dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10068121 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 20, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"software engineer" under the H-1B nonimmigrant classification for specialty occupations. 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 Vermont Service Center denied the petition, concluding that the record did not 
establish the proffered position qualifies as a specialty occupation. Specifically, the Director 
concluded the record did not establish, as of the petition filing date, the services to be performed. The 
matter is now before us on appeal. 
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 Christa'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 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services .. . in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(I) of the Act, but adds a non­
exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position.1 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-lB classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... "(emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
review the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position determine: (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. 8 C.F.R. § 214.2(h)(4)(iii){A). 
Further, as recognized by the court in Defensor v. Meissner, 201 F.3d 384, 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. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(1). 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the services in a specialty occupation that the Beneficiary would provide during the intended period 
1 The regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty 
occupation under section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 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"). 
2 
of employment, which precludes the determination of whether the proffered position qualifies as a 
specialty occupation under 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 2 
The Petitioner, located in Virginia, asserted the Beneficiary would work at the end-client location in 
Pennsylvania, through a mid-vendor. However, the record does not contain sufficient evidence to 
establish the terms and conditions of the Beneficiary's assignment, and the services to be performed 
during the requested period. 
The record contains a brief, two-page staff augmentation agreement (SAA) between the Petitioner and 
the mid-vendor. 3 The SAA is a general agreement for the Petitioner "to provide a staff augmentation 
resource, [the Beneficiary], to work with [the mid-vendor] on either internal or external project [sic] 
for one of our clients." The SAA states that its "initial phase [would] begin on October 2, 2017, and 
is expected to continue through October 5, 2018, unless extended for additional work." The SAA does 
not identify a specific client or project, clarify whether the project subject to the SAA would be internal 
or external, elaborate on the services the Beneficiary would perform, indicate the qualifications 
required to perform the services, or other salient details of the assignment. 
The record also contains a work order (WO) between the Petitioner and the mid-vendor. 4 The WO 
displays the Beneficiary's name, associated with a "job posting" titled "US infrastructure engineer," 
followed by a job posting number. Although the WO indicates that the work "location" would be in 
the same metropolitan area as the end-client location provided on the Form 1-129, Petition for a 
Nonimmigrant Worker, the WO does not specifically identify the end-client and, moreover, it states 
that the work "site" would be "US07 - [the mid-vendor] - OU (US07)." Additionally, the WO states 
that the "client project name" is the name of the mid-vendor's predecessor-in-interest. Based on the 
language of the SAA, the WO raises questions regarding whether the WO relates to an "internal" 
project for the mid-vendor or an "external" project for a client. Regardless of the location at which 
the Beneficiary would perform services under the WO, similar to the SAA it does not elaborate on the 
services to be performed as a "US infrastructure engineer." 
Furthermore, even if the WO established the services to be performed, it would not establish the 
services to be performed during the requested period. The WO indicates in multiple locations that its 
period is "01/02/2019 to 10/31/2019." The record does not establish that the parties extended the WO 
beyond October 2019. Accordingly, even if the WO could establish eligibility, it would not establish 
the services to be performed beyond October 2019. 
2 The Petitioner submitted documentation to support the H-lB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
3 The record establishes that the mid-vendor is the successor-in-interest to the entity identified in the SAA. We refer to 
both entities as the mid-vendor for simplicity. 
4 Although a petitioner is not required by existing regulation to submit contracts or legal agreements between the petitioner 
and third parties to establish an employer-employee relationship, "the petitioner must demonstrate eligibility for the benefit 
sought" and "if a petitioner provides contracts or legal agreements, [an] officer is not precluded from evaluating that 
evidence in the adjudication of other eligibility criteria." U.S. Citizenship and Immigration Services (USCIS) Policy 
Memorandum PM-602-0114, Rescission of Policy Memoranda at 3 (June 17, 2020), http://www.uscis.gov/legal­
resources/pol icy-memoranda. 
3 
Similarly, the record contains a letter from the mid-vendor stating, in relevant part, that "[t]he duration 
of [the Beneficiary's] assignment to the project for [the mid-vendor] is expected to continue through 
10/31/19." The letter does not indicate that the assignment may be extended beyond October 2019. 
In contrast, in response to the Director's notice of intent to deny (NOID), the Petitioner submitted a 
new letter from the mid-vendor, stating instead that "[t]he duration of [the Beneficiary's] assignment 
to the project for [the mid-vendor] is expected to continue through September 30, 2020," without 
specifically stating that the parties actually extended the Beneficiary's assignment beyond October 
2019. On appeal, the Petitioner reasserts that "[the] Beneficiary's assignment is expected to continue 
until September 30, 2020"; however, the Petitioner does not identify evidence that establishes the 
parties actually extended the Beneficiary's assignment beyond October 2019. 5 
The Petitioner also submitted an updated version of the WO, annotated "Rev. 4," in response to the 
NOID. The updated WO indicates that its "create date" and "submit date" were both "10/01/2019," 
before the expiration of the original WO; however, it states in multiple locations that its period is 
"05/01/2019 to 10/31/2019," with the same end date as the original WO. 6 The Petitioner submitted a 
third WO, bearing a distinct WO number, in response to the NOID. The third WO, dated 
"01/25/2019," bears many similarities to the original WO in the record, including the reference to the 
mid-vendor's "site," without specifically identifying the end-client, and a period of "01/02/2019 to 
10/31/2019." The record does not establish that the parties extended any WO for the Beneficiary 
beyond October 2019. 
The record does not contain a document, similar to the WO, between the end-client and any other party 
to establish the services the end-client agreed, as of the petition filing date, for the Beneficiary to 
perform. Instead, in response to the Director's NOID, the Petitioner submitted an undated, one­
sentence letter from the mid-vendor, addressed "[t]o whom it may concern," stating that "[d]ue to 
confidentiality requirements, [the mid-vendor] cannot provide copies of contract documents between 
[the mid-vendor] and [the end-client], including POs or sows, to any third party." Although a 
petitioner may always refuse to submit confidential commercial information if it is deemed too 
sensitive, the Petitioner must also satisfy the burden of proof and runs the risk of a denial. Cf Matter 
of Marques, 16 l&N Dec. 314 (BIA 1977) (holding the "respondent had every right to assert his claim 
under the Fifth Amendment[; however], in so doing he runs the risk that he may fail to carry his burden 
of persuasion with respect to his application."). Both the Freedom of Information Act and the Trade 
Secrets Act provide for the protection of a petitioner's confidential business information when it is 
submitted to USCIS. See 5 U.S.C. § 552(b)(4), 18 U.S.C. § 1905. Additionally, the petitioner may 
request pre-disclosure notification pursuant to Executive Order No. 12,600, "Predisclosure 
Notification Procedures for Confidential Commercial Information." Exec. Order No. 12,600, 52 Fed. 
Reg. 23,781 (June 23, 1987). 
5 Furthermore, USCIS records indicate that the Beneficiary departed the United States in January 2020 and has not returned. 
6 We note that, unlike the original WO, the updated WO identifies the end-client. However, a 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 at a future date after a petitioner or beneficiary 
becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 l&N Dec. 248, 249 (Reg'I Comm'r 
1978). Because the updated WO indicates that it was created after the petition filing date, its belated reference to the 
end-client does not establish that, as of the petition filing date, the Petitioner and the end-client contracted through the WO 
for the Beneficiary to perform services for the end-client. 
4 
The record also contains two letters from the end-client, addressed "to whom it may concern." The 
two letters consist of a combined total of three pages, with the second letter generally repeating the 
same information in the first letter. The first letter states that "[the Beneficiary] is on assignment 
through [the mid-vendor]." The letter also states that the Beneficiary's project "is considered long­
term, with a strong possibility for multiple extensions," without specifying the actual duration of the 
project. Similarly, the second letter, submitted in response to the Director's NOID, states that the 
end-client "anticipates [the Beneficiary's] continued assignment which may include multiple 
extensions," without stating the actual duration of the project. Even if the record established the 
duration of the end-client's agreement, as of the petition filing date, for the Beneficiary to perform 
services, the record does not establish whether the parties extended the assignment beyond that 
unspecified period. 
Moreover, even if the end-client letters established the duration of the Beneficiary's assignment, they 
would not establish the services to be performed. For example, in both letters the end-client stated 
that the Beneficiary "has been on assignment since 10/02/2017." In the first letter, dated March 2019, 
the end-client stated that the Beneficiary's job duties already included "[i]nstalling, configuring and 
administration of Splunk Enterprise Server and Splunk Universal Forwarder." In the second letter, 
dated September 2019, approximately one month before the expiration of the WO discussed above, 
the end-client stated that the Beneficiary's most time-consuming (20%) task would be to "[i]nstall, 
configure and administer Splunk Enterprise Service and Splunk Universal Forwarder," despite that 
having been among the Beneficiary's tasks for the past six months, and possibly longer. The end-client 
letter does not provide project milestones or similar estimates of the project's schedule, common to 
information technology projects, to establish when the parties expected the Beneficiary to complete, 
for example, the installation and configuration of the software, in order to establish the services the 
Beneficiary would perform during the requested period. Doubt cast on any aspect of a petitioner's 
proof may undermine the reliability and sufficiency of the remaining evidence offered in support of 
the visa petition. Matter of Ho, 19 l&N Dec. 582, 591 (BIA 1988). Regardless of whether the 
end-client letters credibly established the need to continue installing and configuring the software 
throughout the requested employment period, they do not elaborate on how the installation, 
configuration, and administration of the software requires a bachelor's or higher degree in a specific 
specialty, or its equivalent. 
As another example, in the second letter the end-client stated that another of the Beneficiary's most 
time-consuming (20%) tasks would be "data ingestion from the production server into Splunk and to 
write complex configuration [sic] for parsing data and extracting required fields in Splunk." Although 
this appears to be an ongoing task, again the letters do not clarify what the Beneficiary would do to 
"ingest[]" data, or provide more information about the "configuration for parsing data and extracting 
required fields" the Beneficiary would write, in order to determine whether writing that configuration 
would be so complex that it could only be performed by a worker with a bachelor's or higher degree 
in a specific specialty, or its equivalent. 
Similarly, the end-client stated in the second letter that the next most time-consuming (15%) task 
would be "creating custom Apps [sic] on the deployment server with props, inputs and transforms 
[sic] configuration files to the server from deployment [sic] server." However, again, the end-client 
letters do not provide further information regarding the applications the Beneficiary would create, in 
order to determine whether creating those applications require a bachelor's or higher degree in a 
5 
specific specialty, or its equivalent.7 The remainder of the brief duty description consists of similarly 
vague language. 
On appeal, the Petitioner asserts that "[l]arge companies do not issue tailored letters" and that "the 
documentation submitted appears to be as close to a guarantee as we can get." However, a petitioner's 
evidentiary burden does not vary in relation to the company with which it may ultimately contract to 
perform services; it must nevertheless establish eligibility for the benefit sought under the 
preponderance of the evidence. See Section 291 of the Act; see also Matter of Chawathe, 25 l&N 
Dec. at 375. 
Particularly in light of the WOs discussed above, the limited information in the record from the 
end-client about the Beneficiary's assignment does not establish the services the end-client requested, 
as of the petition filing date, to be performed, the duration of the services, and other salient details in 
order to determine whether the services would require a qualifying degree or its equivalent. 8 As 
recognized by the court in 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. 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. 
In summation, we conclude that the ambiguities, inconsistencies, and lack of documentation in the 
record do not establish the services the Beneficiary would perform, which therefore precludes a 
conclusion that the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because 
the substantive nature of the work 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 4.9 
7 Even if the end client letters credibly established the services to be performed and the duration of the services the end 
client agreed, as of the petition filing date, for the Beneficiary to provide, the letters provide inconsistent and insufficient 
information about the end client's requirements to perform the services, which is critical. See Defensor, 201 F.3d at 387-
88. In the first letter, the end client stated that it requires "a [b]achelor's degree in [c]omputer [s]cience or [e]ngineering 
([e]lectrical or [e]lectronics) or IT or IS." In contrast, in the second letter the end client altered its degree requirement to 
"a [b]achelor's [d]egree in [c]omputer [s]cience, [e]lectrical, [e]lectronics or a related field." Although electrical 
engineering and electronic engineering are common degree fields, the record does not establish that a bachelor's or higher 
degree in "[e]lectrical," or such a degree in "[e]lectronics" are common degree fields. 
8 We note that the record contains work product samples; however, although work product may assist us in understanding 
what a worker does, it does not establish the services that parties agreed, as of the petition filing date, for a worker to 
perform. 
9 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
6 
111. 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. 
7