dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 1363882 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 23, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"technical lead" under the H-1B nonimmigrant classification for specialty occupations. 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-1B 
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 record did not 
establish that the position qualifies as a specialty occupation. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
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-1B 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)(I), 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, 
1 The regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty 
occupation under section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe the 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 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) 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 
review 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)(1) 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)(1). 
11. PROFFERED POSITION 
On the labor condition application (LCA)2 filed in support of the petition, the Petitioner indicated that 
the Beneficiary would work in-house at its offices located in Texas and Florida. However, on the 
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"). 
2A petitioner submits the LCA to the U.S. Department of Labor to demonstrate that it will pay an H-1B 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)(1) of the Act; 20 C.F.R. 
§ 655.731(a). 
2 
Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner also indicated that the Beneficiary 
would work off-site at another company's location for all or part of the H-1B period requested.3 
In the support letter, the Petitioner further stated, "[g]iven the nature of our business, we anticipate 
[the Beneficiary] will perform work off-site for our customers nationwide." 
The Petitioner described the proffered position's duties as follows: 
I Working with a [p]roject team (offshore/onsite) to understand requirements, 
including gathering requirements, exploring multiple approaches and suggesting 
optimal solutions; 
I Providing analysis and support in requirement document preparation; 
I Supporting the Project Manager in preparation of project implementation plans; 
I Taking full ownership of the implementation; 
I Delivering application features per release schedule and quality expectations; 
I Interacting with customers and internal teams during the entire project life cycle; 
I Enhancing efficiency of the development/test/release process; 
I Researching and tracking developments in the mobile and application segments; 
I Driving technology learning and providing mentorship to teams; and 
I Participating in the full life-cycle development process from project initiation, 
through design, development, review, test, release and maintenance. 
According to the Petitioner, the position requires "a minimum of a Bachelor's degree (or foreign 
equivalent) in Computer Science, Computer Engineering or a related technical field." 
Ill. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the services in a specialty occupation that the Beneficiary would perform during the requested period 
of employment, which precludes a determination of whether the proffered position qualifies as a 
specialty occupation under sections 101(a)(15)(H)(i)(b), 214(i)(1) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(1), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 4 
As noted, the record indicates that the Beneficiary would perform services for clients, both in-house 
or offsite. In cases where a beneficiary would provide services to another entity, contractual 
agreements between the petitioner and companies involved in the beneficiary's assignment provide 
3 See Part 5 of the Form 1-129 and Section 4 of the H-1B and H-181 Data Collection and Filing Fee Exemption Supplement. 
However, in Part 9 of the Form 1-129, the Petitioner stated; the "[B]eneficiary will work at [the Petitioner]'s headquarters 
... [in Texas] and ... [Florida]. [The Petitioner] anticipates [the Beneficiary] will perform work at sites of its customers 
in which case an amended petition will be filed .... " 
4 The Petitioner submitted documentation to support the H-18 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. 
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information regarding the terms and conditions of the contract. 5 Such contractual agreements may 
include the master services agreement (MSA) that outline the general nature of services to be provided, 
and a detailed statement or work (SOW), work order, or another similar document to demonstrate the 
specific work that the beneficiary would provide. However, the record does not contain sufficient 
documentary evidence that satisfactorily establishes the services the Beneficiary would perform. 
In response to the Director's request for evidence (RFE), 6 the Petitioner submitted five sows and one 
change order (CO) with its clients, but they are not for the Beneficiary. 7 Further, none of the six 
documents are supported by the respective MSAs pursuant to which the sows and CO were executed 
and therefore do not adequately establish the terms and conditions of those agreements. Only one of 
those six documents identifies a specific individual assigned to perform services for a client; however, 
that individual is not the Beneficiary. Therefore, the sows and CO do not bear sufficient probative 
value for demonstrating the services that the Beneficiary would perform. Additionally, none of the 
worksites in the SOWs and CO match the worksites provided in the LCA in support of the petition.8 
The Petitioner emphasizes that the sows in the record are only "samples" of "typical Statements of 
Work," not actual sows for projects to which the Beneficiary would be assigned. The Petitioner 
asserts that it should not be required to provide sows, naming the Beneficiary, for work to be 
performed at the Petitioner's location. Although a petitioner may be able to establish the substantive 
nature of an in-house position through sample contracts, the samples here do not sufficiently describe 
the work the Beneficiary would likely perform or establish that such work would qualify as a specialty 
occupation. 
For example, the sample SOW from S- includes the following as the scope of services: 
I General application maintenance, including bug fixes and updates; 
I Upgrades to the [Petitioner] Platform software; 
I Development of new functionality for the Custom[er] Application; 
I Upgrades to the integrations between the Customer Application and [the client's] 
back end systems; 
I Adding features and/or functions to the Customer Application; 
I Providing testing support, regression testing, or feature testing; 
5 See 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). Although a petitioner is not required by existing regulation to submit 
contracts or legal agreements between the petitioner and third parties to establish an employer-employee relationship, "the 
petitioner must demonstrate eligibility for the benefit sought" and "if a petitioner provides contracts or legal agreements, 
[an] officer is not precluded from evaluating that evidence in the adjudication of other eligibility criteria." USCIS Policy 
Memorandum PM-602-0114, Rescission of Policy Memoranda at 3 (June 17, 2020), http://www.uscis.gov/legal­
resou rces/pol icy-memoranda. 
6 In requesting additional evidence, the Director noted that the Petitioner did "not indicate[] when, where, or for whom the 
beneficiary will be assigned to work" or "document[] the end-client, the vendor (if applicable) or the contracted dates of 
services." The list of types of evidence requested included contracts, statements of work, work orders, and services 
agreements and more, pertaining to the Beneficiary. 
7 In the brief submitted in response to the Director's RFE, the Petitioner described the documents as "typical Statements 
of Work," not actual sows for projects to which the Beneficiary would be assigned. 
8 One SOW states that the Petitioner's "resources" will work exclusively at the Petitioner's office in I I India, not 
at a client site in the United States. 
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I Project planning, management and meetings; 
I Onsite support for Customer Application delivery management; 
I Infrastructure planning and support; and 
I Production support of the Customer Application on the [client's] hosted hardware 
environment. 
The language from the SOW does not sufficiently establish the substantive nature of the work to be 
performed. The scope of service includes general application maintenance, upgrades, adding features, 
and project planning, management and meetings. Without further details regarding these services, we 
are not able to determine whether performing duties such as "bug fixes and updates" or "onsite 
support" would require theoretical and practical application of a body of highly specialized 
knowledge, and attainment of at least a bachelor degree in a specific specialty or its equivalent. 
Other documents in the record contain similarly vague language. A sample SOW from C- states that 
the services would include "provid[ing] technical solutions to the team," "work[ing] on POC's for 
technical features that will be integrated in the project," "work[ing] on the development and unit 
testing of assigned tasks," and "support SIT/UAT phases of the project by fixing the issues reported 
on application." A sample SOW from P- reflects that services include: "support installation," 
"participate in technical discussions with P-'s project team," "technical review of the project 
documents," and "help in development as requested." 
Furthermore, the Petitioner also described the duties comprising the proffered position in relatively 
abstract and repetitive terms that lack sufficient detail to establish the substantive nature of the work 
to be performed. For example, the Petitioner stated that the Beneficiary's duties include "[w]orking 
with a [p]roject team (offshore/onsite) to understand requirements," "[p]roviding analysis and support 
in requirement document preparation," "[s]upporting the Project Manager in preparation of project 
implementation plans," and "[i]nteracting with customers and internal teams during the entire project 
I ife cycle." 
Although the job duties involve some aspect of developing, designing and implementing software, the 
record does not adequately establish how they would be performed in context of the clients' 
requirements. The Petitioner's generalized description does not convey the substantive nature of the 
work that the Beneficiary would actually perform, or any particular body of highly specialized 
knowledge that would need to be theoretically and practically applied to perform it. 
Moreover, the Petitioner often references tasks dependent on customers or clients, regardless of the 
location at which the Beneficiary would perform his work, which necessitates both (1) identifying the 
client(s) with which the Petitioner contracted the Beneficiary to perform work and (2) establishing the 
client's or clients' required duties and academic qualifications. See Defensor, 201 F.3d at 387-88. For 
example, although the Petitioner indicated it has its own "homegrown, proprietary technology," the 
Petitioner described the Beneficiary's general work as "develop[ing] next generation integrated mobile 
applications for [the Petitioner's] customers" (emphasis added). Likewise, in the support letter, the 
Petitioner described its business as "servic[ing] its customers by designing, developing and delivering 
mobile application solutions tailored to customers' unique needs and identities" (emphasis added). 
The Petitioner indicated that the Beneficiary's role would be a technical lead and that its technical 
leads "play a key role in designing applications and mapping business requirements to systems and 
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technical requirements pursuant to the specific requests and needs of our customers" (emphasis 
added). In other words, the record indicates that the Beneficiary would perform services for clients 
upon their request, and the proffered position is not an in-house position dedicated to further 
development of the Petitioner's own technology. 
Furthermore, the Petitioner's assertion that it would assign the Beneficiary to work for a client not 
identified in support of the petition raises questions whether the proffered position qualifies as a 
specialty occupation. 9 Notably, the Petitioner indicated that the nature of the technology sector is 
"unpredictable" and "changing constantly," and as a result, "it was impossible for us to know which 
client [the Beneficiary] would be assigned prior to his H-lB cap approval." The Petitioner stated that 
"[a]II of [our] employees initially work from our headquarter office" and "[o]nce [the Petitioner] 
knows that an individual has received an H-1 and is ready to enter, the management team can then 
start to work on confirming the client needs and expected work location(s)." However, whether the 
services to be performed at the Petitioner's headquarter office on its own assignments require a 
bachelor's or higher degree in a specific specialty, or its equivalent, is separate from whether services 
to be performed according to a client's requirements would require such a degree.10 
Here, as discussed, the Petitioner did not sufficiently establish the services to be performed and 
whether they require at least a bachelor's degree in a specific specialty. See section 101(a)(15)(H)(i)(b) 
of the Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
We further note that the Beneficiary's services are defined by customers' requirements and needs, 
which may vary in scope and level of complexity, and the record does not contain sufficient evidence 
of the services that the Beneficiary would perform. The record does not contain a description of the 
9 The Petitioner noted that U.S. Citizenship and Immigration Services (USCIS) has approved other petitions that had been 
previously filed on behalf of other employees. We are not required to approve applications or petitions where eligibility 
has not been demonstrated, merely because of prior approvals that may have been erroneous. See Matter of Church 
Scientology lnt'I, 19 l&N Dec. 593, 597 (Comm'r 1988); see also Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 
(6th Cir. 1987). Furthermore, we are not bound to follow a contradictory decision of a service center. La. Philharmonic 
Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *2 (E.D. La. 2000). 
10 The H-1B classification is not intended as a vehicle "for employers to bring in temporary workers to meet possible 
workforce needs arising from potential business expansions or the expectation of potential new customers or contracts." 
Petitioning Requirements for the H Non immigrant Classification, 63 Fed. Reg. 30419, 30419-20 (proposed June 4, 1998) 
(to be codified at 8 C.F.R. pt. 214). We understand this federal register was a proposed, not final, rule. Nonetheless, we 
regularly cite to language in the introductory Supplemental Information section preceding the actual proposed amendment 
language because it explains, for public informational purposes during the period for submitting public comments, the 
longstanding practice of USCIS when adjudicating speculative H-18 petitions: "Historically, the Service has not granted 
H-1B classification on the basis of speculative, or undetermined, prospective employment" (emphasis added). Petitioning 
Requirements for the H Non immigrant Classification, 63 Fed. Reg. 30419, 30420 (proposed June 4, 1998) (to be codified 
at 8 C.F.R. pt. 214). Specifically, the proposed rule explained the reasoning behind it as follows, in part: 
To determine whether an alien is properly classifiable as an H-lB nonimmigrant under the statute, the 
Service must first examine the duties of the position to be occupied to ascertain whether the duties of the 
position require the attainment of a specific bachelor's degree. See section 214(i) of the Immigration and 
Nationality Act (the "Act"). The Service must then determine whether the alien has the appropriate 
degree for the occupation. In the case of speculative employment, the Service is unable to perform either 
part of this two-prong analysis and, therefore, is unable to adjudicate properly a request for H-1B 
classification. Moreover, there is no assurance that the alien will engage in a specialty occupation upon 
arrival in this country. 
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proffered position's duties, and the academic requirements necessary to perform those duties, from a 
specific client to which the Beneficiary ultimately would be assigned, whether working at the 
Petitioner's or the client's location.11 Accordingly, we cannot determine whether the proffered 
position qualifies as a specialty occupation. As recognized by the court in Defensor, 201 F.3d at 387-
88, where the work is to be performed for entities other than a 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. 
In summation, we conclude that the ambiguities and lack of documentation in the record do not 
establish the services the Beneficiary would perform, which therefore precludes a conclusion that the 
proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because the substantive nature 
of the work 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. 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. 
11 Again, we note that the Petitioner asserted that the Beneficiary would work initially at its own offices, albeit for 
unspecified clients. However, the Petitioner also asserted in the petition and throughout the record that the Beneficiary 
ultimately would work at an unidentified client's location. 
12 Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. § 103.2(b){14). Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 l&N Dec. 158, 165 (Comm'r 1998) (citing Matter 
of Treasure Craft of California, 14 l&N Dec. 190 (Reg. Comm'r 1972)). 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 regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
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