dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8640456 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 23, 2020 
The Petitioner, an information technology consulting services company, seeks to temporarily employ 
the Beneficiary as a "full stack developer" under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that requires both (a) the theoretical and practical application of a body 
of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the specific 
specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the evidence of 
record does not establish that the proffered position qualifies as a specialty occupation. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. 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. 
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: 
( 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). 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). 
II. PROFFERED POSITION 
In the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner stated that the Beneficiary will 
serve as a "foll stack developer." Although the Petitioner's address is in Iowa, the Petitioner stated that 
the Beneficiary would work for an end-client in Wisconsin through agreements between the Petitioner, 
two vendors, and the end-client. The record indicates that the contractual path of the Beneficiary's 
assignment is as follows: 
Petitioner ~ I- ~ 
(Prime Vendor) 
T­
(Mid-Vendor) 
G­
(End-Client) 
On the labor condition application (LCA) 1 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Software Developers, Applications" 
corresponding to the Standard Occupational Classification code 15-1132. 
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 
1 A petitioner submits the LCA to the U.S. Department of Labor (DOL) to demonstrate that it will pay an H-lB worker the 
higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid 
by the employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 
C.F.R. § 655.73 l(a). 
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not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 2 
As recognized by the court in Defensor, where the work is to be performed for entities other than the 
petitioner, evidence of the client companies' job requirements is critical. See Defensor, 201 F.3d at 
387-388. The court held that the former Immigration and Naturalization Service had reasonably 
interpreted the statute and regulations as requiring the petitioner to produce evidence that a proffered 
position qualifies as a specialty occupation on the basis of the requirements imposed by the entities using 
the beneficiary's services. Id. at 384. Such evidence must be sufficiently detailed to demonstrate the type 
and educational level of highly specialized knowledge in a specific discipline that is necessary to perform 
that particular work. 
The Petitioner submitted a copy of its Professional Services Agreement (PSA) with the prime vendor, 
executed in August 2017, which indicates that the Petitioner will provide personnel to perform services 
for the prime vendor's end-customers per the prime vendor's specifications. Although the agreement 
indicated that an "Assignment Purchase Order" was incorporated into the agreement, a copy of this 
document was not submitted into the record. For the first time on appeal, the Petitioner submits a 
copy of an untitled document executed by the Petitioner and the prime vendor in March 2018. This 
document identifies the Beneficiary as a foll stack developer to be assigned to a project for the end­
client for a 24-month period beginning on April 2, 2018. 
The Petitioner also submitted two copies of a document entitled "EXHIBIT A, Statement of Work No. 
1527390" (EXHIBIT A) between the prime vendor and the mid-vendor. This document indicates that 
the Beneficiary will provide services as a foll stack developer atl I 
Wisconsin beginning on October 11, 2018 "[ o Jr the [mid-vendor's 11 !Creation Date, whichever 
is later." As for the end date of the Beneficiary's services, a discrepancy exists. Although both copies 
of EXHIBIT A appear to be identical due to having the same handwritten notations and signatures, 
the end dates for the project differ. The first EXHIBIT A, submitted in response to the Director's 
request for evidence (RFE), indicates that the assignment will continue until October 10, 2021. The 
second EXHIBIT A, submitted on appeal, indicates that the project will continue until December 31, 
2020. There is no explanation for this discrepancy. Moreover, EXHIBIT A indicates that it is executed 
pursuant to a Consulting Services Agreement between the vendors, but a copy of this agreeme~ 
not submitted. Finally, the record contains no explanation or clarification regarding the 'l__J 
Creation Date" referenced in the commencement date section of the document. 
Regarding the relationship between the mid-vendor and the end-client, the Petitioner submits a 
document entitled "STATEMENT OF WORK, Imaging App Support" for the first time on appeal. 
This document, executed in July 2019, indicates a need for three foll stack developers and a SW test 
automation engineer for "Imaging App" services. This document does not identify or make direct 
reference to the Beneficiary or any other specific personnel. In addition, while this document indicates 
that it is executed pursuant to a Master Services Agreement (MSA) between the mid-vendor and the 
end-client, a copy of this agreement was not submitted. 
2 The Petitioner submitted documentation to suppmt the H-lB 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 
The record also contains two "change orders" between the mid-vendor and the end-client, both of 
which seek to extend the terms of a statement of work identified as "SOW-ICAR V&V Support," 
executed pursuant to the MSA on January 1, 2018, and January 1, 2019, respectively. The change 
orders make no reference to the Beneficiary or other personnel affected by the proposed changes, and 
copies of the SOW-ICAR V & V Support documents referred to therein were not submitted. 
The Petitioner also submitted letters from both vendors and the end-client. The record contains three 
letters from the prime vendor, which are virtually identical. The first letter outlines the nature of the 
contractual path and lists the duties to be performed. The second and third letters contain the same 
statements, but include a sentence stating that the proffered position requires at least a bachelor's 
degree in computer science or electrical engineering. The record also contains two identical letters 
from the mid-vendor, which list the same duties and educational requirements for the position as the 
prime vendor. The mid-vendor letters state that its current contract with the end-client, and thus the 
Beneficiary's assignment, is valid through December 2020. 
The Petitioner also submitted two letters from the end-client which confirm its relationship with the 
mid-vendor. The first letter, submitted in response to the RFE, contains the same list of duties set 
forth in the vendor letters, and states that "[ w ]e expect this project to get extended to December, 2020 
and possibly beyond." The second letter, submitted on appeal, includes a slightly modified list of 
duties which includes the percentage of time to be devoted to each duty, and also adopts the 
educational requirements set forth by the vendors. Regarding the duration of the project, this second 
letter states "[ w ]e expect this project to get extended to December 2021 and possibly beyond." 
Notably, the end-client does not identify the project by name or provide any details beyond those 
already provided in the vendor letters. 
Upon review, the record lacks contemporaneous documentation establishing a current agreement for 
the Beneficiary's services. According to an itinerary submitted in support of the petition, the 
Beneficiary will be assigned to work on the end-client project through December 31, 2020 "with high 
probability of future extensions." On the Form I-129, however, the Petitioner requested approval of 
the instant petition through August 7, 2022. The record contains no statement of work, work order, or 
other documentation identifying the Beneficiary as a resource that will work on a project for the 
end-client for the dates outlined in the itinerary and the petition. Moreover, the project upon which 
the Beneficiary will allegedly work for the requested validity period was never identified. 
The PSA between the Petitioner and the prime vendor is simply a general agreement for the provision 
of personnel by the Petitioner to various unnamed end customers of the prime vendor. Although the 
Petitioner submitted an untitled document on appeal indicating an agreement with the prime vendor 
for the provision of the Beneficiary's services to the end-client for a 24-month period commencing on 
April 2, 2018, there is no similar corroborating documentation from the mid-vendor and the end-client. 
Moreover, none of the parties have provided any work orders or statements of work detailing the 
nature of the project upon which she will work, the duties she will perform, or the terms and conditions 
under which she will work. 
The change orders submitted appear to extend the terms of a document entitled "SOW - ICAR V & V 
Support" through December 31, 2019, and December 31, 2020, and the Petitioner appears to rely on 
these documents as evidence of an ongoing assignment for the Beneficiary. As noted above, the record 
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does not contain a copy of the SOW-ICAR V&V Support document(s), such that we can determine 
whether they pertain to the Beneficiary. While it appears that the mid-vendor and the end-client used 
these change orders to extend the deliverables window for the project(s) covered by the original 
statements of work referenced therein, there is no documentation in the record to demonstrate that 
those statements of work, and the subsequent change orders, pertain to the Beneficiary. 
Finally, the only formal documentation of an agreement between the end-client and the mid-vendor in 
the record is the "STATEMENT OF WORK" submitted for the first time on appeal. This document, 
notably, is dated July 19, 2019, over three months after the filing of the petition. Although it identifies 
the need for three full stack developers, it does not identify the Beneficiary by name as a resource to 
fill one of those open positions, and does not set forth the duration of the project, the nature of the 
project, or the specific duties to be performed by personnel assigned to the project. Moreover, the 
record does not contain a copy of the MSA, which outlines the contractual terms of the relationship 
between the end-client and the mid-vendor, and pursuant to which this document was executed. 
Finally, the first paragraph of the agreement indicates that the document ""shall not become binding 
on [the end-client] until [the end-client] issues a PO [purchase order] for the total fees payable 
hereunder." There is no indication that such a purchase order has been issued. 
The record of proceedings does not contain sufficient documentary evidence from the vendors and the 
end-client that establishes the contractual path under which the Beneficiary's assignment will commence 
or its duration. This lack of documentation prohibits a determination that specialty occupation work had 
been secured for the Beneficiary at the time of filing. Without documentary evidence that delineates 
the contractual terms between the end-client and the vendors, including the true duties and the 
requirements for the position, we are unable determine the substantive nature of the proffered position. 
As discussed above, the assertions in the vendor and end-client letters regarding the Beneficiary's 
assignment are not supported by contemporaneous contractual documentation. 
Absent documentation establishing the contractual path between the parties, and without documentary 
evidence 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, or how this would impact 
circumstances of her relationship with the Petitioner. Here, the record contains multiple conflicting 
statements regarding the duration of the Beneficiary's proposed assignment. The untitled document 
executed by the Petitioner and the prime vendor (which the Petitioner refers to as a "purchase order" 
on appeal), indicates that the Beneficiary would be assigned to work on the end-client project for a 
24-month duration, which would end on April 2, 2020. The document entitled EXHIBIT A, which 
appears to be a statement of work between the vendors, contains contradictory termination dates, and 
does not specifically pertain to the Beneficiary. The multiple letters from the mid-vendor and the 
end-client indicate that their contractual relationship is valid through December 2020, and may be 
extended through December 2021. However, in addition to a lack of contractual documentation 
confirming the contractual relationship between the mid-vendor and the end-client, the record is also 
devoid of evidence of the existence of a contractual relationship between all parties for the 
Beneficiary's services in particular. The record contains no additional documentation demonstrating 
that the purchase order between the Petitioner and the prime vendor for the services of the Beneficiary 
has been extended beyond its initial 24-month period, which expires in April 2020. Finally, the 
"STATEMENT OF WORK" between the mid-vendor and the end-client, also submitted for the first 
time on appeal, was executed after the filing of the instant petition, and does not appear to specifically 
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pertain to the Beneficiary. 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. 3 The Petitioner has not 
demonstrated the substantive nature of the duties the Beneficiary would perform. 
As noted, aside from this "STATEMENT OF WORK" that was executed subsequent to the filing of 
the petition, the record does not contain documentary evidence of the contractual terms between the 
end-client and any other party, raising questions regarding the substantive nature of the work for the 
Beneficiary to perform. Although the end-client letters generally assert that the Beneficiary is 
providing services to the end-client pursuant to a contractual agreement with the mid-vendor, the 
record does not contain a copy of that contractual agreement. Although it provides a general overview 
of the duties to be performed, which are identical to those contained in the vendor letters, the extent 
to which the duties of the Beneficiary are accurately described is unclear. As recognized by the court 
in Defensor, 201 F.3d at 387-88, where the work is to be performed for an entity other than the 
petitioner, evidence of the client company's job requirements is critical. Here, the record does not 
adequately establish that the Beneficiary would provide services in a specialty occupation for the end­
client for the employment period requested in the petition. 
The Petitioner submitted an opinion letter written by Professor.__ _______ _. Associate 
Professor of Computer Science and Engineering atl I University. As a matter of discretion, 
we may use opinion statements submitted by the Petitioner as advisory. Matter of Caron Int 'l, Inc., 19 
I&N Dec. 791, 795 (Comm'r 1988). However, we may give an opinion less weight if it is not in 
accord with other information in the record or if it is in any way questionable. Id. We are ultimately 
responsible for making the final determination regarding an individual's eligibility for the benefit 
sought; the submission of expert opinion letters is not presumptive evidence of eligibility. Id.; see 
also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion testimony, while 
undoubtedly a form of evidence, does not purport to be evidence as to 'fact' but rather is admissible 
only if 'it will assist the trier of fact to understand the evidence or to determine a fact in issue."'). 
Professor! I does not state that he reviewed information regarding whether the end-client 
requires a bachelor's or higher degree in a specific specialty, or its equivalent, to perform the position's 
3 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-lB classification on the basis of speculative, or undetermined, 
prospective employment. The H-1 B classification is not intended as a vehicle for an individual 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 individual 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 individual 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 
individual 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). 
6 
duties, which is critical. See Defensor, 201 F.3d at 387-88. Although Professor! 0 I provides 
an extensive list of duties for the position upon which he relied, these duties are not the duties provided 
by the end-client as evidenced by its letters in the record. Rather, they appear to be provided solely 
by the Petitioner. Professor! I's letter provides neither a description of the duties required by 
the end-client nor a statement of whether the end-client requires a qualifying degree. In fact, there is 
no mention of the Beneficiary's assignment at the end-client at all, thereby raising doubts regarding 
his familiarity with the actual duties to be performed in this matter. Furthermore, there is no indication 
that Professor I I has conducted any research or studies pertinent to the educational 
requirements for such positions, and no indication of recognition by professional organizations that he 
is an authority on those specific requirements. Accordingly, Professor I t opinion, which 
does not address the end-client project and its requirements bears minimal probative value. 
Additionally, even to the extent that Professor I f's opinion about the Petitioner's duty 
description-rather than information from the end-client-may bear probative value, the Petitioner's 
duty description consists of generalized summaries that do not establish the substantive nature of the 
position. The language in the Petitioner's duty description, on which Professor I lbased his 
op1mon, is vague, repetitive, and unsubstantiated, raising questions regarding how Professor 
I ~ad sufficient information to form an opinion. 
The Petitioner's failure to establish the substantive nature of the work to be performed by the Beneficiary 
precludes a finding that the proffered position is a specialty occupation under any criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the normal 
minimum educational requirement for the particular position, which is the focus of criterion 1; 
(2) industry positions which are parallel to the proffered position and thus appropriate for review for a 
common degree requirement, under the first alternate prong of criterion 2; (3) the level of complexity or 
uniqueness of the proffered position, which is the focus of the second alternate prong of criterion 2; (4) the 
factual justification for a petitioner normally requiring a degree or its equivalent, when that is an issue 
under criterion 3; and (5) the degree of specialization and complexity of the specific duties, which is the 
focus of criterion 4. 
The Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h) (4) (iii) (A) and, therefore, it 
cannot be found that the proffered position qualifies as a specialty occupation. 
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. 
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