dismissed H-1B Case: Information Technology

MATTER OF Q-C-S-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 29,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software consulting services company, seeks to temporarily employ the Beneficiary 
as a "SAS systems analyst" under the H-1 B nonimmigrant classification for specialty occupations. 
See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(l5)(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 Petitioner had 
not established that the proffered position is a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in her findings. 
Upon de novo 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.P.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: 
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Matter of Q-C-S-, Inc. 
(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 have consistently interpreted 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. Cherto,[f, 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 a support letter provided with the petition, the Petitioner stated that the Beneficiary would initially 
work on a project for its clients, (mid-vendor) located in North Carolina, 
and (end-client), located in Illinois. The Petitioner also 
indicated that the Beneficiary would perform work from his home office in Florida. 
The Petitioner described the proffered duties as follows: 
• Develop business methods and procedures, including background enterprise 
applications to ensure that back-office IT programs continue to function efficiently 
• Design, conduct, and evaluate 
experimental operational models in cases where 
models cannot be developed from existing data 
• Collaborate with senior managers and decision makers to identify and solve a variety 
of problems and to clarify management objectives 
• Define data requirements and gather and validate information, applying judgement 
and statistical tests 
• Specify manipulative or computational methods to be applied to models 
• Implement analytics and reporting solutions using SAS EBI, including Portal and 
SAS MS-Add-in 
• Modify 
the configuration of existing reports and/or creating new reports 
• Implement SAS/EBI reporting in accordance with [Petitioner] standards and 
processes as well as industry Best Practices 
• Source data for cubes and analytics solutions using SAS from data sources 
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Matter ofQ-C-S-, Inc. 
• Implement cubes and analytical solutions using Futrix 
• Maintain metadata and documentation for all reporting implemented 
• Perform validation and testing of models to ensure adequacy and reformulate models 
as necessary 
• Develop and apply time and cost information to plan, control, and review large 
projects 
• Study and analyze information about alternative courses of action to determine which 
plan will offer the best outcomes 
• Prepare management reports defining and evaluating problems and recommending 
solutions 
In support of the petition, the Petitioner indicated that the proffered position requires "at least a 
bachelor's degree in Computer Science, Engineering, or a related field." 
III. ANALYSIS 
We determine that the Petitioner has not demonstrated that the proffered position qualifies as a 
specialty occupation. Specifically, the Petitioner has not established that, at the time of filing, it has 
secured definite, non-speculative, H-1B caliber work for the Beneficiary for the entire validity 
period requested. Further, the record does not establish that the job duties require an educational 
background, or its equivalent, commensurate with a specialty occupation. 1 
In denying the petition, the Director found that the Petitioner did not demonstrate that sufficient 
specialty occupation work was available for the Beneficiary for the entire requested period of 
employment. 
On appeal, the Petitioner states that the Beneficiary's assignment to the end-client through the mid­
vendor only represents his initial assignment and that he would be reassigned to other company and 
client projects to account for the entire requested period of employment. The Petitioner submits 
several master agreements with other clients and asserts that it has more than sufficient specialty 
occupation work available for the Beneficiary for the entire requested period. The Petitioner also 
notes its significant revenue and contends that this is probative evidence of sufficient work available 
for the Beneficiary after the completion of his initial assignment. 
However, we find that the record does not sufficiently establish availability of work for the 
Beneficiary at the time of filing and also on appeal. The Petitioner must establish eligibility at the 
time of filing the nonimmigrant visa petition and must continue to be eligible for the benefit through 
adjudication. 8 C.F .R. § 103 .2(b )( 1 ). A visa petition may not be approved based on speculation of 
1 The Petitioner submitted documentation to support the H-1 8 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. 
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Matter of Q-C-S-, Inc. 
future eligibility or after the Petitioner or Beneficiary becomes eligible under a new set of facts. !d.; 
see also Matter of Michelin Tire Corp., 17 l&N Dec. 248, 249 (Reg'! Comm'r 1978). 
In support of the petition, the Petitioner provided an "Amendment Number 2 to Work Order 
with the mid-vendor dated February 2016, which states that the Beneficiary will be assigned to the 
end-client for an estimated 500 hours, with an estimated completion date at the end of May 2016. 
However , the Beneficiary's employment start date is October I , 2016. Therefore, this document 
does not establish that the Petitioner had work available for the Beneficiary for the requested 
employment period at the time of filing. Further, the record does not contain "Work Order or 
the master agreement between the mid-vendor and the end-client , which this document amends. 
Without full disclosure regarding the terms and conditions of the agreement, we are unable to 
determine ifthe Beneficiary will be employed in a specialty occupation position. 
The Petitioner also provided "Work Order dated March 2016 with the mid-vendor , which 
states that the Beneficiary would be assigned to the end-client for an estimated 320 hours with an 
estimated start date of March 2016, and the completion date of end of June 2016. Notably, the mid­
vendor did not sign this document, despite work order specifically stating that "This Work Order 
shall be effective upon the last dated signature below." However , even if we assume that this 
document is a properly executed document , the work order indicates that the project would be 
completed prior to the Beneficiary's start date, and does not establish that the Petitioner had work 
available for the Beneficiary. 
The Petitioner submitted master service agreements with other clients; however , there is no evidence 
that the Beneficiary would be assigned to these projects , therefore, they do not demonstrate that the 
Petitioner had non-speculative work available for the Beneficiary at the time of filing. 
In response to the Director ' s request for evidence , the Petitioner submitted an "Amendment Number 
1 to Work Order ' dated May 2016 with the mid-vendor ref1ecting that the Beneficiary 
would be assigned for an estimated 520 hours to the end-client. The Petitioner explained that this 
work order provided for an additional 520 hours of work for the Beneficiary at the end-client 
location. Notably , this document states "Except as herein modified , all terms and conditions of the 
Work Order, any Amendments thereto , and the Agreement remain in full force and effect." 
However , as mentioned , "Work Order indicates that estimated start date of March 2016, and 
this document does not specify the start date. Even if we assume that the project starts when the 
amendment was signed in May 2016, an estimated 520 hours of work is approximately 13 weeks 
(based on a 40-hour work week) and it would end before the Beneficiary ' s start date. 
On appeal, the Petitioner explained that to the extent that the Beneficiary 's assignment to the end­
client did not extend through the entire requested period of employment , he would be reassigned to 
other clients. The Petitioner submitted additional master agreements with other clients. The 
Petitioner indicated that the Beneficiary would perform the same duties listed during any of these 
future assignments and that it would amend the petition and Labor Condition Application (LCA) as 
necessary to the extent changes were made to the work or its location. 
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Matter of Q-C-S-, Inc. 
But the Petitioner has not specifically identified which clients and projects the Beneficiary will 
definitely be assigned to for the duration of the validity period. Notably, none of the agreements 
name the Beneficiary. Therefore, based upon the record in its entirety, we find that the Petitioner 
has not demonstrated that, as of the time of filing, it has secured definite, non-speculative work for 
the Beneficiary for the entire validity period requested. U.S. Citizenship and Immigration Services' 
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. at 249.2 
However, even if we assume that the Beneficiary's initial assignment to the end-client was valid at 
the time of filing, and extended for the duration of the requested employment period, we find the 
evidence insufficient to establish that the proffered position qualifies for classification as a specialty 
occupation. As recognized by the court in Defi.msor, 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. !d. 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. Here, the record is missing such critical evidence. 
The above-mentioned work orders and amendment are between the Petitioner and the mid-vendor. 
There is nothing from the end-client that substantiates the Beneficiary's placement or specifying the 
duties and requirements for the proffered position. However, even if we assume that these documents 
2 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-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B 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 B 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 ). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
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Matter ofQ-C-S-, Inc. 
are valid, there are inconsistencies in the record that undermine the validity of the documents. For 
instance, the duties attached to "Work Order · emphasize several duties that are not addressed in the 
duty description provided with the petition. The work order provided the following duties for the 
proffered position, in part: 
As directed by [end-client], working remotely, to serve as a MRM business lead for the 
[end-client] (a "Business Lead"). Service may include focus on: 
I. 
a. 
b. 
c. 
d. 
e. 
II. 
a. 
b. 
c. 
d. 
e. 
Ill. 
a. 
Providing business subject matter expertise related to the implementation, testing, and 
deployment of MRM: 
Provide input into key project activities 
Support development of business requirements 
Assist stakeholder analysis 
Validate user acceptance test (U AT) scripts 
Evaluate user test results 
Serving as a Business Lead related to the implementation, testing, and deployment of 
MRM: 
Represent interests of Customer's business resources 
Coordinate collection of interests, requirements and acceptance testing activities across 
business teams for the Customer 
Provide transparency to business management at the Customer location on progress 
including escalation of risks, issues and constraints 
Support change management activities 
Support roll out of solution to end user community within the Customer 
Serving as a UAT lead related to the implementation, testing, and deployment ofMRM: 
Manage the UAT activities 
1. Define UAT plan 
11. Manage to the UAT plan 
111. Review and approve the system integration test ("'SIT') plan, scripts and test 
procedures 
IV. Design UAT scripts and test procedures 
v. Plan and coordinate UAT environment, data and testing resources with 
Customer's information technology ("IT") team 
VI. Review SIT testing 
v11. Manage defects with Customer's IT team 
vm. Manage and evaluate overall test results and present recommendations to the 
Customer's Test Manager and the Customer's Project Manager 
IX. Plan and coordinate UAT regression testing and results evaluation 
x. Report on outstanding defects or gaps identified throughout UAT 
Matter ofQ-C-S-, Inc. 
IV. Serving as a UAT tester related to the implementation testing, and deployment ofMRM: 
a. Perform UA T activities as defined in the UAT plan 
b. Define UAT test scripts and test data requirements 
c. Execute UAT test scripts 
d. Analyze test results, log defects and communicate test results 
V. Serving as a training developer related to the implementation, testing, and deployment of 
MRM: 
a. Create the training plan for both Customer's business and technology teams 
b. Develop the curriculum 
c. Develop the trainee/delegate evaluation form 
d. Ensure the Customer's standards are being applied 
e. Assist in the development of training material 
The work order duty description references the Beneficiary acting as a "business lead'' for "MRM" and 
his focus on implementation and testing, user acceptance training, the creation of training programs, and 
support of development. In contrast, the duty description submitted with the petition appears to 
emphasize different responsibilities, including the development of methods and procedures, design, and 
the use of analytics and reporting solutions such as "SAS EBI" and SAS MS-Add in." It is noteworthy 
that the duty description provided with the work order makes no mention of these SAS applications, 
while the one submitted with the petition does not reference the Beneficiary's role as a "MRM business 
lead." As such, the apparently conflicting descriptions of the proposed duties leave question as to what 
duties the Beneficiary would perform during his asserted initial assignment. 
Moreover, the wage level designated by the Petitioner on the LCA for the proffered position is 
inconsistent with the work order's duty description indicating that the Beneficiary would be assigned 
as a business lead.3 A Level I wage rate is generally appropriate for positions for which the 
Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate 
indicates: (1) that the Beneficiary will be expected to perform routine tasks that require limited, if 
any, exercise of judgment; (2) that he will be closely supervised and his work closely monitored and 
reviewed for accuracy; and (3) that he will receive specific instructions on required tasks and 
expected results. 4 This is inconsistent with the mid-vendor's description that the Beneficiary would 
be a business lead and that he would provide subject matter expertise. Notably, the employment 
agreement indicates that the Beneficiary's job title is "senior data analyst," which is inconsistent 
with a Level I designation. 
3 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B 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 experience and qualifications who are performing the same services. See 
Matter ofSimeio Solutions. LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
4 DOL, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_ll_2009.pdf 
Matter of Q-C-S-, Inc. 
Lastly, as noted, the Petitioner provides several master agreements with other clients as evidence of 
other work to which the Beneficiary could be assigned in the future. However, this does not account 
for the Beneficiary's duties or the knowledge required for these unknown assignments. Therefore, 
the record does not include sufficient detail on the nature of the Beneficiary's future duties and 
responsibilities with respect to unidentified projects. 
Overall, the evidence of record is insufficient to establish the substantive nature of the work to be 
performed by the Beneficiary. We are therefore precluded from 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 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. 
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 for classification as a 
specialty occupation. 
IV. EMPLOYER-EMPLOYEE RELATIONSHIP 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we need not address 
another ground of ineligibility. Nevertheless, we note that the Petitioner has not demonstrated that it 
qualifies as a United States employer. As detailed above, the record of proceedings lacks sufficient 
documentation evidencing what exactly the Beneficiary would do for the period of time requested or 
where exactly and for whom the Beneficiary would be providing services. Given this specific lack 
of evidence, the Petitioner has not corroborated who has or will have actual control over the 
Beneficiary's work or duties, or the condition and scope of the Beneficiary's services. In other 
words, the Petitioner has not established whether it has made a bona fide offer of employment to the 
Beneficiary based on the evidence of record or that the Petitioner, or any other company which it 
may represent, will have and maintain the requisite employer-employee relationship with the 
Beneficiary for the duration of the requested employment period. See 8 C.F.R. § 214.2(h)(4)(ii) 
(defining the term "United States employer" and requiring the Petitioner to engage the Beneficiary to 
work such that it will have and maintain an employer-employee relationship with respect to the 
sponsored H-1 B nonimmigrant worker). Again and as previously discussed, there is insufficient 
evidence detailing where the Beneficiary will work, the specific projects to be performed by the 
Beneficiary, or for which company the Beneficiary will ultimately perform these services. 
V. CONCLUSION 
The Petitioner has not established that the proffered position is a specialty occupation. 
Matter ~fQ-C-S-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fQ-C-S-. Inc., ID# 443366 (AAO June 29, 2017) 
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