dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 12089566 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC . 2, 2020 
The Petitioner, an information technology consulting services firm, seeks to temporarily employ the 
Beneficiary under the H-lB nonirnrnigrant 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 Vermont Service Center Director denied the petition, concluding that the Petitioner had not 
established that (1) the proffered position is a specialty occupation, and (2) the Beneficiary is qualified 
to perform services in a specialty occupation. On appeal, the Petitioner asserts that the Director erred 
in denying the petition, and contends that the petition should be approved. 
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 I&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de novo. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
Upon de novo review, we will dismiss the appeal. 
I. SPECIAL TY OCCUPATION 
A. Legal Framework 
Section 10l(a)(l5)(H)(i)(b) of the Act defines an H-lB nonirnrnigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section214(i)(l) ... "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § l 184(i)(l), 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)(l) 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, 
1 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(l) 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") . 
8 C.F.R. § 214.2(h)(4)(i)(A)(I) 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 
look to 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). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) 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)(l). 
B. 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 Petitioner has not established the substantive nature of the work that the Beneficiary 
will perform, which precludes a finding that the proffered position satisfies any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 2 
The Petitioner seeks to employ the Beneficiary as a "data analyst" to perform services for an end­
client through contractual arrangements with a mid-vendor. 3 It designated the proffered position 
under the occupational category "Computer Occupations, All Other" corresponding to the Standard 
Occupational Classification (SOC) code 15-1199 on the labor condition application (LCA)4 submitted 
2 The Petitioner submitted documentation to suppmt the H-1 B petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we reviewed and considered each one. 
3 The Petitioner most recently employed the Beneficiary through post-completion optional practical training. 8 C.F.R. §§ 
274a. l 2( c )(3)(i)(B), 2 l 4.2(t)(l O)(ii)(A )(3). 
4 A petitioner submits the LCA to the U.S. Department of Labor 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. 
§ 655.731(a). 
2 
in support of the H-lB petition, and asserts that the proffered position most closely corresponds to the 
occupational subcategory "Database Architects," SOC 15-1199 .06. 5 
To begin with the Petitioner provides contradictory statements regarding the location of the 
Beneficiary's proposed H-1 B employment. The Petitioner indicates in several sections of the petition 
that the Beneficiary will be employed off-site at another company's premises. However, in the LCA 
it identifies the Petitioner's Virginia address as the sole employment location, attesting that the 
Beneficiary would not be placed with a secondary entity. In a letter submitted with the petition, the 
Petitioner first states that "the Beneficiary will be working from the [Virginia] offices of the 
Petitioner," then later states that the Beneficiary will be providing services "off-site." The Petitioner 
submits letters from the mid-vendor which maintain that the Beneficiary "[ w Jill be working for [the 
end-client], but work will be performed at [the Petitioner's Virginia] location." The end-client's letters 
also identify this work location as the Beneficiary's place of employment. 
Notably, the mid-vendor's "teaming agreement" with the Petitioner indicates that the Petitioner's staff 
(presumably including the Beneficiary) will perform services for the mid-vendor's clients pursuant to 
work orders which "shall have the period and place of performance of the [s]ervices." The mid­
vendor's work order indicates that the Beneficiary's "place of performance" will be at the end-client's 
location. On appeal, the Petitioner repeatedly reiterates that "the Beneficiary would be performing as 
a [d]ata [a]nalyst at the end-client's location," but then contemporaneously asserts that the Beneficiary 
will be employed at its Virginia offices. 
As the Petitioner presents contradictory evidence which repeatedly references differing work sites for 
the Beneficiary's employment, it has not adequately identified the specific location where the 
Beneficiary will perform services as an H-lB nonimmigrant. Thus, we must question the accuracy of 
the evidence submitted and whether the information provided in the petition is correctly attributed to 
this particular Beneficiary and position. These inconsistencies also raise significant questions as to 
whether the LCA, (which designates the Petitioner's offices as the Beneficiary's sole work location), 
corresponds to and supports the H-lB petition, as required. This appears to constitute an additional 
reason the petition cannot be approved. 6 The Petitioner must resolve these inconsistencies and 
ambiguities in the record with independent, objective evidence pointing to where the truth lies. Matter 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Moreover, when determining whether a position is a specialty occupation, we look at the nature of the 
business offering the employment and the description of the specific duties of the position as it relates 
to the performance of those duties within the context of that particular employer's business operations. 
In this case, the Petitioner describes the proffered position as one in which the Beneficiary will be 
5 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he will 
be closely supervised and his work closely monitored and reviewed for accuracy; and t3) that he will receive specific 
instructions on required tasks and expected results. Sec U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009); 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
6 See 20 C.F.R. § 655.705(b). See also Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). 
3 
engaged in providing services to the end-client as a contractor. 7 However, on a fundamental level we 
conclude that the Petitioner has not provided sufficient material about the end-client's projects that the 
Beneficiary will be assigned to. For instance, the Petitioner provides a copy of a document entitled 
"[end-client] Business Requirements Document, RIM - Information Governance System." This 
multi-page document provides the high-level conceptual schema and business requirements for an 
information technology project. However, the Petitioner has not adequately explained how this 
material comprises the Beneficiary's end-client work assignments, and how the Beneficiary will 
perform the duties described in the petition as part of the end-client's software development team. 8 
There are also farther inconsistencies in the record which raise additional questions as to the actual, 
substantive nature of the proffered position. As discussed, the Petitioner submitted an LCA certified 
for a Level I ( entry-level) data analyst position within the "Database Architects" occupational 
subcategory. 9 In contrast, the Petitioner presents the proffered position as one involving substantial 
project management and personnel oversight responsibilities which do not appear consonant with an 
entry-level position within that occupation, indicating that the Beneficiary will among other things: 10 
• [O]verse[] all analytics operations to correct discrepancies and ensure quality. 
• [O]versee efforts to ensure optimal allocation of the weekly budget investments in 
each program. 
• [C]ontinually monitors and anticipates resource needs and makes proactive 
recommendations and oversees day to day operations and provides strategic 
directions and takes accountability for requirements, procedures, and standards. 
• [P]rovides effective real-time performance management feedback, coaching, and 
mentoring. [P]rioritizes talent cultivation, retention and succession planning. 
• [ Acts as] an influential leader and leads by example when handling ambiguous and 
difficult situations. 
• [M]anages the portfolio/inventory of all team projects, to ensure projects are 
implemented on time, at or under budget and with quality and represents team in 
project meetings to communicate results, issues, timelines, etc. 
7 We must review the particular duties the Beneficiary will be expected to perform to ascertain whether those duties require 
at least a baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a specialty 
occupation. To accomplish that task in this matter, we review the duties in conjunction with the specific project(s) to 
which the Beneficiary will be assigned. To allow otherwise, results in generic descriptions of duties that while they may 
appear (in some instances) to comprise the duties of a specialty occupation, are not related to any actual services the 
Beneficiary is expected to provide. 
8 The Director specifically requested such evidence in her RFE, but the Petitioner did not provide evidence sufficient to 
illustrate how the Beneficiary's specific job duties relate to the end-client's products and services. "Failure to submit 
requested evidence which precludes a material line of inquiry shall be grounds for denying the [petition]." 8 C.F.R. § 
103.2(b)(l4). 
9 According to DOL's Occupational Information Network (O*NET) summary report for "Database Architects," 
individuals employed in this occupational subcategory typically: "Design strategies for enterprise database systems and 
set standards for operations, programming, and security. Design and construct large relational databases. Integrate new 
systems with existing warehouse structure and refine system performance and functionality." See 
https://www.onetonline.org/link/summary/15-1199.06 (last visited Dec. 1, 2020). 
10 We acknowledge that the Petitioner submitted additional information for the job duties, which, for the sake of brevity, 
have not been included herein. However, this material has been closely reviewed and considered, as with all evidence in 
the record. 
4 
• [L ]eads cross-functional investigations on data quality and user engagement for the 
organization. 
While the Petitioner maintains that the proffered position is an "entry-level position within the 
[ database architect] occupation," it has not adequately explained how performing responsibilities, such 
as "lead[ing] cross-functional investigations on data quality and user engagement for the 
organization," "manag[ing] the portfolio/inventory of all team projects," "overseeing all analytics 
operations to correct discrepancies and ensure quality," "provid[ing] strategic directions," and 
"prioritiz[ing] talent cultivation, retention and succession planning," are typical job functions for an 
entry-level database architect. Matter of Ho, 19 I&N Dec. at 591-92. 
Importantly, the end-client's letters do not substantiate the Petitioner's assertions that the Beneficiary 
will perform project management activities, or that he will oversee analytics operations on behalf of 
the end-client. Id. The job duties presented in the end-client's letters indicate that he is "assigned to 
[the] Enterprise Data Strategy project," and will perform duties, such as "[r]eview the functional 
requirements with the business users and technical teams," and"[ a ]nalyze[] data to be used to monitor 
the effectiveness of RIM initiatives to be shared with stakeholders and leaderships." These general 
descriptions of information technology job functions lend insufficient insight into the relative 
complexity and specialization of the Beneficiary's day-to-day duties, and how these tasks merit 
recognition of the proffered position as a specialty occupation. Here, the documentation provided is 
not probative towards establishing the terms and conditions of the Beneficiary's assignment as 
imposed by the end-client. See Defensor v. Meissner, 201 F.3d 384, 387 (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). 
Additionally, the Petitioner provides conflicting information regarding requirements for the proffered 
position. The Petitioner initially states that an incumbent in the proffered position "should possess in 
the least a bachelor's degree in [c]omputer [s]cience or a closely related field with additional 
experience in practical application or theoretical knowledge of computer science or a specialized field 
of study with substantial training and / or experience in designing and implementing computer based 
models and solutions to practical and technical problems." (Emphasis added.) The initially presented 
end-client letter states that the position requires "a bachelor's degree in [ m ]arketing or a closely related 
field. In response to the Director's RFE, the Petitioner submits an updated end-client letter which 
specifies that "a bachelor's degree in computer science or a closely related field" is required for the 
position, which the mid-vendor and the Petitioner reiterate in their own updated letters. Similarly, it 
offers an opinion letter from Professor C-, who opines that the position requires "a baccalaureate 
degree in [ c ]omputer [ s ]cience or a related field." 
The Petitioner asserts on appeal that letters provided by the Petitioner, the end-client and the mid-vendor 
"confirm that the minimum requirement for the offered position is a [b ]achelor' s degree in [ c ]omputer 
[s]cience or a closely required field." However, the Petitioner does not explain why its initial 
requirements differed from the position requirements put forth in the RFE response, or the reasons for the 
variances in the end-client's position requirements. 11 Matter of Ho, Dec. 591-92. 
11 Notably, the professor also does not address the variances between the minimum requirements for the position as initially 
5 
Considered together, the material in the record specifies bachelor's degrees in computer science, 
marketing, or related fields, or that work experience alone would suffice for entry into the position. It 
is the Petitioner's burden to prove by a preponderance of evidence that it is qualified for the benefit 
sought. Matter of Chawathe, 25 I&N Dec. at 376. In evaluating the evidence, eligibility is to be 
determined not by the quantity of evidence alone but by its quality. Id. Here, the Petitioner's 
inconsistent requirements for the proffered position is sufficient to preclude the petition's approval, as the 
Petitioner has not demonstrated that the offered position satisfies the definition of a specialty occupation 
found at section 2 l 4(i)(l) of the Act. 
In summary, we conclude that the inconsistencies, unanswered questions, and lack of documentation 
in the record raise questions as to the actual, substantive nature of the proffered position. The 
Petitioner has not submitted consistent, probative evidence to adequately communicate (1) the actual 
work that the Beneficiary would perform, (2) the complexity, uniqueness, or specialization of the 
tasks, and (3) the correlation between that work and a need for a particular level education of highly 
specialized knowledge in a specific specialty. Accordingly, the Petitioner has not established that the 
proffered position is a specialty occupation. 12 
II. BENEFICIARY'S QUALIFICATIONS 
The Director also found that the Beneficiary would not be qualified to perform the duties of the 
proffered position. However, we are required to follow long-standing legal standards and determine 
first, whether the proffered position qualifies for classification as a specialty occupation, and second, 
whether the Beneficiary was qualified for the position at the time the nonimmigrant visa petition was 
filed. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The facts of a 
beneficiary's background only come at issue after it is found that the position in which the petitioner 
intends to employ him falls within [a specialty occupation]."). As discussed in this decision, the 
Petitioner has not established that the proffered position is a specialty occupation. Therefore, we need 
not and will not address the Beneficiary's qualifications farther. 
III. 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. 
presented by the Petitioner and the end-client relative to his own conclusions regarding the position requirements. 
Therefore, we find the professor's opinion letter lends little probative value to the matter here. Matter of Caron Int 'l, 
19 T&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 any way questionable."). For the sake of brevity, we will not 
address other deficiencies within the professor's analyses of the proffered position. 
12 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. 
6