dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8913563 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 28, 2020 
The Petitioner, an information technology solutions provider, seeks to temporarily employ the 
Beneficiary as a "software developer" 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 Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish that (1) the Beneficiary would perform services in a specialty occupation and (2) that the 
Petitioner will maintain an employer-employee relationship with the Beneficiary. The matter is now 
before us on appeal. 
The Petitioner bears the burden of proof to demonstrate el ig ibi I ity by a preponderance of the evidence. 2 
We review the questions in this matter de novo.3 Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services .. . in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific 
specialty (or its equivalent) as a minimum for entry into the occupation in the United States." The 
regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates section 214(i)(I) of the Act, but adds a non­
exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position.4 Lastly, 
1 Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
2 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
4 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... "(emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and 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 
The Petitioner, which is located in New Jersey, will outsource the Beneficiary to work as a "software 
developer" for an end-client in Georgia, pursuant to a series of contractual relationships between six 
entities. 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 due to material inconsistencies contained within the record and a lack 
of specificity in the duties to be performed. This precludes a determination of whether the proffered 
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 
position qualifies as a specialty occupation under sections 101(a)(15)(H)(i)(b), 214(i)(1) of the Act; 
8 C.F.R. § 214.2(h)(4)(i)(A)(1), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 5 
The Petitioner has not provided consistent information concerning the contractual path of the entities 
involved. In at least one iteration, the contractual path appears to flow from the Petitioner tee==] 
I !(first-vendor, doing business as I I, between the first-vendor and LJ 
I O !(second-vendor), between the second-vendor and I I (third-vendor), and 
between the third-vendor and the,___ _____________ __.(end-client). Moreover, 
documents in the record, including the certified labor condition application (LCA), state that the work 
will be performed at a worksite belonging to none of the above listed entities, but rather to a sixth 
entity.I I As such, one iteration of the contractual path of succession between the actors in 
this case may be summarized as: Petitioner ::t: First-Vendor ::t: Second-Vendor ::t: Third-Vendor ::t: 
End-Client at Fourth-Vendor's site. 
Within the same initial support letter, the Petitioner also stated that the first-vendor's client is the third­
vendor and that the proffered position involves the third-vendor's internal project. Further, the 
Petitioner stated that the project will be completed at the third-vendor's worksite. This information 
appears to be irreconcilable with the Petitioner's first articulation of the contractual chain and worksite 
information.6 On appeal, the contractual chain appears to change once again, as the letters and 
contractual documentation feature no apparent role for the first-vendor. Instead, the Petitioner 
contracts directly with the second-vendor. 
Further confusion arises when we review the "Exhibit A "Services" and/or "Statement of Work"" 
document, included as part of the contract between the second-vendor and the third-vendor. This 
statement of work contains a list of twenty-eight duties that the second-vendor will perform for the 
end-client's project. On appeal, the Petitioner submitted an identical contract executed between the 
third-vendor and the fourth-vendor, obligating the fourth-vendor to perform the same twenty-eight 
duties. The "Exhibit A "Services" and/or "Statement of Work"" also states that the second and fourth 
vendors offer a supportive role to the end-client's project. However, in examining the substance of 
the twenty-eight duties, the roles of the second and fourth vendors appear to reach beyond that of 
simply providing support or of supplying staff. The documentation indicates that these vendors are 
heavily involved in performing the day-to-day work for the end-client and are contractually bound to 
do so. In addition, they support on and offsite efforts in the exact same manner as each other. 
While the Petitioner states the role of the third-vendor is to schedule and prioritize work, it is unclear 
how it accomplishes this when the Petitioner claims that at all times, the Beneficiary works under the 
direct supervision and control of the Petitioner. Further confusion arises concerning the supervision 
and control of the Beneficiary due to the language in a letter from the third-vendor. The letter states: 
(1) the second-vendor "provides a qualified Software Developer, [the Beneficiary], for this project;" 
(2) "[h]er employment is being coordinated by [the second-vendor];" and (3) "[the Beneficiary] is on 
5 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. 
6 In addition to featuring incorrect grammar and awkward turns of phrase, the Petitioner's initial support letter refers to the 
Beneficiary using a gender pronoun that is not the same as the gender claimed on the Form 1-129. As such, the credibility 
of this letter is diminished. 
3 
contract with [the second-vendor]." This language suggests that the second-vendor controls the 
Beneficiary's employment. The Petitioner has not provided sufficient information to support its claim 
of supervision and control over the Beneficiary, particularly given the role that other entities appear 
to have in this regard. 
As the foregoing discussion demonstrates, the roles and responsibilities overlap and lack delineation. 
It is not readily discernible how the various contractual entities, roles, and individual positions fit 
together. When viewing the information in its totality, the Petitioner has not clearly identified its role 
or defined the proffered position in such that we may understand its substantive nature. 
The Petitioner initially provided no specific minimum qualifications for the position other than a "post­
secondary education." Documents in the record from the second-vendor stated that the third-vendor's 
minimum qualification for the proffered position is at least a bachelor's degree in computer science or 
a related field "with a knowledge of Client processes knowledge, EOMS business knowledge, Team 
Foundation Server; MS-Office, Share point; Visual Studio, .Net Framework, C#, ASP.NET, Entity 
Framework, MVC, Web Services (REST, Web API), SQL Server, HTML, CSS, Bootstrap, jQuery, 
JavaScript, Telerik Controls, Web API; FTP/SFTP Protocols, Data Encryption and Decryption 
techniques; EOMS processes, N unit, Unit Testing and Manual Testing; .NET Core, .NET Defect 
management, I IS; Cl/CD tools Microsoft Team Foundation Server, EOMS business knowledge and 
ReSharper." In response to the Director's request for evidence (RFE), the Petitioner submitted a letter 
from the third-vendor which repeated these requirements. 7 
The Petitioner does not state how much knowledge it requires in these areas, nor does the Petitioner 
state how it determines whether and how a candidate for the proffered position would meet these 
knowledge requirements. We note that "Team Foundation Server" and "Web API" appear twice in 
the list. "EOMS business knowledge" also appears twice, along with "EOMS processes." The 
Petitioner has not explained how these differ and why these knowledge areas are listed more than 
once. Moreover, these requirements include knowledge of the client's business and processes. The 
Petitioner has not explained how this knowledge would be obtained apart from on-the-job training and 
therefore, it appears that this knowledge is not a minimum qualification for entry into the position. As 
such, these minimum qualifications are unclear and further prevent us from determining the 
substantive nature of the position. 
Later in the same RFE response, the Petitioner provided a position description document which states 
that the proffered position requires a "Bachelor's degree, or its equivalent, in Master of Technology, 
or another closely related major. Bachelor's degree: Electronics and Communication Engineering 
Degree: Master of Technology Specialization: Computer Engineering Technology." As articulated, 
these requirements are unclear, and it cannot be ascertained what the Petitioner means by a bachelor's 
degree in master of technology. The proffered position description appears to be muddled with the 
Beneficiary's particular degrees and it is unclear what the requirements of the particular position are 
apart from the qualifications of the Beneficiary. We are required to follow long-standing legal 
standards and determine first, whether the proffered position qualifies as a specialty occupation, and 
7 The Petitioner offers little information on what these tools are or do such that we may understand why they are important 
for the position and why using them would involve specialized knowledge commensurate with a bachelor's degree in a 
specific specialty. 
4 
second, whether the beneficiary was qualified for the position at the time the nonimmigrant visa 
petition was filed.8 
As noted above in Section I, where the work is to be performed for entities other than the petitioner, 
evidence of the client companies' job requirements is critical.9 Here, the end-client has not articulated 
its requirements. Though the Petitioner and other entities may loosely refer to the third-vendor as the 
end-client, this is not accurate based on the record. Moreover, because the contractual chain is unclear, 
it cannot be ascertained how the Petitioner, the second-vendor, and the third-vendor would have 
knowledge sufficient to dictate the end-client's requirements on its behalf. As such, the Petitioner has 
not sufficiently addressed the requirements set forth in Defensor v. Meissner, which further inhibits 
our understanding of the proffered position. 
A crucial aspect of this matter is whether the duties of the proffered position are described in such a 
way that we may discern the actual, substantive nature of the position. The Director notified the 
Petitioner that its initial duty descriptions were insufficient to establish the position as a specialty 
occupation. In its RFE response, the Petitioner provided, via letters from various contractual entities, 
the same duties with additional bullets below each main duty. Some of these bullets appear to create 
new duties. Specifically, under the main duty to "[p]articipate in meetings with stakeholders and 
project team to gather requirements, analyze business challenges and provide the technical 
specifications regarding the changes, enhancements," the Petitioner added the nested bullet of "[t]rack 
different types of work - such as user stories or product backlog items, tasks, bugs, or issues and 
coordinate efforts within team." As articulated, we cannot determine why or how the nested bullet 
provides explanation or detail to the first main bullet. Rather, it appears that the Petitioner, via its 
contractual entities, has created a new duty. 
It is well established that a petitioner may not make material changes to a petition in an effort to make 
a deficient petition conform to USCIS requirements.10 Because a petitioner must establish that all 
eligibility requirements for the immigration benefit have been satisfied from the time of the filing and 
continuing through adjudication, 11 a visa petition may not be approved at a future date after a petitioner 
or beneficiary becomes eligible under a new set of facts.12 As such, eligibility for the benefit sought 
must be assessed and weighed based on the facts as they existed at the time the instant petition was 
filed. In order for a petitioner to comply with 8 C.F.R. § 103.2(b)(1) and USCIS to perform its 
regulatory duties under 20 C.F.R. § 655.705(b), a petitioner must file an amended or new petition, 
along with a new LCA certified by DOL, in order to capture any material changes in terms or 
conditions of employment or the beneficiary's eligibility. 
Even if we accept the information contained in the new bullets as providing additional detail rather 
than creating a new duty, this information would still be inadequate to determine the substantive nature 
of the position. In general, the Petitioner's descriptions contain vague and abstract information that 
8 Cf. Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988) ("The facts of a beneficiary's background 
only come at issue after it is found that the position in which the petitioner intends to employ him falls within [a specialty 
occupation]."). 
9 Defensor v. Meissner, 201 F.3d at 387-88. 
10 See Matter of lzummi, 22 l&N Dec. 169, 176 (Assoc. Comm'r 1998). 
11 8 C.F.R. § 103.2(b)(1). 
12 See Matter of Michelin Tire Corp., 17 l&N Dec. 248 (Reg'I Comm'r 1978). 
5 
inhibit our understanding of the proffered position. One example is the duty to "Develop WEBAPI 
services using Repository pattern and Entity Framework to read & write operations (CRUD - create, 
read, update, delete) to SQL Database tables in Request IMS, ELCA, PWMS, ERS, Time Tracker, 
CAP/AAR applications." Though the Petitioner provides a basic explanation of what some of the 
listed terms mean, the explanations do not add to our understanding, nor do they clarify what the 
Beneficiary wi 11 do to the applications or how the applications wi 11 be created. The Petitioner provides 
little information on what "read & write operations" includes or what the Beneficiary does to utilize a 
repository pattern. 
The duties to "Develop new screens using ASP.NET, MVC, bootstrap and Telerik controls for UI 
design" and "Create AJAX calls using jQuery to pass to data controller" are similarly vague and 
abstract. Apart from listing the tools used, the Petitioner does not explain what developing new screens 
involves or what the Beneficiary will do to create AJAX calls. Further, we do not know what passing 
to the data controller means or why it would require specialized knowledge. The Petitioner must ensure 
the material duties sufficiently convey the Beneficiary's activities at the end-client location in such a 
manner that a person without a great familiarity with the technical nature of these functions would be 
able to grasp what the position consists of, and why it and the duties are so complex.13 
While some bullets appear to create new duties, others restate the same duty without adding clarity or 
insight into the duty itself. For instance, the duty to "[p]articipate in Business Requirements, scope 
gathering, analyzing and translating business context into technical specification to applicable use case 
mapped as per the Business Requirements" has the nested bullet explanation of "[c]reate use cases and 
map them to the scenarios for the business requirements." Here, the Petitioner uses the duty itself to 
describe the tasks within the duty, which provides little additional information into what the duty 
involves. In addition to circular descriptions, the Petitioner provides inconsistent information 
concerning the amount of time spent on a particular duty. The descriptions assign different 
percentages to the same or similar duties. For instance, business requirement gathering appears more 
than once, as does identifying, tracking, and fixing bugs. As described, we cannot discern how much 
of the Beneficiary's time will be spent on these activities. 
We reviewed the project plans and the Petitioner's description of what EOMS does, however there is 
little concrete information about the Beneficiary's specific role on the project and how the work 
performed in the proffered position fits into the overall project.14 For instance, the project documents 
include work breakdown structures that appear to list position titles, however we cannot determine 
where the Beneficiary fits in because the roles have not been defined and the font is illegible. Various 
documents in the record refer to the Beneficiary's role as a "software developer," "engineer," "inter­
software programmer," as well as a ".Net developer." The Petitioner has not stated whether these 
differently titled positions are the same or similar to the proffered position and this inconsistency 
undermines the credibility of the Petitioner's statements concerning the proffered position. 
Additionally, given the variation in the Beneficiary's title, even if the work breakdown charts were 
legible, it would still be unclear what title refers to the Beneficiary.15 
13 See Sagarwala v. Cissna, No. CV 18-2860 (RC), 2019 WL 3084309, at *8-10 (D.D.C. July 15, 2019). 
14 These project plans are unsigned and therefore it is questioned whether they are accurate and currently in effect. 
15 The Beneficiary's work product documents appear to feature messages to the Beneficiary on tasks to complete, similar 
to IT service desk tickets. The Petitioner has not provided an explanation to accompany this work product such that we 
may understand why this work requires specialized knowledge. 
6 
We note that the Petitioner claims to be the Beneficiary's employer and that it will supervise and 
control the Beneficiary's work. However, inconsistent information concerning the relationship of the 
various parties in the contractual arrangement and the apparent inability of the Petitioner to provide a 
clear position description combine to undermine the Petitioner's claims regarding the actual, 
substantive nature for the position. These factors suggest that the Petitioner is not aware of the 
Beneficiary's daily work. Though the Petitioner states that it will review weekly project status reports 
and conduct regular performance appraisals, this information does not address whether the Beneficiary 
and Petitioner communicate beyond just the Beneficiary's self-reported status and the occasional 
feedback received from the end-client or other entities. While the Petitioner and the Beneficiary may 
use after-action time sheets to communicate tasks that were already performed and projections for the 
week ahead, we see little information that addresses how the Petitioner obtains the client- and project­
centric knowledge required to supervise and control the Beneficiary's work as it claims it will do. 
We have I ittle information concerning how the Petitioner would be aware of what future tasks to assign 
the Beneficiary based on the results required by the client, nor do we have documentation indicating 
that the Petitioner actually assigns work. Rather, we read that the Beneficiary self-reports the work 
that must be performed the next week, which suggests that other entities primarily assign the 
Beneficiary work. Therefore, we question whether the position exists as described and whether the 
Petitioner will employ the Beneficiary under the terms it claims. These apparent discrepancies and 
unanswered questions surrounding the relationship between the Petitioner and the Beneficiary raise 
significant questions as to the actual, substantive nature of the proffered position. Due to the 
contradictory information concerning the contractual chain, the inconsistent descriptions of each 
entities' role, as well as the problematic duty descriptions, we cannot discern the substantive nature of 
the proffered position. 
Lastly, we turn to the opinion letter offered by,___ _____ _.ofl !university School of 
Management. I !focuses the bulk of his opinion on how the knowledge to perform the 
duties of the position are taught in bachelor's degree programs in the qualifying field, rather than 
providing analysis of (1) why the education would be required to perform the duties and (2) why the 
duties would be considered specialized, unique or complex. As such, his opinion offers little ins!.9.b.!. 
into the substantive nature of the position. The lack of cogent analysis strongly suggests that LJ 
I lwas asked to confirm a preconceived notion as to the required degrees, not objectively assess 
the proffered position and opine on the minimum bachelor's degree required, if any. While we will 
review the opinion presented, it has little probative value as it does not include specific analysis of the 
duties of the particular position that is the subject of this petition. We may, in our discretion, use 
opinion statements submitted by the Petitioner as advisory.16 
The Petitioner has not established the substantive nature of the work that the Beneficiary will perform 
due to material inconsistencies contained within the record and a lack of specificity in the duties to be 
performed. The failure to establish the substantive nature of the position precludes us from 
16 Matter of Caron lnt'I, Inc., 19 l&N Dec. 791, 795 (Comm'r 1988). 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. Id. 
7 
determining whether it satisfies any of the regulatory specialty-occupation criteria at 8 C.F.R. 
§ 214.2(h)( 4)(i i i)(A)(l)-( 4).17 
111. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
The appeal will be dismissed for the above stated reason. In visa petition proceedings, it is a 
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. 
17 Because the proffered position is not a specialty occupation, we need not address the Director's conclusions as to whether 
the Petitioner would engage the Beneficiary in an employer-employee relationship. 
8