420 (June 4. 1998). 
9 
the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. Nonetheless, even if we were to set these 
foundational deficiencies aside, we would still be unable to ascertain the substantive nature of the 
proffered position. 
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. As noted, the record lacks 
sufficient evidence to substantiate the Beneficiary's assignment as represented by the Petitioner. 
Again, when a beneficiary will perform the work for entities other than the petitioner, evidence of the 
client companies' job requirements is critical. Defensor, 201 F.3d at 387-88. 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 from 
the end-client regarding the projects and initiatives to which the Beneficiary will be assigned, and the 
actual work that the Beneficiary would perform 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.19 As previously discussed, the contract worker 
requisitioning and placement process collectively described as the "MSP program" in the record 
suggests that the prime-vendor may manage certain aspects of the end-client's staff augmentation 
efforts. Nonetheless, under this arrangement it appears that it is the end-client who issues requisitions 
which ultimately translate into work orders through the Apru VMS system in order to specify the 
actual work to be performed, the requirements to perform such work, and the duration of the work 
assignment when a candidate is accepted for a work assignment. 
Though requested by the Director in her RFE, the Petitioner did not provide sufficient evidence of 
how the Beneficiary's specific job duties relate to the end-client's products and services. 20 In this case, 
the record describes the proffered position with the end-client as that of a contract worker hired to 
augment the end-client's existing information technology staff: but does not sufficiently describe the 
nature of actual work that the Beneficiary will perform at the end-client location. Again, the end­
client material in the record specific to the Beneficiary's employment does not detail the specific 
project or staffing shortage that his employment will address, or otherwise discuss the specific work 
he will perform in the context of its business operation. The prime-vendor's letter asserts that the 
Beneficiary "began work for [the end-client] on a complex diversification project on 08/27 /19," and 
states "[the end-client] has expressed that [the Beneficiary's] services will continue to be needed on 
this project for the foreseeable future," but does not otherwise discuss the nature of the end-client 
project to which he will be assigned." 21 
19 Defensor, 201 F.3d at 387-88. 
20 We must review the actual duties the Beneficiary will be expected to perform to ascertain whether those duties require 
at least a baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a specialty 
occupation. To accomplish that task in this matter, we review the duties in conjunction with the specific project(s) to 
which the Beneficiary will be assigned. To allow otherwise, results in generic descriptions of duties that while they may 
appear (in some instances) to comprise the duties of a specialty occupation, are not related to any actual services the 
Beneficiary is expected to provide. 
21 The letter from the mid-vendor submitted on appeal states that the Beneficiary's services "will be provided for an 
ongoing project which began on 08/27 /18. We anticipate that services for this project will be required beyond 12/31/2020." 
10 
The Petitioner also provided a copy of the end-client's overview of its "commercial products" and a 
draft March 2018 roadmap for a "health services systems" project which will commence in January 
2019 and conclude in December 2019. It also provided an end-client "scrum team structure" 
organization chart which lists the Beneficiary's role therein as an "AI," but did not present material 
sufficient to delineate the Beneficiary's specific role and responsibilities as a member of the end­
client's technology development team(s) for any particular projects or work assignment. To farther 
illustrate, the Petitioner emphasized throughout the proceedings that the Beneficiary will liaise or 
interact with various end-client personnel and stakeholder groups, including: 
• Conduct product demo to Business users to make sure that the features developed 
meet business and system requirements; 
• Work closely with all stakeholders in analyzing the requirements and design the 
functional processes to meet the requirements proposed by the Business Analysts 
teams; 
• Participate in [ software testing activities] to make sure test cases will cover all the 
requirements in such a way the software delivered to end users meet the quality 
standards set by [the] project management team; 
• Attend retrospective meetings to discuss what worked well. 
Though the Petitioner described the job duties of the position, the evidence does not show the 
operational structure within the end-client's information technology initiatives in a manner that would 
establish the Beneficiary's role. We acknowledge that the Petitioner provided copies of the 
Beneficiary's emails showing listings of some of his end-client work assignments, such as 
"277ClaimsAckBatchOutboundServiceV100," and "HRAClaimsAttachmentComponentVl00." The 
emails also show the assignment of work to the Beneficiary by his end-client manager from "the list 
of defects currently open in VI for FFM effectuation." However, the submitted material does not 
communicate the actual work that the Beneficiary will perform on a day-to-day basis within the 
context of the end-client's projects, and the correlation between that work and a need for a particular 
education level of highly specialized knowledge in a specific specialty. 
Additionally, considering the listed duties provided by the Petitioner, we observe that many of these 
items are not job functions, but instead resemble general knowledge and skill requirements for an 
information technology position. To illustrate, listings within the job duties such as "[p ]ossess and use 
experience in design, development and implementation with emphasis on solution oriented 
architecture and distributed and event-driven computing," "[u]nderstand and develop web service 
protocols such as SOAP and REST," and "[u]nderstand related functional specification and technical 
documentation," seem to reflect knowledge and skills that a person might need to perform work, not 
the actual job duties to be performed. 
Other items within the job duty listings describe general information technology job functions, which 
lend little insight into the relative complexity and specialization of the Beneficiary's day-to-day 
duties. 22 For instance, job duties such as "[u]se design patterns and best practices in an efficient 
manner so as to increase band-width for new functionality," "[ c ]onduct analysis and design at various 
22 The mid-vendors' and prime-vendor's verbatim repetition of the generally-stated duties in its letters adds little to our 
understanding of the Beneficiary's actual duties. 
11 
levels of complexity," [f]ollow iterative development lifecycle and methodology, and [w]ork on 
Relational database management systems ( especially oracle), SQL and PL/SQL along with Data Query 
Tools []," do not provide sufficient detail regarding the work these duties with the end-client will 
actually entail, and how these tasks merit recognition of the proffered position as a specialty 
occupation. Therefore, the duties as described by the Petitioner, the intermediary vendors, and the 
end-client, outside of the context of the end-client's information technology projects which require the 
Beneficiary's services, 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. 23 
On appeal, the Petitioner asserts that users "is legally obligated to approve the petition until the specific 
end-date if the documentary evidence justified approving the petition until December 31, 2019 ."24 Later 
on in the appeal brief the Petitioner references the aforementioned users policy memorandum, 25 
discusses the letters and contractual documentation present in the record, and asserts "[t]he foregoing 
evidence clearly establishes the project assignment until December 31, 2020. We disagree. In this 
proceeding it is the Petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.e. § 1361; Matter ofSkirball Cultural Ctr., 25 I&N Dec. 799,806 (AAO 
2012); Matter of Chawathe, 25 I&N Dec. at 376." Here, the Petitioner's has not established the 
availability of specialty occupation work for the Beneficiary at the end-client location for any period of 
time. Setting aside the inadequacy of the documentation establishing that work actually exists for the 
Beneficiary to perform, the record also does not include probative evidence that any work that may be 
available will be H-lB caliber work. On a fundamental level, we conclude that the Petitioner has not 
provided consistent and sufficient material about the end-client's projects that the Beneficiary will be 
engaged in. 
Because the Petitioner has not established the substantive nature of definitive H-lB-caliber 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 e.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. 26 
23 Matter of Chawathe, 25 l&N Dec. at 376. 
24 The Petitioner does not reference, cite, or otherwise discuss any authoritative basis for its assertions regarding USCIS's 
legal obligations. 
25 Contracts and Itineraries Requirements for H- I B Petitions Involving Third-Party Worksites, supra. 
26 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 this topic on 
appeal. 
Additionally for this same reason, we will not address whether the Petitioner's employment agreement with the Beneficiary 
imposes conditions that violate statutory and regulatory provisions related to the Petitioner's payment of the required wage, 
fees and costs. See generally 20 C.F.R. § 655.731(a), (b), (c). 
12 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we need not address 
another ground of ineligibility we observe in the record of proceedings. Nevertheless, we will briefly 
note and summarize it here with the hope and intention that, if the Petitioner seeks again to employ 
the Beneficiary or another individual as an H-lB employee in the proffered position, it will submit 
sufficient independent objective evidence to address and overcome this additional ground in any future 
filing. 
We conclude that the Petitioner has not established that it will be a "United States employer" having 
an "employer-employee relationship" with the Beneficiary as an H-lB temporary "employee." 
8 C.F.R. § 214.2(h)(4)(ii). Without contracts or agreements between all the parties that sufficiently 
detail the terms and conditions of the Beneficiary's employment, we are not able to fully ascertain 
what the Beneficiary will do, as well as how this impacts the Petitioner's ability to control and direct 
the Beneficiary's day-to-day work. Given this specific lack of evidence, and the vague material 
presented in the letters submitted in support of the petition which do not adequately communicate the 
substantive nature of the Beneficiary's work, the Petitioner has not corroborated that the Petitioner has 
or will have control over the Beneficiary's work or duties, or the condition and scope of the 
Beneficiary's services. 
Notably, the supplier agreements provided in support of the petition, indicate that the end-client must 
approve the Beneficiary's hours on his timesheets at the end-client location, and the prime-vendor 
verifies the mid-vendor's invoices based on the Beneficiary's worktime subject to end-client's 
approval. The prime-vendor's SSC further states that "[The end-client] will provide Contract Workers 
with instructions and supervision," while the Petitioner asserts that it is the prime-vendor who 
"provides on-site Mgt [for] all temporary workers, IT and non-IT." Therefore, it appears that the end­
client and the intermediary vendors exercise a substantial level of supervision and control over the 
Beneficiary's work. 
Additionally, the prime-vendor's SSC states that as a means for the end-client's satisfaction with a 
contract worker to be guaranteed, the end-client "will not be charged for the unsatisfactory work 
performed, up to a maximum of sixteen (16) hours." Furthermore, the end-client's letter states that 
the Beneficiary "will work closely with [end-client personnel]," noting "[a]s he works at [the end­
client's] office, he will be expected to follow our standard workplace policies, and his day-to-day 
project deliverables will be reviewed by [an end-client] project manager to ensure that they conform 
to our quality and acceptance standards." Thus, we conclude that the end-client exercises a substantial 
level of supervision and control over the Beneficiary's day-to-day employment. This material starkly 
contrasts with the Petitioner's claim that it exercises control over the Beneficiary's work as his 
"employer," and therefore, does not persuasively establish that the Petitioner will in fact exercise 
control over the Beneficiary's employment at the end-client location. 27 As previously noted, the 
record contains emails that indicate that the end-client assigns tasks to the Beneficiary and the 
Beneficiary submits time sheets to the end-client for approval. The emails also indicate that the end­
client provides access to their systems and applications. 
27 The Petitioner must also resolve these inconsistencies with independent, objective evidence pointing to where the truth 
lies. Matter of Ho, 19 l&N Dec. at 591-92. 
13 
As discussed above, the Petitioner has not demonstrated that it exercises actual control over the 
Beneficiary's work. It appears that the Petitioner's role and responsibilities are essentially limited to 
the administration of the Beneficiary's payroll and other related benefits, including the filing of 
immigration benefits. While social security contributions, worker's compensation contributions, 
unemployment insurance contributions, federal and state income tax withholdings, and other benefits 
are still relevant factors in determining who will control the Beneficiary, other incidents of the 
relationship, e.g., who will oversee and direct the work of the Beneficiary, who will provide the 
instrumentalities and tools, where the work will be located, and who has the ability to affect the 
projects to which the Beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the Beneficiary's employer. Without foll disclosure of all of the 
relevant factors, we are unable to conclude that the requisite employer-employee relationship will exist 
between the Petitioner and the Beneficiary. 
In other words, the Petitioner has not established it 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 the specific work to be performed by the Beneficiary at the end-client 
location. Therefore, the petition cannot be approved for this additional reason. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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. 
14