dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 11876601 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 25, 2021 
The Petitioner, an information technology services and consulting company, seeks to temporarily 
employ the Beneficiary as a "computer network support specialist" under the H-lB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(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 under any of 
the criteria listed in 8 C.F.R. § 214.2(h)(4)(iii)(A) . On appeal, the Petitioner asserts that the Director 
erred. The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the 
evidence. 1 We review questions in this matter de nova. 2 
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-1 B 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. Lastly, 
1 Section 291 of the Act; Matter ofChawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc ., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
8 C.F.R. § 214.2(h)(4)(i)(A)(l) 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, 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)(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. BACKGROUND 
The Petitioner seeks to assign the Beneficiary to an end-client location pursuant to contractual 
agreements between the Petitioner, I I (mid-vendor), and 
.__ _________ ___.(end-client). The Petitioner describes its mission as providing its 
customers with fast-paced and efficient solutions in the areas of e-commerce, business intelligence, 
data warehouse, m-commerce, application development and integration, database development, CRM 
and mobile computing. To provide these services, the Petitioner's consultants offer foll time on-site 
and off-site development and support. The Petitioner describes the proffered position as a foll time, 
on site computer network support specialist physically located at the end-client's place of business. 
Upon review of the entire record, and for the reasons set out below, we conclude that the Petitioner 
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has not demonstrated the substantive nature of the proffered pos1t10n, which precludes us from 
determining whether the position qualifies as a specialty occupation. 3 
III. ANALYSIS 
The Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation 
because the substantive nature of the position has not been established. We cannot determine the 
substantive nature of the position due to: (1) inconsistent and vague evidence regarding the duties and 
role of the proffered position; and (2) inconsistent claims as to the educational requirements of the 
position. Material inconsistencies in the record of proceeding create ambiguity about the substantive 
nature of the work to be performed by the Beneficiary and preclude us from determining whether the 
proffered position satisfies any of the regulatory specialty-occupation criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). A petitioner must sufficiently describe the proffered position and its duties in 
order for us to determine the substantive nature of the proffered position, and whether the position 
actually requires the theoretical and practical application of a body of highly specialized knowledge 
attained through at least a baccalaureate degree in a specific discipline. We conclude that the Petitioner 
has not done so here. 
On appeal, the Petitioner argues that the end-client's letter provided in response to the Director's 
request for evidence (RFE) is the best evidence that the position qualifies as a specialty occupation. 
We have carefully examined the end-client's letter, but conclude that the vague and generalized nature 
of its contents as well as material inconsistencies found in the end-client's letter (when compared to 
other evidence), fails to provide sufficient evidence to establish the substantive nature of the position 
for the following reasons. First, neither the Petitioner nor the end-client's letter include information 
about the Beneficiary's level of responsibility (for instance, an organizational chart). The Petitioner's 
RFE response letter states that the Beneficiary will be part of a team performing network maintenance. 
In contrast, the end-client's letter describes that the duties of the position involve coordinating with a 
networking team, which appears to place the position in a consultant's role. We are therefore unable 
to determine if the Beneficiary works as part of a team or as a consultant to a networking team, and 
this ambiguity leads to questions regarding the substantive nature of the proffered position. Without 
a clear understanding of the Beneficiary's level of responsibility and where the proffered position fits 
within the end-client's structure and project goals, we cannot ascertain the substantive nature of the 
proffered position. 4 Second, the end-client's letter lacks probative value. Specifically, while the end-
3 While we may not discuss every document submitted, we have reviewed and considered each one. 
4 A position's level of responsibility within an organization is imp01iant for determining whether the ce1iified labor 
condition application (LCA) actually corresponds to and supp01is the position. An LCA may require a wage level increase 
if the position requires duties that go beyond the scope of the tasks typically associated with the position in the Occupational 
Information Network's (ONET) entry for the occupation. (We note that the ONET has been updated since the filing of 
the petition and that the occupational code (15-1152) listed on the Petitioner's LCA is no longer available in ONET. The 
new code for Computer Network Support Specialists is 15-1231.00. See https://www.onetonline.org/link/summary/l 5-
123 l .OO (last visited March 18, 2021 ).) 
According to Department of Labor's guidance (DOL guidance), employers must follow a five-step process for determining 
the appropriate wage level. Sec U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf. Because we are unable to 
determine the position's level ofresponsibility within or outside a team environment, we cannot ascertain if the Petitioner 
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client's letter lists the position's duties, the duties have a different letter font and size when compared 
the rest of the letter. Therefore, it appears that the end-client simply copied a list of duties and 
transplanted them onto its letterhead without providing sufficient context and detail for us to determine 
the substantive nature of the position. 5 
Third, the Petitioner submitted several distinct lists of duties for the proffered position, some of which 
conflict with the duties listed on the end-client's letter. For example, in the Petitioner's letters, the 
duties listed include "Create New Hire user account AD and assign them different access," and 
"Manage encryption key for every users Laptop/Mac using Bit locker." However, these duties do not 
appear in the end-client's letter. Similarly, the Petitioner's RFE response letter lists the duties 
"Establish VPN tunnels using IPsec encryption standards, SSH, SSL, and configure/implement site­
to-site VPN and Remote VPN inl !firewall," and "Configure Switch ports connecting to the 
VAN and LAN networks with separate subnets and VLANs" with each duty requiring 20 percent of 
the Beneficiary's time. The end-client's letter does not include a breakdown of the percentages of 
time the Beneficiary will spend on any of the listed duties, and furthermore, these two duties (which 
the Petitioner purports represent 40% of the position's time) are not found in the end-client's letter. 
As previously stated, we are unable to ascertain the role and level of responsibility of the position 
within the end-client's project and this issue is further highlighted by the end-client's letter's inclusion 
of the duty "Managing company's internal network Infrastructure [sic]," which is not found in the 
Petitioner's list of duties. 6 The Petitioner does not attempt to reconcile the inconsistencies in the 
various iterations of the position's duties thus, and for the foregoing reasons, the end-client's letter 
does not assist in establishing the substantive nature of the proffered position. 7 
Finally, we note that the Petitioner designated the proffered position on the labor condition application 
(LCA) 8 as being located within the "Computer Network Support Specialist" occupational category, 
corresponding to the standard occupation classification (SOC) code 15-1152 at a Level II wage. 9 The 
has followed the required five-step process. 
5 Under the preponderance standard, the evidence must demonstrate that the petitioner's claim is "probably true" and we 
examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of 
the totality of the evidence, to determine whether the fact to be proven is probably true. See Chawathe, 25 T&N Dec. 369, 
376 (AAO 2010). 
6 We note that the Petitioner describes I 0% of the position involves "[s]upport network management, hardware and 
software maintenance configuration and general software supp01i, including Cisco TOS Image upgrading and 
maintenance," which arguably could relate to the end-client's duty of managing its internal network infrastructure. 
However, since the end-client's letter does not list the percentage of time required by each duty, we can not extrapolate 
that because the wording of the two duties is similar that they entail the same task or makeup the same percentage of time 
in the job's performance. 
7 Id. 
8 The Petitioner is required to submit a LCA 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 who are performing the same services. See Section 
212(n)(l) ofthe Act; 20 C.F.R. § 655.73l(a). 
9 The LCA serves as the critical mechanism for enforcing section 2 l 2(n)(l) of the Act, 8 U.S.C. § l l 82(n)(l ). See Labor 
Condition Applications and Requirements for Employers Using Nonimmigrants on H-1 B Visas in Specialty Occupations 
and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United States, 65 Fed. 
Reg. 80,110, 80, 110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that the wage 
protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring 
temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] with 
[DOL]."). According to section 212(n)(l)(A) of the Act, an employer must attest that it will pay a holder of an H-IB visa 
4 
Petitioner states the position requires a minimum of a bachelor's degree in computer science, computer 
engineering, electrical engineering, or a related field. In addition, the Petitioner's RFE response 
letter 10 appears to indicate that certification in Cisco Certified Network Associate (CCNA) is a 
minimum qualification for the proffered position. By contrast, the end-client's letter states that the 
minimum qualifications for the position are a bachelor's degree in computer science, or a closely 
related field and does not contain a reference to CCNA certification. 11 As such, and because the end­
client's letter contains numerous material inconsistencies that relate to the position's duties in addition 
to its minimum qualifications, the end-client's letter does not provide sufficient evidence to establish 
the position's substantive nature as asserted by the Petitioner on appeal. 
Furthermore, as noted above, the end-client's letter references that the position includes managing its 
network infrastructure. This duty is more closely associated with the position of network and computer 
systems administrators (corresponding to the standard occupation classification (SOC) code 15-
1244).12 At the time the LCA was certified, the prevailing wage for a Level II network and computer 
systems administrator was significantly higher ($43.64 per hour) than the prevailing wage for a Level 
II computer network support specialist ($32.36 per hour). However, because we cannot ascertain the 
substantive nature of the position, we cannot determine whether the LCA corresponds to and supports 
the petition. 
We have reviewed other evidence contained in the record, specifically the Master Services Agreement 
(MSA) executed between the mid-vendor and the end-client, as well as the two Statements of Work 
(SOW), to determine the substantive nature of the position. 13 However, we do not find these 
the higher of the prevailing wage in the "area of employment" or the amount paid to other employees with similar 
experience and qualifications who are performing the same services. See 20 C.F.R. § 655.731 (a); Venkatraman v. REI 
Sys., Inc., 417 F.3d 418, 422 & n.3 (4th Cir. 2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal 
Vojtisek-Lom & Adm 'r Wage & Hour Div. v. Clean Air Tech. Int'!, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of 
Labor Admin. Rev. Bd. July 30, 2009). 
We note here that a January 6, 2020 site visit conducted by officers ofUSCIS determined that the Beneficiary was working 
on site at the end-client location, but that his wages were $26 per hour, as opposed to the $32.36 per hour wages listed on 
the LCA. While this information does not serve as a basis for our decision, which rests solely on the issue of whether the 
record contains sufficient evidence to establish the substantive nature of the proffered position and therefore whether the 
position qualifies as a specialty occupation, the Petitioner should be prepared to address this issue in any future H-1 B 
filings. 
10 The Petitioner's November 8, 2019 RFE response letter states "[t]he specialized knowledge and skill outlined above is 
qualitatively different from the knowledge and skill required for other non-specialty positions. In point of fact, and as set 
forth above, the temporary position ... requires high academic knowledge of and/or professional aptitude in Protocol and 
Applications of Computer Networks, Network Performance Analysis, Routing Algorithms and Protocols, Change 
Management, Incident Management, Network Diagnostics, TCP /IP, and Internet Applications, as well as networking areas 
including Data communication, Layered Communication Architecture, Low-Layer Network Protocol, Local Area Network 
(LAN) and Wide Area Networks (WAN), Network Structure, Data Computer and Networking, Computer Networks and 
Internet, and CCNA (Cisco certified Network Associate)." 
11 If the position requires additional certifications beyond a bachelor's degree level of education in a specific specialty, 
such a requirement may necessitate an increase in the wage level designation on the Petitioner's LCA. As stated earlier, 
the DOL's guidance requires employers to follow a five-step process for determining the appropriate wage level. 
See FN 4. Because we cannot determine the substantive nature of the position, we are unable to asceitain if the Petitioner 
correctly followed the DOL's guidance, and therefore, whether the LCA corresponds to and supports the petition. 
12 See https://www.onetonline.org/link/summary/15-1244.00 (last visited March 18, 2021). 
13 The first SOW is between the Petitioner and the mid-vendor and the second SOW is between the mid-vendor and the 
end-client. 
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documents provide sufficient evidence to establish the substantive nature. To the contrary, they create 
further ambiguity in the record because they introduce yet more material inconsistencies related to the 
position. First, the MSA refers to "software professionals" when the proffered position appears to 
relate more to routine maintenance and support for a network system. In addition, one of the SOW's 
states that the Beneficiary will work as a "Network Support Specialist" whereas the other SOW 
describes the position generally as an "IT Support Engineer." These documents although consistently 
describing the length of time of the contract as well as the work site where the proffered position will 
be located, do not provide evidence that assists in establishing the substantive nature of the proffered 
position. 14 
On appeal, the Petitioner argues that the Director did not consider the end-client's job postings, the 
Linkedln profiles (for some of the end-client's employees), or the job postings from other companies 
submitted to establish an industry standard for entry into parallel positions. However, before we can 
examine whether the Petitioner's evidence establishes an industry standard, we must first have 
sufficient evidence to establish the substantive nature of the position. Neither the end-client's job 
postings, the Linkedln profiles, or the other job postings establish the substantive nature of the 
position. 15 
Lastly, the Petitioner asserts that the Director did not properly consider the educational credentials of 
its employees. First we note that even if the Petitioner always requires a bachelor's degree in a specific 
specialty to perform the duties of the proffered position, the record would still have to establish that a 
petitioner's stated degree requirement is not a matter of preference for high-caliber candidates but is 
necessitated instead by performance requirements of the position. 16 Moreover, the record does not 
establish that these individuals are in the same or similar position as the proffered position. Most 
importantly however, even if the record did establish these individuals perform the same work as that 
of the proffered position, the duties as described still would not include sufficient substantive detail to 
demonstrate why this position requires an individual with the theoretical and practical application of 
14 We note another inconsistency in the record, which creates ambiguity regarding the substantive nature of the proffered 
position. Specifically, the Petitioner's initial letter in support of the petition described the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook's (Handbook) entry for "Data Communications Analyst" as relevant to the 
analysis of whether this position qualifies as a specialty occupation. However, this appears to be an enor since the relevant 
Handbook entry is for "Computer Network Support Specialist." See https://www.bls.gov/ooh/computer-and-information­
technology/computer-support-specialists.htm (last visited Mar. 18, 2021). 
15 On the contrary, this evidence creates more ambiguity regarding the substantive nature of the proffered position because 
if the postings represent parallel positions ( as the Petitioner argues), then it appears more evident that the Petitioner has 
not submitted an LCA that conesponds to and supports the position, as required. Specifically, the end-client's postings 
require a bachelor's degree and 5 to 7 years of related work experience for the positions' advertised, whereas the Petitioner 
does not require any work experience. Similarly, the Linkedln profiles show that each of the end-client's employees had 
a bachelor's degree and a minimum of 5 years and a maximum of 16 years of work experience prior to joining the end­
client. All the other postings ( except one) also require additional years of experience beyond a bachelor's level of education 
(from 3 to IO years) and/or special skills (such as certifications in various networking program), which distinguish these 
positions from the Petitioner's proffered position. The DOL's guidance requires the Petitioner to determine the appropriate 
wage level using the five-step process noted above. If the Petitioner is arguing that the job postings and Linkedln profiles 
represent parallel positions to the one proffered here, we question the Petitioner's adherence to the DOL's guidance as it 
appears the Level II wage it designated on the LCA was inappropriate. See generally Prevailing Wage Determination 
Policy Guidance, supra. 
16 Defensor, 201 F.3d at 387-88. 
6 
a body of highly specialized knowledge and attainment of a bachelor's degree ( or its equivalent) in a 
specific specialty as required by the statute and the regulations. 
For all of these reasons, we cannot ascertain the actual, substantive nature of the proffered position, 
which precludes a determination that position is a specialty occupation because it is the substantive 
nature of that work that determines: (1) the normal minimum educational requirement for entry into 
the particular position, which is the focus of criterion 1; (2) industry positions which are parallel to the 
proffered position and thus appropriate for review for a common degree requirement, under the first 
alternate prong of criterion 2; (3) the level of complexity or uniqueness of the proffered position, which 
is the focus of the second alternate prong of criterion 2; (4) the factual justification for a petitioner 
normally requiring a degree or its equivalent, when that is an issue under criterion 3; and ( 5) the degree 
of specialization and complexity of the specific duties, which is the focus of criterion 4. Therefore, 
the petition cannot be approved. 
IV. CONCLUSION 
Upon review of the totality of the evidence submitted, the Petitioner has not established that more 
likely than not, the Beneficiary will provide services in a specialty occupation under any of the criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A). Moreover, the record does not establish that the Petitioner satisfied 
the statutory and regulatory definitions of specialty occupation. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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