dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8658183 
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 "java developer" under the H-1B 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)(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 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 l&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: 
(1) 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). 
11. PROFFERED POSITION 
In the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner stated that the Beneficiary will 
serve as a "java developer." Although the Petitioner's address is in Iowa, the Petitioner stated that the 
Beneficiary would work for an end-client in Texas 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) 
W-
(M id-Vendor) 
C-0-
(End-CI ient) 
On the labor condition application (LCA) 1 submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Software Developers, Applications" 
corresponding to the Standard Occupational Classification code 15-1132. 
Ill. 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-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). 
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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. The Petitioner also submitted a copy of a Purchase Order 
executed by the Petitioner and the prime vendor in August 2017, which identifies the Beneficiary as a 
java developer to be assigned to a project for the end-client for a 24-month period beginning on August 
25, 2017. 
The Petitioner submitted pages 1 and 12 of a Master Staffing Agency Agreement (MSAA) executed 
in September 2014 between the prime vendor and the mid-vendor. In addition, the Petitioner 
submitted a copy of two work orders between the vendors. The first document, submitted in response 
to the Director's request for evidence (RFE), indicates that the Beneficiary will provide services as a 
java developer on a project in I I Texas, from August 30, 2017, to October 31, 2019. The second 
work order, submitted on appeal, is identical to the first work order, but modifies the end date of the 
services to December 30, 2020. Neither document identifies the ultimate end user of the Beneficiary's 
services. Moreover, the documents indicate that they are executed pursuant to a contracting agreement 
executed between the vendors on January 31, 2012. However, the record does not contain a copy of 
the referenced contracting agreement. 
Regarding the relationship between the mid-vendor and the end-client, the Petitioner submits letters 
and emails from the end-client, which acknowledge its relationship with the mid-vendor. The first 
letter, submitted in suppmi of the petition, states that the Beneficiary's assignment is anticipated to 
continue "through at least 12/31/2020 with possibility of further extension." In response to the RFE, 
the Petitioner submits a letter and an email regarding the Beneficiary's role at the end-client. Both the 
letter and the email indicate that the Beneficiary's assignment is expected to continue through 
December 31, 2019, which is in direct contrast to the first end-client letter, which anticipated the 
assignment continuing through December 31, 2020. The email contained a list of duties to be 
perfonned by the Beneficiaiy, and indicated that the Beneficiaiy would work on the I I I I Card" project. On appeal, the Petitioner submits an additional letter and email from the 
end-client. The letter indicates that the Beneficiary's assignment is anticipated to continue through at 
2 The Petitioner submitted documentation to support the H-1B 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 
least July 31, 2021, and the email simply provides the Beneficiary's name, her job title, and other 
various ID numbers. 
Also on appeal, the Petitioner submits a screenshot of the end-client website, which includes project 
details for the Beneficiary. It lists the Beneficiary's name, and indicates an active assignment with 
duration dates of "11/1/2018 - 12/31/2020." No additional details of the assignment are included, 
although the document identifies the project as 'i [" which contradicts the prior 
claims of the end-client email which identified the project as ,j I Card." 
The Petitioner also submitted two letters from both vendors. The first letter from both vendors outlines 
the nature of the contractual path and lists the duties to be performed by the Beneficiary. The second 
letters from both vendors expand the list of duties, and include a sentence stating that the proffered 
position requires at least a bachelor's degree in computer science or computer information systems. 
The second letters from both vendors indicate the project will continue until December 31, 2019 "with 
a high possibility of extensions." 
Upon review, the record lacks sufficient documentation establishing an agreement for the 
Beneficiary's services. On the Form 1-129, the Petitioner requested approval of the instant petition 
through August 30, 2022, and an itinerary submitted in support of the petition indicated that the 
Beneficiary will be assigned to work on the end-client "for at least three years with high probability 
of further extension(s)." 
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. 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 updated purchase order 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 August 26, 2019, this document is insufficient to establish that the Beneficiary will 
be placed at the end-client location as asserted in the record. 
The work orders between the vendors appear to represent an agreement for the Beneficiary's services 
for the periods from August 30, 2017, to October 31, 2019, and August 30, 2017, to December 31, 
2020. Notably, the only difference in these identical documents is the modification of the end date in 
the second work order submitted on appeal, which extends the duration of the assignment to December 
31, 2020. No explanation for this extension was provided, and no additional contractual 
documentation, such as the contracting agreement pursuant to which these work orders were executed, 
was submitted. We further note that the MSAA, submitted in support of the contractual agreement 
between the vendors, is incomplete, as the Petitioner submitted only pages 1 and 12 of the document. 
Absent the entire document, we cannot determine the terms and conditions under which the agreement 
was executed, or whether the contractual arrangement, executed in 2014, is still in effect. 
Furthermore, and as noted above, the Petitioner submitted a new work order on appeal which indicates 
the Beneficiary's assignment at the end-client will continue until August 26, 2021 (i.e., a 24- month 
period beginning August 26, 2019). The work orders between the vendors, however, contradict this 
claimed duration of the assignment, since at best, these documents indicate an assignment for the 
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Beneficiary through December 31, 2020. Furthermore, each letter from the end-client identifies a 
different end date for the project. The Petitioner must resolve these inconsistencies with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 
1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency 
of other evidence submitted in support of the requested immigration benefit. Id. 
In addition to these discrepancies, we note that the work orders between the vendors are general work 
orders, and do not include details about the project/assignment nor do they identify the end-client for 
which the Beneficia!Y will perform services. Moreover, they refer to the project code I I 
,__ ______ ,, a notation not referenced in any other documentation submitted in the record. 
We note that the end-client's screenshot identified the project as'",__ _______ _," but the 
end-client email identified the project as '1 I Card." Based on the lack of detail in 
these documents, we cannot determine whether these work orders pertain to an assignment at the end­
client location specified in these proceedings. 
Finally, there is no contractual documentation in the record between the end-client and the mid-vendor. 
Absent fully executed contracts and accompanying statements of work (or similar documentation) 
between the Petitioner and the prime vendor, the prime vendor and the mid-vendor, and the 
mid-vendor and the end-client, the record lacks evidence of any legal obligation on the part of the 
end-client to provide the position described by the Petitioner in this petition.3 The Petitioner did not 
document the contractual terms and conditions of the Beneficiary's employment as imposed by the 
end-client. 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). 
While relevant, the letters from the end-client and vendors are not sufficient to fill this gap, as they do 
not sufficiently describe the contractual relationship between the parties such that we can ascertain the 
nature and terms of that relationship and determine whether there is, in fact, a legal obligation on the 
part of the end-client to provide the position the Petitioner describes. For instance, while the letters 
indicate that the Beneficiary's work at the end-client location has been arranged through a series of 
contracts between the vendors and the end-client, they do not discuss the terms and conditions of the 
agreements between all of the parties. Again, the record lacks evidence of any legal obligation on the 
part of the end-client to provide the position to the Beneficiary as described by the Petitioner in this 
petition, let alone determine its substantive nature so as to ascertain whether it is a specialty 
occupation. 
In summary, if we cannot determine whether the proffered position as described will actually exist, 
then we cannot ascertain its substantive nature so as to determine whether it is a specialty occupation.4 
The lack of contractual documentation, coupled with the numerous work orders and purchase orders 
identifying inconsistent and conflicting start and end dates for the apparent assignment, renders it 
impossible to determine the substantive nature of the proffered position. The Petitioner must resolve 
3 Cf. Galaxy Software Solutions, Inc. v. USCIS, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) 
(describing the petitioner's "fail[ure] to provide all of the contracts governing the relationships between the corporate 
entities in the chain" as a '"material gap"). 
4 The agency made clear long ago that speculative employment is not permitted in the H-lB program. See, e.g., 63 Fed. 
Reg. 30419, 30419 - 30420 (June 4, 1998). 
5 
these inconsistencies and ambiguities in the record with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 l&N Dec. at 591-92. 
The evidence in the record is also insufficient to establish the minimum requirements for the 
Beneficiary's position at the end-client location. We acknowledge that the Petitioner and the vendors 
specified that a degree in computer science, computer information systems, or a related discipline was 
required. However, despite the submission of several letters and internal emails from the end-client, 
the end-client is silent on the minimum requirements for the position. Without more, the Petitioner 
has not established the end-client's minimum requirements of the proffered position. See Defensor, 
201 F.3d at 387-88 
We note the Petitioner's submission of an opinion letter written bl I I, Professor of 
Computer Science and Engineering at the University of I As a matter of discretion, we 
may use opinion statements submitted by the Petitioner as advisory. Matter of Caron Int'l, Inc., 19 l&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.'"). 
Professo~,_ _ ___,~oes 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 duties, 
which is critical. See Defensor, 201 F.3d at 387-88. (lthouf<h Professor! !recites the list of 
duties for the position upon which he relied, Professor does not discuss the duties within the 
context of the end-client project, nor is there 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 O I has conducted any research or studies 
pertinent to the educational requirements for such positions, and no indication of recognition by 
professio
1
al orgrizations that he is an authority on those specific requirements. Accordingly, 
Professor opinion, which does not address the end-client project and its requirements bears 
minimal probative value. 
Moreover, Professor I O I asserts a general industry educational standard for java developer 
positions without referencing any supporting authority or any empirical basis for the pronouncement. 
Professor! lcites to the 2013 Curriculum Guidelines for Undergraduate Degree Programs in 
Computer Science, published by the Association for Computing Machinery (ACM), and asserts that 
academic programs in information systems and related fields model their curricula to impart skills in 18 
major "knowledge areas."5 Other than refeni.ng to the "wide adoption of the ACM's Curriculum 
Guidelines," he does not discuss relevant research, studies, or authoritative publications he utilized as part 
5 These guidelines used for potential curriculums are far too broad to establish that a particular position requires a body of 
highly specialized knowledge resulting from study at a bachelor's-degree level~ecific specialty, or its equivalent, in 
order to perform the duties of the position. Neither the Petitioner nor ProfessorL__Jprovides a comprehensible analysis 
of the relevance of such guidelines, if any, to establish the particular position proffered here is a specialty occupation. 
6 
of his review and foundation for his opinion. Rather than offering a cogent analysis of the duties and a 
comprehensible explanation of why the duties require a bachelor's degree in computer science or 
computer information systems, Professor! ts evaluation creates further ambiguity in the record. 
Upon review of this evaluation, is does not sufficiently correspond to the record and has little probative 
value. 
The Petitioner submitted an affidavit from one of the Beneficiary's coworkers, in which he confirms 
the Beneficiary's assignment at the end-client's location and lists the minimum educational 
requirements and the duties that were listed in various documents in the record. However, the affidavit 
does not shed any light onto the nature and scope of the project on which the Beneficiary works. As 
we noted above, without information regarding assignments that the Beneficiary would engage in, the 
description of the duties does not provide sufficient basis to conclude that the position requires the 
theoretical and practical application of a body of highly specialized knowledge, and the attainment of 
a baccalaureate or higher degree in the specific specialty, or its equivalent. Therefore, the affidavit 
provided by the Beneficiary's coworker has little probative weight towards establishing the actual 
work to be performed by the Beneficiary for the end-client. 
Finally, we note the Petitioner's submission of detailed overviews of the duties of the proffered 
position, Though the Petitioner described the duties of the position in multiple documents in the 
record, the submitted material does not communicate the actual work that the Beneficiary will perform 
on a day-to-day basis within the context of the end-client's project, and the correlation between that 
work and a need for a particular education level of highly specialized knowledge in a specific specialty. 
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 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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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