dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 4831426 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 12, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "Python developer" under the H-lB 
nonirnrnigrant 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 Vermont Service Center denied the petition, concluding that the evidence of record 
does not establish that the proffered position qualifies as a specialty occupation. 
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; Matter ofSkirball Cultural Ctr., 25 I&NDec. 799, 806 (AAO 
2012). Upon de nova review, we will dismiss the appeal. 
I. LAW 
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) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(]) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. The 
court held that the former Immigration and Naturalization Service had reasonably interpreted the 
statute and regulations as requiring the petitioner to produce evidence that a proffered position 
qualifies as a specialty occupation on the basis of the requirements imposed by the entities using the 
beneficiary's services. Id. Such evidence must be sufficiently detailed to demonstrate the type and 
educational level of highly specialized knowledge in a specific discipline that is necessary to perform 
that particular work. 
II. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we conclude first that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the Petitioner has not established the substantive nature of the work that the Beneficiary 
will perform, which precludes a finding that the proffered position satisfies any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 1 
The Petitioner stated that the Beneficiary would work at the end-client's location inl I ~--.........,1 New Jersey, pursuant to contracts executed between the Petitioner and the first vendor, 
between the first vendor and the second vendor, and between the second vendor and the end-client. 
The path of contractual succession therefore appears to be as follows: 
1 The Petitioner submitted documentation to support the H- IB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 
Petitioner ➔ First Vendor ➔ Second Vendor ➔ End-Client 
We conclude first that the Petitioner has not established definitive, non-speculative employment for 
the Beneficiary. The current record is not sufficient to establish that the proffered position actually 
exists, let alone that it is a specialty occupation. Again, the Petitioner claims that the Beneficiary will 
work for the end-client i~ I New Jersey. In support of this assertion, the Petitioner 
submitted a Professional Services Agreement (PSA) executed between the Petitioner and the first 
vendor. The Petitioner has not established this document's relevance to the Beneficiary's assignment 
as it does not reference the Beneficiary; the job title of the proffered position; the job duties and tasks 
to be performed by a Python developer, the proffered position; or the end-client. Nor does the 
document reference the Petitioner's specific role with respect to the Beneficiary's day-to-day work 
with the end-client, or the expected duration of the Beneficiary's work for the end-client. 
The Petitioner also submitted a purchase order executed between the Petitioner and the first vendor. 
Although the purchase order references the Beneficiary and the end-client, it does not reference the 
job title of the proffered position or the job duties and tasks to be performed by a Python developer. 
Moreover, it does not reference the Petitioner's specific role with respect to the Beneficiary's 
day-to-day work with the end-client, or the expected duration of the Beneficiary's work for the end­
client. 
These documents - the PSA and purchase order - are the only legal documents that purport to create 
any obligation to provide work for the Beneficiary to perform. They create no obligation on the part 
of the end-client; the end-client is not a party to any of the referenced agreements. They do not 
establish the existence of a specialty occupation position at the end-client's worksite. In other words, 
there is no evidence of any obligation on the part of end-client to provide the position the Petitioner 
describes in this petition for the Beneficiary. There is little indication that this petition was filed for 
non-speculative employment. 2 If we cannot determine whether the position as described by the 
Petitioner actually exists, then we cannot ascertain its substantive nature, let alone determine whether 
it is a specialty occupation. 
2 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- lB classification on the basis of speculative, or undetermined, 
prospective employment. The H-lB 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 tempormy 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. 
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). 
3 
Beyond the speculative nature of the petition in general, the record does not establish the substantive 
nature of the proffered position. The Petitioner provided two letters from the end-client, which 
included the Beneficiary's job duties. Upon review, we observe that the listed duties are not 
sufficiently detailed to show that the substantive nature of the Beneficiary's duties would require her 
to theoretically and practically apply a body of highly specialized knowledge in a specific specialty. 
For example, the end-client does not provide sufficient information with regard to the order of 
importance and/or frequency of occurrence ( e.g., regularly, periodically, or at irregular intervals) with 
which the Beneficiary will perform the functions and tasks. Thus, the end-client does not specify 
which tasks are major functions of the proffered position. Moreover, the Beneficiary's proposed job 
duties include collaborations with a "technical team," "front-end developers," "analysts (users)," "UI 
team," "business analysts," and a "technical manager," but the end-client has not identified the 
individuals the Beneficiary would work with. 
Further, the record lacks sufficient detail and concrete explanation regarding the project for which the 
Beneficiary will be assigned, 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. Nor does the record provide sufficient detail regarding the 
Petitioner's specific role with respect to the Beneficiary's day-to-day work while at the end-client site. 
In sum, the record contains insufficient evidence from the end-client to establish that specialty 
occupation work exists for the Beneficiary. Without contracts or agreements between all the parties 
that outline the terms and conditions of the Beneficiary's employment, we are not able to fully 
ascertain what the Beneficiary is expected to do and the substantive nature of the proffered position. 
Given this specific lack of evidence and the insufficient job descriptions contained in the record, we 
cannot determine the substantive nature of the work to be performed by the Beneficiary. 
Because the Petitioner has not established the substantive nature of definite, non-speculative work that 
the Beneficiary will perform for the stated end-client, we are unable to evaluate whether the proffered 
position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of 
that work that determines ( 1) the normal minimum educational requirement for entry into the particular 
position, which is the focus of criterion 1; (2) industry positions which are parallel to the proffered 
position and thus appropriate for review for a common degree requirement, under the first alternate 
prong of criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the 
focus of the second alternate prong of criterion 2; (4) the factual justification for a petitioner normally 
requiring a degree or its equivalent, when that is an issue under criterion 3; and ( 5) the degree of 
specialization and complexity of the specific duties, which is the focus of criterion 4. 
III. CONCLUSION 
We therefore conclude that the record does not sufficiently establish the existence of a definite, non­
speculative specialty occupation position. 
4 
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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