dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 9091195 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 2, 2020 
The Petitioner, an information technology staffing solutions company, seeks to temporarily employ the 
Beneficiary as a "performance engineer" under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S .C. 
§ 1101(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 (1) the Petitioner will have the requisite employer-employee relationship 
with the Beneficiary; and (2) 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 I&N Dec . 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
Upon de nova review, we will dismiss the appeal. 
I. SPECIAL TY OCCUPATION 
We will first address the issue of whether the Beneficiary will be performing services in a specialty 
occupation. 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services .. . in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(I) 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)(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. 1 Lastly, 
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, 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). 
B. Proffered Position 
The Petitioner states that the Beneficiary will be assigned to work for an end-client at their office for the 
duration of the requested validity period by a series of agreements between the Petitioner and two 
vendors. The record indicates that the contractual path of the Beneficiary's assignment is as follows: 
1 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions ofa specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe the term "degree" to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam 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 
Petitioner ~ N­
(Mid-Vendor) 
T-
(Prime Vendor) 
C­
(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 "Computer Occupations, All Other," 
corresponding to the Standard Occupational Classification code 15-1199. 
C. Analysis 
The Director concluded that the Petitioner did not establish that the offered position qualifies as a 
specialty occupation. In her decision, the Director discussed the Petitioner's failure to meet any of the 
four regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(])-(4). Upon consideration of the entire 
record, including the evidence submitted and arguments made on appeal, 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, located in Arizona, seeks to employ the Beneficiary as a performance engineer off site 
for C- ( end-client) in Rhode Island through contractual agreements involving two vendors. Based on 
a lack of sufficient evidence, we conclude that the Petitioner has not sufficiently established the 
services in a specialty occupation that the Beneficiary would perform as requested. That outcome 
precludes a determination of whether 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). 
As a central holding, the Defensor court discussed above determined that the agency acted 
appropriately in interpreting the statute and the regulations as requiring petitioning companies to 
provide probative evidence that the outside entities where the Beneficiary would actually provide their 
2 A petitioner submits the LCA to the U.S. Depaitment 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. § 655.73l(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. 
3 
services (i.e. end-clients) required candidates to possess a qualifying degree.4 The Defensor court 
reasoned that the position requirements from the entity where the beneficiary would actually work-be it 
the required degree or the position's actual duties a candidate would perform-should serve as the more 
relevant characteristics we should consider under our specialty occupation determination. If a petitioner 
is unable to establish the actual work a beneficiary will perform for a client and their prerequisites to 
perform them, we cannot determine whether the proffered position is a specialty occupation. 5 
Here, the Petitioner submitted a copy of its Vendor Agreement with the mid-vendor, demonstrating 
that the Petitioner will provide "professional computer consulting, programming and related services" 
to one or more of the vendor's clients. The Petitioner also submitted a copy of a work order between 
the parties, indicating that the Beneficiary would be assigned to work for the end-client for a 12-month 
period commencing on January 1, 2019. A second work order, submitted in response to the Director's 
request for evidence (RFE), reflects a modification to the duration of the assignment, indicating that 
the Beneficiary's services will commence on January 1, 2019 for a period of "3 years with possible 
extension." No explanation for this inconsistency was provided. Moreover, we note that the work 
orders indicate that they were issued pursuant to a "Master Services Agreement" executed between 
the Petitioner and the mid-vendor. However, no such agreement between the Petitioner and the 
mid-vendor was submitted. 
The Petitioner also submitted a copy of a Professional Services Agreement between the mid-vendor 
and the prime vendor, indicating that the mid-vendor will provide "professional services, including 
information technology, engineering, consulting, and business process outsourcing services" to the 
prime vendor's customers. In addition, the Petitioner submitted a Statement of Work no. 1533642 
between the vendors, indicating that the Beneficiary would render services to the end-client beginning 
on October 20, 2018. No end date or additional information regarding the assignment was submitted. 
Further, we note that this statement of work indicates that it is issued pursuant to a Consulting Services 
Agreement between the vendors, but no such agreement was submitted into the record. 
Regarding the end-client's role in the contractual chain, the Petitioner submitted a copy of its one-page 
Memorandum of Understanding (MOU) with the prime vendor. According to this document, the 
Beneficiary will work on thel !project for the end-client through December 2019. The 
end-client provided no additional details regarding the project or the duties to be performed by the 
Beneficiary during the course of her assignment. Moreover, the end-client provided the following 
general statement regarding its minimum requirements: 
[End-client] requires Resource(s) with the equivalent of a U.S. bachelor's degree or 
higher in Computer Science, Information Systems, Management Information Science, 
Business or a relevant Engineering degree or the foreign equivalent to perform the 
duties of the specialty occupation position. 
4 Defensor, 201 F.3d at 388. 
5 We must review the actual duties the Beneficiary will be expected to perform to ascertain whether those duties require at 
least a baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a specialty occupation. 
To accomplish that task in this matter, we review the duties in conjunction with the specific project(s) to which the 
Beneficiary will be assigned. To allow otherwise, results in generic descriptions of duties that, while they may appear (in 
some instances) to comprise the duties of a specialty occupation, are not related to any actual services the Beneficiary is 
expected to provide. 
4 
The Petitioner also submitted two letters from the mid-vendor. Each letter states that the Beneficiary 
will provide services to the end-client pursuant to the contractual path outlined above, and each letter 
provides the same general overview of the duties of the position. The mid-vendor also stated that the 
assignment is anticipated to last for one year with possible extensions, and indicates that the proffered 
position requires at least a bachelor's degree in computer science, or equivalent. 
Part of a petitioner's burden is to demonstrate the actual duties a beneficiary will perform while 
deployed to an end-client worksite, by a preponderance of the evidence. The most relevant method is 
to provide material directly from the entity where the work will take place, which is the entity that 
possesses the greatest knowledge and understanding of how a beneficiary's contributions will factor 
into its business model and its projects. 6 Here, given the lack of information from the end-client, the 
Petitioner has not sufficiently established the substantive nature of the work that the Beneficiary will 
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 heavily factors into each of 
these regulatory criteria. 7 
The Petitioner presented no statement of duties from ( or endorsed by) the end-client. Although we 
acknowledge the Petitioner's statements regarding the duties to be performed, as well as the two 
mid-vendor letters which restate those same duties, there is no similar endorsement from the 
end-client, such as a letter, statement of work, work order, or other similar documentation. 
Moreover, the MOU between the prime vendor and the end-client provides contradictory statements 
regarding the end-client's minimum requirements. The Petitioner and the mid-vendor state that the 
proffered position requires a bachelor's degree or the equivalent in computer science. However, the 
end-client states in the MOU that is will accept degrees in a variety of fields, including business. A 
petitioner must demonstrate that the proffered position requires a precise and specific course of study 
that relates directly and closely to the position in question. Since there must be a close correlation 
between the required specialized studies and the position, the requirement of a degree with a 
generalized title, such as business, without farther specification, does not establish the position as a 
specialty occupation. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558,560 (Comm'r 1988). In 
addition to demonstrating that a job requires the theoretical and practical application of a body of 
specialized knowledge as required by section 214(i)(l) of the Act, a petitioner must also establish that 
the position requires the attainment of a bachelor's or higher degree in a specialized field of study or 
its equivalent. We interpret 8 C.F.R. § 214.2(h)(4)(iii)(A) as requiring a degree in a specific specialty 
that is directly related to the proposed position. We have consistently stated that, although a general­
purpose bachelor's degree, such as a degree in business or business administration, may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not justify a 
conclusion that a particular position qualifies for classification as a specialty occupation. Royal Siam 
Corp., 484 F.3d at 147. 
The record contains no independent statement from the end-client outlining the nature of the 
assignment. Although one brief reference is made to the '1 I' project, no additional 
documentation outlining the nature of this project was submitted. The record contains no statement 
6 See Defensor, 201 F.3d at 387-88. 
7 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. 
5 
from the end-client confirming the requirements of the project, such as the duties to be performed by 
the Beneficiary and the educational requirements necessary to perform those specific duties. Rather, 
the record contains an MOU between the end-client and the prime vendor which provides a general 
statement regarding the minimum educational requirements it imposes on its "Resource(s)," which 
does not specifically pertain to the Beneficiary or the Beneficiary's claimed assignment to the 
I lproject. The minimal and contradictory documentation from the end-client does not 
sufficiently inform USCIS of the substantive nature of the duties to be performed, and any particular 
academic requirements for the proffered position. 
We acknowledge that the Petitioner provided a set of duties and position qualifications within the 
initial filing, and expanded upon those within its response to the Director's RFE. However, similar to 
the Defensor case, the duties, education details, and experience requirements the Petitioner provided 
are much less probative to our analysis than these same elements from the end-client. Nevertheless, 
we note the Petitioner's reliance on this description to establish that the proffered position requires the 
Beneficiary to perform services in a specialty occupation despite the evidentiary deficiencies noted 
above. In support of this assertion, the Petitioner submitted a letter prepared b~ 
0 
• I 
Professor of Computer Information Systems, College of Business I I University to understand 
why or how the duties described require a bachelor's degree in a specific specialty, or its equivalent. 
I I repeats the Petitioner's description of the proposed duties and opines that a position with 
these duties would "normally be filled by a graduate with a minimum of a Bachelor's Degree in 
Computer Science, a related, area, or the equivalent." 8 
.__ ___ _.I however, does not state that he reviewed information regarding whether the end-client 
requires a bachelor's or higher degree in a specific specialty, or its equivalent, to perform the position's 
duties, which is critical. See Defensor, 201 F.3d at 387-88. I ts letter provides neither a 
description of the duties in the context of the Beneficiary's assignment with the end-client nor a 
statement of whether the end-client requires a qualifying degree. In fact, there is no mention of the 
Beneficiary's assignment at the end-client at all, thereby raising doubts regarding his familiarity with 
the actual duties to be performed in this matter. Furthermore, there is no indication thatl I has 
conducted any research or studies pertinent to the educational requirements for such positions, and no 
indication of recognition by professional organizations that he is an authority on those specific 
requirements. Accordingly,L ~ opinion, which does not address the end-client project and its 
requirements bears minimal probative value . 
.__ __ ____.Is letter is insufficient to support the Petitioner's assertion that the proffered position 
qualifies as a specialty occupation. As a matter of discretion, we may use opinion statements submitted 
by the Petitioner as advisory. Matter of Caron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 
1988). However, we will reject an opinion or give it less weight if it is not in accord with other 
information in the record or if it is in any way questionable. Id. 
Finally, we note several unresolved discrepancies in the record that raise farther questions regarding 
the nature of the Beneficiary's assignment. As noted above, the work orders between the Petitioner 
8 Although! Is conclusion regarding the minimum educational requirements for the proffered position mirrors the 
claims of the Petitioner and the mid-vendor, it contradicts the claims of the end-client, who states a broader range of 
degrees are acceptable, including business. 
6 
and the mid-vendor, and the statement of work between mid-vendor and the prime vendor, were both 
executed pursuant to agreements that were not submitted into the record. For instance, although the 
Petitioner submitted a copy of its Vendor Agreement with the mid-vendor, the work orders indicate 
they are issued pursuant to a Master Services Agreement between the parties. Similarly, the Petitioner 
submitted a copy of the Professional Services Agreement between the mid-vendor and the prime 
vendor, yet the statement of work indicates that it was issued pursuant to a Consulting Services 
Agreement between the parties. The Petitioner must resolve these discrepancies in the record with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
Moreover, the claimed dates of the Beneficiary's assignment in these documents are contradictory. 
For example, the statement of work between the vendors indicates a commencement date of October 
20, 2018, whereas the work orders indicate that the assignment commenced on January 1, 2019. No 
explanation for this inconsistency was provided. Moreover, the Petitioner submitted an updated work 
order between the Petitioner and the mid-vendor in response to the RFE, indicating that the assignment 
has a duration of three years from January 1, 2019, in contrast to the original claim of 12 months. In 
addition, this further contradicts the statement of the end-client in the MOU, which indicates that the 
assignment ends in December 2019. The Petitioner must resolve these inconsistencies with 
independent, objective evidence pointing to where the truth lies. Id. Unresolved material 
inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted 
in support of the requested immigration benefit. Id. 
Here, the Petitioner has not provided sufficient details regarding the nature and scope of the 
Beneficiary's employment or any substantive evidence regarding the actual work that the Beneficiary 
would perform for the end-client. Without a meaningful job description, the record lacks sufficiently 
probative and informative evidence to demonstrate that the proffered position requires a specialty 
occupation's level of knowledge in a specific specialty. 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. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and 
hereby reserve the Petitioner's appellate arguments regarding whether an employer-employee 
relationship will exist between the Petitioner and the Beneficiary. See INS v. Bagamasbad, 429 U.S. 
24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of which 
7 
is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden here, 
and the petition will remain denied. 
ORDER: The appeal is dismissed. 
8