dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 9500849 
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: WL Y 2, 2020 
The Petitioner, an information technology consulting services company, seeks to temporarily employ 
the Beneficiary as a "java developer" under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 10l(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 Director of the California Service Center denied the petition, concluding that the evidence of 
record does not establish that the proffered position qualifies as 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 Christo 's Inc. , 26 I&N Dec. 537,537 n.2 (AAO 2015) . 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
corning temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and attainment of a bachelor 's or higher degree in the specific 
specialty (or its equivalent) as a minimum for entry into the occupation in the United States." The 
regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates section 214(i)(l) of the Act, but adds a non­
exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position .1 Lastly, 
1 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe the tenn "degree" to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
8 C.F.R. § 214.2(h)(4)(i)(A)(I) states that an H-lB classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position determine: (1) the normal 
minimum educational requirement for entry into the particular position, which is the focus of criterion 
1; (2) industry positions which are parallel to the proffered position and thus appropriate for review 
for a common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, 
when that is an issue under criterion 3; and (5) the degree of specialization and complexity of the 
specific duties, which is the focus of criterion 4. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Further, as recognized by the court in Defensor v. Meissner, 201 F.3d 384, 87-88 (5th Cir 2000), where 
the work is to be performed for entities other than the petitioner, evidence of the client companies' job 
requirements is critical. The court held that the former Immigration and Naturalization Service had 
reasonably interpreted the statute and regulations as requiring the petitioner to produce evidence that 
a proffered position qualifies as a specialty occupation on the basis of the requirements imposed by 
the entities using the beneficiary's services. Id. Such evidence must be sufficiently detailed to 
demonstrate the type and educational level of highly specialized knowledge in a specific discipline 
that is necessary to perform that particular work. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
II. PROFFERED POSITION 
In the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner stated that the Beneficiary will 
serve as a java developer. Although the Petitioner's address is in Iowa, the Petitioner stated that the 
Beneficiary would work for an end-client in Indiana through agreements between the Petitioner and three 
vendors. 
Siam Co1p. 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 record indicates that the contractual path of the Beneficiary's assignment is as follows: 
Petitioner - Company I- -
(First Vendor) 
Company P- -
(Second Vendor) 
Company I-L­
(Third Vendor) 
End-Client 
On the labor condition application (LCA)2 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Software Developers, Applications" 
corresponding to the Standard Occupational Classification code 15-1132. 
III. 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 10l(a)(l5)(H)(i)(b), 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A).3 
As recognized by the court in Defensor, where the work is to be performed for entities other than the 
petitioner, evidence of the client companies' job requirements is critical. See Defensor, 201 F.3d at 
387-388. 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. at 384. 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. 
The Petitioner submitted a copy of its Professional Services Agreement (PSA) with the first vendor 
which indicates that the Petitioner will provide personnel to perform services for the first vendor's 
clients. Appended to this agreement was a Purchase Order, which indicated that the Beneficiary would 
be assigned to work for the end-client as a "Java Developer" for a period of 24 months commencing 
on March 19, 2018.4 
Regarding the relationship between the first and second vendors, the Petitioner submitted a copy of 
the first and last pages of a Staffing Services Supplier Agreement (SSSA) between the first vendor 
and the second vendor. Much of the submitted documentation is redacted. The unredacted portion 
indicates that the first vendor will provide staffing services to the second vendor's client, the third 
2 A petitioner submits the LCA to the U.S. Department of Labor (DOL) to demonstrate that it will pay an H-lB worker the 
higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid 
by the employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 
C.F.R. § 655.73 l(a). 
3 The Petitioner submitted documentation to suppmt the H-1 B 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. 
4 The Petitioner most recently employed the Beneficiary through STEM-related post-completion optional practical training 
and has provided copies of wage statement for his employment with the Petitioner. 8 C.F.R. §§ 274.a.12(c)(3)(i)(C), 
214.2(f)(l 0)(ii)(C). 
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vendor. The redacted document contains no purchase orders or work orders, and makes no reference 
to the Beneficiary. 
The Petitioner also submitted a Managed Services Program Master Services Agreement (MSPMSA) 
between the second vendor and the third vendor. Like the SSSA between the first and second vendors, 
this agreement is also largely redacted. The non-redacted portion of the MSPMSA indicates that the 
second vendor will serve as the third vendor's managed services provider, and will provide service to 
the third vendor under a "Description of Services" (DOS), which will describe the services to be 
provided and outline additional terms and conditions of those services. Although a redacted DOS was 
submitted into the record, we cannot ascertain the terms and conditions of the services to be provided, 
nor can we determine whether it pertains to the Beneficiary. Finally, we note that both documents 
were executed in November of 2015. As the documents are largely redacted, we are unable to 
determine whether they are still in effect. 
Prior to adjudication, the Petitioner submitted no documentation of a contractual relationship between 
the third vendor and the end-client, but submitted two letters from the end-client. The second letter 
from the end-client, submitted in response to the Director's request for additional evidence, stated that 
the Beneficiary would be working on thf: ~ I project with the 'Teaml I," and described 
her duties on this project as follows: 
• Participate in daily stand up meetings to update the team about the progress, 
clear impediments onpresent [sic] working story. 
• Implement the development tasks for the respective stories. 
• Refine the project backlog stories to understand the scope, impediments and 
define acceptance criteria for the same for the next iterations. 
• Communicating, analyzing, and identifying areas of modification in developing 
existing code. 
• Daily log hours in Jira across the working story. 
• Support the production activities forl I Application. 
The end-client also stated that the Beneficiary's duties in the position of java developer would be as 
follows: 
• Design and Develop cloud based software applications using A WS cloud. 
• Will provide software development in support of the modernization of an 
existing application. 
• Will research and analyse [sic] information to determine, recommend and plan 
implementation of modifications to an existing system. 
• Work on designing applications based on TDD (Test Driven Development) 
• Responsible to design and development of test automation scripts using 
selenium to enable faster delivery of solutions to the end customers 
• Test an application using Unit testing, Performance testing and provide reports 
to business owners 
• Keep abreast of emerging software development and inform management of 
trends and impact. 
4 
• Post implementation of new feature, provide assistance on UAT and 
productions issues. 
• Provide assistance to team involving web applications and databases. 
• Provide coding guidelines, standards required for new application. 
• Work in Agile methodology and perform sprint planning, Estimation, demo and 
retrospective. 
• Work to improve Continuous integration and Continuous delivery system to 
deliver quality products at a faster pace. 
The end-client also stated that the minimum qualifications for the proffered position is at least a 
bachelor's degree in computer science or computer information systems, and that the proposed 
assignment was anticipated to continue until December 2021. 
The Petitioner also submitted several letters from the vendors. The two letters submitted from the first 
vendor restate the java developer duties listed above, and also state that the assignment is anticipated 
to continue until December of 2021. The three letters from the second vendor differ in their overview 
of the duties of the position. While each letter from the second vendor states that the Beneficiary will 
work for the end-client, each letter contains a completely different overview of the proffered position, 
The first letter, submitted initially with the petition, contains a completely different list of duties than 
that set forth by the first vendor and the end-client. The second letter, submitted in response to the 
RFE, adopts the statements contained in the end-client letter virtually verbatim. 
In denying the petition, the Director noted that the record as constituted did not demonstrate the 
specific duties the Beneficiary would perform under contract for the Petitioner's clients. Specifically, 
the Director noted that the record was devoid of detailed contractual documents involved in the 
claimed work arrangement for the Beneficiary, and specifically noted the absence of documentation 
between the third vendor and the end-client. 
On appeal, the Petitioner provides new documentation. Regarding the relationship of the third vendor 
and the end-client. This documentation includes a document entitled "Amendment Number 3 to 
Master Services Agreement" between the third vendor and the end-client, as well as a letter from the 
third vendor. The Petitioner also submits an updated Purchase Order between the Petitioner and the 
first vendor for the Beneficiary's services. We note, however, 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 (BIA) 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 district director. 
Further, in Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988), the BIA held that if a petitioner was 
put on notice of an evidentiary requirement (by statute, regulation, form instructions, an RFE, notice 
of intent to deny, 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. Also see Matter of Jimenez, 
21 I&N Dec. 567, 570 n.2 (BIA 1996), which found that claims of eligibility presented for the first 
5 
time on appeal are not properly before the appellate authority, and that the appellate body would not 
issue a determination on the new eligibility claims. 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 petitioner 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. 5 
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 
affected party was put on notice of an evidentiary requirement; (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. 6 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. 7 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. 8 
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. 9 Consequently, we 
will only consider the claims and evidence the Petitioner presented before the Director. If the Petitioner 
wished to address this newly offered evidence, it should not start at the appellate stage, but before the 
initial reviewing authority. Therefore, to address this issue, the Petitioner should have either filed a 
motion to reopen before the Director, or presented the new material within a new petition filing. 10 Under 
the circumstances, we need not and do not consider the sufficiency of the new contractual 
documentation submitted for the first time on appeal. 
On appeal, the Petitioner also submits new letters from the first and second vendors, which provide a 
vastly detailed overview of the proffered position beyond that previously contained in the record. The 
Petitioner also provides a detailed overview of the duties of the position, which outlines the skills 
needed to perform the duties, the percentage of time to be devoted to each duty, the level of 
responsibility required for each duty, and the hours per week the Beneficiary would devote to each 
5 Soriano, 19 T&N Dec. at 766. 
6 See 8 C.F.R. § 103.3(a)(l )(v). 
7 8 C.F.R. § 103.2(b)(l), (12). 
8 Matter of Michelin Tire Co1p., 17 l&N Dec. 248, 249 (Reg'l Comm'r 1978). 
9 SeeMatteroflzummi. 22 l&NDec. 169,175 (Assoc. Comm'r 1998). 
10 See Soriallo, 19 I&N Dec. at 766; Obaigbena, 19 l&N Dec. at 537. Further, matters that are raised for the first time on 
appeal will not normally be considered within the appellate proceedings. McKenzie v. USC1S, 761 F.3d 1149, 1154-55 
(10th Cir. 2014) cert. de!lied, 135 S.Ct. 970 (2015). Such late-asserted claims, or evidence, are not contemporaneous and 
appear to be a direct response to an adverse aspect of the Director's decision. Without adequately presenting this issue 
before the Director, the Petitioner deprived the Director of the ability to sufficiently review the relevant factors. This is 
not a proper basis to raise these matters ( or evidence) within the appeal. 
6 
duty. While relevant, none of these statements of duties were adopted or confirmed by the end-client. 
This documentation is not sufficient to overcome the Director's basis for denial. 
Additionally, the new letters submitted on appeal indicate that the Beneficiary's assignment at the 
end-client location will continue through December 2022. However, there is no other documentation 
in the record to corroborate the claims regarding the extension of the Beneficiary's assignment. 11 As 
previously noted, the record is devoid of any contractual documentation demonstrating an existing 
assignment for the Beneficiary continuing through December 2021 or December 2022. 
The Petitioner also submitted an affidavit from one of the Beneficiary's coworkers, in which he 
confirms the Beneficiary's assignment at the end-client's location. In comparing this affidavit with 
the newly submitted vendor letters on appeal, we note that the duties and overview of the position 
provided in the affidavit is identical to the duties and overview of the position provided by the vendors 
in their letters. Consequently, we decline to afford significant evidentiary weight to this affidavit. 
Even if we overlooked the verbatim language contained in this letter in comparison to the letters from 
the vendors on appeal, the description of the duties does not provide sufficient basis to conclude that 
the position requires the theoretical and practical application of a body of highly specialized 
knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty, or its 
equivalent. Again, this statement of duties is not confirmed by the end-client. Therefore, the affidavit 
provided by the Beneficiary's coworker has little probative weight towards establishing the actual 
work to be performed by the Beneficiary for the end-client. 
The record of proceedings, therefore, does not contain sufficient documentary evidence from the vendors 
and the end-client that establishes the contractual path under which the Beneficiary's assignment will 
commence or its duration. The PSA between the Petitioner and the vendor is simply a general 
agreement for the provision of personnel by the Petitioner to various clients of the vendor. Although 
the Petitioner submitted a Purchase Order with the vendor, there is no similar corroborating 
documentation between the vendors, and between the vendors and the end-client. 12 Moreover, the 
Purchase Order does not detail the nature of the project upon which the Beneficiary will work, the 
duties she will perform, or the terms and conditions under which she will work. 
This lack of documentation prohibits a determination that specialty occupation work had been secured 
for the Beneficiary at the time of filing. Without documentary evidence that delineates the contractual 
terms between the end-client and the vendors, including the true duties and the requirements for the 
position, we are unable determine the substantive nature of the proffered position. As discussed above, 
the assertions in the vendor and end-client letters regarding the Beneficiary's assignment are not 
supported by contemporaneous contractual documentation. 
11 We also note the submission on appeal of a new Purchase Order between the Petitioner and the first vendor for the 
Beneficiary's services. indicating that the Beneficiary would be assigned to work for the end-client as a "Java Developer" 
for a period of"24+ months" commencing (tentatively) on March 19, 2019. As noted above, this document. signed on 
March 11, 2019. was previously available but the Petitioner declined to submit it in response to the Director's RFE. 
Nevertheless, even if we were to accept this document on appeal, the claimed 24 month validity period of the assignment 
would extend only through March 2021 under the terms of the purchase order, and not through December 2022 as claimed 
in the letters submitted on appeal. 
12 Again, for the reasons stated update. we decline to consider the new documentation submitted on appeal regarding the 
relationship between the third vendor and the end-client. 
7 
The record does not contain documentary evidence of the contractual terms between the end-client 
and any other party, raising questions regarding the substantive nature of the work for the Beneficiary 
to perform. Although the end-client letter generally asserts that the Beneficiary is providing services 
to the end-client, the letters from the vendors identify different duties and durations for the claimed 
assignment, and no attempt to resolve those discrepancies has been made. Although the end-client 
provides a general list of the duties to be performed, some of which are identical to those contained in 
the vendor letters, the extent to which the duties of the Beneficiary are accurately described is unclear. 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for an 
entity other than the petitioner, evidence of the client company's job requirements is critical. Here, 
the record does not adequately establish that the Beneficiary would provide services in a specialty 
occupation for the end-client for the employment period requested in the petition. 
Therefore, the Petitioner's failure to establish the substantive nature of the work to be performed by the 
Beneficiary precludes a determination that the proffered position is a specialty occupation under 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 
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. 
The Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h) (4) (iii) (A) and, therefore, it 
cannot be found that the proffered position qualifies as a specialty occupation. 
IV. 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. 
8