dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10447481 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-18) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 24, 2020 
The Petitioner, a company engaged in information technology solutions and services, seeks to 
temporarily employ the Beneficiary as a ful I stack developer under the H-18 non immigrant 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-18 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. On appeal, 
the Petitioner asserts that the Director erred in the decision. 
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-18 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 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 just any 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B 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 
look to 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 perform during the requested period 
of employment, which precludes a determination of whether the proffered position qualifies as a 
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 
specialty occupation under sections 101(a)(15)(H)(i)(b), 214(i)(1) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(1), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 2 
The Petitioner, which is in Iowa, asserts the Beneficiary will work for an end-client [via two mid­
vendors and a service provider] in Georgia. However, the record does not contain sufficient evidence 
to establish the services the Beneficiary will perform. Specifically, the record (1) does not describe 
the position's duties with sufficient detail; and (2) does not establish that the job duties require an 
educational background, or its equivalent, commensurate with a specialty occupation. 
The Petitioner stated on the Form 1-129, Petition for a Nonimmigrant Worker, and on the certified labor 
condition application (LCA), that the Beneficiary would work as a full stack developer for an end-client 
located inl !Georgia, for the petition's entire employment period, October 2019 to September 
2022.3 
As a preliminary matter, the Petitioner provided inconsistent information regarding the working 
relationships between the Petitioner, the vendors and the end-client. For example, in the initial 
petition, the Petitioner stated that is has a working relationship with the vendor, who in 
turn works with~---------~ who in turn works with~-~ who in turn works 
with AT & T. The Petitioner submitted a master consulting agreement and a statement of work between 
the Petitioner andl las evidence of this working relationship. However, in response to the 
Director's request for evidence (RFE), the information regarding the relationship withl I 
completely disappeared, and the Petitioner did not give any explanation for this change. 
According to the new information in response to the RFE, the Petitioner indicated the relationship with 
the end-client as follows: 
(Petitioner) 
In support of the petition, the Petitioner submitted an agency agreement between the Petitioner and the 
first vendor. The agreement indicated that the first vendor is "soliciting [the Petitioner] to provide 
Consultants with computer programming and analysis skills for assignments with client of [the first 
vendor] or other parties being serviced by [the first vendor's] clients." Thus, the agreement is between 
the Petitioner and the first vendor to provide personnel to the first vendor's clients to work on projects. 
By the terms of its agreement, the document does not commit the Petitioner to any contract for any 
2 The Petitioner submitted documentation to support the H-lB 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 A petitioner submits the LCA to the U.S. Department of Labor (DOL) to demonstrate that it will pay an H-lB 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. § 655.731(a). 
3 
particular services during any period or at any location. In sum, the agreement has little probative weight 
towards establishing actual work to be performed by the Beneficiary for the end-client for any specific 
period or location. Furthermore, the agreement stated that "all such assignments will be under the 
direction and control of [the first vendor]." This statements in the agreement undermines the 
Petitioner's claim that it retains the control of the Beneficiary's duties when working for the end-client. 
As noted in the agreement, "each consultant shall perform the Work described in a written Purchase 
Order." As part of the terms of the agreement, the Petitioner submitted a purchase order (PO) si~ 
the Petitioner and the first vendor. The PO indicated the Beneficiary would work for the clientL___J 
and the end-client, starting on September 1, 2019 for 12 months (with possible extension). The PO 
provided ten bullet points of duties to be performed by the Beneficiary. However, the PO did not provide 
any information regarding the scope of the project, the phase of the project, or the team supporting the 
project. Although the purchase order indicated that the Beneficiary will be providing services to the end­
client, it is unclear from the record how the end-client's proposed generalized functions would translate 
into specific duties the Beneficiary would perform and how such functions necessitate a bachelor's 
degree in a specialized field of knowledge. 
The Petitioner also provided the agency agreements between the first and second vendor, and between 
the second and primary vendor, establishing their working relationships. The agreements were redacted 
in several parts but it appears that each agreement is to provide personnel to a client. These contracts do 
not provide any specific information of the project the Beneficiary will work on for the end-client, or the 
duties to be performed while working at the end-client location. 
The Petitioner submitted letters from the first, second, and primary vendor confirming that they have a 
working relationship with the Petitioner, and that the Beneficiary will provide services to the end-client. 
The letter from the first vendor provided a detailed job description but the letter from the second vendor 
provides the same general duties as found in the PO. The letter from the primary vendor did not provide 
any job description but only confirmed that the Beneficiary will work on a project at the end-client's 
location. The vendors provided confirmation that the Beneficiary will perform work for the end-client; 
however, the vendors did not provide details of the project and how the Beneficiary will perform these 
duties within a specific project for the end-client. Furthermore, the letters from the second vendor, 
primary vendor and the end-client do not indicate that the proffered position requires a bachelor's degree 
in a specific specialty. 
Further, the Petitioner submitted a letter from the end-client that also confirms that the Beneficiary is 
working at the end-client location. The letter did not provide any details of the project or duties to be 
performed by the Beneficiary. However, the end-client did provide the email correspondence regarding 
an inquiry from the Department of Homeland Security. In this email correspondence, the end-client 
confirmed the Beneficiary's assignment with them and provided a description of the duties performed by 
the Beneficiary. The duties are the same duties described by the Petitioner and listed in the purchase 
order. Although the end-client provided a general description of the Beneficiary's duties, it did not 
explain in detail the scope of the project, the number and type of resources needed for the particular 
project, a timeline, milestone tables, technical documentation, budget, or other evidence to establish 
the existence and ongoing nature of the project. Without consistent, probative evidence of the 
proposed duties detailed in the context of a specific project, the record does not communicate (1) the 
actual work that the Beneficiary will perform on a day-to-day basis; (2) the complexity, uniqueness 
4 
and/or specialization of the tasks; and, (3) the correlation between that work and a need for a particular 
level education of highly specialized knowledge in a specific specialty. 
The Petitioner submitted a document entitled, "Project Status Report." The document explained that 
the project for the end-client is~-----~" The report lists the key milestones of the project 
and the start and end date for each milestone. Although this provided some understanding of the 
project, it was prepared by the Petitioner and not confirmed by the end-client. In addition, it does not 
specifically state the Beneficiary's responsibilities within this project report, and it is not clear if the 
end-client requires the duties of the Beneficiary for the entire project. 
The Petitioner submitted two affidavits from individuals working with the Beneficiary on the project 
with the end-client. The affidavits list job duties required for this project and confirm that the 
Beneficiary is working for the end-client. However, the documentation does not provide sufficient 
evidence regarding the Beneficiary's project or assignment and a detailed explanation of the team, 
department and actual work that the Beneficiary will perform for the end-client on a specific project. 
On appeal, the Petitioner submits the service agreement between the primary vendor and the end-client. 
The agreement is redacted in several sections and is missing 30 pages. It appears that the agreement 
allows the primary vendor to supply personnel to the end-client but it is difficult to understand the entire 
scope of the relationship with this limited documentation. The Petitioner also submits unrgned I 
statements of work and amendments between the prime vendor and the end-client for the " 
~------~ project. The sows are incomplete and it is not clear if these documents were 
actually signed and approved. The SOW provided a description of milestones for the project and a list of 
the personnel required for the position. The position of full stack developers is listed but the Beneficiary 
is not specifically listed. Although the documentation submitted on appeal indicates a working 
relationship between the primary vendor and the end-client, it does not provide any specific information 
regarding the Beneficiary's duties while working at the end-client location, or the nature of the project. 
Further, in response to the RFE, the Petitioner provided a project status report and stated that the 
Beneficiary will work on the 'I I' project; however on appeal, the Petitioner submitted 
a project for 1 I' The Petitioner did not provide evidence to establish that 
these are the same projects, or explain why the Beneficiary is working on a different project from the one 
stated in the initial petition. 
Without supporting documentation such as contracts, detailed purchase orders or statements of work, it 
is hard to determine the scope of services and the nature of the relationships between the parties. The 
Petitioner provided insufficient evidence towards substantiating that the petition was filed based on actual 
work that the Petitioner had secured for the Beneficiary for the end-client's location for the employment 
period sought in the petition. 
In addition, the Petitioner did not submit sufficient evidence such as contracts, budget allocation, or 
similar corroborating evidence that the project with the end-client will continue until September 2022 
and will require the services of the Beneficiary as a full stack developer for that entire period.4 USCIS 
4 The agency made clear long ago that speculative employment is not permitted in the H-1B program. For example, a 
1998 proposed rule documented this position as follows: 
5 
regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the 
time the petition is filed. See 8 C.F.R. § 103.2(b)(1). A visa petition may not be approved based on 
speculation of future eligibility or after the 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). The agency 
made clear long ago that speculative employment is not permitted in the H-1B program. See, e.g., 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). 
Because the Petitioner has not established the substantive nature of the Beneficiary's work, we are unable 
to evaluate whether 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. 
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. 
Historically, the Service has not granted H-1B classification on the basis of speculative, or undetermined, 
prospective employment. The H-1B classification is not intended as a vehicle for an alien to engage in 
a job search within the United States, or for employers to bring in temporary foreign workers to meet 
possible workforce needs arising from potential business expansions or the expectation of potential new 
customers or contracts. To determine whether an alien is properly classifiable as an H-1B nonimmigrant 
under the statute, the Service must first examine the duties of the position to be occupied to ascertain 
whether the duties of the position require the attainment of a specific bachelor's degree. See section 
214(i) of the Immigration and Nationality Act (the "Act"). The Service must then determine whether 
the alien has the appropriate degree for the occupation. In the case of speculative employment, the 
Service is unable to perform either part of this two-prong analysis and, therefore, is unable to adjudicate 
properly a request for H-1B classification. Moreover, there is no assurance that the alien will engage in 
a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Non immigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 1998) 
(to be codified at 8 C.F.R. pt. 214). 
6