dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-, INC . 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 19, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting firm, seeks to temporarily employ the Beneficiary 
as a "business systems analyst" under the H-lB nonirnmigrant 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 Director of the Vermont Service Center denied the petition, concluding that the Petitioner did not 
establish that (1) the proffered position qualifies as a specialty occupation , and (2) the labor condition 
application (LCA) corresponds with the H-lB petition. On appeal, the Petitioner provides a brief and 
additional evidence regarding whether the position qualifies as a specialty occupation, and asserts that 
the Director erred in denying the petition. 
Upon de nova review, we will dismiss the appeal. 1 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l) , 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. 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter of B-, Inc. 
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: 
(]) 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 (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. 
B. Analysis 
Upon review of the record in its totality, the Petitioner has not sufficiently established the substantive 
nature of the work the Beneficiary would perform during the intended period of employment, which 
precludes the determination of whether the proffered position qualifies as a specialty occupation. 2 
2 The Petitioner submitted documentation to support the H-1 B 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. 
2 
Matter of B-, Inc. 
The Petitioner, located in New Jersey, intends to assign the Beneficiary through a mid-vendor to work 
for the end-client, in Ohio, for the duration of the validity period requested. 3 The mid-vendor stated 
in its support letter that "[the mid-vendor] placed [the Beneficiary] as a Business Systems Analyst at 
[the end-client location] beginning on January 2, 2018 and continuing subject to [the end-client's] 
project requirements." However, the record lacks sufficient evidence of the end-client's project 
requirements, and the contractual relationship between the mid-vendor and the end-client. 
The Petitioner provided documents to substantiate the Beneficiary's work assignment including a 
subcontractor agreement (SA) between the Petitioner and the mid-vendor. The agreement specified, 
among other things, that: 
[a]ll services provided by [the Petitioner] must be performed in strict accordance with 
the terms, specifications and requirements contained in this agreement, the Work Order 
and, to the extent applicable to the services provided by [the Petitioner], the [end­
client's] contract with [the mid-vendor] including but not limited to ... [s]creening and 
qualification requirements, all of which shall be deemed incorporated into the Work 
Order and shall be binding up [the Petitioner]. 
The mid-vendor's work order indicates that the Beneficiary will perform services as a business 
systems analyst from January 2018 - June 2021. This document stipulates the Beneficiary's services 
are to be provided pursuant to the end client's contract letter I I The Petitioner 
provided a redacted copy of the referenced end-client contract letter which is eight pages in length, 
and reflects that the nature of the Beneficiary's placement was pursuant to "staff augmentation" 
agreements between the mid-vendor and the end-client. The contract farther provides that "[the end­
client] may request Services via its standard work order requests, releases, or another form of written 
authorization (a "Release"), substantially similar to the sample attached as Exhibit G to this contract." 
Notably, the section of the contract letter entitled "term and terminations" indicates that the contract 
"shall continue until November 2019 unless terminated by either party pursuant to the termination 
provisions of this contract. Following the Initial Term, the Parties may mutually agree in writing to 
additional two (2) year terms." But the Petitioner redacted the rest of the section and approximately 
three pages of the contract letter thereafter except for a paragraph which discusses the testing and 
selection process for candidates to the "Contract Labor Program," which specifies, among other things 
that, "[the mid-vendor] shall only submit qualified Personnel, and [the end-client] may interview such 
Personnel for [the end-client's] specific assignments." 
The Petitioner also provided another document, which it described as a "purchase order from [the end­
client]." This document is entitled 'job order profile," bears the mid-vendor's letterhead, and does 
not contain language to indicate that it is a work order request or "written authorization" issued by the 
end-client for the Beneficiary's placement. While the document identifies the Beneficiary and the 
end-client, notes the contracted job function is for a "Business/Systems Analyst/Liaison," and provides 
an abbreviated position description, it omits mention of the Petitioner, and contains several pages of 
largely redacted text, except for a few names, phrases, and dates, which we cannot place into context 
3 The Petitioner most recently employed the Beneficiary through STEM-related post-completion optional practical 
training, and has provided copies of wage statements for his employment with the Petitioner. 8 C.F.R. §§ 
274.a.12( c)(3)(i)(C). 214.2(t)(l O)(ii)(C). 
3 
Matter of B-, Inc. 
absent the rest of the text. The mid-vendor's "placement record" provides information similar to the 
'job order profile," identifies the Petitioner as the "vendor," and indicates that the Beneficiary was 
referred for employment with the end-client as an "Independent/SubContr" in December of 2017. 
Overall, we conclude there is insufficient evidence of an obligation on the part of the end-client to 
provide work for the Beneficiary, let alone work of specialty occupation caliber for the requested 
validity period. 4 In other words, the evidence of record is currently insufficient to establish the terms 
and conditions of the proffered position at the end-client location. 5 
Further, collectively considering the evidence presented in the record of proceedings, we conclude 
there is inadequate evidence of specialty occupation work. For instance, the Director requested an 
explanation of how the Beneficiary's specific job duties relate to the Petitioner's and the end-client's 
products and services in a request for evidence (RFE). In response to the RFE, the Petitioner provided 
a letter and copies of the Beneficiary's project status reports which reflect that he would be assigned 
to the "Work and Asset Management (WAM) project" [WAM project], as follows: 
The [ WAM project's] purpose is to Build Shared Enterprise Business process to support 
Company's transformation into the premier next generation energy company. Maximo 
is the industry leading work and asset management system which would be replacing 
existing legacy application to improve overall performance. 
However, the record does not sufficiently substantiate this project. For example, the Petitioner 
provided a letter from the end-client in response to the Director's RFE. However, without more, this 
letter is insufficient to establish the terms and conditions of the Beneficiary's employment at the end­
client location. The end-client letter states that the Beneficiary is "on assignment" at the end-client 
location, and includes an abbreviated position description of the duties, and requirements. Further, 
the letter lacks sufficient detail to establish the substantive nature of the work to be performed and a 
necessary correlation between the proffered position and a need for a particular level of education, or 
its equivalent, in a body of highly specialized knowledge in a specific specialty. Specifically, the end­
client states that the Beneficiary will: 
• Evaluate the internal technical needs of an organization and recommend solutions. 
• Serve as liaisons between internal departments and development team. Define the system 
and functional requirements. 
• Assess available technologies to create development specifications as well as detailed test 
cases. 
• Assist with testing to analyze results. 
4 In light of the redacted omissions, we conclude the Petitioner's submission of select sections of the end-client contract 
letter and the mid-vendor's job order profile, diminishes its evidentiary value, as it deprives us of the remaining portions 
that may reveal information either advantageous or detrimental to the petitioning organization's claims, and therefore, is 
oflittle probative value. 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. 
5 A petitioner must establish eligibility at the time of filing the petition. See 8 C.F.R. § 103.2(b )(1 ). The agency made 
clear long ago that speculative employment is not permitted in the H-1 B program. See, e.g.,63 Fed. Reg.30.419. 30,419-
20 (June 4, 1998). 
4 
Matter of B-, Inc. 
• May play a key role in training employees on application, database, and operating systems. 
• Conducts complex work critical to the organization. 
The end-client states that the assignment began in January 2018, and "will continue subject to [end­
client]'s project needs," but does not specify the duration of the project. Further, the end-client does 
not mention the referenced project. Here, the record contains insufficient supporting documentation 
that identifies the scope, duration, and magnitude of the WAM project, to establish the substantive 
nature of the Beneficiary's role therein. 6 For instance, the Petitioner emphasized throughout the 
proceedings that the Beneficiary will liaise or interact with various end-client personnel and 
stakeholder groups, including: 
• Liaise between the business and the technical teams. 
• Work with the team in creating System integrated tests. 
• Work [with] technical team in reviewing and evaluating the functional 
requirements. 
• Work with HP ALM and PL.SQL developer. 
• Facilitate test script execution meeting with Maximo business users and integrated 
application user during system integrated testing. 
Though the Petitioner described the job duties of the position, the evidence does not show the 
operational structure within this initiative in a manner that would establish the Beneficiary's role. 
While the Director in the RFE requested organization charts that would delineate the Petitioner's and 
the end-client's organization, and staffing hierarchy (including the job titles of the positions that the 
Beneficiary will manage in the proffered position, and the job title of the individual he will report to), 
the Petitioner did not sufficiently address this aspect. In its RFE response, the Petitioner provided 
material which indicates that the Beneficiary reports to its vice president of training and development. 
The organization chart shows various positions, including this vice president's position with a 
downward arrow pointing to a box entitled "employees," which lends little insight into the proffered 
position's placement within the Petitioner's organizational hierarchy. Further, the Petitioner did not 
provide evidence of the end-client's project staffing hierarchy, and sufficient information about what 
the WAM project actually entails in order to establish the substantive nature of the Beneficiary's role 
as a "business systems analyst" within the context of this endeavor. 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, 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). 
Moreover, the Petitioner has provided conflicting information regarding requirements for the proffered 
position. The Petitioner indicated in the LCA that the job title of the proffered position was "business 
systems analyst," and designated the proffered position under the occupational category "Computer 
Systems Analysts" corresponding to the Standard Occupational Classification code 15-1121. The 
Petitioner initially stated that if required "bachelor's degree or its equivalent in a field related to the 
proffered position." It also provided a mid-vendor letter which observed that the position "typically 
requires six to nine years of relevant experience or equivalent combination of experience and 
6 Defensor, 201 F.3d at 387-88. 
5 
Matter of B-, Inc. 
education." In response to the Director's RFE, the Petitioner submitted material that provided a 
diverse range of requirements for the proffered position, including: 
• An end-client letter, which specified a minimum position requirement of "a 
Bachelor's degree in Computer Science, Information Systems Business with at 
least 4 years of experience in IT Software Development, typically with 8 or more 
years in dominant project language or related experience" which the Petitioner 
asserted "confirms the educational requirement of the position." 
• A "job order profile" executed by the mid-vendor, which stipulates that the 
proffered position "typically requires six to nine years of relevant experience or 
equivalent combination of experience and education." 
• The Petitioner's September 2018 letter which states that the position "would 
normally require the minimum of a Bachelor's degree or its equivalent in 
Management Information Systems or a closely related field." 
• The Petitioner's June 2017 Business Systems Analyst job announcement which 
required "a minimum of a Bachelor's Degree in Computer Science, Computer 
Engineering, Computer Information Systems or a closely related field. The job 
notice further indicated extensive experience requirements, to include "3+ years' 
system implementation required," and "2+ years' Microsoft Dynamics AX" and 
"3+ years' experience [ with various technologies l" preferred. 
• An opinion letter from I 1 an associate dean of academic 
affairs, School of Business, University of I l in which he opines that "a 
minimum of a Bachelor's Degree in Management Information Systems, 
Engineering Management, or a related area" is required for the proffered position. 
On appeal, the Petitioner restated thel ~ requirements (e.g., a bachelor's degree in 
Management Information Systems, Engineering Management, or a related area) and asserted "[t]he 
record of this proceeding does not include anything to contradict I I' position requirements] 
to successfully perform the duties [ of the proffered position]." However, the Petitioner does not explain 
whyl I position requirements differ from the wide array of position requirements that the 
Petitioner, the end-client, and the mid-vendor contemporaneously put forth, nor does it explain the reasons 
for the variances in the position requirements within the material in the record. 7 The Petitioner must 
resolve these inconsistencies with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, Dec. 591-92. Unresolved material inconsistencies may lead us to reevaluate the 
reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. 
Id. 
Without sufficient and consistent evidence of the Beneficiary's duties in relation to specific end­
client's project(s), and of the minimum requirements necessary to perform the duties of the position, 
the Petitioner has not established the substantive nature of the work to be performed by the 
7 Notably, the I I also does not address the variances between the minimum requirements for the position as 
stipulated by the Petitioner. the end-client, and the mid-vendor relative to his own conclusions regarding the position 
requirements. Therefore, we findl I opinion letter lends little probative value to the matter here. Matter of 
Caron Int'/, 19 I&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. 
6 
Matter of B-, Inc. 
Beneficiary, which therefore precludes a conclusion 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 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 
II. LABOR CONDITION APPLICATION 
On appeal, the Petitioner does not challenge the Director's determination that the LCA does not 
correspond with the H-1 B petition; therefore, we consider the issue waived. Further, since the 
identified basis for denial is dispositive of the Petitioner's appeal, we need not address other grounds 
of ineligibility. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("As a general rule courts and 
agencies are not required to make findings on issues the decision of which is unnecessary to the results 
they reach."). 
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. 
Cite as Matter of B-, Inc., ID# 4583062 (AAO Sept. 19, 2019) 
8 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 fiuiher discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
7