dismissed H-1B Case: Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 8989109 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 21, 2020 
The Petitioner , a health care and software consulting company, seeks to temporarily employ the 
Beneficiary as a design control 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 evidence of record 
does not establish that the proffered position qualifies as a specialty occupation. On appeal, the 
Petitioner asserts that the Director erred in the decision. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015) . 
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)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the 
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)(l) 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. 1 Lastly, 
1 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii) . We construe the tenn "degree" to mean not just any 
8 C.F.R. § 214.2(h)(4)(i)(A)(I) states that an H-lB 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 a position that 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)(l) 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)(l). 
II. 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 
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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specialty occupation under sections 101(a)(l5)(H)(i)(b), 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A).2 
The Petitioner, which is located in New Jersey, asserts the Beneficiary will work for an end-client [via 
a mid-vendor] inl I 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. 
The Petitioner stated on the Form 1-129, Petition for a Nonimmigrant Worker, and on the certified labor 
condition application (LCA), that the Beneficiary would work as a design control engineer (under the 
occupational category "Compliance Officers" corresponding to the Standard Occupational 
Classification code 13-1041) for an end-client located inl !Texas, for the petition's entire 
employment period, August 2019 to July 2022. 3 The Petitioner indicated the relationship with the end­
client as follows: 
- - -(Petitioner) (Vendor) (End-Client) 
The Petitioner submitted a master supplier services agreement (MSSA) between the Petitioner and the 
vendor. The agreement indicated that "from time to time, [ the vendor] desires assistance from [ the 
Petitioner] in fulfilling Client requests." In addition, the Petitioner "desires to supply professional 
resourcing services on an as needed basis on behalf of Client." Thus, the agreement is between the 
Petitioner and the vendor to provide personnel to the vendor and/or clients to work on projects "from time 
to time", but it does not commit the vendor or the Petitioner for any particular services during any period 
or at any location. In sum, the MSSA has little probative weight towards establishing actual work to 
be performed by the Beneficiary for the end-client for any specific period or location. 
As noted in the MSSA, the vendor agrees to provide the Petitioner a description of the services required 
in a purchase order. As part of the terms of the MSSA, the Petitioner submitted a supplier purchase order 
that indicated the Beneficiary would work as a "Risk MGMT - Neuro" for I I The 
Petitioner stated that this was an error and submitted a revised purchase order that indicated the 
Beneficiary will work as a "Risk MGMT-Neuro" for the end-client from June 2018 to December 2019. 
The revised purchase order is not signed, and it is not clear if the job of "Risk MGMT - Neuro" is the 
same as the position offered to the Beneficiary as design control engineer. Further, the purchase order 
did not provide any duties to be performed by the Beneficiary, information regarding the scope of the 
2 The Petitioner submitted documentation to suppmt 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. 
3 A petitioner submits the LCA to the U.S. Department of Labor (DOL) to demonstrate that it will pay an H-lB 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). 
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project, the phase of the project, or the team supporting the project. This purchase order does not 
sufficiently explain the work to be performed by the Beneficiary at the end-client location. On appeal, 
the Petitioner submits a new version of the same purchase order but this time it is signed by the parties 
on September 12, 2019, nearly six months after the instant petition was filed. The Petitioner must 
establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be eligible 
for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at 
a future date after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter 
of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
The Petitioner submitted a letter from the vendor confirming that the Beneficiary is providing technical 
services as a design control engineer to the end-client. The vendor provided eleven duties that the 
Beneficiary will perform for the end-client; however, the vendor did not provide details of the project and 
how the Beneficiary will perform these duties within a specific project for the end-client. 
On appeal, the Petitioner submits a letter from the end-client that also confirms that the Beneficiary is 
working at the end-client location to "provide specialized service in risk management activities," and 
listed five general duties the Beneficiary will perform in this role. This overview of the Beneficiary's 
assignment does not elaborate on what the Beneficiary will be required to focus on and does not detail 
his particular duties within the teams and projects. This limited description does not demonstrate the 
type and educational level of highly specialized knowledge in a specific discipline that is necessary to 
perform the generally described work. Additionally, neither the end-client nor the vendor explain in 
detail the scope of the project, the number and type of resources needed for any particular project, a 
timeline, milestone tables, technical documentation, or other evidence to establish the existence and 
ongoing nature of the project. Without consistent, probative evidence of the proposed duties detailed 
in the context of a specific project, the record does not communicate (1) the actual work that the 
Beneficiary will perform on a day-to-day basis; (2) the complexity, uniqueness and/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. 
The Petitioner submitted an affidavit from an individual that is employed by a separate company but 
has worked with the Beneficiary on the project with the end-client. The affidavit lists the same job 
duties provided by the Petitioner, and confirms that the Beneficiary is working for the end-client. 
However, the documentation does not provide sufficient evidence regarding the Beneficiary's project 
or assignment and a detailed explanation of the team, department and actual work that the Beneficiary 
will perform for the end-client on a specific project. 
Further, the Petitioner did not submit the contract or agreement between the vendor and the end-client to 
understand the scope of services between the parties. Without supporting documentation such as 
contracts, detailed purchase orders or statements of work, it is hard to determine the scope of services and 
the nature of the relationships between the parties. The Petitioner provided insufficient evidence towards 
substantiating that the petition was filed based on actual work that the Petitioner had secured for the 
Beneficiary for the end-client's location for the employment period sought in the petition. 
In addition, the record does not sufficiently establish the project's duration. The Petitioner stated in the 
support letter that it is anticipated that the Beneficiary's services would be required until July 2022. The 
letter from the vendor stated that the project is "ongoing and may be extended depending upon the project 
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scope and progress." On appeal, the Petitioner submits a purchase that indicated the Beneficiary will 
work with the end-client until December 2019. In addition, the letter from the end-client states that it 
expects to utilize contractors until December 31, 2020. It is not clear why the dates of service are not 
consistent. In addition, the Petitioner did not submit sufficient evidence such as contracts or similar 
corroborating evidence that the project with the end-client will continue until July 2022 and will 
require the services of the Beneficiary as a design control engineer for that entire period. 4 USCIS 
regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the 
time the petition is filed. See 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved based on 
speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under a new set 
of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 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). 
Because the Petitioner has not established the substantive nature of the Beneficiary's work, 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 
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. 
4 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-1 B 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 temporary 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-lB 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). 
5 
ORDER: The appeal is dismissed. 
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