dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6057038 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 12, 2020 
The Petitioner, an information technology software development and consulting services company, 
seeks to temporarily employ the Beneficiary as a "TFS administrator" under the H-lB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(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 evidence of 
record does not establish that the proffered position qualifies as a specialty occupation. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. Upon 
de nova review, we will dismiss the appeal. 1 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the tenn "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 offered position 
must meet one of the following criteria to qualify as a specialty occupation: 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
(]) 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. 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation because the record contains inconsistencies that 
undermine the Petitioner's claims regarding the proffered position and lacks sufficient evidence of the 
services that the Beneficiary will perform for the end-client. 2 
The Petitioner indicated on the petition and on the certified labor condition application (LCA) 3 that 
the Beneficiary will work as a "TFS administrator" for~------~ ( end-client) irl I 
2 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered position, 
its business operations, and information about the end-client. Although we may not discuss every document submitted, 
we have reviewed and considered each one. 
3 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. 
§ 655.73l(a). 
2 
Delaware, for the requested period of employment from October 2018 to August 2021. While the 
Petitioner stated that the Beneficiary's assignment at the end-client is based on an agreement it has 
with.__ __________ ___.(vendor), in a letter submitted in support of the petition, the 
Petitioner stated that the Beneficiary's employment "is not 'labor for hire' arrangement." 
The Petitioner submitted a document entitled "Independent Staffing Supplier Agreement" (Supplier 
Agreement) executed by the Petitioner and the vendor in November 2017. The Supplier Agreement 
states that the Petitioner "will assign contract labor personnel ... through [ the Vendor] to Customer." 
The Supplier Agreement farther states that "Customer retains the right to define the position and 
specify the general qualifications, expertise and other requirements that candidates must meet to fulfill 
the assignment." According to the Supplier Agreement, the Petitioner will "[a]bide by all Client 
flow-down terms (if any) attached at Exhibit A-1: Client Flow-Down Terms." 
The record does not contain an Exhibit A-1 as indicated by the Supplier Agreement. However, the 
Petitioner submitted an Exhibit A, the vendor staffing "WORK ORDER" which was signed by the 
Petitioner and the vendor on November 30, 2017. According to the work order, the Petitioner was 
"contracted to perform work for ('CUSTOMER') c=]" and states that "[s]taffing [s]upplier agrees 
to complete the assignment within the guidelines as provided by the Customer .... " The record is 
ambiguous regarding the business relationshipc=] may have with I I and the 
Petitioner does not explain the reason for submitting a work order fore=] rather thanl I 
I I, which it identified as the end-client. Further, the information contained in the work 
order is limited in scope. Although the work order identifies the Beneficiary by name as the personnel 
who will work on the project and provides information regarding rate, invoicing and more, it does not 
adequately establish the services to be provided by the Beneficiary. The work order states that 
"Customer" provides guidelines for the assignment, but does not specify how the customer 
communicates such guidelines. 4 Without additional documents, the Supplier Agreement and the work 
order have little probative weight towards establishing the end-client and the actual work to be 
performed by the Beneficiary for the end-client. 
The Petitioner submitted a letter from~------- the end-client. The end-client stated that 
the Beneficiary will be working as a "Team Foundation Server (TFS) Administrator/Developer" and 
listed the duties for this position. 5 However, the end-client did not provide a detailed information of 
the project. 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 particular employer. Without information regarding assignments that the Beneficiary 
would engage in, the description of the duties does not provide sufficient basis to conclude that the 
position requires the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate or higher degree in the specific specialty, or its equivalent. For 
example, the duties such as "[m]igration of the large TFS systems from one domain to other domain," 
"[ s ]ubject [ m ]atter [ e ]xpert with TFS, hands-on experience creating and managing the various 
developments, build platforms and deployment strategies," "[r]esponsible for planning, managing, 
4 See paragraph 4 of the work order, "Staffing Supplier agrees to complete the assignment within the guidelines as provided 
by the customer or within any reasonable changes in the guidelines as provided by the Customer." 
5 We acknowledge that the Petitioner also submitted a list of job duties, which, for the sake of brevity, has not been typed 
into the decision. However, we closely reviewed and considered the job duties, as with all evidence in the record, and will 
incorporate them into our analysis. 
3 
maintaining, coordinating and executing the build process for complex, multi-tier web software, both 
for applications and databases," and "[a]ssist other more senior members of team in the designing, 
development, testing, maintenance and execution of sophisticated build process and scripts" do not 
meaningfully establish a need for a particular level of education, or its equivalency, in a body of highly 
specialized knowledge in a specific specialty. With the broadly described duties, and insufficient 
evidence regarding work specific to a particular project, the record lacks evidence to demonstrate that 
the proffered position requires a bachelor's degree level of knowledge in a specific specialty. That is, 
the record does not adequately communicate (1) the actual day-to-day work that the Beneficiary will 
perform; (2) the complexity, uniqueness, or specialization of the tasks; and (3) the correlation between 
that work and a need for a particular level of education and knowledge. 
Aside from the insufficiencies noted above, the record contains varying requirements for the proffered 
pos1t10n. According to the end-client, the proffered position requires "a Bachelor's degree in 
Computer Science Engineering or Information Systems or its equivalent." However, in its support 
letter, the Petitioner stated that the job duties require "a Bachelor's degree or its equivalent, in addition 
to many years of experience of increasing responsibility in programming, programming analysis, and 
systems analysis." The Petitioner did not quantify the years of experience the position requires, but 
stated that the position requires "a Bachelor's degree in technology, Business, Computer Applications, 
Computer Information Systems, Management Information Systems, Engineering (any), Science, Math 
or equivalent degree and relevant work experience." On appeal, the Petitioner highlights its 
requirements and states that "the offered position requires education and experience beyond that of an 
entry-level role." As noted above, the end-client does not require experience in addition to the degree 
requirement. The Petitioner does not explain the inconsistencies between its positions requirements 
and the requirements stated by the end-client. The Petitioner must resolve these inconsistencies with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&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. 
Moreover, the varying degree requirements - particularly if the Petitioner accepts a general business 
or a science degree - further call into question the nature of the position and whether such work would 
qualify as a specialty occupation. We interpret the degree requirement at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed 
position. The requirement of a bachelor's degree in business or science is inadequate to establish that 
a 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. Since there must be a close correlation between the required specialized studies and the 
position, the requirement of a degree with a generalized title, such as business or science, without 
further specification, does not establish the position as a specialty occupation. Cf Matter of Michael 
Hertz Assocs., 19 I&N Dec. 558,560 (Comm'r 1988). 
On appeal, the Petitioner states that "USCIS cannot summarily dismiss and must consider" the "expert 
testimony" it submitted fronj I a professor at University of I I I I In his letter, I I concludes that the proffered position is a "specialty 
occupation" requiring "a Bachelor's degree in Computer Science, Information Systems, Information 
Technology, Electronics Engineering, or a related area or the equivalent." Whilel I 
lists the duties provided by the Petitioner and acknowledges that the Beneficiary will be working on a 
4 
project at the end-client, he does not discuss the duties in any substantial detail in relation to the project 
at the end-client. 6 Nor does he discuss the inconsistencies in the degree and experience requirements 
stated by the Petitioner and the end-client. His level of familiarity with the actual job duties as they 
would be performed in the context of the end-client's business has therefore not been substantiated. 
Moreover, he provides insufficient analysis in explaining how he arrives at his conclusion. While 
......._ _____ __.states that he has published numerous journal articles, technical reports, editorials, a 
book and a book chapter, there is no indication that he has conducted any research or studies pertinent 
to the educational requirements for such positions ( or parallel positions) and no indication of 
recognition by professional organizations that he is an authority on those specific requirements. 
~-----~!compares the duties of the proffered position to the general duties listed in the U.S. 
Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) and states that "it is 
apparent that the TFS Administrator's duties are typical of a Network and Computer Systems 
Administrator" and that "most have a Bachelor's Degree in a computer-related field." In regards to 
"Network and Computer Systems Administrators," corresponding to the Standard Occupational 
Classification code 15-1142, the Handbook states, in pertinent part: "Most employers require network 
and computer systems administrators to have a bachelor's degree in a field related to computer or 
information science. Others may require only a postsecondary certificate or an associate's degree." 7 
The Handbook specifically states that an employer may accept a postsecondary certificate or an 
associate's degree rather than a bachelor's degree in a specific specialty. Therefore, the Handbook 
does not support I ~s and the Petitioner's assertions that a baccalaureate or higher 
degree in a specific specialty, or its equivalent is normally the minimum requirement for entry. 
Though relevant, the information professor I I quotes from Department of Labor's Occupational 
Information Network (O*NET) summary report for "Network and Computer Systems Administrators" 
(SOC code 15-1142.00) does not establish that a bachelor's degree in a specific specialty, or the 
equivalent, is normally required. The O*NET Summary Report provides general information 
regarding the occupation, but it does not support a conclusion that the proffered position requires a 
bachelor's degree in a specific specialty, or the equivalent. Instead, O*NET assigns these positions a 
"Job Zone Four" rating, which states "most of these occupations require a four-year bachelor's degree, 
but some do not." Moreover, the Job Zone Four designation does not indicate that any academic 
credentials for Job Zone Four occupations must be directly related to the duties performed. In addition, 
the specialized vocational preparation (SVP) rating designates this occupation as 7 < 8. An SVP rating 
of 7 to less than ("<") 8 indicates that the occupation requires "over 2 years up to and including 4 
years" of training. While the SVP rating indicates the total number of years of vocational preparation 
required for a particular position, it is important to note that it does not describe how those years are 
to be divided among training, experience, and formal education. The SVP rating also does not specify 
the particular type of degree, if any, that a position would require. 8 For all of these reasons, O*NET 
does not establish the proffered position as a specialty occupation. 
61 I states that he interviewed i I of [the Petitioner]" on two separate occasions regarding the 
position. However, the organizational chart submitted by the Petitioner does not reflect this individual as an employee of 
the Petitioner. 
7 See https://www.bls.gov/ooh/computer-and-information-technology/network-and-computer-systems-administrators. 
htm#tab-4 (last visited Feb. 12. 2020). 
8 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/ 
help/online/svp. 
5 
~-----~I also states that he has "researched the specific labor market and commerce standards 
for Missouri, in which [the Petitioner] is headquartered" and states that "state-level information 
verifies that Bachelor's-level preparation is required at a minimum to fulfill the typical job duties and 
responsibilities of this occupation." However, the professor's discussion of the industry standards 
appears incomplete as he does not discuss the industry standards for Delaware - the end-client's 
location where the Beneficiary will be working. Moreover, the data submitted for Missouri does not 
indicate that the degree must be directly related to the duties performed. 
Therefore, the letter froml ~s insufficient to support the Petitioner's assertion that the 
proffered position qualifies as a specialty occupation. As a matter of discretion, we may use opinion 
statements submitted by the Petitioner as advisory. Matter of Caron Int 'l, Inc., 19 I&N Dec. 791, 79 5 
(Comm'r 1988). However, we will reject an opinion or give it 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 I&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 rather is admissible only if 'it will assist 
the trier of fact to understand the evidence or to determine a fact in issue.'"). 
Given the insufficient evidence, generalized description of the proffered position in the record along 
with inconsistent requirements for it, we conclude that the Petitioner has not established the 
substantive nature of the work to be performed by the Beneficiary, which 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 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. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. 9 
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. 10 
ORDER: The appeal is dismissed. 
9 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). 
10 As the ground discussed above is dispositive of the Petitioner's eligibility for the benefit sought in this matter, we will 
not address and will instead reserve our determination on whether the record sufficiently demonstrates that the Petitioner 
will have employer-employee relationship with the Beneficiary while he works at the end-client's location. 
6