dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10694992 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 10, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"programmer analyst" under the H-lB 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-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 petition, concluding that the record did not 
establish the proffered position qualifies as a specialty occupation. Specifically, the Director 
concluded that the record did not establish the services to be performed by the Beneficiary . The 
Director affirmed the decision on motion to reopen and to reconsider. 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-lB 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"). 
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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 Michigan, asserted the Beneficiary would work at the end-client location in 
Connecticut. 3 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 subcontractor agreement for professional services (SAPS) between the 
Petitioner and the end-client.4 The SAPS states that the parties "entered into [it on the] 21st day of 
February 2018." The SAPS asserts that the end-client "has entered into one or more contracts ... for 
the purposes of furnishing technical and computer services to one or more clients ... in connection 
with one or more projects."5 The SAPS is a general agreement for the Petitioner to "perform certain 
technical services in connection with the ... one or more projects ... to one or more clients" and to 
"perform in a proper manner, satisfactory to [the end-client], the technical services as more fully 
described in Exhibit A - 'Scope of Services."' Without the referenced Exhibit A, the SAPS does not 
specifically identify the services to be performed, the qualifications to perform the services, the 
individual assigned to perform the services, and other salient details. 
The Petitioner resubmitted a duplicate copy of the SAPS in response to the Director's request for 
evidence (RFE), followed by two documents titled "Exhibit A" One of the two "Exhibit A" 
documents is titled "Exhibit 'A' - Scope of Services" (SOS); the second is titled "Exhibit A Work 
Order" (WO). 6 
The extent of the SOS is as follows: 
Onsite technology support and development in the area of dashboards, databases and 
other technologies. 
The Scope of Services shall be completed on the following Schedule, time being of the 
essence: Full time and on-site at [the end-client location] for an [sic] trial period of 4 
2 The Petitioner submitted documentation to support the H-1B 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 We note that the Director misstated that the end-client location would be in New Jersey; however, the specific location 
is beside the point that the Beneficiary's worksite would be the end-client location, outside the Petitioner's metropolitan 
area. 
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." USCIS Policy Memorandum PM-602-0114, Rescission of Policy 
Memoranda at 3 (June 17, 2020), http://www.uscis.gov/legal-resources/policy-memoranda. 
5 The record also contains a letter from the end-client, asserting that, despite the end-client generally being a vendor to one 
or more clients referenced in the SAPS, the Beneficiary would "provide the software consulting services ... on our internal 
project," which it describes as a "data solution for vendors to manage their ecommerce data with the same data and quality 
their retail partners bring to bear on the market." We refer to that party as the end-client, despite it generally being a vendor 
to one or more of its own clients, for simplicity. 
6 The Petitioner initially submitted only the WO along with the SAPS. 
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weeks to be renewed weekly thereafter. Scope of services subject to change as [the 
end-client's] needs may change over time. 
The brief, one-sentence reference to "the development in the area of dashboards, databases, and other 
technologies" in the SOS does not "more fully describe[] ... the technical services" to be performed 
as indicated in the SAPS. It does not identify a dashboard, database, or other technology to be 
developed, or describe how a worker would develop them. Additionally, the SOS does not identify a 
specific individual assigned to develop the "dashboards, databases, and other technologies." Even if 
the SOS identified the worker to develop those items, and the process of doing so, it indicates that the 
assignment would be renewed on a weekly basis since March 2018, without establishing the actual 
duration of the project, milestones, a completion schedule, and other salient details of a typical 
development project. 
In turn, the other "Exhibit A," the WO, indicates that the Beneficiary would be assigned to the 
end-client's work location in Connecticut; however, the WO does not reference the SAPS. Although 
the parties signed and dated the WO in March 2019, it states that the Beneficiary's "scheduled start 
date" was "02/15/2018," before the date of the SAPS. Because the WO does not reference the SAPS 
and it indicates the Beneficiary's start date began before the date of the SAPS, the WO does not appear 
to be the Exhibit A referenced in the SAPS. Furthermore, as noted, the record also contains a 
document titled "Exhibit 'A' - Scope of Services," which appears to be the Exhibit A referenced in 
the SAPS. Even if the WO is the Exhibit A referenced in the SAPS, it does not identify the "one or 
more projects" to which the Beneficiary would be assigned or "more fully describe[] ... the technical 
services" for the Beneficiary to perform. Additionally, although the WO provides the Beneficiary's 
start date in 2018, it does not provide an end date or otherwise identify the duration of the assignment. 
In summation, the SAPS, SOS, and WO do not establish the services the Beneficiary would perform 
during the requested period. 
Initially, the Petitioner also submitted a two-page letter from the end-client dated March 2019. Like 
the WO, the letter states that the Beneficiary "has been working on this project since 02-15-18," before 
the date of the SAPS. The letter also states that the Beneficiary's assignment will continue "until 
further notice," without providing the actual duration of the project, similar to the weekly renewal 
referenced in the other "Exhibit A," the SOS. 
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). The WO and end-client letter indicating that the Beneficiary began the assignment before the 
date of the SAPS casts doubt on whether the SAPS corresponds to the Beneficiary's assignment. 
Additionally, the appearance of two documents in the record titled "Exhibit A" following the SAPS, 
with no other documents to which they may be attached, raises questions regarding the reliability and 
sufficiency of documents from the end-client. Furthermore, the SAPS discusses the Petitioner 
providing "certain technical services in connection with ... one or more projects ... to one or more 
clients," not providing services for the end-client's internal project, casting additional doubt on 
whether the SAPS corresponds to the Beneficiary's assignment. We acknowledge that the SOS refers 
to "[o]nsite technology support and development." However, the SOS does not establish which entity 
would host the onsite work. The prevailing references in the SAPS to "one or more clients" of the 
end-client, "with one or more projects," raises questions regarding whether the "[o]nsite" work briefly 
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referenced in one sentence of the SOS refers to work at the end-client's site, rather than work at one 
of its unidentified clients' sites. 
We acknowledge that the end-client letter contains a bullet-point list of 10 "roles and responsibilities" 
for the Beneficiary. However, as noted above, similar to the WO, the letter asserts that the Beneficiary 
would provide those "roles and responsibilities ... until further notice," without establishing that he 
would provide them during the requested period. As discussed, the SOS indicates that the assignment 
would be on a weekly basis since March 2018. Furthermore, even if the letter established the services 
the Beneficiary would provide during the requested period, the end-client does not assert that it 
requires a bachelor's or higher degree in a specific specialty, or its equivalent, to perform the services. 
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 response to the Director's RFE, the Petitioner submitted a second two-page letter from the 
end-client, dated July 2019. The second letter is generally identical to the first letter; however, it adds 
that the end-client requires a "Bachelor's Degree in Computer Science, Information Technology {IT), 
or closely related field" and that the Beneficiary's assignment is "expected to last at least through 08-
01-2022." However, as discussed above, the set of facts presented by other documents in the record 
dated as of the petition filing date do not provide a project duration to corroborate the end-client's new 
statement. The record also does not reconcile why the end-client initially did not require a particular 
bachelor's or higher degree in a specific specialty, or its equivalent, but included such a requirement 
after the Director's RFE. 
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). 
Additionally, as discussed above, several documents in the record cast doubt on the reliability and 
sufficiency of documents from the end-client. See Matter of Ho, 19 l&N Dec. at 591. 
We further note that the record contains an opinion letter written byl I an associate 
professor of computer applications and information systems at the University I I As a 
matter of discretion, we may use opinion statements submitted by the Petitioner as advisory. Matter of 
Caron lnt'I, 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 l&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 
5 
rather is admissible only if 'it will assist the trier of fact to understand the evidence or to determine a 
fact in issue."'). 
I I opines that the proffered position "would normally be filled by a graduate with a minimum 
of a Bachelor's Degree Computer Science, or a related area, or the equivalent." Specifically,! I 
opines that "[the Petitioner] would normally seek out only a Computer Systems Analyst or a Computer 
Systems Analyst, Applications[,] for a position such as Computer Systems Analyst among the majority 
of such professionals as described by OOH and O*NET who hold a Bachelor's Degree." In order to 
form his opinion, I I asserts that he "researched the specific labor market and commerce 
standards for Michigan, in which [the Petitioner] is headquartered," in addition to "interview[ing] 
several Computer Systems Analysts form [sic] [the Petitioner] to understand their duties, and 
interview[ing] the recruiters of the employ
1
r, [and] 
1
eview[ing] job duties and the employees [sic] 
educational level." Based on his interviews, determined that the Petitioner "employs around 
nine employees in the United States"; however, the Petitioner reported on the H-1B petition that it had 
460 current employees in the United States. 
The extent of the discrepancy betweerl Is opinion about the number of the Petitioner's 
employees in the United States and the number of employees the Petitioner reported on the H-1B casts 
doubt orlL.. __ ____.ts familiarity with the position and the reliability and sufficiency of his opinion. 
See Matter of Ho, 19 l&N Dec. at 591. Furthermore, the value of I Is opinion is reduced. 
Matter of Caron lnt'I, Inc., 19 l&N Dec. at 795 (Comm'r 1988); see also Matter of V-K-, 24 l&N Dec. 
at 502 n.2. 
Moreover.I ldoes not assert that he reviewed evidence of the end-client's job re~uirements, 
which, as noted above, is critical. Defensor, 201 F.3d at 387-88. For example.I I focused on 
the types of candidates "[the Petitioner] would normally seek out," not the types of candidates the 
end-client would normally seek out, and he researched "the specific labor market and commerce 
standards for Michigan, in which [the Petitioner] is headquartered," not the standards in Connecticut, 
the end-client location. Furthermore.I ldoes not address the SOS to which the end-client is a 
party, which does not identify the worker to develop the generalized items it references or the process 
of doing so, and it indicates that the assignment would be renewed on a weekly basis since March 
2018, without establishing the actual duration of the project, milestones, a completion schedule, and 
other salient details of a typical development project. I I also does not address the second 
"Exhibit A" to which the end-client is a party, the WO, which states that the Beneficiary's "scheduled 
start date" was "02/15/2018," before the date of the SAPS, indicating that it does not correspond to 
the SAPS, as explained above. Based on the concerns discussed above.I ts opinion bears 
minimal probative value. See Matter of Caron lnt'I, Inc., 19 l&N Dec. at 795; see also Matter of V­
K-, 24 l&N Dec. at 502 n.2. 
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 
6 
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 4.7 
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 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). 
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