dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10448909 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 19, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"software developer, applications," under the H-1B 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-1B 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. The matter is now before us on 
appeal. 
The Petitioner bears the burden of proof to demonstrate el igibi I ity 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-1B 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, 
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)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe the term "degree" to mean not 
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 
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 
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"). 
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. 
2 
The Petitioner, located in Missouri, asserted the Beneficiary would work at the end-client location in 
Colorado. However, the record does not contain sufficient evidence to establish the terms and 
conditions of the Beneficiary's assignment, and the services to be performed during the requested 
period. 
Although we note that the Petitioner assigned the Beneficiary the posItIon title of "software 
developers, applications," to determine whether a particular job qualifies as a specialty occupation, we 
do not simply rely on a position's title. The specific duties of the proffered position and services to 
be performed, combined with the nature of the petitioning entity's business operations and those of 
the client receiving the worker's services, are factors to be considered. We must examine the ultimate 
employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor, 201 F. 3d 384. The critical element is not the title of the position 
or an employer's self-imposed standards, but whether the position actually 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 as the minimum for entry into the occupation, as required by 
the Act. 
The record contains a professional services agreement (PSA) between the Petitioner and the 
mid-vendor.3 The PSA identifies the mid-vendor as the Petitioner's "client." The PSA is a general 
agreement for the Petitioner to "provide services in response to requests from [the mid-vendor]." The 
PSA does not elaborate on the nature of the "services" to be provided. Instead, it states that "[r]equests 
should specify the nature of the work to be performed, the number of individuals required, the category 
of experience for each, the date on which the [a]ssignment is to begin, the type, length and location of 
the [a]ssignment and the individual who will coordinate for [the mid-vendor]." Without the referenced 
request, the PSA does not specifically identify the services to be performed, the qualifications to 
perform the services, the individual assigned to perform the services, the client-other than the 
mid-vendor-to receive the services to be performed, and other salient details. 
The record also contains a one-page purchase order (PO) between the Petitioner and the mid-vendor. 
The PO indicates that the Beneficiary would be assigned to the end-client for a duration of "12 
months," with a "tentative start date [of] 28th January 2019." The PO does not indicate that the 
assignment may be extended beyond January 2020. Furthermore, the record does not establish that 
the parties extended the assignment beyond January 2020. Regardless of the duration of the 
assignment, the PO does not "specify the nature of the work to be performed," describe the services 
to be provided, identify the Beneficiary's position title or "category of experience," clarify the specific 
location at which the Beneficiary would provide the services, or similar salient details required by the 
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. 
Although the Petitioner describes the mid-vendor as the "primary vendor" and another vendor with a direct relationship to 
the end-client as the "secondary vendor," we typically identify a vendor with a direct relationship to the end-client as the 
"prime vendor" if there is more than one mid-vendor between a petitioner and an end-client. 
3 
PSA. Accordingly, neither the PSA nor the PO establish the services the parties agreed, as of the 
petition filing date, to be performed during the requested period.4 
The record also contains an excerpt from a PSA between the mid-vendor and the prime vendor. The 
PSA excerpt consists of two pages, numbered "1" and "20." Based on the limited information in the 
record regarding the prime vendor PSA, in its excerpted form it appears to be a general agreement for 
the mid-vendor to "provide the [s]ervices to [the prime vendor] and assume the responsibilities in 
accordance with and subject to the terms and conditions of [the prime vendor PSA]." Although the 
prime vendor PSA indicates that the prime vendor "is engaged in the business of providing to [its] 
customers ... professional services, including information technology, engineering, consulting, and 
business process outsourcing services pursuant to certain agreements entered into between [the prime 
vendor] and its [c]ustomers," the PSA does not identify a particular client to receive the services 
provided by the mid-vendor. Furthermore, the prime vendor PSA does not specify which particular 
type of services the mid-vendor would provide. Instead, the prime vendor PSA states: 
The specific services, technology skills, experience and educational qualifications 
required for the services and the relevant details of the Contractor Personnel assigned 
to fulfill the requirements, the required period of assignment, fees and charges payable 
to [the mid-vendor] for the [s]ervices and any other pertinent information relative to 
such specific [s]ervices will be described in a statement of work ... (SOW). 
The record does not contain an SOW or similar document between the prime vendor and the 
mid-vendor, identifying the services to be performed, the qualifications to perform the services, the 
individual assigned to perform the services, the client to receive the services to be performed, the 
duration of the assignment, and other salient details. Accordingly, particularly in the absence of a 
SOW required by the prime vendor PSA, the record does not establish the services the prime vendor 
and the mid-vendor agreed, as of the petition filing date, to be performed during the requested period. 
The record does not contain a PSA, PO, SOW, or any other similar document to which the end-client 
is a party. Instead, the record contains letters from the end-client. The first end-client letter states that 
the end-client "has an agreement with [the prime vendor] wherein [the prime vendor] provides 
information technology services to [the end-client]." The letter further asserts that "[the prime vendor] 
has assigned [the Beneficiary] to our facility." The letter provides a bullet-point list of 15 tasks that 
consist of language that appears, verbatim, on other documents in the record, such as letters from the 
Petitioner and the mid-vendor. In particular, both the mid-vendor and end-client letters contain an 
identical typographical error: "Wok [sic] with Agile and SAFe methodologies for a continuous 
delivery of valuable software." The verbatim nature of the duty description, particularly including a 
typographical error identical to one in another document in the record, raises questions regarding 
whether the list reflects the end-client's requirements. 
Moreover, the duty description consists of generalized language that does not inform what the services 
to be performed entail. For example, the duty description states that the Beneficiary would "[m]aintain 
4 A petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be eligible 
for the benefit through adjudication. 8 C.F.R. § 103.2(b)(1). A visa petition may not be approved at a future date after a 
petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 l&N Dec. 248, 
249 (Reg'I Comm'r 1978). 
4 
and improve the performance of existing application"; however, it does not identify the existing 
application the Beneficiary would maintain and improve, or elaborate on what the Beneficiary would 
do to maintain and improve its performance. Similarly, the duty containing the typographical error, 
noted above, does not inform what valuable software the Beneficiary would deliver continuously. As 
another example, the duty description asserts that the Beneficiary's services would include "[e]nsuring 
high performance on mobile and desktop"; however, it does not clarify what application's performance 
the Beneficiary would ensure. Another example of the duty description's generalized language is the 
task of "[c]learly and regularly communicat[ing] with management technical support colleagues," 
without describing the Beneficiary's management technical support colleagues' roles and the 
substantive nature of the Beneficiary's clear and regular communication with them. The remainder of 
the duty description consists of similarly vague language. 
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. 
Even if the duty description's language were sufficiently detailed to demonstrate the type and 
educational level of knowledge in a specific discipline necessary to perform the services, the end-client 
stated in its first letter that "it is standard to require a bachelor's degree in [c]omputer [s]cience, 
[i]nformation [t]echnology or [e]ngineering or a combination of education and experience in a related 
field." The inclusion of the general field of engineering, without further specialization, is inadequate 
to establish that the proposed 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 engineering, without further specification, does not establish the position as a specialty occupation. 
Cf. Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988). 
The Petitioner submitted another letter from the end-client in response to the Director's request for 
evidence. Although the end-client's letters provide the same general information, the second 
end-client letter altered its degree requirement, instead stating that the Beneficiary's position is one 
"for which a minimum of requires [sic] at minimum [sic] a Bachelor's Degree or equivalent in 
Computer Science, Information Technology, or a similar discipline is required sic]." The record does 
not reconcile why the end-client altered its degree requirement after the petition filing date to exclude 
the general field of engineering. As noted above, a petitioner must establish eligibility at the time of 
filing the nonimmigrant visa petition and must continue to be eligible for the benefit through 
adjudication. 8 C.F.R. § 103.2(b)(1). A visa petition may not be approved at a future date after a 
petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 
17 l&N Dec. 248, 249 (Reg'I Comm'r 1978). 
5 
Another dissimilarity between the end-client's letters is the stated duration of the assignment. Initially, 
the end-client stated that "[the Beneficiary's] services will be required through 12/10/2021." 
However, the end-client's second letter revised the duration, asserting instead that the end-client 
"anticipate[s] that [the Beneficiary's] services will be necessary for a period of three years till June 
2022." Neither end date of December 2021 or June 2022 match the stated duration of the only 
contractual document among the parties in the record to specify what the parties agreed, as of the 
petition filing date, the assignment's duration would be, the PO, which indicates the duration would 
be "12 months" after the "tentative start date [of] 28th January 2019." 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 
end-client's inconsistent statements regarding the duration of the assignment, particularly when 
compared to the stated duration of the PO and in the absence of other documents to corroborate the 
end-client's assertions, cast doubt on the rel iabi I ity and sufficiency of the statements in the end-client's 
letters. 
In summation, we conclude that the ambiguities, inconsistencies, and lack of documentation in the 
record do 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 4.5 
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. 
5 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). 
6