dismissed H-1B Case: Data Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 10158846 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 14, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "data science engineer" under the H-lB 
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 Vermont Service Center denied the petition, concluding that the Petitioner did not 
establish it had specialty occupation work available for the Beneficiary for the requested employment 
period, when the petition was filed.1 The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. 2 We review the questions in this matter de nova. 3 Upon de nova 
review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
1 While this appeal was pending, the U.S. District Court for the District of Columbia issued a decision in ltserve Alliance, 
Inc. v. Cissna, 443 F. Supp. 3d 14 (D.D.C. 2020). Subsequently, U.S. Citizenship and Immigration Services (USCIS) 
rescinded previously issued policy guidance and directed its officers to apply the existing regulatory definition at 8 C.F.R. 
§ 214.2(h)(4)(ii) to assess whether a petitioner and a beneficiary have an employer-employee relationship, among other 
matters. USCIS Policy Memorandum PM-602-0114, Rescission of Policy Memoranda at 2 (June 17, 2020), 
http://www.uscis.gov/legal-resources/policy-memoranda. Although a petitioner is not required by existing regulation to 
submit contracts or legal agreements between the petitioner and third parties to establish an employer-employee 
relationship, "the petitioner must demonstrate eligibility for the benefit sought" and "if a petitioner provides contracts or 
legal agreements, [an] officer is not precluded from evaluating that evidence in the adjudication of other eligibility criteria." 
USCIS Policy Memorandum PM-602-0114, Rescission of Policy Memoranda at 3. 
2 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(I) of the Act but adds a 
non-exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position.4 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... "(emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and that the position also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position determine: (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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Further, as recognized by the court in Defensor v. Meissner, 201 F.3d 384, 87-88 (5th Cir 2000), 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. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(1). 
4 8 C.F.R. § 214.2(h)(4)(iii){A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214{i){1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 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"). 
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11. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the services in a specialty occupation that the Beneficiary would perform during the requested period 
of employment, which precludes a determination of whether the proffered position qualifies as a 
specialty occupation under sections 101(a)(15)(H)(i)(b), 214(i)(1) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(1), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 
The Petitioner, which is located inl lvirginia, asserts the Beneficiary will work for an end-client 
inl !Texas. However, the record does not contain sufficient evidence to establish the services 
the Beneficiary will perform. Specifically, the record (1) does not describe the position's duties with 
sufficient detail; and (2) does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 
First, we agree with the Director that the Petitioner did not establish eligibility at the time of filing the 
petition. 8 C.F.R. § 103.2(b)(1). As the Director concluded, the Petitioner submitted a statement of 
work (SOW) that had expired before the requested employment period had begun and in response to 
the request for evidence (RFE) submitted a SOW for the requested employment period that was signed 
after the petition was filed and was not probative to the issue of availability of work when the petition 
was filed. 
We note that, even if considering the SOW, generated after the petition was filed, this SOW does not 
include sufficient information to ascertain whether the deliverables require the services of a 
statistician, the occupation designated on the certified labor condition application (LCA). 5 When this 
SOW is reviewed in conjunction with the end-client letter's description,6 there is no clear relation 
between the duties described and the deliverables set out in the SOW. For example, the objective of 
this SOW is to provide services to transform the user experience and the projected end-date for the 
deliverables is December 20, 2019.7 The SOW rrers to ]hysical facilities "for the design, coding, 
and unit test phases at [the Petitioner's facility in Virginia] or at [the Petitioner's offshore 
facility inl [ India]. First, it is not clear what role a statistician will play in transforming the 
user experience and in designing, coding, and the unit testing phases. Additionally, this SOW 
identifies the end-client's facility where the claimed services will be performed as I I 
Florida. The SOW appears to restrict the locations where the services will be performed to these three 
locations. However, neither the location inl I Virginia nor I !Florida are included 
on the certified LCA submitted in support of the petition. 
We also reviewed the end-client's letters submitted and note that the end-client in a letter submitted 
in response to the Director's RFE, copied the Petitioner's description of the proposed duties, also 
submitted in response to the Director's RFE. The duties, as described however, do not communicate 
5 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1B 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 experience and qualifications who are performing the same services. Section 212(n)(1) 
of the Act; 20 C.F.R. § 655.731(a). 
6 This description appears to be taken verbatim from the Petitioner's position description provided in response to the 
Director's request for evidence. 
7 The requested employment period is for October 1, 2019 to September 13, 2022. 
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the actual work the Beneficiary is expected to perform. Although some of the duties may incorporate 
tasks that generally correspond to a "Statisticians" occupation, these and other tasks also correspond 
generally to a number of technology occupations. The description is so broad that the duties could 
encompass any number of occupations. That is, we cannot ascertain either the application of 
knowledge needed to perform the position, or the occupation and wage level required. 
Additionally, the generic descriptions of duties, 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 to the end-client in relation to the sows presented. The Petitioner does not offer sufficient 
consistent information or analysis as to how the proposed duties, the Beneficiary's role, and level of 
responsibility at the end-client's facility, comports with the information set out in the submitted SOW. 
The record does not provide sufficient detail regarding the nature and scope of the Beneficiary's 
employment or substantive evidence regarding the actual work that the Beneficiary would perform. 
Without a meaningful job description, the record lacks evidence sufficiently probative and informative 
to demonstrate that the proffered position requires a specialty occupation's level of knowledge. Upon 
review of the totality of the record, it does not establish the substantive nature of the proffered position 
or demonstrate that the position would require the theoretical and practical application of highly 
specialized knowledge and attainment of at least a bachelor's degree in a specific specialty or its 
equivalent. 
Upon review of the totality of the evidence submitted, the Petitioner has not established that more 
likely than not, the Beneficiary will perform services in a specialty occupation or that it had otherwise 
established eligibility for this visa classification when the petition was filed. 
ORDER: The appeal is dismissed. 
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