dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 9162565 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WLY 27, 2020 
The Petitioner, an information technology consulting company, seeks to employ the Beneficiary 
temporarily under the H-lB nonimmigrant classification for specialty occupations .1 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 Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified as a specialty 
occupation, and that it did not reflect the requisite employer-employee relationship. The matter is now 
before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility 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)(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 . 4 Lastly, 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b) . 
2 Section 291 of the Act; Matter of Chawathe, 25 J&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
4 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 
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. 
§ 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 one; (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 two; (3) the level of complexity or 
uniqueness of the proffered position, which is the focus of the second alternate prong of criterion two; 
( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, when that is 
an issue under criterion three; and ( 5) the degree of specialization and complexity of the specific duties, 
which is the focus of criterion four. 5 
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. 6 The Director may request additional evidence 
in the course of making this determination. 7 In addition, a petitioner must establish eligibility at the 
time of filing the petition and must continue to be eligible through adjudication. 8 
II. ANALYSIS 
The Petitioner, located in Michigan, seeks to employ the Beneficiary at an offsite location for~I __ __, 
I !(end-client) in Indiana through multiple mid-vendors. Based on a lack of sufficient 
evidence, we conclude that the Petitioner has not established the substantive nature of the position, 
which precludes a determination that the proffered position qualifies as a specialty occupation under 
at least one of the four regulatory criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(])-(4). 
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 Co1p. v. Chertof(, 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"). 
5 8 C.F.R. § 214.2(h)(4)(iii)(A). 
6 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
7 8 C.F.R. § 103 .2(b )(8). 
8 8 C.F.R. § 103.2(b)(l). 
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A. Offered Position's Duties 
We begin noting that the duties presented before the Director were inadequate to demonstrate 
eligibility under the H-lB program. The Petitioner initially provided the position's description and 
indicated it required a bachelor's degree (or an equivalent) in "Computer Science, and/or in any other 
related field," but it failed to offer material from the end-client. However, 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. 9 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. In other words, as the nurses in that case would provide services to the end-client 
hospitals and not to the petitioning staffing company, the petitioner-provided job duties and alleged 
requirements to perform those duties were irrelevant to a specialty occupation determination. 10 
First, the present scenario is analogous to that of the Defensor decision, as one in which the duties the 
Beneficiary will actually perform and the qualifications to perform them should originate from the 
end-client. 11 The material from the end-client should sufficiently convey the functions the Beneficiary 
would actually perform in his daily work. When the Petitioner responded to the Director's request for 
evidence (RFE) it provided a letter from the end-client. 
We observe multiple issues with the material from the end-client. Notably, a portion of the duties the 
client provided are overly generalized and the remaining functions are pervaded with unexplained 
industry jargon. This combination has the effect of undermining 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 work with various internal groups 
in "analyzing the user-end needs and to get intimately familiar with a project's schedule, requirements, 
and key features" or to "[p ]rovide estimates on timelines and development efforts, answer questions 
regarding technical aspects of a project or component." We also question why these duties contain 
inexact references to "a project's schedule" and "a project or component" instead of discussing the 
particular project upon which the Beneficiary would work. 
From the indeterminate nature of the duties, it is not self-evident that they are qualifying under the H-lB 
program. Without more, it would be difficult to conclude that such amorphous duties are so specialized 
and complex, or that the duties comprise a position that is so complex or unique, that one must attain a 
bachelor's degree in a specific specialty in order to perform them. 12 It is always the Petitioner's 
9 Id. 
10 See id. 
11 It is important to note that within the reference to the Defensor decision, we are not correlating the Petitioner's business 
model as a simple token employer. However, it is apparent that the Beneficiary would provide services to the end-client, 
not to the Petitioner. Furthermore, we conclude that it is more likely than not that the end-client possesses the technical 
knowledge of the duties that would comprise the proffered position, as well as the requirements to perform those duties. 
12 Cf Matter of Michael Hertz Assocs., 19 T&N Dec. 558,560 (Comm'r 1988) (indicating U.S. Citizenship and Immigration 
3 
responsibility to ensure the record demonstrates what functions make up a position, and how those tasks 
demonstrate eligibility. 13 Additionally, the truth is to be determined not by the quantity of evidence alone 
but by its quality.14 Further, although the end-client letter referenced creating sites and developing 
custom workflows, it is not apparent from this material what those functions involve. Stated 
differently, even though the end-client letter references concepts generally encountered within 
software development, they did not explain how those general functions factored into the actual work 
or the project in which the Beneficiary would engage while working at the end-client worksite. To 
establish eligibility, the end-client must describe the Beneficiary's specific duties and responsibilities 
in the context of the assigned project; but it has not done so here. 15 
Although some duties are less vague, it is not self-evident that they are qualifying under the H-1 B 
program due to the heavy use of jargon. This makes it nearly impossible for the lay person to 
determine whether the duties sufficiently convey the essential elements of the position. It is always 
the Petitioner's responsibility to explain what these jargon-laden functions involve, and how they 
demonstrate eligibility. 16 The Petitioner bears the responsibility to ensure such lingo is substituted 
with, or accompanied by, explanations and concepts that allow a person without a great familiarity 
with the technical nature of these functions to be able to grasp what the position consists o±: and why 
it is so complex or unique. 17 This further demonstrates that the Petitioner has not satisfied its burden 
of proof within these proceedings. 
Even if the duties from the end-client were sufficient under the H-lB program and in accordance with 
the Defensor decision, the Petitioner provided a nearly identical set of functions within the initial filing 
almost five months prior to the letter from the end-client in which the client provided the generalized 
duties. As a general concept, when a petitioner has provided material from different entities, but the 
language and structure contained within is notably similar, the trier of fact may treat those similarities as 
a basis for questioning a petitioner's claims. 18 When correspondence contain such similarities, it is 
reasonable to infer that the petitioner who submitted the strikingly similar documents is the actual source 
from where the similarities derive. 19 
Given the unique similarities in the duties and the order in which the Petitioner presented the evidence, 
we conclude that the Petitioner has not established, by a preponderance of the evidence that the duties 
Services (USCTS) 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). A broad and generalized presentation of a position's responsibilities prevents USCTS 
from making such a determination. See also Sagarwala v. Cissna, 387 F. Supp. 3d 56, 68 (D.D.C. 2019). 
13 Section 291 of the Act, 8 U.S.C. § 1361. 
14 Chawathe, 25 T&N Dec. at 376 ( citing Matter of E-M-, 20 T&N Dec. 77, 80 (Comm'r 1989)). 
15 We further note that the end-client did not provide sufficient information with regard to the order of importance and/or 
frequency of occurrence ( e.g., regularly, periodically, or at irregular intervals) with which the Beneficiary will perform the 
stated functions and tasks. Thus. the record does not specify which tasks are major functions of the proffered position. 
16 Section 291 of the Act, 8 U.S.C. § 1361. 
17 Sagarwala v. Cissna, 387 F. Supp. 3d 56, 68-70 (D.D.C. 2019). 
18 See Matter of R-K-K-, 26 l&N Dec. 658, 665 (BIA 2015); Surinder Singh v. Board of Immigration Appeals, 438 F.3d 
145, 148 (2d Cir. 2006); Wang v. Lynch, 824 F.3d 587, 592 (6th Cir. 2016); Dehonzai v. Holder, 650 F.3d 1. 8 (1st Cir. 
2011). 
19 See Mei Chai Ye v. US. Dept. of Justice, 489 F.3d 517,519 (2d Cir. 2007). 
4 
originated from the end-client. We conclude that-in accordance with Defensor, 201 F.3d at 387-88, 
which provides that when the work is to be performed for entities other than the petitioner, evidence of 
the client companies' job requirements is critical-the Petitioner has not demonstrated these elements are 
the end-client's actual requirements. The Petitioner must resolve this ambiguity in the record with 
independent, objective evidence pointing to where the truth lies. 20 Because someone other than the author 
of the end-client's email appears to have drafted a portion of the end-client correspondence as it relates 
to the duties, we ascribe it with diminished probative value. In evaluating the evidence, the truth is to be 
determined not by the quantity of evidence alone but by its quality. 21 While we are unable to determine 
the original source of the proposed duties, it remains the Petitioner's burden to establish the duties are 
the requirements actually imposed by the entity using the Beneficiary's services. 22 Here, the Petitioner 
has not offered sufficiently probative evidence in this matter and we conclude that it has not offered 
sufficient material in accordance with the Defensor decision. 
Regarding a revised job description the Petitioner provides on appeal, we note that the Director 
requested this type of material within the RFE, but the Petitioner did not submit it at that time. Multiple 
precedent decisions address whether newly submitted evidence on appeal will be considered. First, in 
Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988), the Board oflmmigration Appeals (Board) 
determined that where a petitioner fails to timely and substantively respond to agency correspondence, 
the appellate body will not consider any evidence first offered on appeal as its review is limited to the 
record of proceeding before the director. 
Further, in Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988), the Board held that if a petitioner 
was put on notice of an evidentiary requirement (by statute, regulation, form instructions, RFE, NOID, 
etc.) and was given a reasonable opportunity to provide the evidence, then any new evidence submitted 
on appeal pertaining to that requirement would not be considered, and the appeal would be adjudicated 
based on the evidentiary record before the director. Conversely, if the petitioner had not been put on 
notice of the deficiency or given a reasonable opportunity to address it before the denial, and on appeal 
the it submits additional evidence addressing the deficiency, the record would generally be remanded 
to allow the Director to initially consider and address the newly submitted evidence. 23 
Moreover, the Board found that the record as it existed before the previous trier of fact is the record 
the appellate body will review. 24 And finally, within Matter of C-, 20 I&N Dec. 529, 530 n.2 (BIA 
1992), the Board concluded that it would not consider any new evidence submitted on appeal; only the 
record as it existed previously. The Board further indicated that the proper venue for new evidence was 
a motion to reopen. 
For these reasons, except in exigent circumstances and at U.S. Citizenship and Immigration Services 
(USCIS) discretion, we will not consider evidence submitted for the first time on appeal if: (1) the 
20 Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1998). 
21 See Chawathe, 25 l&N Dec. at 376. 
22 Defensor, 201 F.3d at 387-88. 
23 Id. A remand to a previous trier of fact for new claims or evidence occurs within other appellate venues, as well. See 
Jander v. Ret. Plans Comm. of IBM. 910 F.3d 620 (2d Cir. 2018), cert. granted, 139 S. Ct. 2667 (2019), and vacated and 
remanded, 140 S. Ct. 592 (2020); F. Hoffinann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 175 (2004). 
24 Matter of Haim, 19 T&N Dec. 641, 643 (BIA 1988). 
5 
affected party was put on notice of an evidentiary requirement (by statute, regulation, form 
instructions, RFE, NOID, notice of intent to revoke, etc.); (2) the affected party was given a reasonable 
opportunity to provide the evidence; and (3) the evidence was reasonably available to the affected 
party at the time it was supposed to have been submitted. 
The reason for filing an appeal is to provide an affected party with the means to remedy what it perceives 
as an erroneous conclusion of law or statement of fact within a decision in a previous proceeding. 25 An 
appeal is a request to a higher authority to review a decision and is an opportunity to illustrate how the 
Director's determinations were incorrect. The Petitioner should not make such a significant change to an 
element that serves as the underlying basis for eligibility at this stage of the process. A petitioner must 
establish eligibility at the time it files the nonimmigrant visa petition. 26 USCIS may not approve a visa 
petition at a future date after a petitioner or a beneficiary becomes eligible under a new set of 
facts. 27 Accordingly, a petitioner may not make material changes to a petition, to its claims, or to the 
evidence in an effort to make an apparently deficient petition conform to USCIS requirements.28 
Consequently, we will only consider the claims and evidence the Petitioner presented before the Director. 
B. Opinion Letters 
The Petitioner offered two opinion letters for the record pertaining to the duties qualifying under the 
H-{B progrm. The letter presented before the Director was froml I a faculty member 
of University. First, we note that I I did not discuss the duties of the proffered 
position in any substantive detail as it relates to the end-client. Rather, he restated the same six duties 
listed in the Petitioner's initial filing. He did not discuss them in the specific context of the end-client's 
business, or the end-client project upon which the Beneficiary would work, nor did he mention the 
two duties in the end-client letter that were not included in the Petitioner's job description. 
There is no indication that he possessed any knowledge of the proffered position beyond this limited 
job description prior to documenting his opinion ( e.g., interviewed the Petitioner's or end-client's 
managerial teams, observed either entity's employees about the nature of their work, or documented 
the knowledge that these workers apply on the job). His level of familiarity with the actual job duties 
as they would be performed in the context of the end-client project has therefore not been 
substantiated. As a result, this significantly diminishes the evidentiary value of I I's 
opinion. Additionally,! !opined: 
[T]he duties of the proffered position are firmly within the scope of the specialized 
education covered in a standard degree programs [sic] 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 completing an 
undergraduate degree, or the equivalent, in [the Petitioner's previously stated degree 
requirements], a graduate will be able to successfully perform this position's duties 
with minimal on-the-job training. 
25 See 8 C.F.R. § 103.3(a)(l)(v). 
26 8 C.F.R. § 103.2(b)(l), (12). 
27 Matter of Michelin Tire COip., 17 l&N Dec. 248, 249 (Reg'l Comm'r 1978). 
28 See Matter of lzummi, 22 l&N Dec. 169, 175 (Assoc. Comm'r 1998). 
6 
'-------,------,---'I also stated that the duties "fit within" topics covered in a computer science curriculum. 
We acknowledge that in support of his conclusions, the professor cited 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 did not submit 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 within the professor's analysis, he confused the ability of a degreed 
candidate to perform the duties of this position with the mandatory requirements under the H-1 B 
program: a bachelor's degree in a specific specialty is required to perform the duties. 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 them. 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. 
We observe several other deficiencies withinl l's opinion; however, we deem it 
unnecessary to detail each one of them here. The final issue we note is I I's statement that 
"[b]ecause most if not all of the positions duties are within the scope of the topics taught in [a] 
University level Bachelor degree ... in the field such as Computer Science, or another closely related 
field ... the position must be considered sufficiently specialized and complex [to satisfy the H-1B 
requirements]." We disagree with this line of reasoning as it has the potential of leading to erroneous 
results. The simple fact that the knowledge needed to perform a position's duties is taught within a 
university curriculum does not automatically translate into that position qualifying as a specialty 
occupation. 29 
On appeal, the Petitioner offers a second opinion letter froml ~ an associate professor at 
I !University. Similar to the more detailed duties the Petitioner provides on appeal, the 
Director requested this type of evidence within the RFE and-for the same reasons-this material 
should not factor into our decision on appeal. 30 Even if his letter did factor into our analysis hereD 
Cl.also discussed the duties within the context of the Petitioner's operations and he failed to focus 
on or mention the end-client. Were we to factor the content of his opinion letter into our analysis, the 
result would be for us to ascribe his opinion with significantly diminished evidentiary value. 
C. Inconsistencies 
We note additional inconsistencies within the record that while they are not determinative on the 
Petitioner's eligibility, they add to the above deficiencies resulting in a further adverse effect on this 
petition. First, we question why the Petitioner amended its stated degree requirements between the 
29 For example, the duties of a bookkeeping clerk may be taught within a bachelor's degree program for accountants, but 
that does not mean that a bookkeeping clerk position must be considered to quality under the H-1 B statute and regulations. 
Nor would a paralegal position qualify simply because paralegal topics are taught within a law degree program. 
30 See Obaigbena, 19 I&N Dec. at 537; Soriano, 19 l&N Dec. at 766; Haim, 19 l&N Dec. at 643; and C-, 20 l&N Dec. at 
530 n.2. 
7 
initial filing and its RFE response. It initially indicated the position required a bachelor's degree, or 
an equivalent, in computer science or another related field without listing any additional disciplines. 
However, its RFE response at page 19 not only listed computer science, but specifically noted 5 other 
disciplines or areas. The Petitioner should offer consistent accounts of its position requirements in 
any future filing. 
Finally, we observe inconsistent job titles in the record. The Petitioner utilized the senior software 
developer title, while the end-client listed it as an application developer. This mismatch leads us to 
question whether the end-client and the Petitioner have the same understanding of the Beneficiary's 
position. At minimum, it reinforces our questions relating to the reliability of the various job 
descriptions contained in the record. 
D. Position's Substantive Nature 
Given the lack of detailed information from the end-client, and other noted deficiencies, the Petitioner 
has not sufficiently established the substantive nature or the essential elements of the work that the 
Beneficiary would perform. This precludes a finding that 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 the particular position, which is the focus of criterion one; 
(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 two; (3) the level of complexity 
or uniqueness of the proffered position, which is the focus of the second alternate prong of criterion two; 
( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, when that is an 
issue under criterion three; and (5) the degree of specialization and complexity of the specific duties, 
which is the focus of criterion four. 31 
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 a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
31 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