dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 6503603 
Appeal of Nebraska Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 23, 2020 
The Petitioner seeks to extend the temporary employment of 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-IB 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 Nebraska Service Center denied the petition, concluding that the Petitioner had 
not established that the Beneficiary would be employed in a specialty occupation position. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 1 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § l 184(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) 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: 
1 We follow the preponderance of the evidence standard. Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010) . 
(]) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
As recognized by the court in Defensor, where the work is to be performed for entities other than the 
petitioner, evidence of the client companies' job requirements is critical. See Defensor, 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 3 84. Such evidence must be sufficiently detailed to demonstrate the type 
and educational level of highly specialized knowledge in a specific discipline that is necessary to perform 
that particular work. 
II. PROFFERED POSITION 
In the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner stated that the Beneficiary will 
serve as a software consultant. Although the Petitioner's address is i~ IN ew Jersey, the Petitioner 
stated that the Beneficiary would work for its end-client atl I 
Texas through an agreement between the Petitioner and a vendor. The record indicates that the 
contractual path of the Beneficiary's assignment is as follows: 
Petitioner - ~--~ -
(Vendor) (End-Client) 
On the labor condition application (LCA)2 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Computer Systems Analysts" 
corresponding to the Standard Occupational Classification code 15-1121. 
2 A petitioner submits the LCA to the U.S. Department of Labor (DOL) to demonstrate that it will pay an H-1 B worker the 
2 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not include sufficient consistent, probative evidence of the existence of 
specialty occupation work when the petition was filed. The Petitioner also has not demonstrated the 
substantive nature of the work that the Beneficiary will perform, which precludes a finding that the 
proffered position satisfies any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 3 
We conclude first that the Petitioner has not established the existence of definitive, non-speculative 
employment for the Beneficiary. This is particularly important in a case such as this, where the very 
existence of the proffered position is dependent entirely upon the willingness of an end-client to 
provide it. And if we cannot determine whether the proffered position as described in this petition 
would actually exist then we cannot ascertain its substantive nature, let alone determine whether it is 
a specialty occupation. 
Because the Petitioner has not established definitive, non-speculative employment for the Beneficiary, 
the record does not establish that the position described in this petition would actually exist as 
requested. The Petitioner seeks to extend the previously approved employment of the Beneficiary. In 
support of eligibility, the Petitioner resubmitted documentation used in support of the prior petition, 
as well as a copy of the Director's request for evidence (RFE) and the Petitioner's response to the RFE 
from the prior petition. While the Petitioner's submissions are noted, the record as constituted contains 
no contemporaneous documentation demonstrating the continued availability of specialty occupation 
work and the need for the Beneficiary's services to perform such work. 
In this matter, the Petitioner seeks to employ the Beneficiary from January 2019 through August 2021. 
The Petitioner relies on its Contractor Agreement (CA) with the vendor, dated June 29, 2017, which 
is supplemented by two "professional work orders" dated June 29, 2017, and November 16, 2017, 
respectively. Each of the work orders, executed pursuant to the CA, indicates that the Beneficiary will 
be assigned to work at the end-client site as a "validation analyst" pursuant to the CA. 4 The most 
recent work order indicates that this assignment will continue until December 31, 2019. 
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 The Petitioner submitted documentation to support the H- lB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
4 The record identifies the proffered position differently throughout the record. On the Form 1-129, the Petitioner indicates 
that the proffered position is a computer systems analyst. In its letter of support, it describes the position as that of a 
software consultant. In the employment contract between the Petitioner and the Beneficiary, the proffered position is 
identified as a computer programmer. Finally, the two work orders described above identify the proffered position as a 
validation analyst. No explanation for the variances in the title of the position was provided. The Petitioner must resolve 
these inconsistencies with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 T&N Dec. 
582, 591-92 (BIA 1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of 
other evidence submitted in support of the requested immigration benefit. Id. 
3 
Although the Director requested additional, contemporaneous documentation demonstrating the 
availability of specialty occupation work for the Beneficiary, the Petitioner did not submit such 
evidence. Here, the lack of probative contractual documentation is important because, in this case, the 
existence of the proffered position appears dependent entirely upon the willingness of the end-client 
to provide it. If we cannot determine whether the proffered position as described will actually exist, 
then we cannot ascertain its substantive nature so as to determine whether it is a specialty occupation. 5 
The Petitioner has not sufficiently documented the contractual terms and conditions of the 
Beneficiary's employment as imposed by the end-client. See Defensor v. Meissner, 201 F.3d 384,387 
(where the work is to be performed for entities other than the petitioner, evidence of the client 
companies' job requirements is critical). 
The record is devoid of any evidence from the end-client. There is no contractual documentation 
between the Petitioner and the end-client, or the vendor and the end-client, outlining the terms and 
conditions of the Beneficiary's proposed assignment, the nature of the claimed project, its duties and 
deliverables, or its duration. Moreover, there is no other documentation from the end-client attesting 
to the existence of an agreement between the vendor and the end-client for the Beneficiary's services. 
While there may have previously been an agreement between the vendor and the end-client for the 
Beneficiary's services, as suggested by the old work orders contained in the record, there is no 
additional documentation demonstrating that this project has been renewed or extended. 
Absent documentation from the end-client outlining the nature of the work to be performed and the end­
client's minimum educational requirements to perform the duties associated with the potential 
assignment, we cannot determine whether specialty occupation work is in fact available. Again, as 
recognized by the court in Defensor, where the work is to be performed for entities other than the 
petitioner, evidence of the client companies' job requirements is critical. See Defensor, 201 F.3d at 
387-388. 
This omission, coupled with the lack of contemporaneous documentation establishing a current 
agreement for the Beneficiary's services between any of the parties, raises further questions regarding 
the exact nature of the Beneficiary's proposed assignment. The project upon which the Beneficiary 
will allegedly work for the requested validity period (i.e., January 2019, through August 2021), was 
never identified. The most recent work order between the Petitioner and the vendor indicates an 
expiration date of December 31, 2019, and no clause for extension appears in that document. Finally, 
the absence of any contractual documentation between the vendor and the end-client for the 
Beneficiary's services raises further questions regarding the existence of the claimed assignment. 
We further note the submission of an affidavit from a co-worker of the Beneficiary suggesting he is 
performing services at the end-client location. However, as discussed above, absent documentation 
establishing the nature and duration of the Beneficiary's assignment and his associated duties for the 
period from January 2019 through August 2021, this document is not persuasive. Moreover, we note 
that the affidavit states that the project upon which the Beneficiary purportedly works extends only 
until December 31, 2019. 
5 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). 
4 
Therefore, while the Petitioner claims in its supporting documentation that the nature of the 
Beneficiary's assignment is ongoing, no documentation to support this assertion was provided. 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 of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). Overall, 
we determine there is insufficient evidence of an obligation on the part of the end-client to provide 
work for the Beneficiary, let alone work of specialty occupation caliber. In other words, the evidence 
of record is currently insufficient to establish the terms and conditions of the proffered position at the 
end-client location. 
Finally, we note the Petitioner's repeated reliance on another petition that had been previously filed 
on behalf of the Beneficiary. The Director's decision does not indicate whether the prior approval of 
the other nonimmigrant petition was reviewed. If the previous nonimmigrant petition was approved 
based on the same unsupported and contradictory assertions that are contained in the current record, 
the approval would constitute material and gross error on the part of the Director. We are not required 
to approve petitions where eligibility has not been demonstrated, merely because of prior approvals 
that may have been erroneous. See Matter of Church Scientology Int'l, 19 I&N Dec. 593, 597 
(Comm'r 1988). It would be "absurd to suggest that [USCIS] or any agency must treat acknowledged 
errors as binding precedent." Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). 
Here, rather than submit contemporaneous documentation in support the instant petition, the Petitioner 
submitted documentation used to support its prior approval, including the entire RFE response from 
the prior petition. The Petitioner asserts in this matter that the RFE issued in the prior matter was very 
similar to the Director's request in the instant petition, and therefore the Petitioner chose to resubmit 
the previous response in its entirety rather than submit documentation relating to the petition ( and 
requested validity dates) currently before us. It remains the Petitioner's burden to provide probative 
evidence that preponderantly establishes that it will provide qualifying work for the Beneficiary for 
the time period it requests on the petition. A prior approval does not compel the approval of a 
subsequent petition or relieve the Petitioner of its burden to provide sufficient documentation to 
establish current eligibility for the benefit sought. Temporary Alien Workers Seeking Classification 
Under the Immigration and Nationality Act, 55 Fed. Reg. 2,606, 2,612 (Jan. 26, 1990) (to be codified 
at 8 C.F.R. pt. 214). A prior approval also does not preclude USCIS from denying an extension of an 
original visa petition based on a reassessment of eligibility for the benefit sought. See Tex. A &M Univ. 
v. Upchurch, 99 F. App'x 556 (5th Cir. 2004). Furthermore, our authority over the service centers is 
comparable to the relationship between a court of appeals and a district court. Even if a service center 
director had approved the nonimmigrant petitions on behalf of a beneficiary, we would not be bound 
to follow the contradictory decision of a service center. See La. Philharmonic Orchestra v. INS, No. 
98-2855, 2000 WL 282785, at *3 (E.D. La. 2000), affd, 248 F.3d 1139 (5th Cir. 2001). 
In this matter, the record does not contain sufficient and probative documentation from ( or endorsed 
by) the end-client, the company that will actually be utilizing the Beneficiary's services, that identifies 
the essence and duration of the project, the substantive nature of the duties the Beneficiary will carry 
out, and any particular academic or work experience requirements for the proffered position. 
Therefore, based upon our review of the record, we conclude that the Petitioner has not established 
the substantive nature of the work the Beneficiary will perform. This precludes a conclusion 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 entry into 
5 
the particular position, which is the focus of criterion one; (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 two; (3) the level of complexity or uniqueness of the proffered 
position, which is the focus of the second alternate prong of criterion two; (4) the factual justification 
for a petitioner normally requiring a degree or its equivalent, when that is an issue under criterion 
three; and ( 5) the degree of specialization and complexity of the specific duties, which is the focus of 
criterion four. 
Based on the foregoing, we cannot conclude that the proffered position qualifies as a specialty 
occupation, and we will dismiss the appeal. 
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. 
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