dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8779294 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 3, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"business systems analyst" under the H-lB 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-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 Vermont Service Center denied the petition, concluding that the record did not 
establish the proffered position qualifies as a specialty occupation. Specifically, the Director 
concluded that the record did not establish the work to be performed by the Beneficiary. The matter 
is now before us on appeal. 
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 I&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&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-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. § l 184(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. 1 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(l) states that an H-IB classification may be granted to a foreign national 
who "will pe,jorm 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 Beneficiaiy will be employed in an occupation that meets the statutory and regulatmy 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 
I; (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)(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 )(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 
1 The regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulat01y 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 baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See 
Royal Siam Cmp. 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 
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 
The Petitioner, located in New Jersey, asserted the Beneficiary would work "remotely from her home 
offices located [in JI I CA[,] for the Petitioner's Client! I' However, the record does 
not contain sufficient evidence to establish the services the Beneficia1y would perfmm during the 
requested period. 
The record contains a consulting agreement (CA) between the Petitioner and the mid-vendor. 3 The 
CA is a general agreement for the Petitioner to "submit qualified candidates to [the mid-vendor], in 
response to specific technical staffing requirements provided to [the Petitioner] by [the mid-vendor] 
for the purpose of staffing technical needs of [the mid-vendor] or its client." The CA does not identify 
the end-client, the services to be performed, the position to perform the services, the individual 
assigned to the position, the qualifications to perform the services, or the duration of the assignment. 
Instead, the CA states that "the [Petitioner's] employees will perfmm the services set forth in each 
[SOW] executed by the parties in accordance with the terms set forth in such [SOW] and this [CA]." 
The CA further states that "the [p ]eriod of [ c ]onsultancy will terminate on the specified completion 
date" in a corresponding SOW. 
At the time of the Director's decision, the record did not contain an SOW to set forth the services for 
which the Petitioner and the mid-vendor contracted the Beneficiary to perform during the requested 
period. Furthermore, the record does not contain a CA and corresponding SOW, or similar documents, 
to establish the terms of the contract between the mid-vendor and the end-client. 
On appeal, the Petitioner submits two SOWs between the mid-vendor and the Petitioner. 4 Both SOWs 
identify the Beneficiary as the "[p]ersonnel to perform [s]ervices." However, the first SOW does not 
identify a client for which the Beneficiaiy would perform services and the description of"[ s ]ervices 
to be performed and results to be achieved" is simply "Business Analysis." 5 The first SOW identifies 
the "[p ]roject [ n Jame" as "multiple projects." The extent of the "[j]ob description" in the first SOW 
is "Business Analysis, SQL queries." The first SOW does not further elaborate on the services the 
Beneficiary would provide or the requirements to perform such services. Even if the first SOW 
provided salient details regarding the services the Beneficiary would perform and the client for which 
the Petitioner and the mid-vendor contracted the Beneficiary to provide those services, the first SOW 
2 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss eve1y document submitted, we have reviewed and considered 
each one. 
3 The CA and a corresponding statement of work (SOW), submitted for the first time on appeal, are between the mid-vendor 
and an entity that the record establishes the Petitioner acquired between the dates of the CA and SOW, and the petition 
filing. Therefore, we construe references to the Petitioner's predecessor-in-interest in the CA and SOW as references to 
the Petitioner. 
4 As noted above, the first of the two SOWs is between the mid-vendor and the Petitioner's predecessor-in-interest. 
5 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 ofother eligibility criteria." USC IS Policy Memorandum PM-602-0114, Rescission of Policy 
Memoranda at 3 (June 17, 2020), http://www.uscis.gov/legal-resources/policy-memoranda. 
3 
specifies that the "[r]equired [c]ompletion [d]ate" was "duration of 6 months from start date," 
identified as "12/07/2018." Therefore, the first SOW indicates that the "multiple projects" would 
expire before the requested employment authorization period, beginning in October 2019. 
Furthermore, as addressed above, the CA indicates that the "period of consultancy" between the 
Petitioner and the mid-vendor ended in June 2019, based on the required completion date specified in 
the first SOW. 
The parties dated the second SOW the Petitioner submits on appeal in August 2019, after the expiration 
of the "period of consultancy" in June. The Petitioner also submits on appeal a second CA with the 
mid-vendor that the parties dated simultaneously in August 2019.6 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)(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 l&N Dec. 248, 249 (Reg'l Comm'r 1978). Because the parties dated the 
second SOW and CA after the petition filing date, they may not establish eligibility. 
Furthermore, even if the parties dated the second SOW as of the petition filing date, it would not 
establish the services for which the parties contracted the Beneficiary to perform for the stated 
end-client during the requested period. On appeal, the Petitioner agrees that, "[r]egrettably, the 
[ second SOW] between the [ mid-vendor] and the Petitioner does not mention the detailed job duties 
the [B]eneficiaty will be :erforming at the client location." 7 The second SOW identifies the "[c]lient 
[n]ame" as I t which does not match other references to the end-client throughout the 
record. Like the first SOW, the second SOW states that the "[p ]roject [ n Jame" is "multiple projects," 
describing the "[k]ey [s]kills [r]equired" as "Business Analysis, SQL queries," without specifying the 
nature of the business to be analyzed and the methodology the Beneficiary would use in order to 
analyze it. Furthermore, the second SOW states that the "[r]equired [c]ompletion [d]ate" would be 
"12/31/2020," at which point the second CA states the parties' "period of consultancy" would expire. 
We note that, in response to the Director's request for evidence (RFE), the Petitioner submitted a letter 
from the mid-vendor, in relevant part confirming that the Beneficiary would work for "[the end-client], 
I I" not I I as indicated in the second SOW, "and will be working remotely" from her 
home. Although the mid-vendor's letter summarized the position's duties in a bullet-point list and 
stated that the mid-vendor "requires a minimum of a Bachelor's degree, or its equivalent, with a 
concentration in any branch of Engineering, Computer Science, Information Systems, or [a] closely 
related field," the record does not contain evidence of the position's requirements from the end-client. 8 
6 Like the first CA, the second CA is a general agreement for the Petitioner to "submit qualified candidates to [the 
mid-vendor], in response to specific technical staffing requirements provided to [the Petitioner] by [the mid-vendor] for 
the purpose of staffing technical needs of [the mid-vendor] or its client." The second CA also does not identify the 
end-client, the services to be perf01med, the position title to perform the services, the individual assigned to the position, 
the qualifications to perform the services, or the duration of the assignment. The second CA contains language regarding 
a conesponding SOW and the "period of consultancy" identical to the first CA, discussed above. 
7 We note that the record indicates the Beneficiary would work from her home, not "at the client location." 
8 The letter bears a handwritten line striking the words "of Enginee1ing"; however, it does not indicate who struck those 
words, or when. Therefore, we acknowledge that the signatory wrote that the mid-vendor deems a bachelor's degree "in 
any branch of Engineering" among degrees that qualify a worker for the position described in the letter. 
4 
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 
beneficiaiy' 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 perfmm 
that particular work. 
We also note that the record contains an opinion letter from~--~--------' a professor of 
information systems management atl !university. As a matter of discretion, we may use opinion 
statements submitted by a petitioner as advisory. Matter of Caron Int 'l, Inc., 19 I&N Dec. 791, 795 
(Comm'r 1988). However, we will give an opinion 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."'). 
~---~I stated that, in order to form his opinion, he "review[ ed] the letter of support submitted with 
the H-lB petition by [the Petitioner] and the job description of the Business Systems Analyst position it 
now seeks to fill." I I does not indicate that he reviewed evidence of the end-client's 
requirements. Moreover,! Is opinion generally disregards the end-client, stating instead, 
for example, that "[a] student completing a Bachelor's [d]egree in [c]omputer [s]cience or a related 
area studies the theories and methods that are necessary for performing these daily tasks of a [b ]usiness 
[ s ]ystems [ a ]nalyst for [ the Petitioner]." As noted above, where the work is to be performed for entities 
other than the petitioner, evidence of the client companies' job requirements is critical. Defensor, 201 
F.3d at 387-88. 
Relatedly, although! Is opm10n quotes the Petitioner's duty description stating, for 
example, that the Beneficiary would "[ c ]onduct one-on-one meetings with the [ c ]lient and [p ]roject 
[c]onsultants to gather requirements," "develop/enhance the client application as required," and 
"[p]ossess a [l]ife [s]ciences/[b]iotechnology background ... for understanding the client's business 
and application being worked on," he does not identify the referenced client and its requirements, 
describe the client's application and how the Beneficiary and her "[d]evelopment [t]eam members" 
would develop and enhance the application, or clarify why a specific background in life sciences or 
biotechnology would assist the Beneficiary in understanding the client's business and application.c=] 
I I also does not assert that he reviewed any company's applications on which the Beneficia1y 
would work in order to form his opinion. In other words, I Is conclusions are not 
adequately substantiated. The references to a required background in life sciences and biotechnology 
inl Is opinion letter are particularly noteworthy, given that the SOWs discussed above 
generally reference "[b ]usiness [a]nalysis" and "SQL queries," without specifying a particular type of 
business to be analyzed. Based on the concerns we addressed, and considered in light of the entire 
record] Is opinion bears minimal probative value. See Matter of Caron Int' l, Inc., 19 I&N 
Dec. at 795. 
5 
In summation, we conclude that the inconsistencies, ambiguities 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 crite1ion 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. 9 
III. 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. 
9 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