dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 9094340 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 25, 2020 
The Petitioner, an information technology consulting company, seeks to temporarily employ the 
Beneficiary as an "IT Data Engineer" 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 record did not 
establish that the proffered position qualifies as a specialty occupation. The matter is now before us 
on appeal. 
The Petitioner bears the burden of proof to demonstrate el igibi I ity 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 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), 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, 387-88 (5th Cir. 2000). 
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. 
11. THE PROFFERED POSITION 
The Petitioner, which is located in Michigan, stated that the Beneficiary will perform her duties at the 
end-client site in California for thel I (end-client), pursuant to 
contracts executed between the Petitioner andl !(vendor), and between 
the vendor and the end-client. The Petitioner submitted letters from the vendor and the end-client, 
both including similar duties that the Beneficiary would perform in the proffered position and different 
educational requirements for the proffered position. 
The Petitioner also provided its own list of job duties for the proffered position and indicated that the 
minimum entry requirement is a bachelor's degree, or equivalent, in computer science or a related 
field. 
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Ill. ANALYSIS 
For the reasons set out below, we have determined that the proffered position does not qualify as a 
specialty occupation.1 Specifically, there are two separate factors that independently bar approval of 
this petition: (1) the Petitioner's lack of a requirement for a bachelor's degree in a specific specialty, 
or the equivalent; and (2) the Petitioner's failure to satisfy at least one of the four regulatory specialty­
occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1)-(4). In particular, the record does 
not: (1) describe the proffered position in sufficient detail; and (2) establish that the job duties require 
an educational background, or its equivalent, commensurate with a specialty occupation. 
A. Lack of a Requirement for a Bachelor's Degree in a Specific Specialty, or the Equivalent 
As a preliminary matter, the end-client, vendor, and Petitioner have provided inconsistent information 
regarding the minimum requirements for the proffered position. The table below summarizes the 
variances in the requirements. 
Record of Proceedings Degree Requirements 
Petitioner's Letter - bachelor's degree in computer science or any other 
March 31, 2019 (page 3) closely related field that is equivalent 
Petitioner's RFE Response - bachelor's degree in computer science or a closely 
October 1, 2019 (page 3) related field 
Vendor's Letter - March 15, 2019 (page 1) bachelor's degree or equivalent in a relevant 
technology field 
Vendor's Letter - October 30, 2019 (page 2) "[end-client] has confirmed that the ... role requires 
at least a bachelor's degree or equivalent in a 
relevant specialized field such as computer science, 
software engineering, or related fields" 
End-Client's Letter - November 1, 2019 "bachelor's degree in computer science, healthcare, 
(page 3) business administration or a related field and three 
(3) years of experience performing~on 
configuration or business analysis in a or 
Management! I environment or an equivalent 
combination of education and experience" 
As noted, the end-client, vendor, and Petitioner have provided varying accounts of the educational 
background requirements necessary for the performance of the duties of the proffered position. 
Neither the end-client nor the Petitioner provided an explanation for the variances in the requirements. 
1 The Petitioner submitted documentation in support of the H-lB petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 
Inconsistencies in the requirements undermine the credibility of the Petitioner's claims regarding the 
proffered position. 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. 
Further, the petition is not approvable because the end-client's claimed entry requirement of a 
bachelor's degree, or equivalent, in business administration, without more, is inadequate to establish 
that the proposed position qualifies as a specialty occupation. 2 
The end-client's claim that a bachelor's degree in business administration is a sufficient minimum 
requirement for entry into the proffered position is inadequate to establish that the proposed position 
qualifies as a specialty occupation. A petitioner must demonstrate that the proffered position requires 
a precise and specific course of study that relates directly and closely to the position in question. There 
must be a close correlation between the required specialized studies and the position; thus, the mere 
requirement of a general degree, such as business administration, without further specification, does 
not establish the position as a specialty occupation.3 Royal Siam Corp., 484 F.3d at 147 (a general­
purpose bachelor's degree in business may be a legitimate prerequisite for a particular position, but 
such a degree, without more, will not justify a finding that a particular position qualifies for 
classification as a specialty occupation). Cf. Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 
(Comm'r 1988) ("The mere requirement of a college degree for the sake of general education, or to 
obtain what an employer perceives to be a higher caliber employee, also does not establish 
el igi bi I ity. "). 
Without more, it cannot be found that the proffered position requires anything more than a general 
bachelor's degree and accordingly it does not qualify under the definition of a specialty occupation. 
Where the work is to be performed for entities other than the petitioner, evidence pertaining to the 
proffered position's educational requirements is critical. Defensor 201 F.3d at 387-88. The court in 
Defensor held that the former Immigration and Naturalization Service had reasonably interpreted the 
law 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. 
However, the record of proceedings does not contain such evidence. 
2 We recognize that the end-client listed other fields of study for the degree. However, our focus here is on the end-client's 
acceptance of a degree in business administration for entry into the position. 
3 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example, an entry requirement of a bachelor's or higher degree in business with a concentration in a 
specific field, or a bachelor's or higher degree in business combined with relevant education, training, and/or experience 
may, in certain instances, qualify the proffered position as a specialty occupation. In either case, it must be demonstrated 
that the entry requirement is equivalent to a bachelor's or higher degree in a specific specialty that is directly related to the 
proffered position. 
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B. Position Description 
Moreover, a crucial aspect of this matter is whether the Petitioner has sufficiently described the duties 
of the proffered position such that we may discern the nature of the position and whether the position 
actually requires the theoretical and practical application of a body of highly specialized knowledge 
attained through at least a baccalaureate degree in a specific discipline. We conclude that the Petitioner 
has not done so. 
We determine that the evidence is insufficient to establish that the proffered position qualifies for 
classification as a specialty occupation. As recognized in Defensor, 201 F.3d at 387-88, it is necessary 
for the end-client to provide sufficient information regarding the proposed job duties to be performed 
at its location in order to properly ascertain the minimum educational requirements necessary to 
perform those duties. Here, the record of proceedings does not provide sufficient information from 
the end-client regarding the specific job duties to be performed by the Beneficiary. 
The Petitioner submitted a Statement of Work (SOW) from the vendor that identifies the Petitioner as 
the corporate contractor and the Beneficiary as the "contractor." The SOW also lists the "description 
of work" as "IT Data Engineer," the client as ·j l"an 
expected start date of January 29, 2018 and an expected project length of "6+months - extendable." 
The SOW, however, does not identify a project the Beneficiary would be assigned to or describe the 
Beneficiary's job duties in the proffered position. 
The letters from the end-client, submitted with the petition and again in response to the Director's 
request for evidence (RFE), describe the Beneficiary's job duties in brief, generalized terms that fail 
to convey the substantive nature of the proffered position and its constituent duties. For example, the 
end-client's letter stated that the Beneficiary would perform duties such as, gather business 
requirements and work as a liaison between various IT departments; review the business requirements, 
functional design documents, and technical specification documents to develop test cases; analyze 
I I claims and configure provider records for correct processing; update claims processing 
system; update/correct provider configuration based on audits; add/update providers based on Essette 
authorization requests; and make perfect Claim assignments based on a report, without providing any 
additional explanation regarding the level of participation. Then, on appeal, the Petitioner submits a 
new letter from the end-client listing the job duties of the proffered position as: performs initial 
configuration, maintains the accuracy of provider data, and resolves provider data issues that affect 
claim reimbursement and adjudication, member linkage and provider directory reporting; researches, 
analyzes and resolves issues escalated by internal and external stakeholders; assists with the design of 
process improvements and monitoring of data quality; and performs other duties as assigned. The 
letter also includes additional tasks the Beneficiary would perform in carrying out each duty and a list 
of "job specific knowledge and abilities." However, the letters do not provide any information 
pertaining to a project the Beneficiary would be assigned to and the listed duties do not include a 
sufficient explanation regarding the demands, level of responsibilities, complexity, or requirements 
necessary for their performance. 
Additionally, on appeal, the Petitioner submits a new list of job duties outlining additional tasks the 
Beneficiary would perform in carrying out each job duty. In its appeal brief, the Petitioner specifically 
states that "as requested in the RFE, we are providing a detailed breakdown of the specific specialty 
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occupation level job duties that the Beneficiary would perform for the end-client, including the 
percentage of time to be spent on each duty, level of responsibility, hours per week of work, and the 
minimum education, training, and experience necessary to carry out this specialty occupation." We 
note that, as stated by the Petitioner, the Director requested this type of material within the RFE, but 
the Petitioner did not submit it at that time. Where, as here, a petitioner has been put on notice of a 
deficiency in the evidence and has been given an opportunity to respond to that deficiency, we will 
not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 l&N Dec. 764, 766 
(BIA 1988); see also Matter of Obaigbena, 19 l&N Dec. 533, 537 (BIA 1988). If the Petitioner had 
wanted the submitted evidence to be considered, it should have submitted the documents in response 
to the Director's RFE. Id. Under the circumstances, we need not and do not consider the sufficiency 
of the evidence submitted for the first time on appeal. 
The Petitioner's previously submitted lists of job duties and percentage of time the Beneficiary would 
devote to them similarly fail to convey the substantive nature of the proffered position. While the 
Petitioner provided a document linking each of its listed duties to those listed by the end-client with a 
brief explanation of the education required to perform them, it did not further identify how the job 
duties of the proffered position or the position itself require the theoretical and practical application of 
a body of highly specialized knowledge. Here, neither the Petitioner's statements, the SOW, nor the 
end-client's letters, provide sufficient insight into the Beneficiary's actual duties, nor do they include 
details regarding the specific tasks that the Beneficiary will perform as they relate to an assigned 
project. The provided information does not demonstrate how the performance of these duties, as 
described in the record, would require the attainment of a bachelor's or higher degree in a specific 
specialty, or its equivalent. 
The expert opinion letter authored by 
School -
Adjunct Professor in The Graduate 
Department at the University I I ~--__...--___,.-----------~ '--------~ does not satisfy the Petitioner's burden, either. In his letter, I 1(1) 
describes the credentials that he asserts qualify him to opine upon the nature of the proffered position; 
(2) I ists the duties proposed by the Petitioner for the Beneficiary; and (3) states that these duties require 
at least a bachelor's degree, or its equivalent, in computer science or a related field. We carefully 
evaluated I Is assertions in support of the instant petition but find them insufficient. 
In his letter.I I listed the same duties for the proffered position as those provided by the 
Petitioner. While we appreciate his brief discussion of the generic duties provided by the Petitioner, 
I Is letter still falls short of providing a meaningful discussion of what the Beneficiary would 
actually do in the proffered position and how those duties actually require the theoretical and practical 
application of a body of highly specialized knowledge. For example, in his discussion.I I 
restated several of the listed duties but did not provide any analysis of their complexity or how those 
duties are so specialized and complex as to require a bachelor's degree in a specific specialty. Instead, 
I Is analysis focused on the knowledge required to perform duties within the computer 
science field. 
Further.I !concluded that "[t]he duties described ... are not those of a lower-level employee 
... but rather those of a professional employee with a strong background in computer science concepts 
and principles and a great level of responsibility within the company." Thus, the record does not 
indicate whether! I was aware that, as indicated by the Level I wage on the LCA, the 
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Petitioner considered the proffered position to be for an employee who is expected to have a basic 
understanding of the occupation that requires limited, if any, exercise of judgment, close supervision, 
close monitoring of work for accuracy, and specific instructions on required tasks and expected results. 
Furthermore, the record does not indicate whethe~ I was aware that the Beneficiary would 
provide services to an end-client rather than to the Petitioner, and the Petitioner-provided job duties 
are insufficient to establish the position as a specialty occupation. See Defensor, 201 F.3d at 387-88. 
Regardless, again, whilel I listed the duties provided by the Petitioner in his letter, he did not 
discuss the specifics of the particular tasks upon which the Beneficiary would work in meaningful 
detail. As such, we conclude that the Petitioner has not demonstrated thatl I adequately 
assessed the nature of the position and appropriately determined parallel positions based upon the job 
duties and level of responsibilities. 
For the reasons discussed, we've determined thatl ~s opinion letter lends little probative 
value to the matter here. Matter of Caron lnt'I, 19 l&N Dec. 791, 795 (Comm'r 1988) {The service 
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 anyway questionable."). 
Overall, the Petitioner has not provided sufficient details regarding the nature and scope of the 
Beneficiary's employment or substantive evidence regarding the actual work that the Beneficiary 
would perform. Without a meaningful job description, the record lacks evidence sufficiently concrete 
and informative to demonstrate that the proffered position requires a specialty occupation's level of 
knowledge in a specific specialty. The position as described does not communicate: (1) the actual 
work that the Beneficiary would perform; (2) the complexity, uniqueness and/or specialization of the 
tasks; and/or (3) the correlation between that work and a need for a particular level of knowledge in a 
specific specialty. 
As a result, the Petitioner has not established the substantive nature of the work that the Beneficiary 
will perform. This precludes a 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 the particular position, which is the focus of criterion one; 
(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 two; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion two; (4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion three; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion four. Therefore, we cannot conclude 
that the proffered position qualifies for classification as a specialty occupation.4 
4 As this issue precludes approval of the petition, we will not address any of the additional matters we have observed in 
our de novo review of this matter, except to notify the Petitioner that the record is not currently sufficient to establish that 
the Petitioner has provided an LCA that corresponds to and supports the H-lB petition. Given the experience requirements 
outlined by the end-client on appeal, the Petitioner has not established that it properly classified the proffered position as 
a Level I wage. 
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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. 
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