dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8468463 
Appeal of California Service Center Decision 
Form 1-129, Petition for a 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 
"software engineer" under the H-lB nonimmigrant classification for specialty occupations. Immigration 
and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § l 10l(a)(l5)(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 California 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-IB nonirnmigrant as a foreign national "who is 
corning 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-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. 
§ 2 l 4.2(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)(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). 
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 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 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 Iowa, asserted the Beneficiary would work at the end-client location in 
Minnesota. However, the record does not contain sufficient evidence to establish the terms and 
conditions of the Beneficiary's assignment during the requested period. 
The record contains a master services agreement (MSA) between the Petitioner and the mid-vendor. 3 
The MSA is a general agreement for the Petitioner to "perform services for [the mid-vendor] as 
described in the Appendix A. CLIENT shall prepare the entire direction, scope, control and 
interpretation of any systems work to be performed by the [Petitioner]." Without Appendix A, the 
MSA does not specifically identify the client subject to the MSA that would "prepare the entire 
direction, scope, control and interpretation of' the services to be performed under the MSA. The 
record also contains Appendix A to the MSA; however, the Petitioner and the mid-vendor signed and 
dated Appendix A in July 2019, after the petition filing date. 
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 a 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). Because 
the parties signed and dated Appendix A after the petition filing date, it may not establish eligibility. 
Even if the parties had signed and dated Appendix A as of the petition filing date, it would not establish 
the services for which they had contracted the Beneficiary to perform. The one-page Appendix A 
identifies the end-client and the Beneficiary as the "allocated resource"; however, the extent of the 
description of the Beneficiary's "scope ofresponsibilities" is "software engineer," which the Petitioner 
indicates is the Beneficiary's 'job title." 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, 
combined with the nature of the petitioning entity's business operations, 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. Appendix A does not otherwise 
provide "the entire direction, scope, control and interpretation of any systems work to be performed 
by the [Petitioner]," as required by the MSA. Accordingly, the record does not establish the services 
2 The Petitioner submitted documentation to suppmt the H-1 B 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 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. 
3 
for which the Petitioner and the mid-vendor contracted the Beneficiary to perform, either before or 
after the petition filing date. 
The record also contains a heavily redacted excerpt from a master contractor agreement (MCA) 
between the mid-vendor and the prime vendor. The excerpt consists of two pages, with paragraphs 
titled "1. Scope," "2. Term of Agreement," and "17. Miscellaneous" before signature blocks for the 
parties. Approximately half of the two pages are entirely redacted with large, black rectangles. The 
limited information provided in the MCA indicates that it is a general agreement for the mid-vendor 
to "provide programming, systems analysis, engineering, technical writing or other specialized 
services as an independent contractor directly to the third party user ('client') who has requested [the 
prime vendor] to locate temporary staffing for the client's project according to the training, skills, 
abilities and experience required by the client." The MCA, in its redacted, excerpted form, does not 
further identify the client, the actual services it has requested, and the training, skills, abilities and 
experience it requires to perform such services. 4 
The record also contains a two-page purchase order (PO) between the mid-vendor and the prime 
vendor. Unlike Appendix A to the MSA discussed above, the parties signed and dated the PO as of 
the petition filing date. However, like Appendix A, although the PO identifies the Beneficiary as the 
"[ c ]ontractor who will work on this project" and the end-client, it does not address the "programming, 
systems analysis, engineering, technical writing or other specialized services" the end-client requested 
to be performed, and the "training, skills, abilities and experience" the end-client requires to perform 
such services, as indicated in the MCA. Accordingly, the record does not establish the services for 
which the mid-vendor and the prime vendor contracted the Beneficiary to perform. 
The record also contains an excerpt from a staff augmentation master services agreement (SAMSA) 
between the prime vendor and the end-client. 5 The SAMSA in the record consists of pages numbered 
"Page 1 of 38" through "Page 19 of 38"; however, the SAMSA does not contain the final half and 
therefore does not a substantial portion of its contents. Like the other documents discussed, the 
SAMS A, in its excerpted form, is a general agreement for the prime vendor to "provide [ the end-client] 
with the services specified in one or more Engagement Schedules." The SAMSA does not elaborate 
on the services for which the parties contracted or identify the Petitioner or the Beneficiary. Instead, 
the SAMSA states that "[the prime vendor] shall perform the Services, as set forth in such Schedules 
thereto as may be agreed to from time to time by and between [the end-client] and [the prime vendor] 
in writing." The record does not contain an engagement schedule, required by the SAMSA, identifying 
the Beneficiary and describing the services for which the parties contracted the Beneficiary to perform. 
4 Although a petitioner may always refuse to submit confidential commercial information if it 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."). 
5 The record indicates that, after the parties signed and dated the SAMSA, a subsidiary of the end-client "rebranded" to the 
client name referenced throughout the record. In this decision, we refer to both the parent and the subsidiary as the 
end-client for brevity. 
4 
The record also contains three essentially identical versions of a two-page letter from the end-client. 6 
The letters briefly summarize the Beneficiary's nine duties in a bullet-point list. However, the 
language of the duty description contains several typographical and grammatical errors that appear 
verbatim in other documents in the record, including letters from the Petitioner, the mid-vendor, and 
the prime vendor. Examples of the typographical and grammatical errors include the following: 
• Work on relational databases like mysql [sic] and write complex queries. 7 
• Discuss and design API' s [sic] by coordinating with all the team members and other 
teams and get everyone's approval by clarify [sic] their concerns[.] 
• Write unit tests for all the developed API' s [sic] to ensure the correctness and 
efficiency of APis. 
Each version of the end-client letter includes other language that appears verbatim in letters from the 
Petitioner, the mid-vendor, and the prime vendor, such as a bullet-point list of six "[s]kills and tools 
required." Similarly, letters from the Petitioner, the mid-vendor, the prime vendor, and the end-client 
all state verbatim that "[t]he minimum qualification required for the performance of the above 
specialty occupation duties is a [b ]achelor' s [ d]egree in [ c ]omputer [ s ]cience/[ c ]omputer [i]nformation 
[s]ystems or [i]nformation [t]echnology." 
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. 
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 I&N Dec. 582,591 (BIA 
1988). In this case, the three end-client letters' extensive usage oflanguage that appears verbatim, 
including numerous typographical and grammatical errors, in other documents in the record casts 
doubt on the veracity of the letters, undermining the reliability and sufficiency of them and the 
remaining evidence in the record. 8 Based on the issues discussed above, we do not consider the 
end-client letters to present sufficient, reliable evidence of the end-client's requirements. 
6 The letters bear the dates of "03/25/2019," ·'07 /12/2019," and ·'I0/28/2019," respectively. Otherwise, the substance of 
the letters is identical. 
7 Regardless of the verbatim nature of the end-client letter, including several typographical and grammatical errors that 
appear in other documents in the record, the duty description does not inform the substantive nature of the services, such 
as the actual work the Beneficiary would perform on the databases. The record also does not elaborate on the SQL queries 
the Beneficiary would write, in order to supp01t the conclusion that the queries are "complex," as indicated in the verbatim 
duty description. 
8 That the differing signatories for the Petitioner, mid-vendor, prime vendor, and end-client all coincidentally made the 
same typographical and grammatical errors in verbatim language while independently writing letters is unlikely. 
5 
In summation, we conclude that the 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 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. 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