dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-C-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 13,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an IT staffing and outsourcing services firm, seeks to temporarily employ the 
Beneficiary as a "systems engineer" under the H -1 B nonimmigrant 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-1B program allows a U.S. employer to temporarily employ ~ 
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, Vermont Service Center, denied the petition. The Director concluded that the 
evidence of record does not establish that there is specialty occupation work available in the capacity 
described in the petition for the duration of the requested validity period. 
The matter is now before us on appeal.. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in finding that specialty occupation work was not available for the 
Beneficiary. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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. 
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: 
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Matter of F-C-, LLC 
(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.P.R.§ 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 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). 
II. PROFFERED POSITION 
In the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner stated that the Beneficiary 
will be employed at its premises as a "systems engineer" for its client 
The Petitioner also submitted a labor condition application (LCA) that listed 
two places of employment- the Petitioner's offices in Georgia, and an address for 
m Massachusetts. 
The Petitioner's support letter stated as follows, in pertinent part: 
Upon joining [the Petitioner] on a valid H-1B visa, [the Beneficiary] will be working 
as a Systems Engineer for from [the Petitioner's] 
office . . . . [The Beneficiary] is expected to continue working for 
from [the Petitioner's] office ... for the duration of the 
validity period. No other work locations are anticipated for him and accordingly this 
is the complete itinerary of the services to be performed by the Beneficiary .... 
This specialty occupation position of a Systems Engineer within [the Petitioner] 
requires as a minimum a Bachelor's degree or its equivalent with a minor or 
concentration in any branch of Engineering, Computer Science, Computer 
Applications, Information Systems, or a related field .... 
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Matter of F-C-, LLC 
The Petitioner also described the proffered duties and broke them down into percentages as follows 
(verbatim, but not in the chart format as used by the Petitioner): 
• SAN storage allocations/de-allocations on the EMC Clariion and configuring and 
troubleshooting the storage on various host environments including SUN Solaris, 
IBM, AIX, HP-UX, LINUX and MS Windows. [25%] 
• Installation, configuration, upgrades and troubleshooting of EMC Pwerpath, EMC 
Solutions enabler and various HBA drivers/firmware including Qlogic, Emulex 
and Sun Leadville. [25%] 
• Maintaining data center masters, media servers and clients in Veritas NBU 5.1 
MP4 environment. [25%] 
• Maintaining Netapp filers, which are responsible for providing general file 
services for lESS business units NFS, CIFS file services to the servers that reside -
in Quarantine Zones. [25%] 
On the LCA, the Petitioner designated the proffered position under the occupational category 
"Network and Computer Systems Administrators" corresponding to the Standard Occupational 
Classification code 15-1142. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 1 
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.2 
We find that the record of proceedings contains inconsistencies that undermine the Petitioner's 
claims regarding the proffered position. The Petitioner claims that its .. end-client is and the 
Beneficiary will work on a project for for the entire duration of the petition. However, the 
master subcontracting agreement between the Petitioner and dated February 12, 2014, 
contradicts this claim. Specifically, the Petitioner's relationship with is summarized as 
follows: 
1 
We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
2 The Petitioner submitted documentation to support the H-1 8 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. 
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Matter of F-C-, LLC 
1. Structure of the Relationship Between Parties. 
1.1. Engagements. Pursuant to this Agreement, may retain [the 
Petitioner] to act as subcontractor to provide Services to 
End-Client. Work shall not begin without issuance of a 
Statement of Work ("SOW"). Work commenced by [the Petitioner] 
without a SOW shall be deemed "at-risk." An engagement shall be 
effective upon acceptance by [the Petitioner] of the -issued 
SOW (an "Engagement"). Each Engagement shall constitute a 
separate transaction between the parties, but shall be subject to the 
terms and conditions of this Agreement, the applicable Agreement 
Addendum, and the applicable SOW. 
This agreement 
indicates that may retain the Petitioner to act as its subcontractor to provide 
services for the end-client, which contradicts the Petitioner's claim 
that is the end-client. On 
appeal, the Petitioner submits a brief which states that ' is the end client. There is no other 
arrangement or entity through which work is done." This submission, however, does not contain 
sufficient evidence to resolve inconsistencies in the record of proceedings. Specifically, the 
Petitioner submits a project proposal titled "[The Petitioner's] Solution Proposal to 
dated December 2014. Notably, the 
project states under the section "Terms & Conditions" that is to issue a "formal [p ]urchase 
order," and the Petitioner proposes that' and [the Petitioner] could enter into a 'contract' that 
will govern the terms and conditions of this project." However, the Petitioner did not submit a 
purchase order or 
a contract with 
Further, the proposal document contains information petiaining to other individuals, but does not 
identify the Beneficiary as being a resource that will serve as a systems engineer on this particular 
project. Instead, the proposal indicates the need for a project managt:(r, infrastructure architect, 
application architect, infrastructure migration engineer, and application' migration engineer. The 
document also lists the candidates for these proposed positions, but notably the Beneficiary is not 
identified as one of these candidates. 
Although the record contains a task order between the Petitioner and dated November 3, 
2015, which identifies the Beneficiary as an approved "vendor personnel" authorized to provide 
services on Internal Projects from October 1, 2015, until August 30, 2018, there IS no 
additional documentation outlining upon what particular project(s) the Beneficiary will work. 
Without a purchase order or contract that outlines the terms and conditions of the Beneficiary's 
employment and information regarding specific projects to which the Beneficiary would be assigned 
that covers the duration of the period of employment requested, we are not able to ascertain what the 
Beneficiary would do, where the Beneficiary would work, as well as how this would impact 
circumstances of his relationship with the Petitioner. A petition must be filed for non-speculative 
work for the Beneficiary, for the entire period requested, that existed as of the time of the petition's 
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Matter of F-C-, LLC 
filing. The Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 
8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future date after the Petitioner or 
Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N 
Dec. 248, 249 (Reg'l Comm'r 1978).3 
Finally, we will address the issues raised by the Director regarding the noted discrepancies regarding 
the Petitioner's business operations. First, the Director questioned whether the Petitioner's office 
space, consisting of approximately 1100 square feet, could sufficiently house its claimed staff of 20 
employees. On appeal, the Petitioner asserts that the nature of its enterprise involves the outsourcing 
of personnel to client sites, thereby explaining the small commercial space given the size of its staff. 
Upon review, we find the Petitioner's explanations sufficient to satisfy the Director's inquiries. 
The Director further noted that the Petitioner's manager, appeared to have a 
management role within while simultaneously holding a managerial position within the 
Petitioner's organization. On appeal, the Petitioner submits an affidavit from who 
acknowledges that he did in fact work for from January of2010 until January of2012. 
affidavit is sufficient to address this perceived discrepancy by the Director. 
However, we must note for the record some additional discrepancies with regard to the Petitioner's 
relationship with A search of public corporate records for the State of Massachusetts 
reveals that and the Petitioner have the same president and chief executive officer, namely 
While not a basis for denial of the petition, the shared control of these entities, 
coupled with the common commercial space leased in the same business complex, raises further 
questions with regard to the legitimacy of the job offered to the Beneficiary. Again, for the reasons 
noted above,. absent documentation outlining the terms and conditions of- the Beneficiary's 
employment, such as the project(s) on which he would work and for whom, we cannot determine 
that a reasonable and credible offer to employ 
the Beneficiary in a specialty occupation exists. 
3 Speculative employment is not permitted in the H-1 B program. A 1998 proposed rule documented this position as 
follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B 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-1 B nonimmigrant undey 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-1 B 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 Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419c2Q (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). · 
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Matter of F-C-, LLC 
The record does not provide sufficient evidence to demonstrate that the proffered position qualifies 
as a specialty occupation. Therefore, we cannot determine that description of the proffered position 
communicates: (1) the actual work that the Beneficiary would perform; (2) the complexity, 
uniqueness and/or specialization of the tasks; and/or (3) the correlation between that work and a 
need for a particular level education of highly specialized knowledge in a specific specialty. "[I]t is 
incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence." 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing 
to where the truth lies. !d. at 591-92. 
The inability to establish the substantive nature of the work to be performed by the Beneficiary 
consequently 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 ofthe specific duties, which is the focus of criterion 4. Accordingly, as the Petitioner 
has riot 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 as a specialty occupation. 
However, even if the Petitioner had credibly established substantive nature of the proffered position, 
we find that there is insufficient evidence to establish that the proffered position qualifies as a 
specialty occupation. The proffered position does not require the attainment of a baccalaureate or 
higher degree in a specific specialty, or its equivalent, as the minimum requirement for entry into the 
occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). 
The Petitioner indicated in its support letter that the education requirement for the proffered position 
is "a Bachelor's degree or its equivalent with a minor or concentration in any branch of Engineering, 
Computer Science, Computer Applications, Information Technology, or a related field." The record 
also includes a letter from which confirmed the same requirement. 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty (or its equivalent)" requirement of section 214(i)(l )(B) of the Act. In such a 
case, the required "body of highly specialized knowledge" would essentially be the same. Since 
there must be a close correlation between the required "body of highly specialized knowledge" and 
the position, however, a minimum entry requirement of a degree in two disparate fields, such as 
philosophy and engineering, would not meet the statutory requirement that the degree be "in the 
specific specialty (or its equivalent)," unless the Petitioner establishes how each field is directly 
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Matter of F-C-, LLC 
related to the duties and responsibilities of the particular position such that the required "body of 
highly specialized knowledge" is essentially an amalgamation of these different specialties. Section 
214(i)(l)(B) ofthe Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," 
we do not so narrowly interpret these provisi9ns to exclude positions from qualifying as specialty 
occupations if they permit, as a minimum entry requirement, degrees in more than one closely 
related specialty. See section 214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). This also includes 
even seemingly disparate specialties providing, again, the evidence of record establishes how each 
acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
position. 
Here, both the Petitioner and claim that the duties of the proffered position can be performed 
by an individual with a bachelor's degree in "any branch of Engineering, Computer Science, 
Computer Applications, Information Technology, or a related field." The issue here is that it is not 
readily apparent that these fields of study are closely related or that the field of engineering is 
directly related to the duties and responsibilities of the particular position proffered in this matter. 
As the evidence of record does not establish how these dissimilar fields of study form either a body 
of highly specialized knowledge or a specific specialty, or its equivalent, the Petitioner's assertion 
that the job duties of this particular position can be performed by an individual with a bachelor's 
degree in any of these fields suggests that the proffered position is not a specialty occupation. 
Therefore, absent probative evidence of a direct relationship between the claimed degrees required 
and the duties and responsibilities of the position, it cannot be found that the proffered position 
requires, at best, anything more than a general bachelor's degree. A petitioner's unsupported 
statements are of very limited weight and normally will be insufficient to carry its burden of 
proof. See Matter ofSofjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing"Matter ofTreasure Craft 
o.f Cal., 14 I&N Dec. 190 (Reg' I Comm'r 1972)); see also }vfatter of Chawathe, 25 I&N Dec. at 
376. The Petitioner must support its assertions with relevant, probative, and credible evidence. See 
Matter ofChawathe, 25 I&N Dec. at 376. 
IV. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.f F-C-, LLC, ID# 29490 (AAO Jan. 13, 2017)