dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8829386 
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 : MAR. 16, 2020 
The Petitioner, an information technology software development and consulting services company, 
seeks to temporarily employ the Beneficiary as a "datastage developer" 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 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 of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
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: 
( I) 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. Chertojf, 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 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 suppmt the H-1 B 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. 
2 
The Petitioner indicated on the petition and on the certified labor condition application (LCA) 3 that 
the Beneficiary will work as a "datastage developer" forl lin I ~ J 
Missouri, for the requested period of employment from October 2019 to September 2020. The 
Petitioner describes the relationship with the end-client as follows: 
The Petitioner .... .... 
(Vendor) (End-client) 
In support of the contractual relationship, the Petitioner submitted a master services agreement (MSA) 
executed by the vendor and the end-client in March 2018. However, the MSA is heavily redacted, 
which prevents us from reviewing all of the terms of the agreement. The unredacted portion of the 
MSA indicates that a statement of work (SOW) to be attached as Exhibit A. While the MSA contains 
a template SOW as Exhibit A, the pages following the template SOW are completely redacted. 
Therefore, we are unable to review the foll content of Exhibit A. Without foll disclosure of the 
complete contract terms, the MSA between the vendor and the end-client and Exhibit A have little 
probative weight towards establishing the actual work to be performed by the Beneficiary for the 
end-client for any specific period or location. 
The Petitioner also submitted an agreement entitled "Sub-Vendor Agreement" (SV A 
I ~ in March 2019. 5 The SV A states that L...---,--''-""-", 
the Petitioner to request contract workers "to perform Services based upon Requirements receives 
from Customer." Such requirements are described in a "Customer requirement notice" communicated 
to c=J, whiclLJthen informs its sub-vendors. If a contract worker submitted by the Petitioner is 
selected for the position, then the Petitioner receives a work order. However, the record does not 
contain the referenced customer notices or any work orders providing details regarding the 
requirements imposed by the customer. The SV A is limited in scope and does not adequately establish 
the services to be provided by the Beneficiary. Therefore, the SVA executed by the Petitioner and 
~ has little probative weight towards establishing the actual work to be performed by the 
Beneficiary for the end-client for any specific period or location. 
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 2 l 2(n)(l) of the Act; 20 C.F.R. 
§ 655.73l(a). .-------------. .--------. 
4 The SV A uses .___~ ________ __.," I ,, and i ~ interchangeably throughout 
the agreement. However, the record contains insufficient evidence demonstrating the legal relationship of these entities. 
Maryland Business Entity Search website indicates that I I and I l 
although have the same principal office address, are registered as separate entities with different "Department ID 
Number[s]," and have been filra ?PPJJ?) reports individually. The website indicates the status 0~ 5 le- as "Forfeited" 
and it is uncertain whether ..... __ __,_ is related to the vendor. See https://egov.maryland.gov/BusinessExpress 
/EntitySearch (last accessed on Mar. 13, 2020). 
5 The SVA was signed b~on April 1, 2019. 
3 
The two virtually identical letters from D confirm the Beneficiary's assignment at the end-client 
and provide a list of the Beneficiary's duties. 6 While the letters state that the Beneficiary will work 
on the'.__ ______ _." project at the end-client, they not provide a detailed information of the 
project. The letter from the end-client also confirms the Beneficiary's assignment at its location and 
lists the same duties contained in Os letters. However, the end-client's letter also does not provide 
a detailed information of its project. While the letter provides general and cursory information about 
the Beneficiary's assignment and his duties, it does not provide details about the scope of the project 
and deliverables; nor does it explain the Beneficiary's roles and responsibilities in detail. 
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 "[ e ]xtensively use DataStage Designer to develop various jobs ... ," "[p ]repare high[- ]level 
and low-level design documents based on the analysis and client business requirements," "[d]evelop 
high quality code and perform tests ... ," "[p ]erform root cause analysis on all processes and resolve 
production issues and validate all data and perform routine tests on databases and provide support on 
ETL applications," and "[ m ]igrating code from [ d]evelopment server to production server by 
implementing all the change of requirements" 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. 
Also critical is the lack of evidence directly from the end-client regarding whatever academic 
requirement it has for the proffered positon. Although~ claimed that the position requires a 
bachelor's or higher degree in computer science, computers and electronics, a closely related 
engineering discipline, or a related field, there is insufficient evidence that the end-client imposes the 
same requirement. A preference for high-caliber employees is not sufficient to establish a position as 
a specialty occupation. As discussed above, because the Beneficiary will be directly working for the 
end-client at the end-client's place of business, the end-client job requirements are critical in 
determining whether the position qualifies as a specialty occupation. See generally Defensor, 201 
F. 3d 384. Here, the end-client did not indicate a degree requirement in a specific specialty for the 
proffered position. 
The Petitioner submitted affidavits from two of the Beneficiary's coworkers, in which they confirm 
the Beneficiary's assignment at the end-client's location, the project's duration and lists the duties that 
were listed in the end-client's letter. However, the letters are virtually identical. When affidavits are 
6 For the sake of brevity, we will not quote the duties listed by □; however, we have closely reviewed and considered 
them. 
4 
worded the same, it indicates that the words are not necessarily those of the affiant and may cast some 
doubt on the validity of the affidavit. The use of identical language and phrasing raises questions as 
to who actually wrote these letters, and undermines their overall credibility and probative value. In 
evaluating the evidence, the truth is to be determined not by the quantity of evidence alone but by its 
quality (including relevance, probative value, and credibility) of the evidence. Chawathe at 
376; Matter of E-M-,20 I&N Dec. 77, 79-80 (Comm'r 1989). Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582,591 (BIA 
1988). Moreover, the letters do not shed any light onto the nature and scope of the project on which 
the Beneficiary works. As we noted above, 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. Therefore, the affidavits provided by the Beneficiary's coworkers have little probative 
weight towards establishing the actual work to be performed by the Beneficiary for the end-client. 
Further, the Petitioner submitted emails between the Beneficiary and employees at the end-client. 
While these emails indicate that the Beneficiary is working on a project involving the end-client, they 
do not contain sufficient details of the project to provide a context for the emails. The record also 
contains several pages of information in a table format, which the Petitioner identified as "work 
product examples." The document contains various information under the column headings of 
"Changes," "Source Column," "Main Source Table," "Business Requirements" "Key," "Datatype," 
"Size," "Precision" and more. However, the source of this document is unknown and many of the 
table cells contain values such as "No," "N/A," and "False," and many other cells are left blank. The 
information contained in the work product example is limited in scope and does not adequately 
establish the services to be provided by the Beneficiary such as duties or educational requirements for 
the position. Therefore, the emails and the work product document have little probative weight 
towards establishing the actual work to be performed by the Beneficiary for the end-client. 
We reviewed the letter submitted by I I a professor at University ofl I 
In his letter, professor! I concludes that "the described job duties are of a 
professional nature" and require a bachelor's degree in "Computer Science, Computer Engileering, I 
Electrical Engineering, Electronics Engineering, or a related area at a minimum." Professor 
acknowledges that the Beneficiary will be working on a project at the end-client and states: 
Reviewing material on the company, the position, and the specific job duties provide 
[him] with critical knowledge that, when combined with [his] expertise in the field of 
computer science and related areas, and [his] familiarity with hiring practices, active 
industries, and ongoing technological and process developments, enable [him] to 
evaluate the position and determine the appropriate minimum education requirements. 
While professor! I lists the duties provided by the Petitioner, he does not discuss them in any 
substantial detail in relation to the project at 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 
5 
conclusion. While professor! I 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. 
Professor! !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 Datastage Developer's duties are typical of a Software Developer and clearly 
correspond to the duties listed under the category of Software Developer" in the Handbook. However, 
the professor did not discuss the duties in substantial detail within the context of the end-client's 
business operations and did not explain how he arrived at his conclusion. Though relevant, the 
information professor! I references from Department of Labor's Occupational Information 
Network (O*NET) summary report for Software Developers, Applications (SOC 15-1132.00) 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. 7 For all of these reasons, O*NET does not establish the proffered 
position as a specialty occupation. 
Therefore, the letter from professor! I is 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'!, Inc., 19 I&N Dec. 791, 795 
(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 from the end-client regarding the position and its requirements, 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. 
7 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/ 
help/online/svp. 
6 
§ 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. 8 
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 
ORDER: The appeal is dismissed. 
8 As the lack of probative 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 asseitions on appeal regarding the criteria under 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
9 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. 
7