dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10694869 
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. 8, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as an 
"electrical designer" 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 also concluded the record did not establish the Petitioner would have an employer-employee 
relationship with the Beneficiary during the requested period. 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 Texas, asserted the Beneficiary would work at the end-client location in 
Illinois. However, the record does not contain sufficient evidence to establish the terms and conditions 
of the Beneficiary's assignment during the requested period. 
The record contains a master service agreement (MSA) between the Petitioner and the end-client. 3 
The MSA is a general agreement for the Petitioner to "perform the [s]ervices contracted for at the 
locations agreed to by the [Petitioner and the end-client]" and to "perform various [s]ervices from its 
offices in India by providing complete program execution solution." The MSA does not elaborate on 
the services to be performed, the position to perform the services, the individual assigned to the 
position, the qualifications to perform the services, or the duration of the assignment. Instead, the 
MSA states that, regardless of whether the Petitioner provides services at the end-client's location or 
from its offices in India, "the parties shall execute individual Work-Orders [(WO)] for each project. 
The scope of each [WO] shall be mutually agreed in advance .... Details of such [WOs], including 
location and mode of execution, deliverables, schedules, acceptance criteria, terms of payment etc. 
shall be determined by individual [WOs]." 
The record does not contain a WO "mutually agreed in advance," elaborating on the services to be 
performed, the position to provide the services, the individual assigned to the position, the location 
and mode of execution, deliverables, schedules, acceptance criteria, and other salient details. Instead, 
at the time of the Director's decision, the record contained four monthly invoices referencing the MSA, 
for the periods of "August-19" through "November-19." In each invoice, the Petitioner billed the 
end-client for four items4 as follows: 
I Engineering Service provided by [an individual named Z-B-] at Onsite; 
I Engineering Service provided at Offsite (Non-Dedicated Team); 
I Engineering Service provided at Offsite (Dedicated Team); and 
I Project Management ... on Offsite. 
On appeal, the Petitioner submits five monthly invoices, referencing the MSA, for the periods of 
"September-19" through "January-20." The three monthly invoices submitted on appeal for the 
periods of "September-19," "October-19," and "November-19" bear identical invoice numbers to the 
invoices for those periods already in the record; however, the new copies of the invoices all contain 
an additional billed item: Engineering Service provided by [an individual named P-K-] at Onsite." 
The two new invoices for the periods of "December-19" and "January-20" bear the four billed items 
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 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. 
4 The invoices refer to the items as "particulars." 
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listed above, but for different hours of work, with the additional billed item referencing the individual 
named P-K-.5 The record does not reconcile why it contains multiple copies of invoices for the same 
periods, bearing the same invoice numbers, for different sets of billable items and inconsistent hours 
of work provided. 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). In this case, the inconsistent invoices bearing identical invoice numbers 
casts doubt on the reliability and sufficiency of evidence in the record from the Petitioner. 
Even to the extent that the invoices may be reliable, the names of the individuals for whose services 
performed at the end-client location the Petitioner billed the end-client, Z-B- and P-K-, do not match 
the name of the Beneficiary, V-S-S-N-. The invoices do not indicate that any individuals other than 
Z-B- and P-K- performed services at the end-client location, or that the parties contracted for any 
individuals other than Z-B- and P-K- to perform such services. Moreover, even if the invoices 
established that the parties contracted for the Beneficiary to perform services at the end-client location, 
the invoices do not elaborate on the actual "engineering service" performed. Accordingly, the invoices 
do not establish the services for which the parties contracted the Beneficiary to perform during the 
requested period. 
The record contains an undated letter signed by the Petitioner's project manager. The letter generally 
describes a series of projects and states that "[t]he duration of the above-mentioned projects will be up 
to 2 years all [sic] the work must be schedule [sic] to complete within the time frame," without 
clarifying the beginning of the two-year timeframe. The letter also asserts that "[t]his is to confirm 
and verified [sic] that offered [sic] position of Electrical Engineer [the Beneficiary] is the best suit 
[sic] for this requirement." Similar to the MSA and the invoices, the letter from the Petitioner's project 
manager does not establish the services for which the parties contracted, as of the petition filing date, 
the Beneficiary to perform during the requested period. Instead, it asserts that the Beneficiary is suited 
for the position. 
In response to the Director's request for evidence (RFE), the Petitioner submitted a letter from the 
end-client, addressed "to whomsoever it concerns." The letter "verif[ies] that [the Beneficiary] will 
be stationed at [the end-client location] in the position of [e]lectrical [e]ngineer"; however, the letter 
does not assert that, as of the petition filing date, the parties "mutually agreed in advance," through a 
WO, for the Beneficiary to work at the end-client location, and the specific services to be performed, 
as required by the MSA as discussed above. 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). 
Although the end-client letter includes a bullet-point list of 16 duties, the description contains many 
typographical and grammatical errors, and several duties refer to a "client" either instead of referring 
to the end-client by its own name, as the end-client did throughout the remainder of the two-page 
letter, or internally inconsistent within a given duty. For example, the duties include the following: 
5 The "January-20" invoice itemizes two periods of 10 and 21 days, respectively. The invoice bills for an engineering 
service provided by Z-B- during the 10-day period but not during the 21-day period. 
4 
I Coordination with client & Designing [sic] multiple option [sic] based on space 
constraint & Techno [sic] commercial aspect [sic], Issuing Tender Specification 
[sic] documents and Good [sic] for Construction [sic] drawings; 
I Assist in the preparation of construction documentation for the client's intent and 
scope of work in [the end-client's] proposal; 
I Communicate effectively with the client to understand their requirements and 
intent; keep the client advised of project progress thus maintaining good 
client/[ end-client] relations. 
We note that the letter from the Petitioner's project manager also states that the Beneficiary's duties 
would include "Coordination with client & Designing [sic] multiple option [sic] based on space 
constraint & Techno [sic] commercial aspect [sic], Issuing Tender Specification [sic] documents and 
Good [sic] for Construction [sic] drawings," identically matching the typographical and grammatical 
errors in the end-client's duty description, and referring to a "client," rather than specifically referring 
to the end-client by its name. 
The extent of the typographical and grammatical errors in the duty description, combined with 
numerous, internally inconsistent references to a "client," instead of or in addition to referring to the 
end-client by its own name, and the similarity between the letters from the Petitioner's project manager 
and the end-client casts doubt on whether the duty description reflects the end-client's actual 
requirements. As noted above, 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. at 591. Although the letter states that "the above-mentioned responsibilities require 
a candidate with at least a [b]achelor's degree in [e]lectrical [e]ngineering or its equivalent," given the 
doubt cast on whether the signatory drafted the duty description, the letter also casts doubt on whether 
the end-client actually requires the stated degree to perform the position's duties. 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the services are 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. 
Moreover, even if the end-client letter submitted in response to the RFE established the duties the 
end-client requested, as of the petition filing date, the Beneficiary to perform, the letter does not 
indicate the duration of the project. As noted above, the Petitioner's project manager stated that the 
assignment must be completed within a two-year timeframe, without a specified beginning date. 
On appeal, the Petitioner submits a new letter from the end-client, with an altered duty description. 
However, the duty description in the appeal end-client letter closely matches the duties in a prior letter 
from the Petitioner, containing identical grammatical errors. For example, both the appeal end-client 
letter and the Petitioner's prior letter state the Beneficiary would "Run the clash test and resolving 
[sic] the clashes by coordinating with all stakeholders" and "Prepare construction documents, shop 
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drawing for all discipline [sic] in BIM model." The record does not reconcile why the end-client 
altered its duty description after the petition denial to match, verbatim, a prior letter from the Petitioner, 
including identical grammatical errors, casting doubt on whether the duty description reflects the 
end-client's actual requirements. As noted above, 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. at 591. 
Similar to the alteration in the duty description, the appeal end-client letter also alters its stated degree 
requirement to "a [b]achelor's degree in [e]lectrical [e]ngineering, [t]echnology a [sic] closely related 
field." 6 The record does not reconcile why the end-client altered its degree requirement after the 
petition denial, and the end-client's inclusion of a broad academic field, such as "technology," does 
not establish that the end-client requires a bachelor's or higher degree in a specific specialty, or its 
equivalent. We further note that the appeal end-client letter asserts that "[t]his project is expected to 
continue until 2024, and possibly beyond, which contradicts the statement in the letter from the 
Petitioner's project manager, submitted in 2019, that "[t]he duration of the above-mentioned projects 
will be up to 2 years all [sic] the work must be schedule [sic] to complete within the time frame." 
Considered as a whole and in light of other documents in the record, the reliability and sufficiency of 
the statements in the appeal end-client letter is reduced. See Matter of Ho, 19 l&N Dec. at 591. 
In summation, we conclude that the ambiguities and lack of documentation in the record does 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. 7 
6 We further note that the Petitioner's prior letter states that "the Petitioner requires at least a [b]achelor's degree in 
[e]lectrical [e]ngineering, [t]echnology or any related field, for this position," closely matching the end-client's altered 
degree requirement. 
7 While this appeal was pending, the U.S. District Court for the District of Columbia issued a decision in ltserve Alliance, 
Inc. v. Cissna, --- F.Supp.3d ---, 2020 WL 1150186 (D.D.C. 2020). Subsequently, U.S. Citizenship and Immigration 
Services (USCIS) rescinded previously issued policy guidance and directed its officers to apply the existing regulatory 
definition at 8 C.F.R. § 214.2(h)(4)(ii) to assess whether a petitioner and a beneficiary have an employer-employee 
relationship. USCIS Policy Memorandum PM-602-0114, Rescission of Policy Memoranda at 2. 
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), and we need not further address whether the Petitioner would have 
an employer-employee relationship with the Beneficiary. 
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. 
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