dismissed H-1B Case: Information Technology

MATTER OF F-C-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAYJ6,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an IT staffing and outsourcing services firm, seeks to temporarily employ the 
Beneficiary as a "systems engineer" under the H-JB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ llOl(a)(JS)(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, Vermont Service Center, denied the petition. The Director concluded that the 
evidence of record does not establish that there is specialty occupation work available in the capacity 
described in the petition for the duration of the requested validity period. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in finding that the proffered position is not a specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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. 
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: 
(b)(6)
Matter of F-C-, LLC 
(I) 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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 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. ChertofJ, 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). 
II. PROFFERED POSITION 
In the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner stated that the Beneficiary 
will be employed at its premises as a "systems engineer" for its client 
The Petitioner also submitted a labor condition application (LCA) that listed 
two places of employment- the Petitioner's offices in Georgia, and an address for 
m Massachusetts. 
The Petitioner's support letter stated as follows, in pertinent part: 
Upon joining [the Petitioner] on a valid H-lB visa, [the Beneficiary] will be working 
as a Systems Engineer for from [the Petitioner's] 
office . . . . [The Beneficiary] is expected to continue working for 
from [the Petitioner's] office for the duration of his H-lB 
validity period .... No other work locations are anticipated for him and accordingly 
this is the complete itinerary of the services to be performed by the Beneficiary .... 
This specialty occupation position of a Systems Engineer within [the Petitioner] 
requires as a minimum a Bachelor's degree or its equivalent with a minor or 
concentration in any branch of Science, Engineering, Computer .Science, Computer 
Applications, Information Systems, or a related field .... 
2 
(b)(6)
Matter of F-C-, LLC 
The Petitioner also described the proffered duties and broke them down into percentages as follows 
(verbatim, but not in the chart format as used by the Petitioner): 
• Administering storage systems in , creating Aggregates, 
V serversNfilers, Volumes, SnapShot, Snap Manager, 
Snap Vault and all other services. [ 15%] 
• Preparing utilization reports using Analyze and suggest corrective methods 
on performance issues. Enable, configure, extend and map to 
Configuring and extending Space on UNIX servers. [15%] 
• Flex Clone/Flexible Volume Management and Data clustering and fail-
over management. Configuration of zones adding devices on switches. 
[35%] 
• Configuration of initial Filer deployment in Data Center, Volume, 
Aggregates and SnapShots, multiprotocol management, [p ]rovisioning of storage 
allocations capacity management with performance analysis, tuning and 
management. [15%] 
• Perform daily checkouts on backups and coordinate for resolution with Backup 
team with power down checkouts. Administer and maintain day-to-day 
operational support, implementations and periodic hardware and software 
maintenance. [ 
1 0%] 
• Configuring files for different environments and binding the active directory, 
and configuring the and ports for remote administration. 
Implementation of Enterprise Vault for Microsoft exchange archiving as well as 
File system archiving. [1 0%] 
On the LCA, the Petitioner designated the proffered position under the occupational category 
"Network and Computer Systems Administrators" corresponding to the Standard Occupational 
Classification code 15-1142. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
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. 1 
1 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. 
3 
(b)(6)
Matter of F-C-, LLC 
We find that the record of proceedings contains inconsistencies that undermine the Petitioner's 
claims regarding the proffered position. The Petitioner claims that its end-client is and the 
Beneficiary will work on a project for 
for the entire duration of the petition. However, the 
master subcontracting agreement between the Petitioner and dated February 12, 2014, 
contradicts this claim. Specifically, the Petitioner's relationship with is summarized as 
follows: 
1. Structure ofthe Relationship Between Parties. 
1.1. Engagements. Pursuant to this Agreement, may retain [the 
Petitioner] to act as subcontractor to provide Services to 
End-Client. Work shall not begin without Norwin's issuance of a 
Statement of Work ("SOW"). Work commenced by [the Petitioner] 
without a SOW shall be deemed "at-risk." An engagement shall be 
effective upon acceptance by [the Petitioner] of the issued 
SOW (an "Engagement"). Each Engagement shall constitute a 
separate transaction between the parties, but shall be subject to the 
terms and conditions of this Agreement, the applicable Agreement 
Addendum, and the applicable SOW. 
This agreement indicates that may retain the Petitioner to act as its subcontractor to provide 
services for the end-client, which contradicts the Petitioner's claim that is the end-client. On 
appeal, the Petitioner submits a letter from which states that ' is the end client and 
[the Petitioner] is the vendor to however, it does not contain sufficient evidence to resolve 
inconsistencies in the record of proceedings. Specifically, the Petitioner submits a project proposal 
titled "[The Petitioner's] Solution Proposal to 
dated December 2014. Notably, the project states under the section "Terms & 
Conditions" that is to issue a "formal [p ]urchase order," and the Petitioner proposes that 
and [the Petitioner] could enter into a 'contract' that will govern the terms and conditions 
of this project." However, the Petitioner did not submit a purchase order or a contract with 
Further, the proposal document contains information that contradicts letter provided on 
appeal. The document proposed that the Beneficiary work as an "Infrastructure Migration 
Engineer/Systems Engineer." On page 14 ofthe proposal, the duties of the Infrastructure Migration 
Engineer are as follows: 
Work on Manual and Tool based Migration ofP2V I V2V 
Work on VM configurations 
OpenStack operations 
However, in the letter on appeal, states that the Beneficiary will be employed as a "systems 
engineer." Further, on appeal, provides duties verbatim from its support letter, which differ 
from those proffered in the proposal and does not include migration, configurations, or operations. 
Specifically, in addition to the duties provided verbatim from the support letter, the letter on appeal 
4 
(b)(6)
Matter of F-C-, LLC 
states that the Beneficiary duties include "storage administration and management pr9jects, tasks 
including installation and replacements, changes, implementation, storage provisioning, capacity 
planning and management, and basic problem management." Further, the skillset requirement listed 
on the proposal to perform these duties in the proposal was six to eight years of experience, without 
any mention of the degree requirement; however, on appeal, as will be discussed below, lists 
degree requirements. Moreover, the timeline provided for the project on the proposal was from 
October 2015 to December 2016, but the letter on appeal states that duration is "3+ years and 
multiple extensions." The Petitioner did not explain the discrepancies. 
Without a purchase order or contract that outlines the terms and conditions of the Beneficiary's 
employment and information regarding specific projects to which the Beneficiary would be assigned 
that covers the duration of the period of employment requested, we are not able to ascertain what the 
Beneficiary would do, where the Beneficiary would work, as well as how this would impact 
circumstances of his relationship with the Petitioner. A petition must be filed for non-speculative 
work for the Beneficiary, for the entire period requested,' that existed as of the time of the petition's 
filing. The Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 
8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future date after the Petitioner or 
Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N 
Dec. 248, 249 (Reg') Comm'r 1978). 2 
We further find that there are significant discrepancies in the record of proceedings with regard to 
the Petitioner's occupational classification for the proffered position. Specifically, while the 
Petitioner asserts that the proffered position is that of a "systems engineer," the Petitioner indicated 
in the LCA that the proffered position corresponds to the occupational category of "Network and 
Computer Systems Administrators." 3 On appeal, the Petitioner discusses educational requirements 
2 The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 8 classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 8 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-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). 
3 Further, the prevailing wage for "Network and Computer Systems Administrators" at Level I is $53,789 per year in 
Georgia. We note that 
as of the date the LCA was certified on March 9, 2015, the Level I prevailing wage for 
5 
(b)(6)
Matter of F-C-, LLC 
and duties for other related occupations such as computer scientists , systems analysts, computer 
programmers, systems engineer, and software engineer. The Petitioner also provides information 
regarding the prevailing wage and Occupational 
Information Network (O*NET) 
online summary for 
the occupational title of "Computer Occupations, All Other," which covers the position of 
"Computer Systems Engineers/Architects." It is not clear which occupational category corresponds 
to the proffered position. 4 USCIS regulations affirmatively require a petitioner to establish 
eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F .R. § 103 .2(b )(1 ). A 
visa petition may not be approved based on speculation of future eligibility or after the Petitioner or 
Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N 
Dec. 248, 249 (Reg'l Comm'r 1978). A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to USCIS requirements. · See Matter of Izummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm'r 1998). 
Because of the discrepancies discussed above, we cannot determine the nature and scope of the 
Beneficiary's employment. The record lacks evidence sufficiently concrete and informative to 
demonstrate that the proffered position qualifies as a specialty occupation. Therefore, we cannot 
determine that description of the proffered position communicates: (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 education of highly specialized 
knowledge in a specific specialty. "[I]t is incumbent upon the petitioner to resolve the 
inconsistencies by independent objective evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. !d. at 591-92. 
The inability to establish the substantive nature of the work to be performed by the Beneficiary 
consequently 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 1; 
"Computer Occupations, All Other," covering the location where the Petitioner stated 
the Beneficiary would primarily work, was $55,162 per year. See http://www.flcdatacenter.com /OesQuickResults.aspx? 
area= &code=15-1199&year=15&source=l (last visited May 12, 2016). 
4 With respect to the LCA, the U.S. Department of Labor (DOL) provides clear guidance for selecting the most relevant 
Occupational Information Network (O*NET) code classification. The "Prevailing Wage Determination Policy 
Guidance" states "[i]n determining the nature of the job offer, the first order is to review the requirements of the 
employer's job offer and determine the appropriate occupational classification. The O*NET description that corresponds 
to the employer's job offer shall be used to identify the appropriate occupational classification ... . If the employer's job 
opportunity has worker requirements described in a combination of O*NET occupations, the [determiner] should default 
directly to the relevant O*NET-SOC occupational code for the highest paying occupation." 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports the H-1 B petition 
filed on behalf of the Beneficiary. If it is the Petitioner's argument on appeal that the proffered position is actually a 
computer systems engineer, then the Petitioner has not submitted a certified LCA that corresponds to the petition, and the 
petition would have to be denied for this additional reason. 
6 
(b)(6)
Matter of F-C-, LLC 
(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. Accordingly, as the Petitioner 
has not established that it has satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it cannot 
be found that the proffered position qualifies as a specialty occupation. 
However, even if the Petitioner had credibly established substantive nature of the proffered position, 
we find that there is insufficient evidence to establish that the proffered position qualifies as a 
specialty occupation. That is, the proffered position does not require the attainment of a 
baccalaureate or higher degree in a specific specialty, or its equivalent, as the minimum requirement 
for entry into the occupation. See Section 214(i)(l) ofthe Act; 8 C.F.R. § 214.2(h)(4)(ii). 
The Petitioner indicated in its support letter that the education requirement for the proffered position 
is "a Bachelor's degree or its equivalent with a minor or concentration in any branch of Science, 
Engineering, Computer Science, Computer Applications, Information Technology, or a related 
field." On appeal, the Petitioner submits a letter from which confirmed the same 
requirement. 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty (or its equivalent)" requirement of section 214(i)(l )(B) of the Act. In such a 
case, the required "body of highly specialized knowledge" would essentially be the same. Since 
there must be a close correlation between the required "body of highly specialized knowledge" and 
the position, however, a minimum entry requirement of a degree in two disparate fields, such as 
philosophy and engineering, would not meet the statutory requirement that the degree be "in the 
specific specialty (or its equivalent)," unless the Petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required "body of 
highly specialized knowledge" is essentially an amalgamation of these different specialties. Section 
214(i)(l)(B) of the Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," 
we do not so narrowly interpret these provisions to exclude positions from qualifying as specialty 
occupations if they permit, as a minimum entry requirement, degrees in more than one closely 
related specialty. See section 214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). This also includes 
even seemingly disparate specialties providing, again, the evidence of record establishes how each 
acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
position. 
Here, both the Petitioner and claim that the duties of the proffered position can be performed 
by an individual with a bachelor's degree in "Science, Engineering, Computer Science, Computer 
Applications, Information Technology, or a related field." The issue here is that it is not readily 
7 
Matter of F-C-, LLC 
apparent that these fields of study are closely related or that the field of science is directly related to 
the duties and responsibilities of the particular position proffered in this matter. 
As the evidence of record does not establish how these dissimilar fields of study form either a body 
of highly specialized knowledge or a specific specialty, or its equivalent, the Petitioner's assertion 
that the job duties of this particular position can be performed by an individual with a bachelor's 
degree in any of these fields suggests that the proffered position is not a specialty occupation. 
Therefore, absent probative evidence of a direct relationship between the claimed degrees required 
and the duties and responsibilities of the position, it cannot be found that the proffered position 
requires, at best, anything more than a general bachelor's degree. 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 I&N Dec. 190 (Reg. Comm'r 1972)). 
IV. DUE PROCESS 
On appeal, the Petitioner asserts that the Director did not provide an opportunity to address the 
Director's concerns in the denial through a Request for Evidence (RFE), and its rights to procedural 
due process were violated. We note that there is no requirement for USCIS to issue an RFE or to 
issue an RFE pertinent to a ground later identified in the decision denying the visa petition. The 
regulation at 8 C.F.R. § 103.2(b)(8) permits the Director to deny a petition for failure to establish 
eligibility without having to request evidence regarding the ground or grounds of ineligibility 
identified by the Director. Also, even if the Director had erred as a procedural matter in not issuing 
an RFE relative to the Petitioner's lack of evidence to establish the proffered position as a specialty 
occupation, it is not clear what remedy would be appropriate beyond the appeal process itself. The 
Petitioner has, in fact, supplemented the record on appeal. Therefore, it would serve no useful 
purpose to remand the case simply to afford the Petitioner yet another opportunity to supplement the 
record with new evidence. We conduct appellate review on a de novo basis. 
We further note that with respect to a constitutional due process challenge, we have no authority to 
entertain constitutional challenges to a USCIS action. C.f Matter of Salazar-Regino, 23 I&N Dec. 
223, 231 (BIA 2002) (BIA lacks authority to rule on constitutionality of statutes it administers). 
Even if we had the authority to entertain constitutional challenges, the Petitioner has not shown that 
any violation of the regulations resulted in "substantial prejudice" to the petitioning company or the 
Beneficiary. See De Zavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004) (holding that a foreign 
national "must make an initial showing of substantial prejudice" to prevail on a due process 
challenge). 
V. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
· has not been met. 
8 
Matter of F-C-, LLC 
ORDER: The appeal is dismissed. 
Cite as Matter ofF-C-, LLC, ID# 16403 (AAO May 16, 2016) 
9