dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 5737213 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 12, 2020 
The Petitioner , an IT consulting and software development company, seeks to temporarily employ the 
Beneficiary as a "Systems Engineer" under the H-lB 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-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 Form I-129, Petition for a Nonirnmigrant 
Worker, concluding that the Petitioner did not establish : (1) that the proffered position qualifies as a 
specialty occupation, and (2) that the requisite employer-employee relationship would be maintained 
between the Petitioner and the Beneficiary throughout the period of requested employment. On 
appeal, the Petitioner submits a brief and additional evidence and asserts that the Director erred in 
denying the petition. 
Upon de nova review, we will dismiss the appeal. We follow the preponderance of the evidence 
standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
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 offered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(]) 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. 1 
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. 2 
As recognized by the court inDefensor v. Meissner, 201 F.3d 387-88 (5th Cir. 2000),, where the work 
is to be performed for entities other than the petitioner, evidence of the client companies' job 
requirements is critical. The court held that the former Immigration and Naturalization Service had 
reasonably interpreted the statute and regulations as requiring the petitioner to produce evidence that 
a proffered position qualifies as a specialty occupation on the basis of the requirements imposed by 
the entities using the beneficiary's services. Id. Such evidence must be sufficiently detailed to 
demonstrate the type and educational level of highly specialized knowledge in a specific discipline 
that is necessary to perform that particular work. 
II. PROFFERED POSITION 
The Petitioner seeks to employ the Beneficiary as a "systems engineer." The Petitioner provided a 
detailed overview of the duties and responsibilities of the proffered position, summarized in pertinent 
part below: 
• Setup, configuration, maintenance & troubleshooting UNIX AIX on Power7 /6/5 
550 frames. 70% 
• Working with System Administration related tasks on Linux & Windows Servers. 
10% 
• Working with Storage area networking related tasks on EMC Clarion System. 5% 
• Documentation of technical procedures. 5% 
1 8 C.F.R. § 214.2(h)(4)(iii)(A). 
2 See Royal Siam COip. v. Chertof(, 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"). 
2 
• Support on Backup Tools, Servers & SAN Systems. 10% 
The Petitioner stated that the industry standard for the position of computer systems analyst requires 
a "compulsory" bachelor's degree, "preferably in computer science" with progressive corporate 
experience in similar roles. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 3 In particular, we conclude that the Petitioner 
has not established the substantive nature of the position, which precludes a determination that the 
proffered position qualifies as a specialty occupation under at least one of the four regulatory 
specialty-occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
The Petitioner, an information technology (IT) outsourcing company located in Illinois, states that it 
would deploy the Beneficiar n n - lient location in Maryland pursuant to agreements exe~ 
between the Petitioner and ori inal first vendor), between the first vendor andl__J 
(second vendor), and between and~.,--___,,,,.....,..,..~(end-client). The contractual chain in this case 
therefore appears to have originally flowed as follows: Petitioner ➔ Original first vendor ➔ Second 
vendor ➔ End-client. The Petitioner introduces a new first vendor into the contractual chain on 
appeal, claiming that the first vendor is nowl l(new first vendor). 
We conclude first that the Petitioner has not established the existence of definitive, non-speculative 
employment for the Beneficiary. This is particularly important in a case such as this, where the very 
existence of the proffered position is dependent entirely upon the willingness of an end-client to 
provide it. And if we cannot determine whether the proffered position as described in this petition 
would actually exist then we cannot ascertain its substantive nature, let alone determine whether it is 
a specialty occupation. 
The Petitioner filed this petition in April 2018 and claimed that the Beneficiary would work at the end­
client's I !Maryland location from October 2018 to September 2021. However, the Petitioner 
submitted no evidence verifying that work assignment beyond claiming in its March 2018 support 
letter that the Beneficiary would "soon be working for our client." When pressed by the Director to 
submit evidence verifying the assignment at the end-client's location, the Petitioner submitted an 
"Independent Contractor Agreement" (ICA) it executed with the first vendor in August 20184 and a 
3 The Petitioner submitted documentation to support the H- IB 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. 
4 Though acknowledged, this agreement does not establish the Petitioner's eligibility at the time of filing because it was 
executed in August 2018, four months after the petition was filed. 
USCTS 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. § I 03.2(b )(I). A visa petition may not be approved based on speculation of future eligibility 
3 
contemporaneous purchase order indicating a one-year engagement 5 for the Beneficiary. Neither 
document referenced the end-client. On appeal, the Petitioner submits a contract it executed with the 
new first vendor in February 2019 and an associated work order between the parties executed the 
following month. 6 The work order references al I Maryland project (without naming the 
second vendor or the end-client), and in its "end-date" field states that the project will end when the 
work is completed to the satisfaction of the new first vendor. 7 The record lacks copies of similar 
documentation executed between the either first vendor and the second vendor, as well as copies of 
such documentation executed between the second vendor and the end-client. None of the current 
documents contained in the record create any legal obligation on the part of the end-client to provide 
any work for the Beneficiary to perform 
The remaining evidence is not sufficient to fill this gap. The record of proceeding does conrin a letter 
dated December 17, 2018 purportedly fro~ lwith a signature block identifying I 
as a First Line Manager at the (second vendor) location inl I Missouri. This letter is a half­
page in length and states that the Beneficiary "is working at a client site supporting (second vendor's) 
contract." Although the December 17, 2018 letter references the Petitioner and the (original first 
vendor), it does not mention the end-client or contain a description of the Beneficiary's work and thus 
carries little if any evidentiary weight. As it currently stands, the record of proceeding contains no 
evidence of a legal obligation on the part of the end-client to actually provide the position the Petitioner 
has proposed with this H-1 B petition. 
On appeal, the Petitioner explains that the second vendor is the implementation partner of the project 
on behalf of the end-client, who has awarded their "Build and Migration" project to the second vendor. 
The Petitioner states that even though the end-client has no involvement other than providing the work 
space to the second vendor, which has contracted with the original first vendor who has contracted 
with the Petitioner to provide professional resources for the project. 
The Petitioner's assertions on appeal are not persuasive to establish that there is actual substantive 
specialty occupation work available for the Beneficiary. Without the foll chain of contracts in this 
case, we cannot determine whether there is any legal obligation on the part of the end-client to provide 
the position described in this petition. Though acknowledged, the letters from the Petitioner and the 
vendors are not evidence of an obligation on the part of the end-client to provide the position the 
Petitioner describes. Again, ifwe cannot determine whether the proffered position will actually exist, 
then we cannot ascertain its substantive nature so as to determine whether it is a specialty occupation. 8 
or after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 T&N 
Dec. 248, 249 (Reg'! 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 lzummi, 22 l&N Dec. 169, 176 (Assoc. Comm'r 1998). 
5 The purchase order allowed for 2,088 "straight hours" and 626 "overtime hours." 
6 As above, this documentation does not establish the Petitioner's eligibility at the time of filing because it was executed 
nearly a year after this petition was filed. 
7 We will not address the "Client Flowdown Terms" document executed between the Petitioner and the new first vendor. 
That document was executed in 2015 pursuant to a contract executed between the parties in 2011- rather than the 2019 
contract contained in the record - and it therefore sheds little light on the current relationship between the two actors. 
8 Speculative employment is generally not permitted in the H-lB program. See, e.g., 63 Fed. Reg. 30419, 30419-20 
(proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). 
4 
For this reason alone - the complete lack of evidence of any legal obligation on the part of the end­
client to actually provide the position the Petitioner has described in this H-lB petition, and therefore 
whether the position as described would actually exist if this petition were approved - we cannot 
determine the substantive nature of the position, let alone determine whether it is a specialty 
occupation. 9 
However, even if we set that deficiency aside completely we would still be left with significant 
questions as to the actual, substantive nature of the proffered position. For example, none of the actors 
have explained the project upon which the Beneficiary would actually work with any specificity 
beyond the generalized list of duties that could arguably pertain to any multitude of information 
technology projects. The record contains no documentation or correspondence from the end-client 
explaining the project or the qualifications necessary to perform its associated duties, and the letter 
from the second vendor contains no meaningful detail. Where the work is to be performed for entities 
other than the petitioner, evidence of the client companies' job requirements is critical. Defensor, 
201 F.3d at 387-88. 
Nor is the letter from sufficient to establish the substantive nature of the 
proffered position. I !describes the duties of the position in the same bullet-pointed nature 
as the Petitioner and does not address the actual project upon which the Beneficiary would work. Nor 
does he reference the end-client. In fact, page 3 of the letter from I appears to have actually 
been written by the Petitioner as it states "The duties of our Systems Engineer position include" 
followed by the referenced bullet-point descriptions. There is no indication that I I 
possessed any knowledge of the proffered position beyond the Petitioner's job description ( e.g., visited 
the Petitioner's business or the end-client site, observed the Petitioner's or end-client's employees, 
interviewed them about the nature of their work, or documented the knowledge that these workers 
apply on the job prior to documenting his opinion regarding the proffered position.) Therefore,D 
I I's level of familiarity with the actual job duties as they would be performed in the context of 
the end-client project has therefore not been substantiated. 
Finally, we question I Is conclusion regarding "standard" requirements for positions such 
as the one proffered here. Specifically,! I concludes that a bachelor's degree in Computer 
Science, Computer Information Systems or a related field represents a common standard for parallel 
position among similar IT organizations. In apparent contradiction ofl Is conclusion, the 
Department of Labor's Summary Report for Computer Systems Analysts indicates 29% of systems 
analysts possess an associate's degree (O*Net website). Matter o_fCaron lnt'l, 19 I&N Dec. 791, 795 
(Comm'r 1988) (the agency is not required to accept or may give less weight to an advisory opinion 
when it is "not in accord with other information or is in any way questionable"). 
For all of these reasons, the Petitioner has not established the substantive nature of the work to be 
performed by the Beneficiary, which therefore precludes a conclusion that the proffered position 
9 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"). See also Altair ProductDesign, Inc. v. DHS, No. 18-13493, 18-13967, 2019 
WL 5394998. at *4 (E.D. Mich. Oct.22.2019) (in the absence of contracts, service agreements, work orders, statements 
of work, etc., the record did not establish the actual work to be completed and that the beneficiaries would perf01m services 
in a specialty occupation). 
5 
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. 
Furthermore, on the labor condition application (LCA) 10 submitted in support of the H-1B petition, the 
Petitioner designated the proffered position under the occupational category "Computer Systems 
Analysts" corresponding to the Standard Occupational Classification (SOC) code 15-1121. Thus, we 
reviewed the Handbook's subchapter entitled "How to Become a Computer Systems Analyst," which 
states, in relevant part, that a bachelor's degree in a computer or information science field is common, 
although not always a requirement. 11 
According to the Handbook, some firms hire analysts with business or liberal arts degrees. As 
discussed, we interpret the term "degree" to mean a degree in a spec[fic specialty that is directly related 
to the proposed position. See Royal Siam Corp., 484 F.3d at 147. Since there must be a close 
correlation between the required specialized studies and the position, this requirement for general and 
wide-ranging degrees in business and liberal arts strongly suggests that a computer systems analyst 
position is not categorically a specialty occupation. See id; cf Matter of Michael Hertz Assocs., 19 
I&N Dec. at 560. The Handbook continues by stating that although many analysts have technical 
degrees, such a degree is not always a requirement - and that, in fact, many analysts have liberal arts 
degrees and gain programming or technical expertise elsewhere. It does not specify a degree level 
(e.g., associate's degree) for these business, technical, and liberal arts degrees. The Handbook, 
therefore, does not support the assertion that at least a bachelor's degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for these positions. See also Altimetrik Corp. v. 
Cissna, No. 18-10116, 2018, WL 6604258, at *6 (E.D. Mich. Dec. 17, 2018) (also noting that because 
the Handbook "makes it clear that a degree in a computer-related field is not required" for these 
positions, "USCIS [was] entitled to deference in its finding that systems analysts are not required to 
have a bachelor's degree in a specific specialty."). 
We note farther the Petitioner's own assertion that the bachelor's degree required for a computer 
systems analyst position is one that is "preferably in computer science." This statement serves as 
farther indication that a range of degrees-or in fact no degree at all-may be acceptable for entry 
into the position described by the Petitioner. Therefore, the record lacks sufficient evidence to support 
a finding that the proffered position is one for which a baccalaureate or higher degree in a specific 
specialty, or its equivalent, is normally the minimum requirement for entry. Thus, the Petitioner has 
not met its burden to establish that the particular position offered in this matter requires a bachelor's 
10 A petitioner submits the LCA to DOL 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 duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a). 
11 Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, Computer Systems Analysts, 
at https://www.bls.gov/ooh/computer-and-information-technology/computer-systems-analysts.htm (visited January 19, 
2020). 
6 
or higher degree in a specific specialty, or its equivalent, directly related to its duties in order to 
perform those tasks. 
Even if the Petitioner demonstrated that the Computer Systems Analysts occupational classification 
satisfied the first criterion, it appears to consider the regulatory criteria at 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A) 
as the fundamental aspect regarding eligibility. However, we must read the criteria in conjunction 
with the statutory and regulatory definitions of a "specialty occupation," at section 2 l 4(i)(l) of the 
Act and 8 C.F.R. § 214.2(h)(4)(ii) respectively. While the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 
focus more narrowly on the position within the petition, the statutory and regulatory definitions 
mandate that the broader occupation as a whole requires a bachelor's degree in a specific specialty, 
simply to enter the occupation. In other words, we must construe the regulatory criteria with the thrust 
of the related provisions and with the statute as a whole. As such, the criteria should be logically read 
as being necessary - but not necessarily sufficient - to meet the statutory and regulatory definition of 
specialty occupation. To otherwise interpret this section as stating the necessary and sufficient 
conditions for meeting the definition of specialty occupation would result in particular positions 
meeting a condition under the criteria but not under the statutory or regulatory definition. To avoid 
this result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria 
that must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions 
of specialty occupation. Thus, even if the Petitioner had established that the proffered position were 
actually located within the Computer Systems Analysts occupational category, we would likely still 
find that it is not a specialty occupation. 
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. As noted by the Director, there are also significant questions as to whether the 
Petitioner would engage the Beneficiary in an employer employee relationship if the petition were 
approved. As the petition is not otherwise approvable we will not address this issue further but reserve 
the right to examine this requirement in any future filings. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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. 
7