dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 8793211 
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. 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. § 110l(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 Petitioner did not 
sufficiently establish that: (1) the Beneficiary will be employed in a specialty occupation for the 
requested period and (2) the proffered position qualifies as a specialty occupation. 
Upon de nova review , we will dismiss the appeal. 1 
I. SPECIALTY OCCUPATION 
A. 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. 
1 We follow the preponderance of the evidence standard as specified in Matter 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: 
(]) 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). 
B. 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). 2 
The Petitioner, which is located in New Jersey, indicated on the Form I-129, Petition for a Nonimmigrant 
Worker, and on the certified labor condition application (LCA)3 that the Beneficiary will work as a java 
developer for an end-client, inl !Pennsylvania, for the petition's entire employment period as 
follows: Petitioner ➔ C-G- (mid-vendor) ➔ S-I- (end-client). 
2 The Petitioner submitted documentation to supp01t 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. 
3 A petitioner submits the LCA to U.S. Department of Labor 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 2 l 2(n)(l) of the Act; 20 C.F.R. 
§ 655.73l(a). 
2 
We conclude first that the Petitioner has not established definitive, non-speculative employment for 
the Beneficiary. 4 The current record is not sufficient to establish that the proffered position actually 
exists, let alone that it is a specialt) occupation. Again, the Petitioner claims that the Beneficiary will 
work for the end-client inl~ __ ___. Pennsylvania. In support of this assertion, the Petitioner submitted 
a "Staffing Services Agreement" (SSA) document it executed with the mid-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 
java 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 "Fieldglass 
Work Order" (WO) document between the Petitioner and the mid-vendor. While the WO does reference 
the Beneficiary, and reflects that the Beneficiary was hired by the mid-vendor to perform "web developer" 
services from January 2019 through December 2020 at a location inl I Pennsylvania, it does not 
reference the Petitioner, the requirements for the proffered position or the job duties and tasks to be 
performed by a java developer, the proffered position. The WO also does not identify the end-client or 
the specific project(s) to which the Beneficiary will be assigned other than to note that the assigned task 
is for .__ _______________ _." the position's role rarity is identified as 
"generalist/commodity", the job code is classified as "US/Liquid Hub," and the position will be located 
within the '.__ _________ ~ business unit. Therefore, the referenced documents are not 
sufficient to substantiate what type of work the Beneficiary would perform for the mid-vendor, and 
ultimately for the end-client. 
On appeal, the Petitioner references USCIS policy memorandum 5 for the proposition that in the 
instance of third-party placement of a beneficiary at an end-client location "the petitioner may be able 
to demonstrate that the Beneficiary has an actual work assignment by providing a combination of [] 
evidence," and then itemizes examples of such evidence discussed in the USCIS memo, such as copies 
of relevant signed contracts between the parties, detailed statements of work, and letters from the end­
client where the Beneficiary will work. Notably, the Director asked for such evidence in her request 
for evidence (RFE). However, the Petitioner has not sufficiently addressed this aspect. 6 
Here, the aforementioned SSA and WO 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. Absent folly executed contracts and 
accompanying statements of work ( or similar documentation) between the Petitioner and the mid­
vendor, and the mid-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. 7 In other 
4 The Petitioner employed the Beneficiary through post-completion optional practical training, and has provided copies of 
wage statements for his employment with the Petitioner. 8 C.F.R. §§ 274a.12(c)(3)(i)(B), 214.2(f)(10)(ii)(A)(3). 
5 See USCIS Policy Memorandum PM-602-0157, Contracts and Itineraries Requirements for H-JB Petitions Involving 
Third-Party Worksites (Feb.22.2018), https://www.uscis.gov/legal-resources/policy-memoranda. 
6 "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)(l4). 
7 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"). 
3 
words, there is insufficient 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. 8 Ifwe 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. 
Though relevant, the letters from the mid-vendor and the end-client 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 position the Petitioner describes. For example, 
one mid-vendor letter simply states "[ d]ue to confidentiality requirements, [the mid-vendor] cannot 
provide copies of contract documents between [the mid-vendor] and [the end-client] including POs or 
SOW s, to any third party. 9 Another mid-vendor's letter indicates that it will place the Beneficiary 
with the end-client through an "on-going contract with [the Petitioner]," but does not discuss the nature 
of its own contractual relationship with the end-client. 
The Petitioner also provided letters from! I andl [ who each indicate that 
he or she is a "development manager" with the end-client. The letters present nearly identical 
information, and discuss various aspects of the contractual relationships between the parties, such as 
8 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-lB 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). 
9 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 satisfy 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 
claim under the Fifth Amendment[; however], in so doing he runs the risk that he may fail to cany 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 USCIS. See 5 U.S.C. § 552(b)(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). 
4 
"[the Petitioner] hired the [B]eneficiary and contracted his services to [the mid-vendor]," "there is no 
Employer-Employee relationship between [the end-client] and [the Beneficiary]," and "[the mid­
vendor] determines whether to expand, reduce, or modify the [B]eneficiary's duties/responsibilities." 
The Petitioner, however, has not established through the submission of these letters that it has secured 
a commitment from the end-client to actually provide the work described in this petition. 
Importantly, the Petitioner has not sufficiently demonstrated that the signatories of the end-client 
letters were authorized by the end-client to provide such letters. The letters were written on end-client 
letterhead, and the signatories each claim to be development managers for the end-client. However, 
the signatories do not further explain how they came to have knowledge of the terms and conditions 
of the Beneficiary's employment at the end-client location. Additionally, neither signatory provides 
further narrative of his or her own qualifications to opine regarding the Beneficiary's employment, to 
include discussing on the end-client's behalf the specific observations in their 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. 10 Again, if a 
petitioner is unable to establish that qualifying work actually exists, we cannot determine whether the 
proffered position is a specialty occupation. 
Considering the evidence of record, we conclude that the Petitioner has provided insufficient evidence 
of the contractual relationships regarding the Beneficiary's off-site employment. Here, 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). 11 
On appeal, the Petitioner asserts "we acknowledge that some documents on record, specifically [the mid­
vendor] letter and SOW from [the mid-vendor] states there is specialty occupation work available to the 
Beneficiary until December 31, 2020. We ask that this petition be approved till at least December 31, 
2020 per the 2018 Policy Memorandum." 12 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-1 B 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. The 
Petitioner initially provided no statement regarding the Beneficiary's placement at the end-client 
10 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. 
11 Matter of Sofjici, 22 I&N Dec. 158, 165 (Comm'r 1998). The reviewing authority's determination may not be permitted 
to rest on mere speculation, surmise, or conjecture. The Petitioner must support assertions-be it the petitioning 
organization's own assertions or another party's-with relevant, probative, and credible evidence. See Matter of Chawathe, 
25 T&N Dec. at 376. When a fact is claimed to be true, and is based on irrevocable agreements, the Petitioner should 
produce probative material that surpasses simple pronouncements within correspondence. In evaluating the evidence, the 
truth is to be determined not by the quantity of evidence alone but by its quality. Sec Id. at 376 (quoting Matter ofE-M-, 
20 I&N Dec. 77, 79-80 (Comm'r 1989)). The quality of correspondence does not measure up in a preponderant fashion 
in comparison to that of binding contractual materials, and is inadequate to satisfy the Petitioner's burden of proof. 
12 See Contracts and Itineraries Requirements for H-lB Petitions Involving Third-Party Worksites, supra. 
5 
location. Though the Petitioner submitted letters from the mid-vendor and the end-client that state the 
Beneficiary will be working at the end-client site, they are not sufficient. For instance, the end-client 
signatories state in their letters "[a]s a java developer subcontracted by [the mid-vendor], [the 
Beneficiary] is involved in software development where we leverage his experience in the following 
areas: 
The [end-client]~-------~ is used to facilitate the wealth management and 
investment processing needs of our clients worldwide. The scope of the platform is 
comprehensive and includes client relationship management, investment management, 
portfolio accounting, transaction initiation, order management, trade execution, 
clearing, currency and foreign exchange processing, corporate actions processing, 
reconciliation, financial (reference) data management, financial planning, portfolio 
management, reporting and operational workflow. 
While this general overview of the end-client's information technology systems is helpful, without more, 
it does not serve to substantiate the nature of the information technology development project underway 
at the end-client location to which the Beneficiary will be assigned. 13 Notably, the Director requested 
an explanation of how the Beneficiary's specific job duties relate to the Petitioner's and the end­
client's products and services in the RFE. 
In response to the RFE, the Petitioner provided its own letter and other material, but did not identify 
or discuss the end-client's projects that require the Beneficiary's services, and the proffered position's 
role and responsibilities within that context. 14 Here, the record contains insufficient supporting 
documentation that identifies the scope, duration, and magnitude of the end-client's projects, to 
establish the substantive nature of the Beneficiary's role therein. 15 To further illustrate, the Petitioner 
emphasized throughout the proceedings that the Beneficiary will coordinate or interact with various 
end-client personnel and stakeholder groups, including "coordinating changes with project team 
leaders and cross-work team members," and "[p ]roviding technical support to project team members 
and responding to inquiries regarding errors or questions about programs." Though the Petitioner 
described the job duties of the position, the evidence does not show the operational structure within 
the end-client's projects and initiatives to establish the Beneficiary's substantive nature of his role 
therein. 16 
13 We also incorporate our previous discussion about our concerns that the Petitioner has not sufficiently demonstrated 
that the signatories of the end-client letters were authorized by the end-client to provide such letters. 
14 8 C.F.R. § 103.2(b)(l4). 
15 Defensor, 201 F.3d at 387-88. 
16 We must review the actual duties the Beneficiary will be expected to perform to asce1iain 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. 
6 
Further, the generally-stated duties provided by the Petitioner without the context of a specific project 
and the Beneficiary's actual role in the project adds little to our understanding of the Beneficiary's 
duties. 17 The job descriptions lack sufficient detail and concrete explanation 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. For instance, the Petitioner indicates 
that the Beneficiary will collectively spend 70% of his work time: 
• Developing code based on reading and understanding business and functional 
requirements following the Agile process; 
• Designing [ u] ser interface pages using HTML, JavaScript, Angular6, Bootstrap 
and CSS; 
• Producing high-quality code to meet all project deadlines and ensuring the 
functionality matches the requirements. Developing the application using 
J ava/J2EE specification and design patterns, and; 
• [Will be] [r]esponsible for configuring and deploying the application on server 
and supports the post-production. 
However, the Petitioner does not provide any detail regarding the work these duties with the end-client 
will entail, and how these tasks merit recognition of the proffered position as a specialty 
occupation. The mid-vendor and end-client's repetition of many of the Petitioner's generally-stated 
duties adds little to our understanding of the Beneficiary's actual duties. 
On appeal, the Petitioner provides the previously discussed letter from I l in which she 
further expands the information technology tools and programming languages that must be used to 
perform the Beneficiary proposed duties, noting for example: 
Producing high-quality code to meet all project deadlines and ensuring the functionality 
matches the requirements. This includes utilizing the following technologies to 
develop the application. Java/J2EE, Angular6, HTML5, CSS3, Bootstrap, Kafka 
Streams and Spring Boot Applications, MVC, Spring, ExlipseLink JP A and JPQL and 
Kubemetes. In addition, developing SOAP and REST Web Services as well as 
developing and maintaining PL/SQL Stored Procedures to address complex DB 
quenes. 
Here, without the context of an end-product and with the end-client's jargon-heavy language used to 
describe the proposed tasks, the Petitioner does not demonstrate what exactly the Beneficiary will be 
required to do. Overall, the descriptions of duties in the record do not include sufficient specific details 
regarding the Beneficiary's proposed work such that we may ascertain the type and educational level of 
knowledge that is necessary to perform that particular work. The record is insufficient to establish that 
the duties require both the theoretical and practical application of a body of highly specialized knowledge 
and the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent, as the 
17 We acknowledge that the Petitioner submitted additional information for the job duties, which, for the sake of brevity, 
have not been included herein. However, this material has been closely reviewed and considered, as with all evidence in 
the record. 
7 
minimum for entry into the occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) 
( defining the term "specialty occupation). Based on the evidence in the record, the Petitioner has not 
established the nature and level of responsibility of the proposed position, including whether the duties as 
generally described correspond to the occupation designated on the LCA. 18 
We have also reviewed the opinion letters submitted in response to the RFE and on appeal which the 
Petitioner contends confirm that a bachelor's degree in computer science, information science, 
information technology or a closely related field is the minimum requirement to enter into the Petitioner's 
particular java developer position. However, we conclude that the Petitioner's reliance on these letters is 
~ed. The Petitioner submitted a letter written by~------~who is a professor at 
L___J University in response to the Director's RFE. He opines: 
[T]he duties of the proffered position are firmly within the scope of the specialized 
education covered in a standard degree programs in Bachelor degree, or equivalent, in 
a field such as [the Petitioner's previously stated degree requirements]. Both 
Universities/ Academics and Employers expect that after competing an undergraduate 
degree, or the equivalent, in [the Petitioner's previously stated degree requirements], a 
graduate will be able to successfully perform this positions duties with minimal on-the­
job training. 
We acknowledge that in support of his conclusions, the professor cites to material located on a website 
maintained by the Association for Computing Machinery's Special Interest Group for Information 
Technology Education, but he did not provide copies of the specific material that he referenced as part 
of his analysis. Additionally, the Petitioner has not submitted evidence to establish that this website 
is an authoritative source on the duties and educational requirements of the "Software Developers, 
Applications" occupation. Nonetheless, we conclude that the professor confuses the ability of a 
degreed computer information technology person to perform the duties of the proffered position with 
a degree requirement in order to perform the duties within his analyses. While the professor may draw 
inferences that computer science or information technology related courses may be beneficial in 
performing certain duties of the position, we disagree with his inference that such a degree is required 
in order to perform the duties of the proffered position. Put simply, stating for instance that a person 
with a bachelor's degree in computer science could perform the duties of the proffered position is not 
the same as stating that such a degree is required to perform those duties. As such, the professor's 
analysis misconstrues the statutory and regulatory requirements of a specialty occupation. 
The Petitioner also quotes verbatim from the Petitioner's expanded list of job duties submitted in its 
response to the RFE, which correlates the need for the Beneficiary's education with the associated job 
duties of the position. 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 Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ('The facts of a 
18 See 20 C.F.R. ~ 655.705(b), which requires that USCTS ensure that an LCA supports the H-lB petition filed on behalf 
of the Beneficiary, to include the occupational category designated therein. See also Matter of Simeio Solutions, LLC, 26 
l&N Dec. 542, 545-546 (AAO 2015). 
8 
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]."). 
The professor further indicates that he has reviewed information found on the "[the Petitioner's] 
website." While the professor provides a brief: general description of the Petitioner's business 
activities, he does not demonstrate in-depth knowledge of its operations or how the duties of the 
position will actually be performed in the context of its business enterprise, which in this case involves 
performing services for the end-client. He also quotes the Petitioner's job descriptions present in the 
record, which as we stated previously were insufficient for determining what the Beneficiary would 
be actually doing at the end-client location. Therefore, his level of familiarity with the actual job 
duties as they would be performed in the context of the end-client's business has not been 
substantiated. 
In addition, the professor extensively quotes the information from the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) for the Software Developers occupation, 19 and 
the Occupational Information Network (O*NET) summary report for the "Software Developers, 
Applications" occupational category. 20 However, he does not analyze the Petitioner's description of 
the duties of the proffered position within the context of these materials other than to note "I have 
grown familiar with the role played by IT Software Developer specialists .... such as the position." 
We incorporate our previous determination that based on the evidence in the record, it is not possible to 
ascertain the nature and level of responsibility of the proposed position, including whether the duties as 
generally described correspond to the occupation designated on the LCA. Here, professor's reference to 
the O*NET summary report and the Handbook chapter without further analyses does not substantiate 
the Petitioner's assertion that the position qualifies as a specialty occupation. Accordingly, the 
Petitioner's reliance on the professor's letter is misplaced. 
On ~al, the Petitioner provides an opinion authored b~~-------~lwho is a professor at 
theLJ University! I He indicates that "the subject position is a highly technical, specialized 
position involving job duties that could not possibly be performed without the attainment of [the 
Petitioner's previously stated degree requirements]. The professor bases his opinions on the Petitioner's 
description of the position's duties, the Petitioner's stated educational requirements, the Beneficiary's 
academic credentials, and his own research "regarding the issues discussed herein." However, the 
professor did not specifically discuss what his independent research entailed, nor was his research 
documentation provided in support of the petition. For instance, while he opined that "[a]mong 
industry professionals, it is widely recognized that individuals [ employed in the proffered position] 
must have [the Petitioner's previously stated requirements]," his letter does not substantiate his 
conclusions, such that we can conclude that the Petitioner has met its burden of proof Here, the 
professor does not reference, cite, or discuss any studies, surveys, industry publications, authoritative 
publications, or other sources of empirical information which he may have consulted to arrive at this 
conclusion. 
19 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Software Developers, 
https://www.bls.gov/ooh/computer-and-information-technology/software-developers.htm, (last visited Feb. 12, 
2020). All of our references to the Handbook may be accessed at the Internet site http://www.bls.gov/ooh/. We do not 
maintain that the Handbook is the exclusive source of relevant information. 
20 The DO L's O*Net summary rep011 for the "Software Developers, Applications" occupational category may be viewed 
at https://www.onetonline.org/link/summary/15-l 132.00. (Last visited Feb. 12, 2020.) 
9 
Notably, the professor opines "[i]n the pos1t10n of Java Developer with [the Petitioner], [the 
Beneficiary] would play an instrumental role in the development of innovative and transformative 
technology solutions for [the end-client]. However, he does not reference the particular projects or 
tasks upon which the Beneficiary would work at the end-client location in meaningful detail. 
Therefore, the professor has not sufficiently explained the basis for his assertion that the Beneficiary 
"will play an instrumental role" in the development of information technology solutions at the end­
client location. Instead, he reiterates the job duties put forth by the Petitioner, which as we stated 
previously were insufficient for determining what the Beneficiary would be actually doing at the end­
client location. As a result, we conclude that the Petitioner has not demonstrated that the professor 
possessed the requisite information to adequately assess the substantive nature of the position. 
For the reasons discussed, we find that the opinion letters froml I an~ [ lend little 
probative value to the matter here. We may, in our discretion, use opinion statements submitted by the 
Petitioner as advisory. Matter of Caron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, 
where an opinion is not in accord with other information or is in any way questionable, we are not 
required to accept or may give less weight to that evidence. Id. For the sake of brevity, we will not 
address other deficiencies within the professors' analyses of the proffered position. 
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. We therefore conclude that the record 
does not sufficiently establish the existence of a definite, non-speculative specialty occupation 
position. 21 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we need not address other 
grounds of ineligibility we observe in the record of proceedings. Nevertheless, we will briefly note 
and summarize them 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 these additional grounds in any 
future filing. 
21 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 fiuiher discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
10 
The petition cannot be approved because the Petitioner has not demonstrated that it qualifies as a 
United States employer. Without contracts or agreements between all the parties that detail the terms 
and conditions of the Beneficiary's employment, we are not able to folly ascertain what the Beneficiary 
will do, where the Beneficiary will work, 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, 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. 
Importantly, the Petitioner has also not documented a process in which it can actively monitor and 
evaluate personnel it places with the end-client. The Petitioner initially provided an employment 
agreement which reflected that its president would supervise the Beneficiary, and required the 
Beneficiary to "telephone or otherwise communicate directly with the [president] no less than once a 
week regarding his progress on the assigned work." However, though requested by the Director in 
the RFE, the Petitioner did not offer sufficient objective evidence to corroborate how the president, 
who oversees a company with 210 employees according to the information in the petition, will 
supervise the Beneficiary and oversee the work he performs at the end-client location. 22 
On appeal, the Petitioner references the Petitioner's requirement that the Beneficiary communicate 
directly with his supervisor - in this case the Petitioner's president - regarding his work progress, and 
notes he will be subject to regular performance reviews, asserting these elements as sufficient evidence 
of the Petitioner's supervision of the Beneficiary's work with the end-client. However, the fact that 
the Beneficiary is reporting on the status of the projects in which he is engaged for the end-client (on 
a weekly basis), and not the Petitioner, erodes the Petitioner's claim that it actively monitors and 
supervises the Beneficiary's day-to-day work at the end-client location. 23 
As discussed above, the Petitioner has not demonstrated that it exercises actual control over the 
Beneficiary's substantive work. It appears that the Petitioner's role and responsibilities are primarily 
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, 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. 
22 8 C.F.R. § 103.2(6)(14). 
23 The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). Umesolved material inconsistencies may lead us to reevaluate the 
reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. Id. 
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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). Therefore, the petition cannot be approved 
for this additional reason. 
III. 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 here, and the petition will remain denied. 
ORDER: The appeal is dismissed. 
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