dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 10188870 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 29, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "software developer " under the H-lB 
nonirnmigrant 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-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 California Service Center Director denied the petition , concluding that the record did not: (1) 
include a timely filed certified labor condition application (LCA) and (2) establish that the proffered 
position is a specialty occupation and that the Beneficiary would perform services in a specialty 
occupation for the requested employment period . 
The petitioner bear s the burden of proof to demonstrate eligibility by a preponderance of the evidence . 1 
The Administrative Appeals Office (AAO) reviews the question s in this matter de nova. 2 Upon de 
nova review, we will dismiss the appeal. 
I. LABOR CONDITION APPLICATION 
The Petitioner , an information technology (IT) services business, located in I I Ohio , filed this 
petition in April 2019 for the Beneficiary to work as a software developer from October 1, 2019 to 
September 25 , 2022. The Petitioner indicated on the Form 1-129, Petition for a Nonirnrnigrant Worker , 
that the Beneficiary will work offsite . On the LCA submitted in support of the H-lB petition, the 
Petitioner identified the Beneficiary 's work location as inl ,I Georgia for the end-client, 
I I In response to the Director's request for evidence (RFE) , the Petitioner submitted a new 
LCA, certified subsequent to the filing of the petition , which identified the Beneficiary's work location 
as inl !Georgia , for a different end-client,! 13 
1 Section 291 of the Act; Matter ofCh awathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
3 The locations on the two LCAs are in the same Metropolitan Statistical Area (MSA) . 
A petitioner is required to submit a certified LCA to the Department of Labor (DOL) 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. 
§ 655.731(a). The LCA serves as the critical mechanism for enforcing section 212(n)(l) of the Act, 
8 U.S.C. § 1182(n)(l). 4 
The Director correctly concluded that the newly submitted LCA, certified after the petition was filed, 
could not be used to support the petition. The Petitioner agrees with this portion of the Director's 
decision but asserts that the initial LCA was valid when the petition was filed and because both the 
initial end-client and the new end-client locations are in the same Metropolitan Statistical Area, it was 
not required to submit a new LCA or amended petition. 5 
As the Petitioner does not intend to use the new LCA to support this petition, we will not discuss the 
new LCA further and will review the Director's decision concluding that the Petitioner had not 
established the proffered position is a specialty occupation and that the Beneficiary would perform 
services in a specialty occupation for the requested employment period. 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB 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)(l) of the Act, 8 U.S.C. § 1184(i)(l), 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)(l) 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. 6 Lastly, 
4 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80, 110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that 
the wage protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage 
in hiring temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] 
with [DOL]."). 
5 We do not reach and hereby reserve the issue of whether the Petitioner is required to file an amended petition because of 
the change of mid-vendor, end-client proposed duties, and project; but observe that any material changes to the original 
(in this case the instant petition) in terms and conditions of employment or training, or the Beneficiary's eligibility (when 
compared to the original petition) requires an amended petition. See also 8 C.F.R. § 214.2(h)(2)(i)(E); see also INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of 
which is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 2015) 
( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
6 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions ofa 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 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
2 
8 C.F.R. § 214.2(h)(4)(i)(A)(I) 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 perform services in a specialty occupation, we 
look to the record to ascertain the duties the Beneficiary will perform and whether such duties 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 in 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, 87-88 (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)(l) 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)(l). 
B. 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 
specialty occupation under sections 10l(a)(15)(H)(i)(b), 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A).7 
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"). 
7 The Petitioner submitted documentation to suppmt 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 
We have considered the Petitioner's claim on appeal that the letters signed by the Petitioner and the 
initial mid-vendor in support of the petition confirm the availability of specialty occupation work for 
the Beneficiary when the petition was filed. The initial record includes the Petitioner's letter providing 
a broad outline of proposed duties for the end-client I land a letter from a mid-vendor with a 
verbatim description of duties. Neither letter specifies the academic qualifications or experience 
needed to perform the generally described duties and neither letter indicates when the Beneficiary will 
begin work for the mid-vendor 8 or end-client and when any anticipated work will end. The first duty 
listed indicates generally that the Beneficiary will design and develop an IVP application for the 
end-client. However, this duty and the remaining 11 perfunctory bullet point are not sufficiently 
detailed to ascertain the nature of the proposed position. That is, they do not purport to explain what 
the Beneficiary will actually be doing, but instead describe duties of"typical" positions located within 
the occupational category, which does little to assist us in understanding how the Beneficiary will 
spend his time at the end-client facility. The duties are so broadly described we cannot ascertain either 
the application of knowledge needed to perform the position, the nature of the occupation, and the 
wage level required. Accordingly, we cannot conclude from the limited information in the initial 
record regarding the proposed position that the duties described comprise the duties of a specialty 
occupation position. 9 
Additionally, we observe that without the full chain of contracts in this case, or other evidence 
corroborating the existence of a contractual chain, we cannot determine whether there is or was at the 
time of filing the petition, a legal obligation on the part of the end-client to contract for specific 
resources or continue to need resources to augment its staff The record does not include a contract, a 
statement of work, a purchase order, or any evidence that the Petitioner and mid-vendor had 
consummated an agreement wherein the end-client had a legal obligation to provide any position(s) 
which the Beneficiary might fulfill. Thus, there is insufficient evidence in the initial record to 
demonstrate that the Petitioner had obtained H-lB caliber work for the Beneficiary when the petition 
was filed. 10 
8 The mid-vendor's letter "confirm[s] that [the Beneficiary] is providing contract services on an ongoing basis to our 
customer.I I. .. ", but does not indicate when such services began. 
9 As observed above, the regulations indicate that the Petitioner shall submit additional evidence as the Director, in his or 
her discretion, may deem necessary in the adjudication of the petition. See 8 C.F.R. §§ 103.2(6)(8), 214.2(h)(9)(i). The 
purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the benefit sought 
has been established, as of the time the petition is filed. See id. §§ 103.2(b)(l), 103.2(6)(8), 103.2(b)(l2). "Failure to 
submit requested evidence which precludes a material line of inquiry shall be grounds for denying the [petition]." Id. 
§ I 03.2(b )( 14). Here, the Petitioner did not submit evidence further detailing the duties the Beneficiary would perform at 
the initial end-client, but instead acknowledged that the position no longer existed. As the Petitioner did not provide further 
information regarding the initially proposed position, the record did not include probative evidence establishing that a 
specialty occupation position existed when the petition was filed. 
10 The petition was filed on April 4, 2019. The record in response to the Director's RFE did not include evidence 
establishing that the claimed initial work existed when the petition was filed. Instead as noted above, in response to the 
Director's RFE, the Petitioner claimed it had work for the Beneficiary at a different end-client through a different 
mid-vendor. As the Director determined, the contract between the Petitioner and the new mid-vendor was dated August 
22, 2019, a date subsequent to the date of filing the petition, and thus contracted work through this chain of contracts was 
not available when the petition was filed. Again, as observed above, the Petitioner must establish eligibility at the time of 
filing the petition and must continue to be eligible through adjudication. 8 C.F.R. § I 03 .2(b )(I). 
4 
We have considered the Petitioner's declaration on appeal that the initial end-client "project was 
shelved due to unforeseen circumstances," however this acknowledgement appears to confirm that the 
Petitioner had not entered into agreements legally obligating the mid-vendor or the end-client to 
provide work for the Beneficiary to perform at the time the petition was filed. The meager amount of 
credible information submitted does not establish that the Petitioner had work, let alone H-lB caliber 
work, available for the Beneficiary when the petition was filed. 
In this matter the Director requested evidence of the Beneficiary's work assignments, copies of 
relevant, signed contractual agreements between the petitioner and all other companies involved in the 
Beneficiary's placement and any other evidence that would demonstrate the contracted work. On 
appeal, the Petitioner asserts that these documents were not available at the time of filing the petition 
because of the end-client's confidentiality policy. 11 However, also on appeal, the Petitioner submits 
a master subcontracting services agreement between the Petitioner andl I the initial 
mid-vendor, dated October 2, 2018, to demonstrate it had work available for the Beneficiary when the 
petition was filed. The Petitioner also includes an Exhibit B to the contract which identifies the 
Beneficiary by his first two names, indicates he will work as a UI developer, and states that the start 
date for the work is September 24, 2018. 12 The Petitioner does not explain why these two documents, 
documents apparently in its possession, were not submitted in response to the Director's RFE. 
Accordingly, where, as here, a petitioner has been put on notice of a deficiency in the evidence and 
has been given an opportunity to respond to that deficiency, we will not accept evidence offered for 
the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); see also Matter of 
Obaigbena, 19 I&N Dec. 533,537 (BIA 1988). If the Petitioner had wanted the submitted evidence 
to be considered, it should have submitted the documents in response to the Director's RFE. Id. Under 
the circumstances, we need not and do not consider the sufficiency of the evidence submitted for the 
first time on appeal. 
We must review the actual duties the Beneficiary will be expected to perform to ascertain whether 
those duties require at least a baccalaureate degree in a specific specialty, or its equivalent, as required 
for classification as a specialty occupation. To accomplish that task, we must analyze the actual duties 
in conjunction with the specific project(s) to which the Beneficiary will be assigned. To allow 
otherwise, results in generic descriptions of duties that, while they may appear (in some instances) to 
comprise the duties of a specialty occupation, are not related to any actual services the Beneficiary is 
expected to provide. Here, the Petitioner has not provided sufficient details regarding the nature and 
scope of the Beneficiary's employment or any substantive evidence regarding the actual work that the 
Beneficiary would perform for the initial end-client. Without a meaningful job description, the record 
11 Although a petitioner may always refuse to submit confidential commercial information ifit is deemed too sensitive, the 
Petitioner must also satisfy the burden of proof and runs the risk of a denial. Cf Matter of Marques, 16 l&N Dec. 314 
(BIA 1977) (holding the "respondent had every right to assert his claim under the Fifth Amendment[; however], in so 
doing he runs the risk that he may fail to carry his burden of persuasion with respect to his application."). 
12 These documents do not describe the proposed work, the project, the anticipated time frame for the project, or indicate 
when the project will end. The record on appeal also includes two pages of a 2008 agreement between the initial 
mid-vendor and the initial end-client. One of the pages refers to an exhibit A as reserved for statements of work. but the 
record does not include a statement of work between the mid-vendor and the end-client. We observe that these documents 
are also insufficient to establish the nature of the proposed work, the qualifications necessary to perform the work, and the 
availability of work when the petition was filed. 
5 
lacks sufficiently probative and informative evidence to demonstrate that the proffered position 
requires a specialty occupation's level of knowledge in a specific specialty. 13 
In sum, the Petitioner has not established that it had H-1 B caliber work available for the Beneficiary 
to perform when the petition was filed and it has not established that it has satisfied any of the criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A). Accordingly, we cannot conclude that, more likely than not, the 
proffered position qualifies for classification as a specialty occupation and that the statutory and 
regulatory definitions of specialty occupation were satisfied. 
ORDER: The appeal is dismissed. 
13 Additionally, the record does not include evidence of the requirements imposed by the entities using the Beneficiary's 
services, further restricting our ability to review and ascertain the nature of the proposed position. 
6