dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-, INC . 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 17, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting firm, seeks to temporarily employ the Beneficiary 
as a "business systems analyst" under the H-lB nonirnmigrant classification for specialty occupations. 
See Immigration and Nationality Act (the Act) section 101(a)(15)(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 Vermont Service Center denied the petition, concluding that the Petitioner did not 
establish that (1) the proffered position qualifies as a specialty occupation , and (2) the labor condition 
application (LCA) corresponds with the H-lB petition . On appeal, the Petitioner provides a brief and 
additional evidence regarding whether the position qualifies as a specialty occupation, and asserts that 
the Director erred in denying the petition. 
Upon de nova review, we will dismiss the appeal. 1 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S .C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) 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. 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter of B-, Inc. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(]) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
As recognized by the court in Defensor, 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. 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. 
II. PROFFERED POSITION 
The Petitioner designated the proffered position under the occupational category "Computer Systems 
Analysts" corresponding to the Standard Occupational Classification (SOC) code 15-1121, at a Level 
II wage on the LCA 2 submitted in support of the H-1B petition. Within these proceedings the Petitioner 
has submitted several iterations of the duties of the proffered position, initially describing the duties 
of the position, as follows: 
• Evaluate the internal technical needs of an organization and recommend solutions. 
2 A petitioner submits the LCA to the U.S. Department of Labor to demonstrate that it will pay an H-IB 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). 
2 
Matter of B-, Inc. 
• Serve as liaisons between internal departments and development team. 
• Define the system and functional requirements. 
• Assess available technologies to create development specifications as well as 
detailed test cases. 
• Assist with testing to analyze results. 
• Play a key role in training employees on application, database, and operating 
systems. 
• Responsible for writing functional tests scripts for System Test, Integration Test, 
Regression Test, and User Acceptance Test. 
• Elicit the security requirements for the user groups in the system. 
• Collect reporting requirements and creating Reporting Design Document (RDD). 
Later, the Petitioner provided a differing description of the Beneficiary's job tasks in response to the 
Director's request for evidence (RFE), as follows: 3 
• Requirements: Elicitation and Lifecycle Management. (15%) 
• Functional Teams and Technical Teams Collaboration. (10%) 
• Technical Solution: Strategic Planning and Analysis. (10%) 
• Test Scripts: Writing, Execution, and Solution Evaluation. (15%) 
• Defects: Triage with Business and Technical Team. (15%) 
• Security Design: Analysis and Development. (15%) 
• Data Conversion: Translation Logic writing and Data Validation. (15%) 
• Reports: Design and Generation. (5%) 
III. ANALYSIS 
Upon review of the record in its totality, the Petitioner has not sufficiently established the substantive 
nature of the work the Beneficiary would perform during the intended period of employment, which 
precludes the determination of whether the proffered position qualifies as a specialty occupation. 4 
The Petitioner, located in New Jersey, intends to assign the Beneficiary through a mid-vendor to work 
for the end-client, in Ohio, for the duration of the validity period requested. 5 The mid-vendor stated 
in its support letter that it "placed [ the Beneficiary], an employee of [ the Petitioner] as a Business 
3 We acknowledge that the Petitioner submitted additional information for the job duties, and have closely considered and 
reviewed this material, as with all evidence in the record. For instance, the Petitioner also included a listing of the 
Beneficiary's previous coursework for the purpose of correlating the need for the Beneficiary's education with the 
associated job duties of the position. However, we are required to follow long-standing legal standards and determine 
first, whether the proffered position qualifies for classification as a specialty occupation, and second, whether the 
Beneficiary was qualified for the position at the time the nonimmigrant visa petition was filed. Cf Matter of Michael 
Hertz Assocs., 19 T&N Dec. 558, 560 (Comm'r 1988) ("The facts of a beneficiary's background only come at issue after 
it is found that the position in which the petitioner intends to employ him falls within [a specialty occupation]."). 
4 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
5 The Petitioner most recently employed the Beneficiary through STEM-related post-completion optional practical training. 
and has provided copies of wage statements for his employment with the Petitioner. 8 C.F.R. §§ 274.a.12(c)(3)(i)(C), 
214.2(f)(10)(ii)(C). 
3 
Matter of B-, Inc. 
Systems Analyst at [the end-client location] beginning on September 11, 2017 and continuing subject 
to [the end-client's] project requirements." However, the record lacks sufficient evidence of the end­
client's project requirements, and the contractual relationship between the mid-vendor and the end­
client. The Petitioner provided documents to substantiate the Beneficiary's work assignment including 
a subcontractor agreement (SA) between the Petitioner and the mid-vendor. The agreement specified, 
among other things, that: 
All services provided by [the Petitioner] must be performed in strict accordance with 
the terms, specifications and requirements contained in this agreement, the Work Order 
and, to the extent applicable to the services provided by [the Petitioner], the [end­
client's] contract with [the mid-vendor] including but not limited to ... [s]creening and 
qualification requirements, all of which shall be deemed incorporated into the Work 
Order and shall be binding upon [the Petitioner]. 
The mid-vendor's work order indicates that the Beneficiary will perform services as a business 
systems analyst from September 2017 to February 2019. This document and other mid-vendor 
material in the record stipulate the Beneficiary's services are to be provided pursuant to the end client's 
contract letterl I The Petitioner provided a redacted copy of the referenced end­
client contract letter which is eight pages in length, and reflects that the nature of his placement was 
pursuant to "staff augmentation" agreements between the mid-vendor and the end-client. The contract 
further provides that "[the end-client] may request Services via its standard work order requests, 
releases, or another form of written authorization (a "Release"), substantially similar to the sample 
attached as Exhibit G to this contract." Notably, the section of the contract letter entitled "term and 
terminations" indicates that the contract "shall continue until November 2019 unless terminated by 
either party pursuant to the termination provisions of this contract. Following the Initial Term, the 
Parties may mutually agree in writing to additional two (2) year terms." But the Petitioner redacted 
the rest of the section and approximately three pages of the contract letter thereafter except for a 
paragraph which discusses the testing and selection process for candidates to the "Contract Labor 
Program," which specifies, among other things that, "[the mid-vendor] shall only submit qualified 
Personnel, and [the end-client] may interview such Personnel for [the end-client's] specific 
assignments." 6 
The Petitioner provided another document, which it described as a "purchase order from [the end­
client]." This document is entitled 'job order profile," bears the mid-vendor's letterhead, identifies 
the Beneficiary, the end-client, and the Petitioner; notes the job function is for a "Business/Systems 
Analyst/Liaison," with a position referral date of September 2017. The document reiterates the 
Petitioner's initially provided position description. Though this document provides some basic 
information about the Beneficiary's assignment with the end-client, the provisions do not reflect that 
6 In light of the redacted omissions, we conclude the Petitioner's submission of select sections of the end-client contract 
letter diminishes its evidentiary value, as it deprives us of the remaining portions that may reveal information either 
advantageous or detrimental to the petitioning organization's claims, and therefore, is of little probative value. It is the 
Petitioner's burden to prove by a preponderance of evidence that it is qualified for the benefit sought. Matter of Chawathe, 
25 T&N Dec. at 376. In evaluating the evidence, eligibility is to be determined not by the quantity of evidence alone but 
by its quality. Id. 
4 
Matter of B-, Inc. 
this document constitutes a work order request or written authorization from the end-client for the 
Beneficiary's placement, nor does it describe the nature of the services to be provided thereunder 
beyond an abbreviated position description. Overall, we conclude there is insufficient evidence of an 
obligation on the part of the end-client to provide work for the Beneficiary, let alone work of specialty 
occupation caliber for the requested validity period. In other words, the evidence of record is currently 
insufficient to establish the terms and conditions of the proffered position at the end-client location. 7 
Moreover, a crucial aspect of this matter is whether the duties of the proffered position are described 
in such a way that we may discern the actual, substantive nature of the position. As noted, the record 
lacks sufficient evidence to substantiate the Beneficiary's assignment as represented by the Petitioner. 
Again, when a beneficiary will perform the work for entities other than the petitioner, evidence of the 
client companies' job requirements is critical. Defensor, 201 F.3d at 387-88. When determining 
whether a position is a specialty occupation, we look at the nature of the business offering the 
employment and the description of the specific duties of the position as it relates to the performance 
of those duties within the context of that particular employer's business operations. 
On a fundamental level, we conclude that the Petitioner has provided insufficient material about the 
end-client's projects that the Beneficiary will be engaged in. The Petitioner initially stated in an 
itinerary that the Beneficiary "will be providing services on the I I 
.__ _________ __.project] for the end-client." The Director requested an explanation of 
how the Beneficiary's specific job duties relate to the Petitioner's and the end-client's products and 
services in a request for evidence (RFE). In response to the RFE, the Petitioner provided a letter and 
copies of the Beneficiary's project status reports which provide additional information about the C::J 
project, as follows: 
The I I project will introduce a single technology platform "IBM Maximo," to 
enable [the end-client's] work management, asset management, procurement, supply 
chain, and account payable business processes. This implementation helps [the end­
client] to replace 150 legacy application and make IBM Maximo a single platform for 
12,500 employees and contractors. 
We also acknowledge that the Petitioner provided a letter from the end-client in response to the 
Director's RFE, as well as an email from the end-client on appeal. However, this material lacks 
sufficient detail to establish the substantive nature of the work to be performed and a necessary 
correlation between the proffered position and a need for a particular level of education, or its 
equivalent, in a body of highly specialized knowledge in a specific specialty. For example, the letter 
indicated that the Beneficiary's "assignment began September 21, 2017, and will continue subject to 
[end-client]'s project needs." The end-client stated that the Beneficiary will: 
• Evaluate the internal technical needs of an organization and recommend solutions. 
• Serve as liaisons between internal departments and development team. Define the 
system and functional requirements. 
7 A petitioner must establish eligibility at the time of filing the petition. See 8 C.F.R. § 103.2(b)(l). The agency made 
clear long ago that speculative employment is not permitted in the H-lB program. See, e.g..63 Fed. Reg. 30,419, 30,419-
20 (June 4, 1998). 
5 
Matter of B-, Inc. 
• Assess available technologies to create development specifications as well as 
detailed test cases. 
• Assist with testing to analyze results. 
• May play a key role in training employees on application, database, and operating 
systems. 
• Conducts complex work critical to the organization. 
On appeal, the end-client's email provides other job responsibilities for the proffered position, such as 
"[d]es
1
gns a
1
d defines the business, system and functional requirements elicitation technique based 
on the project scope and 'Progressive Build,' development methodology using MS Project, MS 
Visio and HP ALM," and "[m]anages the Defect-Life Cycle, responsible to close the defects once the 
re-test is performed on the defect to make the product bug-free." However, these documents do not 
identify what the I ~roject actually entails, or otherwise provide information about the end-client 
projects underway that will require the Beneficiary's services. 
Here, the record contains insufficient supporting documentation that identifies the scope, duration, and 
magnitude of the I lproject, to establish the substantive nature of the Beneficiary's role therein. 8 
Though the Petitioner described the job duties of the position, the evidence does not show the 
operational structure within this initiative in a manner that would establish the Beneficiary's role. 
While the Director in the RFE requested organization charts that would delineate the Petitioner's and 
the end-client's organization, and staffing hierarchy (including the job titles of the positions that the 
Beneficiary will manage in the proffered position, and the job title of the individual he will report to), 
the Petitioner did not sufficiently address this aspect. For instance, in its RFE response, the Petitioner 
provided material which indicates that the Beneficiary reports to its vice president of training and 
development. The organization chart shows various positions, including this vice president's position 
with a downward arrow pointing to a box entitled "employees," which lends little insight into the 
proffered position's placement within the Petitioner's organizational hierarchy. Further, the Petitioner 
did not provide evidence of the end-client's project staffing hierarchy, and sufficient information about 
what theLJproject actually involves in order to establish the substantive nature of the Beneficiary's 
role as a "business systems analyst" within the context of this endeavor. 
Moreover, the Petitioner has provided conflicting information regarding requirements for the proffered 
position. The Petitioner indicated in the LCA that the job title of the proffered position was "business 
systems analyst," and designated the proffered position under the occupational category "Computer 
Systems Analysts" corresponding to the Standard Occupational Classification code 15-1121. The 
Petitioner initially stated that it required "at least a bachelor's degree" for entry into the proffered 
position. The initially provided mid-vendor letter specified that a "Bachelor degree in relevant field 
such as Computer Science, Information Systems, Business OR equivalent combination of education 
and/or experience" was required for the proffered position. In response to the Director's RFE, the 
Petitioner submitted material that further provided a diverse range of requirements for the proffered 
position, including: 
• The Petitioner's June 2017 Business Systems Analyst job announcement which 
required "a minimum of a Bachelor's Degree in Computer Science, Computer 
8 Defensor, 201 F.3d at 387-88. 
6 
Matter of B-, Inc. 
Engineering, Computer Information Systems or a closely related field. The job notice 
further indicated extensive experience requirements, to include "3+ years' system 
implementation required," and "2+ years' Microsoft Dynamics AX" and "3+ years' 
experience [ with various technologies]" preferred. 
• An August 2018 mid-vendor letter and job order profile, both of which specified 
minimum position requirements of "a Bachelor's degree in Computer Science, 
Information Systems[,] Business with at least four years of experience in IT Software 
Development; typically with 8 or more years in dominant project language or related 
experience." 
• An August 2018 end-client letter which also indicated minimum position requirements 
of "a Bachelor's degree in Computer Science, Information Systems[,] Business with at 
least four years of experience in IT Software Development; typically with 8 or more 
years in dominant project language or related experience," which the Petitioner asserted 
"confirms the educational requirement of the position." 9 
• The Petitioner's August 2018 letter, which indicated that "our minimum requirement 
for this position is a Bachelor's Degree or its equivalent in Computer Science or a 
closely related field." 
• An opinion letter froml Ian adjunct professor, University of 
.... I ____________ __.I m which he opmes that "a minimum of a Bachelor's 
Degree in Computer Science, a related area, or the equivalent" is required for the 
proffered position. 
On appeal, the Petitioner restated the I t requirements (e.g., a bachelor's degree in computer 
science, or a related area) and asserts "[t]he record of this proceeding does not include anything to 
contradict I ~ ~ Is position requirements] to successfully perform the duties [ of the 
proffered position]." 10 However, the Petitioner does not explain why I Is position requirements 
differ from the wide array of position requirements that the Petitioner, mid-vendor, and end-client 
contemporaneously put forth, nor does it explain the reasons for the variances in the position requirements 
within the material in the record. 11 The Petitioner must resolve these inconsistencies with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency 
of other evidence submitted in support of the requested immigration benefit. Id. 
Without sufficient and consistent evidence of the Beneficiary's duties in relation to specific end­
client's project(s), and of the minimum requirements necessary to perform the duties of the position, 
9 The end-client's email provided on appeal specifies position requirements of "a Bachelor's Degree in Computer Science, 
Information Systems, or equivalent education and or experience . .------, 
10 The record does not contain material from an individual named I I• However, the position requirements identified by 
the Petitioner in this statement provided on appeal are those put forth byl I 
11 Notably, thel I also does not address the variances between the minimum requirements for the position as 
stipulated by the Petitioner. the end-client, and the mid-vendor relative to his own conclusions regarding the position 
requirements. Therefore, we findl l opinion letter lends little probative value to the matter here. Matter of 
Caron Int'/, 19 I&N Dec. 791, 795 (Comm'r 1988) (The service is not required to accept or may give less weight to an 
advisory opinion when it is "not in accord with other information or is in any way questionable."). For the sake of brevity, 
we will not address other deficiencies within the professor's analyses of the proffered position. 
7 
Matter of B-, Inc. 
the Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, which therefore precludes a conclusion 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 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. 12 
IV. LABOR CONDITION APPLICATION 
On appeal, the Petitioner does not challenge the Director's determination that the LCA does not 
correspond with the H-lB petition; therefore, we consider the issue waived. Further, since the 
identified basis for denial is dispositive of the Petitioner's appeal, we need not address other grounds 
of ineligibility. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("As a general rule courts and 
agencies are not required to make findings on issues the decision of which is unnecessary to the results 
they reach."). 
V. 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. 
Cite as Matter of B-, Inc., ID# 4838575 (AAO Sept. 17, 2019) 
12 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 fiuiher discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
8