dismissed H-1B Case: Geomechanics

U.S. Citizenship 
and Immigration 
Services 
In Re: 10692463 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 19, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"geomechanics acoustic researcher" under the H-lB nonimmigrant classification for specialty 
occupations. 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 California Service Center denied the petition, concluding that the record did not 
establish that the proffered position qualifies as a specialty occupation. Specifically, the Director 
concluded that the record did not establish the Beneficiary would perform services in a specialty 
occupation. 
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 Christa's Inc., 26 l&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)(I) of the Act , 8 U.S.C. § 1184(i)(I) , 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)(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.1 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) 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 
review 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, 387-88 (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). 
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 
specialty occupation under sections 101(a)(15)(H)(i)(b), 214(i)(1) of the Act; 8 C.F.R. 
1 The regulation at 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"). 
2 
§ 214.2(h)(4)(i)(A)(1), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 2 Specifically, the Petitioner did not 
provide evidence of bona fide work for the Beneficiary. 
On the Form 1-129, Petition for a Nonimmigrant Worker, and the corresponding labor condition 
application (LCA)3 submitted in support of the H-lB petition, the Petitioner indicated the Beneficiary 
would work at its own location. The record does not establish that the Petitioner has intellectual or 
physical property it develops or owns. Instead, the Petitioner indicated that it "develops specialized 
technologies for use by [its] clients in connection with their information management and technical 
projects." The Petitioner's clients include "a wide range of power and utility, petroleum, academic 
institutions, petrochemical, construction, industrial, consulting and engineering firms, and government 
entities." Given the wide range of industries for which the Petitioner develops specialized 
technologies, the services to be performed for a particular client may vary substantially. Therefore, 
information about a particular client and project, along with the client's requirements, is essential in 
order to understand the services to be performed. 
Although the Petitioner submitted additional information regarding petroleum and geology, in general, 
it did not identify a specific in house project on which the Beneficiary would work during the requested 
period. Moreover, the record does not provide sufficient information regarding the generalized 
"technologies" the Petitioner develops for its wide range of clients in order for us to understand an 
example of the services to be performed. Instead, the Petitioner described the position's duties, and 
the percentage of the Beneficiary's time required to perform them, as follows: 
I Design experimental setup, experimental workflow and [r]ock mechanics test 
program (30%); 
I Assist R&D team in designing, developing, and conducting tests to detect fracture 
initiation in rocks using active acoustic emission detection to locate the source of 
micro fracture events. Interpretation of experimental data and integration with field 
measurements (20%); 
I Conduct research and develop novel technologies in experimental rock mechanics 
(20%); 
I Numerical [m]odeling and [p]redictive [d]ata [a]nalysis (20%); and 
I Provide [g]eomechanics solutions to clients (10%). 
As noted above, the Petitioner develops "specialized technologies for use by [its] clients," the duty 
description also references providing "solutions to clients," and on appeal, the Petitioner refers to an 
unnamed "end-client." Accordingly, the record raises questions regarding which client requested the 
Petitioner to design and develop the test program, to conduct tests to detect fracture initiation in rocks, 
and to perform the other services described. In other words, the record casts doubt that the services to 
2 The Petitioner submitted documentation to support the H-1B 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 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. See Matter of Simeio 
Solutions, LLC, 26 l&N Dec. 542, 545-546 (AAO 2015). 
3 
be performed would actually be for an inhouse project, rather than for a client.4 However, the record 
does not establish the clients to which the Beneficiary would "[p]rovide [g]eomechanics solutions." 
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. Here, although the Beneficiary would work at the Petitioner's location, the 
Beneficiary ultimately would provide services for an end-client. 
On appeal, the Petitioner distinguishes itself from the petitioner in Defensor because, unlike the 
workers in Defensor who worked at a remote site, "[the Beneficiary] would be reporting directly to 
[the Petitioner's] Data Acquisition and Process Control Systems Engineering Manager ... [and the 
Petitioner] will be responsible for [the Beneficiary's] work schedule, assignments, daily duties, project 
status reports, and performance evaluations." The Petitioner further asserts on appeal that "[t]he 
end-client has no authority to speak to [the Beneficiary] regarding her work product or daily tasks." 
However, the Petitioner established that it "develops specialized technologies for use by [its] clients 
in connection with their information management and technical projects," not that it develops its own 
intellectual or physical property that it then sells to clients. Therefore, regardless of where the 
Beneficiary would work or the individual to whom she would report on a daily basis, the services she 
would provide appear, based on the record, to be ultimately for a client. 
The Petitioner also distinguishes this case from Defensor on appeal, asserting that "being a nurse does 
not necessarily require a bachelor's degree or involve a 'nature of specific duties [that] are so 
specialized and complex that knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree,"' in contrast to the proffered "geomechanics acoustic 
researcher" position. However, in response to the Director's request for evidence (RFE), the Petitioner 
submitted a letter from a client, addressing a prior project on which the Beneficiary worked, which 
underscores why evidence of the client company's job requirements is critical to determining whether 
a particular position would require a bachelor's or higher degree in a specific specialty, or its 
equivalent. 
That letter, submitted in response to the RFE, is from the "Manager, SCL Experimentation" for a 
company that the Petitioner states is among "the largest oil and natural gas producers, natural gas 
marketers, gasoline marketers and petrochemical manufacturers." The letter asserts that the 
Beneficiary previously worked-ultimately providing services for that client-on "a large-scale 
project focused on the consolidation of [that company's] experimental facilities." The letter explains 
that the Petitioner was "contracted to build different experimental systems for petrophysical and rock 
4 Doubt cast on any aspect of a petitioner's proof may undermine the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. Matter of Ho, 19 l&N Dec. 582, 591 (BIA 1988). 
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mechanical analysis."5 Specifically, the Beneficiary provided services for that project "as the 
designated Document Controller, evolving as the liaison between [the client] and [the Petitioner's] 
engineers for controlling the project's documentation." The letter further asserted that "[the 
Beneficiary's] position required both technical knowledge and administrative efficiency." However, 
the letter does not elaborate on the technical knowledge and administrative efficiency required, and 
whether those requirements are equivalent to a bachelor's or higher degree in a specific specialty. 
Without more information, the record does not establish that the Beneficiary's recent role as a 
"document controller" entailed providing services in a specialty occupation. 
The proffered "geomechanics acoustic researcher" position, and its corresponding duties, appear to 
differ from the Beneficiary's position as "document controller" for the prior project, minimizing its 
probative value. However, the letter illustrates that a client's description of the services performed, or 
to be performed, by a worker who would ultimately provide "solutions to clients" for their intellectual 
or physical property may be inconsistent with information from a petitioning entity. Therefore, in a 
case, such as this one, wherein a beneficiary appears ultimately to provide services for a client's 
intellectual or physical property rather than for a petitioner's own intellectual or physical property, 
evidence of that company's requirements is critical. See Defensor, 201 F.3d at 387-88. 
We note that, other than distinguishing the Beneficiary's work location and designated occupational 
category from those in Defensor, on appeal the Petitioner does not identify specific intellectual or 
physical property owned by the Petitioner for which the Beneficiary would provide services. Because 
the record does not establish the particular "specialized technologies for use by [its] clients in 
connection with their information management and technical projects" the Beneficiary would develop, 
the "solutions to clients" she would provide, and the requirements of the client(s) ultimately receiving 
the Beneficiary's services, we are unable to determine the services the Beneficiary would perform and 
whether those services would satisfy any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because the 
substantive nature of the work 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 4.6 
5 The record establishes that the Petitioner is the '"staffing' side," along with an affiliated entity "which is strictly the sales 
side for equipment." We take administrative notice that publicly available sources of information, such as the Texas 
secretary of state and comptroller's offices and the companies' public websites, indicate that the Petitioner and the affiliated 
company share ownership and operate at adjacent physical addresses. Therefore, we do not consider the affiliated company 
to be a distinct mid vendor between the Petitioner and the clients referenced in the record. The client letter specifically 
identifies the "sales side" entity; however, we construe the letter as describing the services performed ultimately by the 
Petitioner. 
6 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 further discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
5 
111. 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. 
ORDER: The appeal is dismissed. 
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