dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 9662485 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC . 2, 2020 
The Petitioner, an information technology consulting services firm , seeks to temporarily employ the 
Beneficiary under the H- lB nonimmigrant classification for specialty occupations . See Immigration 
and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b) , 8 U.S .C. § l 10l(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 Vermont Service Center Director denied the petition, concluding that the Petitioner had not 
established that (1) the proffered position is a specialty occupation , and (2) an employer-employee 
relationship will exist with the Beneficiary . On appeal , the Petitioner asserts that the Director erred in 
denying the petition, and contends that the petition should be approved . 
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 I&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. SPECIAL TY OCCUPATION 
A. 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, 
8 C.F.R. § 214.2(h)(4)(i)(A)(]) 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. 
§ 2 l 4.2(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). 
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). 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, we conclude 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, located in New Jersey, seeks to employ the Beneficiary as an "application support 
developer" to perform services for a large insurance provider [ the end-client] at its offices in Nevada. 3 
It designated the proffered position under the occupational category "Software Developers, 
1 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)(l) 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 The Petitioner submitted documentation to suppmt the H-1 B petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
3 The Petitioner most recently employed the Beneficiary through post-completion optional practical training. 8 C.F.R. §§ 
274a.12( c )(3)(i)(B), 214.2(t)(l 0)(ii)(A)(3). 
2 
Applications" corresponding to the Standard Occupational Classification (SOC) code 15-1132 on the 
labor condition application (LCA) submitted in support of the H-lB petition, and indicates therein that 
the Beneficiary will be solely employed at the end-client location. 4 There are several entities involved 
with the Beneficiary's placement at the ultimate end-client. The contractual chain the Petitioner and 
other relevant parties represented in the petition are: 
Petitioner ➔ E- (mid-vendor) ➔ N- (prime-vendor) ➔ E-1- (end-client). 
First, the contractual agreements and other supporting evidence in the record do not substantiate the 
Petitioner's assertions regarding the substantive nature of the work the Beneficiary would perform at the 
end-client worksite.5 The Petitioner submitted the mid-vendor's supplier services agreement (SSA) with 
the Petitioner which details their general contractual arrangement, reflecting that the Petitioner's 
employees (which presumably includes the Beneficiary) will work for the mid-vendor's clients under 
staff augmentation arrangements involving mid-vendor purchase orders to perform "[i]nformation 
technology services or other services as are agreed upon between [the mid-vendor] and [its] clients .... 
under the direction of [ the mid-vendor's] client or clients." 
The Petitioner also provided mid-vendor purchase orders and letters to establish the nature of the 
Beneficiary's contractual assignment. However, the Petitioner's reliance on this material is misplaced. 
The mid-vendor's October 2017 purchase order identifies another individual (not the instant Beneficiary) 
to be placed for 12 months through the prime-vendor, N-, to perform work for a different end-client, C-.6 
The April 2018 purchase order identifies the Beneficiary and indicates she will be placed with the end­
client for a period of 24 months with possible extensions to perform services requiring knowledge of the 
"Java" programming language commencing in April 2018. The purchase order does not identify the 
specific end-client project(s) to which she will be assigned, her job title, or the nature of the position's 
responsibilities (other than her utilization of the Java programming language). The mid-vendor's letter 
indicates that the Beneficiary will be employed by the end-client through contractual agreements between 
the parties, noting: 
All representation made in this letter are strictly for submission to immigration authorities 
and no legal or equitable rights are created, modified or abrogated by this letter. This 
letter may be considered valid as its states or reiterates the terms and conditions of the 
agreement between [the mid-vendor] and the [prime-vendor/end-client], for the 
[Beneficiary's] services for this position. 
4 A petitioner submits the LCA to the 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 212(n)(l) of the Act; 20 C.F.R. 
§ 655.73l(a). 
5 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 ofother eligibility criteria." USCTS Policy Memorandum PM-602-0114, Rescission of Policy 
Memoranda at 3 (June 17, 2020), http://www.uscis.gov/legal-resources/policy-memoranda. 
6 The Petitioner references this document in its RFE response as a purchase order "executed [between the parties] for the 
contractual services of the Beneficiary," but it has not explained how this purchase order is relevant to establish the terms 
and conditions of the Beneficiary's placement with end-client, E-I-. 
3 
Notably, the mid-vendor's letter does not describe "the terms and conditions of the agreement between 
[the mid-vendor] and the [prime-vendor/end-client], for the [Beneficiary's] services for this position." 
Additionally, the mid-vendor's letter states that it expects "to utilize his (sic) services for the foreseeable 
future as the project is ongoing; no specific end-date is identified, and expected to be long term with 
possible extensions." But, the mid-vendor does not identify what the end-client's project actually entails 
that requires the Beneficiary's services. Therefore, the mid-vendor letter does not sufficiently illustrate 
the scope and complexity of the work that the Beneficiary will perform therein. 7 
We have similar concerns with the end-client's letter, which states "this letter is being provided to verify 
our anticipated need for [the Beneficiary's] services for a period of one year with possible extensions." It 
indicates that the Beneficiary "is assigned to consult on one of [the end-client's] Optimization System," 
but does not otherwise detail what information technology products are underway at the end-client's 
Nevada facility, the staffing of its project team(s), and the magnitude of its development efforts. The 
end-client further explains that "this statement is not to be construed as a guarantee, contract or promise, 
expressed or implied, for any purpose." While the end-client states that the prime-vendor is "an approved 
vendor," it omits mention of the contractual involvement of the mid-vendor in the Beneficiary's staff 
augmentation placement. 
Collectively considering the vendor and end-client material in the record, the Petitioner has not 
sufficiently established what the contractual parties who seek to utilize the Beneficiary's services have 
actually agreed to. On appeal, the Petitioner asserts that it "was informed by the [end-client] that the 
contractual agreement will not be shared to the third party due to confidentiality." Companies are 
generally permitted, of course, to keep sensitive information confidential. This does not, however, 
relieve the Petitioner of the need to demonstrate that H-lB caliber work is available for the Beneficiary 
to perform during the period of requested employment. 8 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 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). 
When determining whether a position is a specialty occupation, we look at the nature of the business 
offering the employment and the description of the specific duties of the position as it relates to the 
performance of those duties within the context of that particular employer's business operations. In 
this case, the record does not sufficiently describe the work that the Beneficiary will perform as part 
of the end-client information technology development efforts. 9 
7 Likewise, the prime-vendor's letter puts forth virtually the same generalized verbiage as the mid-vendor's letter. and as such 
is of little probative value. In evaluating the evidence, the truth is to be determined not by the quantity of evidence alone but 
by its quality. Matter of Chawathe, 25 l&N Dec. at 376. 
8 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. CJ Matter of Marques. 16 l&N Dec. 314 (BIA 1977) (holding the "respondent had eve1y 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."). 
9 We must review the actual duties the Beneficiary will be expected to perform to ascertain whether those duties require at 
least a baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a specialty occupation. 
4 
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. For instance, the 
Petitioner provides a copy of a document entitled "[end-client's] Applications Overview High-Level 
View." This multi-page document provides the high-level conceptual schema for an information 
technology project. However, the Petitioner has not adequately documented (1) how this material 
comprises the Beneficiary's end-client work assignments, (2) what the end-client's projects entail, and 
(3) how the Beneficiary will perform the duties described in the petition as part of the end-client's 
software development team. 1° For instance, in response to the Director's request for evidence (RFE) 
the Petitioner provides a job description, which includes the relative percentage of time that the 
Beneficiary will devote to each primary duty as follows: 11 
• Acts as an Application support Developer for three different web applications. 
(10%) 
• Investigates the defects raised by the users and try to reproduce it and providing 
a solution to it and document findings on a daily basis. (10%) 
• [D]eveloping and supporting Web Applications on the web portal. (30%) 
• Developing new enhancement comes from business for EACCESS Web 
application. (20%) 
• Supports QA teams in trouble shooting or environment related issue and 
preparing the root cause analysis report wherever applicable. (10%) 
• Works with infrastructure and development teams and created deployment 
documents and performed validation on regular basis. (10%) 
• Identifying the potential issues and providing a solution for the issues. (5%) 
• Participate in testing process through unit testing and bug fixes. (5%) 
Notwithstanding the evidentiary shortcomings, the duties presented are overly generalized, which 
undermines the Petitioner's claims that the position's duties are specialized and complex. For 
example, it is unclear what theoretical and practical application of a body of highly specialized 
knowledge is required to "develop and provide maintenance support of Java/J2ee based application," 
"work[] with the application cache framework," "work[] closely with business teams to gather 
requirements," "provide support for User Acceptance Testing (UAT)," and"[ d]evelop, implement and 
optimize stored procedures, functions, using PL-SQL." From the indeterminate nature of the duties, it 
is not self-evident that they are qualifying under the H-lB program.12 
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. 
10 The Director specifically requested such evidence in her RFE, but the Petitioner did not provide evidence sufficient to 
illustrate how the Beneficiary's specific job duties relate to the end-client's products and services. "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). 
11 For the sake of brevity, we will not quote all of the various job descriptions in full; however, we have closely reviewed 
and considered all of the Petitioner's job duties. 
12 Cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988) (indicating USCIS must evaluate the actual 
tasks, demands, and duties to determine whether a petitioner has established the position realistically requires the 
specialized knowledge-both theoretical and applied-which is almost exclusively obtained at the baccalaureate level). 
5 
The Petitioner also submits ambiguous and insufficient evidence about the requirements for entry into 
the proffered position. The Petitioner initially submitted a letter indicating that the Beneficiary "will 
appropriately apportion her time to various aspects of her work, depending upon the needs of the 
particular application or project." Within the same letter under a heading entitled 'job duties of an 
application support developer are broken down in the following manner," it supplied the following 
generic template language: "Please replace job duties as per Client and Vendor letters[,] Include the 
primary job duty[,] Expand the primary job duty in detail." Notably, the Petitioner then indicated that 
"[i]n order to satisfactorily perform these duties .... an individual should possess in the least a 
bachelor's degree in [c]omputer [s]cience or a closely related field with additional experience in 
practical application or theoretical knowledge of computer science or a specialized field of study with 
substantial training and / or experience in designing and implementing computer based models and 
solutions to practical and technical problems." (Emphasis added.) 
The Petitioner did not actually put forth the job duties that it asserts necessitate its varied range of 
minimum requirements, but instead submitted a generic template for the possible inclusion of such 
information in its letter. Importantly, the Petitioner did not explain how its inconsistent position 
requirements, ranging from a bachelor's degree in computer science to information technology work 
experience alone were required for entry into the proffered position. 
The Petitioner asserts that "the proffered position is so complex and specialized that knowledge 
required to perform the duties is attained with a completion of a [b ]achelor' s degree in [ c ]omputer 
science or a related field." It also contemporaneously reiterates the same varied position requirements 
that were initially presented with the petition. The end-client's letter provides a similar bulleted list 
ofjob duties, stating that they require "a bachelor's degree in [c]omputer [s]cience or a closely related 
field." The mid-vendor and the prime-vendors' letters each assert that the position requires "a 
bachelor's degree or its equivalent in [c]omputer [s]cience, [i]nformation [s]ystems and/or a related 
field of study. 13 The Petitioner has not provided an explanation for the variances in the minimum 
position requirements present in the record. It must resolve these inconsistencies and ambiguities in 
the record with independent, objective evidence pointing to where the truth lies. 14 
Considered together, the material in the record specifies bachelor's degrees in computer science, 
information systems, or a related field, or that work experience alone would suffice for entry into the 
position. 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. Here, the Petitioner's 
inconsistent requirements for the proffered position is sufficient to preclude the petition's approval, as the 
Petitioner has not demonstrated that the offered position satisfies the definition of a specialty occupation 
found at section 2 l 4(i)(l) of the Act. 
The Petitioner also provides an opinion letter from Professor U-. In his letter, the professor (1) 
describes the credentials that he asserts qualify him to opine upon the nature of the proffered position; 
(2) references the duties proposed for the Beneficiary; and (3) reiterates the Petitioner's statement that 
13 As previously discussed, the mid-vendor's purchase order for the Beneficiary's services with the end-client simply notes 
the requirements for the position as "Java," not the attainment of a bachelor's degree in a specific specialty. 
14 See Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
6 
those duties require a bachelor's degree in computer science, a related area, or the equivalent. We 
carefully evaluated the professor's assertions in support of the instant petition but, for the following 
reasons, determined his letter is not persuasive. 
In his letter, the professor states that he "had the opportunity to review the [Petitioner's] letter of 
support submitted with the petition and the job description of the [a]pplication [s]upport [d]eveloper 
position it now seeks to fill." While he provides a brief, general description of the Petitioner's business 
activities, he does not demonstrate in-depth knowledge of the Petitioner's operations or how the duties 
of the position would actually be performed in the context of the end-client's business enterprise. 
Notably, the professor did not mention that the Beneficiary will be assigned offsite at the end-client 
location. The professor asserts that the described duties "are not those of a lower-level employee 
performing tasks such as those performed by a [t]echnologist or an IT-support employee, but [r]ather 
those of a professional employee with a strong background in computer science concepts and 
principles and a great level of responsibility within the company." But, the absence of any substantive 
discussion of the position's duties and the required knowledge to perform them within the context of the 
end-client's project(s) raises doubts about the professor's level of familiarity with the proffered position. 
His opinions thus do not demonstrate a sound factual basis for the conclusion about the educational 
requirements for the particular position here at issue. 
Additionally, the professor's conclusions about the proffered pos1t10n appear to rest upon on 
unsubstantiated assertions. For instance, the professor opines "duties such as developing the user 
interface screens for presentation using HTML5, Java Script and CSS could only be performed 
competently by a candidate with at least a [b ]achelor' s degree in [ c ]omputer [ s ]cience or a related 
area." (Emphasis added.) But, the professor does not explain why skills pertaining to the use of such 
technologies can only be gained through the attainment of a bachelor's degree, rather than through 
certifications in these technologies or a computer bootcamp. He does not explain how the Beneficiary 
will utilize these tools and technologies, and how their use is so unique, specialized or complex that a 
bachelor's degree in computer science or a related field is required. 
While the professor generally ties attaining a bachelor's degree in computer science to concepts one 
might employ while engaged in the proffered position, his account lacks a sufficient analysis of the 
specific curriculum necessary to successfully perform the duties of the position such that attaining a 
degree in a specific specialty is a necessary prerequisite. For example, the professor observes in his 
position analysis that "[t]he knowledge required to perform [the duties of the proffered position] is usually 
gained through the attainment of a [b ]achelor' s degree in the field." The professor lists various courses 
that are typical curriculum for a degree in computer science, such as computer programming, data 
structures, and data processing. While the professor may be attempting to demonstrate how an 
established curriculum of courses leading to a bachelor's degree in a specific specialty is required to 
perform the duties of the proffered position, we cannot agree with his analysis. 
Here, the professor confuses the ability of a degreed computer science person to perform the duties of 
the proffered position with a degree requirement in order to perform the duties. While the professor 
may draw inferences that computer science 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 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 
7 
a degree is required to perform those duties. As such, the professor's analysis misconstrues the 
statutory and regulatory requirements of a specialty occupation. 
Importantly, the professor did not address the variances between the minimum requirements for the 
position as contemporaneously stipulated by the Petitioner, ( e.g., that work experience alone will 
suffice for entry into the position), relative to his own conclusions regarding the position requirements. 
Matter of Ho, 19 I&N Dec. at 591-92. 
For all of these reasons, we conclude the Petitioner's reliance on the professor's opinion letter is 
misplaced. We may, in our discretion, use advisory opinion statements submitted as expert testimony. 
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. Matter of Caron International, l 9 
I&N Dec. 791 (Comm'r 1988). As a reasonable exercise of our discretion we discount the advisory 
opinion letters as not probative to the matter at hand. For the sake of brevity, we will not address other 
deficiencies within the professor's analyses of the proffered position. 
When considered collectively, we conclude that the inconsistencies, unanswered questions, and lack 
of documentation in the record raise questions as to the actual, substantive nature of the proffered 
position. The Petitioner has not submitted consistent, probative evidence to adequately communicate 
(1) the actual work that the Beneficiary would perform, (2) the complexity, uniqueness, 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. Accordingly, the Petitioner has not 
established that the proffered position is a specialty occupation. 15 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and 
hereby reserve the Petitioner's appellate arguments regarding whether an employer-employee 
relationship will exist with the Beneficiary. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts 
and agencies are not required to make findings on issues the decision of which is unnecessary to the 
results they reach"); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to 
reach alternative issues on appeal where an applicant is otherwise ineligible). 
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. 
ORDER: The appeal is dismissed. 
15 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. 
8