dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 10106682 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 21, 2020 
The Petitioner, an information technology consulting company, seeks to employ the Beneficiary 
temporarily as a "senior product manager" 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 California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified as a specialty 
occupation. The Director also determined that the Petitioner did not demonstrate the Beneficiary was 
qualified to occupy a specialty occupation position. The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 2 
We review the questions in this matter de nova. 3 Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(l) of the Act, 8 U.S .C. § l 184(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific 
specialty (or its equivalent) as a minimum for entry into the occupation in the United States." The 
regulation at 8 C.F .R. § 214.2(h)(4)(ii) largely restates section 214(i)(l) of the Act, but adds a non­
exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position . 4 Lastly, 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b) . 
2 Section 291 of the Act; Matter of Chawathe, 25 J&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
4 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
8 C.F.R. § 214.2(h)(4)(i)(A)(]) states that an H-lB classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
The services the Beneficiary will perform in the position determine: ( 1) the normal minimum educational 
requirement for entry into the particular position, which is the focus of criterion one; (2) industry 
positions which are parallel to the proffered position and thus appropriate for review for a common 
degree requirement, under the first alternate prong of criterion two; (3) the level of complexity or 
uniqueness of the proffered position, which is the focus of the second alternate prong of criterion two; 
( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, when that is 
an issue under criterion three; and ( 5) the degree of specialization and complexity of the specific duties, 
which is the focus of criterion four. 5 
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. 6 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. 7 The Director may request additional evidence 
in the course of making this determination. 8 In addition, a petitioner must establish eligibility at the 
time of filing the petition and must continue to be eligible through adjudication. 9 
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"). 
5 8 C.F.R. § 214.2(h)(4)(iii)(A). 
6 Id. 
7 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
8 8 C.F.R. § 103 .2(b )(8). 
9 8 C.F.R. § 103.2(b)(l). 
2 
II. 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. That outcome 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). 10 
The Petitioner, which is located in Texas, asserts the Beneficiary will work for an end-client via a 
mid-vendor in California. However, the record does not contain sufficient evidence to establish the 
services the Beneficiary will perform. Specifically, the record (1) does not describe the position's 
duties with sufficient detail; and (2) does not establish that the job duties require an educational 
background, or its equivalent, commensurate with a specialty occupation. For the reasons discussed 
below, we have determined that the Petitioner has not demonstrated that the proffered position 
qualifies as a specialty occupation. Specifically, we conclude that the record does not establish that 
the job duties require an educational background, or its equivalent, corresponding with a specialty 
occupation. 
In part, the Director denied the petition because the material from the end-client did not offer a detailed 
description of the specialized duties the Beneficiary will perform or the qualifications in a specific 
field of study required to perform those duties. Those two issues speak to the heart of whether the 
position qualifies under the H-1 B program. Within the appeal, the Petitioner only argues that its 
previously offered material satisfies the specialty occupation requirements, but it failed to inform us 
how that material was sufficient or how the Director erred in evaluating that evidence. 
At best, the Petitioner's appellate claims are that the Director only considered each piece of evidence 
individually instead of collectively, and had the Director considered the record it its totality, she would 
have decided to approve the petition. The Petitioner should not simply disagree with the Director's 
conclusions, then claim that its evidence collectively demonstrates eligibility. Instead, the petitioning 
organization should explain the manner in which its evidence, when pieced together, supports its 
claims and more importantly how that collective material meets the statutory and regulatory 
requirements in this program. 
A. Sufficiency of Positions Duties 
We begin noting that the Petitioner initially provided the position's description. However, as 
recognized by the court inDefensor, 201 F.3d at 387-88, 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. 11 Such evidence must be sufficiently detailed to demonstrate the type and educational level 
10 The Petitioner submitted documentation to supp01t 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. 
11 Id. 
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of highly specialized knowledge in a specific discipline that is necessary to perform that particular 
work. We observe that the duties the Petitioner provided were identical to the end-client's set of duties 
and nearly identical to the set the vendor offered. The duties the Petitioner and end-client offered in 
the initial filing remained the same throughout these proceedings as follows: 
1. Develop, define, and deliver a software product line for .__ _______ __. 
2. Gather inputs from a variety of internal and external sources to define product concepts; 
3. Develop detailed requirements, feature definitions, and implementation plans in an Agile 
project framework. Manage product backlog and user story priorities; 
4. Identify problems that arise, outline options, recommend solutions, and escalate as needed; 
5. Champion the needs of business teams and stakeholders throughout the development process, 
ensuring that what is delivered meets the original goals and objectives of the project; 
6. Participate in technical discussions and ensure the solution being built meets the business 
objectives; 
7. Work in close collaboration with our engineers and business owners to manage product/project 
related tasks; 
8. Gather business requirements, write BRDs, functional specification, user flows, system flows, 
technical specification including API specifications; 
9. Define the metrics that measure product success, and use data to drive decisions; 
10. Conduct customer research activities including market research, usability testing, live on-site 
experiments, and analysis of site analytics; 
11. Aid in leading a team of highly technical developers and testers as part of an agile scrum team; 
and 
12. Communicate and build collaboration at all areas and levels of the business and engineering. 
From these duties, it is unclear whether the Beneficiary's job would consist of managing a software 
development project or whether he would be performing the duties of a software developer. While 
some duties appear related to the Software Developers, Applications standard occupational 
classification (SOC) code the Petitioner designated on the labor condition application (LCA), most do 
not. For instance, while items 1, 3, and 9, could be construed to be somewhat related, item 12 is the 
only function that appears to directly relate to the duties found within the Occupational Information 
Network (O*NET) entry for the Software Developers, Applications occupation. The remaining items 
appear to better align with SOC code 15-1199.09 corresponding with Information Technology Project 
Managers within the O*NET. 
Moreover, the parties failed to offer an explanation or evidence that reveals any discernable 
information about the project the Beneficiary would work on at the end-client worksite and how that 
factors into the client's business model other than being "a software product line forl I 
I I' This could be a project that would support the SOC code the Petitioner listed on the 
LCA, or it could relate more to a project manager role. However, as the Director did not raise this as 
an issue, we will not address it further here other than to note that it raises questions of whether the 
Petitioner has demonstrated the substantive nature of the position and properly classified the position 
on the LCA. 
Also lacking is any indication of which duties are more prominent than others, meaning the record 
does not reflect which tasks are major functions of the proffered position. This is an additional missing 
4 
factor that, if present, might aid in discerning the nature of the 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. 12 
Notably, much of the duties the client provided are overly generalized, which undermines the 
Petitioner's claims that the position's duties are specialized and complex. For example, it is unclear 
what theoretical and practical application of a body of highly specialized knowledge is required to 
"[g]ather inputs from a variety of internal and external sources to define product concepts," "[i]dentify 
problems that arise, outline options, recommend solutions, and escalate as needed," or to "[ d]efine the 
metrics that measure product success, and use data to drive decisions." From the indeterminate nature 
of the duties, it is not self-evident that they are qualifying under the H-lB program. Without more, it 
would be difficult to conclude that such amorphous duties are so specialized and complex, or that the 
duties comprise a position that is so complex or unique, that one must attain a bachelor's degree in a 
specific specialty in order to perform them. 13 
It is always the Petitioner's responsibility to ensure the record demonstrates what functions make up a 
position, and how those tasks demonstrate eligibility. 14 Additionally, the truth is to be determined not by 
the quantity of evidence alone but by its quality.15 The Petitioner should ensure the material duties 
sufficiently convey the Beneficiary's regular activities at the end-client location, which allows a person 
without a great familiarity with the technical nature of these functions to be able to grasp what the position 
consists ot: and why it and the duties are so specialized and complex.16 To establish eligibility, the 
end-client must describe the Beneficiary's specific duties and responsibilities in the context of the 
assigned project; but it has not done so here. 17 
Finally, even if the above deficiencies were not present, we would still question whether the duties 
contained within the end-client correspondence are the actual job functions the Beneficiary would 
perform at the client worksite. Most of the duties contained within the end-client letter can be found 
on a website containing resume samples for jobs similar to the one in the petition ( e.g., items 2-5 and 
7-9). 18 While such a general description may be appropriate when defining the range of duties that one 
12 See GCCG Inc v. Holder, 999 F. Supp. 2d 1161, 1167 (N.D. Cal. 2013) (finding that an employer's ability to demonstrate 
a position qualifies as a specialty occupation is significantly hindered when it does not establish the amount of time a 
beneficiary would spend performing each duty). 
13 Cf Matter of Michael Hertz Assocs., 19 T&N Dec. 558,560 (Comm'r 1988) (indicating U.S. Citizenship and Immigration 
Services (USCTS) must evaluate the actual tasks, demands, and duties to determine whether a petitioner has established 
the position realistically requires the specialized knowledge-both theoretical and applied-which is almost exclusively 
obtained at the baccalaureate level). A broad and generalized presentation of a position's responsibilities prevents USCTS 
from making such a determination. See also Sagarwala v. Cissna, 387 F. Supp. 3d 56, 68 (D.D.C. 2019). 
14 Section 291 of the Act, 8 U.S.C. § 1361. 
15 Chawathe, 25 l&N Dec. at 376 ( citing Matter of E-M-, 20 l&N Dec. 77, 80 (Comm'r 1989)). 
16 See Sagarwala, 387 F. Supp. 3d at 68-70. 
17 We further note that the end-client did not provide sufficient information with regard to the order of importance and/or 
frequency of occurrence ( e.g., regularly, periodically, or at irregular intervals) with which the Beneficiary will perform the 
stated functions and tasks. Thus, the record does not specify which tasks are major functions of the proffered position. 
18 See the following URLs visited on July 8, 2020, for examples: 
https://webcache.googleusercontent.com/search ?q=cache:42Y 64rC 15 8w J:https://www.velvetjobs.com/resume/it­
product-manager-resume-samp le+&cd= 3&hl=en&ct=clnk&gl=us; 
https://webcache.googleusercontent.com/search?q=cache:aJaieeHfj8J:https://www.velvetjobs.com/resume/mobile-
5 
may perform within an occupation, such a generic description generally cannot be relied upon by the 
Petitioner when discussing the duties attached to specific employment for H-lB approval. 
In establishing such a position as a specialty occupation, the proffered position's description must include 
sufficient details to substantiate that the Petitioner has H-lB caliber work for the Beneficiary, and must 
adequately convey the substantive work that the Beneficiary usually performs within the end-client's 
business operations. 19 Here, the job description from the end-client does not sufficiently 
communicate: (1) the actual work that the Beneficiary would perform; (2) the complexity, uniqueness 
and/or specialization of the tasks; and/or (3) the correlation between that work and a need for a particular 
level of knowledge in a specific specialty. 
Given the lack of detailed 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 determines: (1) the normal minimum educational requirement for the particular 
position, which is the focus of criterion one; (2) industry positions which are parallel to the proffered 
position and thus appropriate for review for a common degree requirement, under the first alternate prong 
of criterion two; (3) the level of complexity or uniqueness of the proffered position, which is the focus of 
the second alternate prong of criterion two; (4) the factual justification for a petitioner normally requiring 
a degree or its equivalent, when that is an issue under criterion three; and (5) the degree of specialization 
and complexity of the specific duties, which is the focus of criterion four. 
B. Position Prerequisites 
Additionally, the Petitioner has not established that the job duties require an educational background, 
or its equivalent, commensurate with a specialty occupation. The end-client letter the Petitioner 
offered when it filed the petition lacked any position prerequisites. In response to the Director's 
request for evidence, the Petitioner offered a second letter from the end-client that was inconclusive as 
it relates to the requirements to qualify for this position. That second letter only stated that "our 
minimum requirement for this position is a comprehensive understanding of Product Management 
functions needed in this role. This can only be performed by virtue of a Bachelor's degree or a 
Master's degree in a related field." Neither the end-client nor the Petitioner offered more detail on 
what they would construe as "a related field." We cannot intuit the breadth of the disciplines the 
parties would, or would not, consider to be sufficiently related. Furthermore, what one employer 
might consider to be sufficiently related, may differ from what other employers would consider to be 
adequate. This illustrates the manner in which the position's requirements were not sufficiently 
specific. 
product-manager-resume-sample+&cd=4&hl=en&ct=clnk&gl=us; and https://www.velvetjobs.com/resume/product­
manager-mobile-resume-sample. 
19 U.S. Department of Labor guidance states that for a wage level determination, it is important that the job description 
include "sufficient information to determine the complexity of the job duties, the level of judgment, the amount and level 
of supervision, and the level of understanding required to perform the job duties." 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/pdt1/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
6 
The degree requirement set by the statutory and regulatory framework of the H-1 B program is not just 
a bachelor's or higher degree, but a bachelor's degree in a specific specialty that is directly related to 
the duties of the position. See section 214(i)(l)(b) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). Although 
a general-purpose bachelor's degree may be a legitimate prerequisite for some jobs, requiring such a 
degree, without more, will not justify a finding that a particular position qualifies for classification as 
a specialty occupation. 20 If we were to presume that the end-client meant that it would accept any 
information technology or computer-related field, these are broad categories that cover numerous and 
various specialties, including video game design, cartography, and computer service and 
maintenance. This should not be interpreted to mean that we expect the relevant parties to accept only 
a single discipline. It is not readily apparent that every information technology or every 
computer-related degree would be directly related to the duties and responsibilities of the proffered 
position. Without more, the petition is not approvable based upon the end-client's own stated 
minimum education requirements. 
We farther observe that the Petitioner did not specify a degree requirement in any specialized 
discipline. And we do not consider this to be a situation in which the end-client does not possess the 
knowledge relating to the position or the requirements to qualify for it, as their careers portion of their 
own website contains several similar positions. 21 Although some subordinate material in the record 
contain intimations relating to information technology, those attendant samples fall short of satisfying 
the Petitioner's burden to demonstrate the offered position requires at least a bachelor's degree in a 
specific specialty. 
C. Additional Issues 
We observe additional issue that while it does not serve as a basis for this adverse decision, could also 
pose as a significant hurdle for the Petitioner to demonstrate that the petition should be approved. We 
note that each senior product manager position on the end-client's website reflects that they require an 
amount of experience that would mandate a Level IV wage rate on the LCA. 22 However, the Petitioner 
only designated this position at a Level II rate. The difference between a Level IV and Level II rate 
is approximately $46,000. 
III. CONCLUSION 
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 farther discuss the 
Petitioner's assertions on appeal, and we decline to reach and hereby reserve the issue regarding the 
Beneficiary's qualifications to occupy this position. 23 
20 Royal Siam, 484 F.3d at 147. 
21 
jobs located at the following URLs 
~-~--~I 
22 See the accessed on July 8, 2020: 
and 
23 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (finding it unnecessary to analyze additional grounds when another 
independent issue is dispositive of the appeal); see also Matter of L-A-C-, 26 T&N Dec. 516, 526 n.7 (BIA 2015) (declining 
to reach alternative issues on appeal where an applicant is otherwise ineligible). Further, we decline to reach and hereby 
7 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
reserve the issues regarding the employer-employee relationship and speculative employment. We note that while this 
appeal was pending, the U.S. District Comt for the District of Columbia issued a decision in Itserve Alliance, Inc. v. Cissna, 
--- F.Supp.3d ---, 2020 WL 1150186 (D.D.C. 2020). Subsequently, USCTS rescinded previously issued policy guidance 
relating to H-1 B petitions filed for workers who will be employed at one or more third-party worksites, and directed its 
officers to apply the existing regulatory definition at 8 C.F.R. § 214.2(h)(4)(ii) to assess whether a petitioner and a 
beneficiary have an employer-employee relationship. USCIS Policy Memorandum PM-602-0114, Rescission of Policy 
Memoranda at 2 (June 17, 2020), http://www.uscis.gov/legal-resources/policy-memoranda. 
8