dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8773298 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 23, 2020 
The Petitioner, an information technology consulting services company, seeks to temporarily employ 
the Beneficiary as a "software engineer" under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(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 California Service Center denied the petition, concluding that the evidence of 
record does not establish that the proffered position qualifies as a specialty occupation. 
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 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 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: 
( 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.F.R. § 214.2(h)(4)(iii)(A). 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 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 1-129, Petition for a Nonimmigrant Worker, the Petitioner stated that the Beneficiary will 
serve as a "software engineer." Although the Petitioner's address is in Iowa, the Petitioner stated that 
the Beneficiary would work for an end-client in California through agreements between the Petitioner, 
two vendors, and the end-client. The record indicates that the contractual path of the Beneficiary's 
assignment is as follows: 
Petitioner ~ B-1- ~ 
(Prime Vendor) 
A­
(Mid-Vendor) 
!­
(End-Client) 
On the labor condition application (LCA) 1 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Software Developers, Applications" 
corresponding to the Standard Occupational Classification code 15-1132. 
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. 
Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does 
1 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. § 655.73 l(a). 
2 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 2 
As recognized by the court in Defensor, where the work is to be performed for entities other than the 
petitioner, evidence of the client companies' job requirements is critical. See Defensor, 201 F.3d at 
387-388. 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. at 384. 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. 
The Petitioner submitted a copy of its Master Services Agreement (MSA) with the prime vendor, 
executed in September 2018, which indicates that the Petitioner will provide personnel to perform 
services for the prime vendor that would be deemed "valuable to the [prime vendor's] business 
operations." The Petitioner also submitted a copy of a document entitled "Annexure B, Revised 
Purchase Order" executed by the Petitioner and the prime vendor, which identifies the Beneficiary as 
a software engineer to be assigned to a project for the end-client from October 8, 2018, to October 7, 
2021. 
The Petitioner submitted a copy of a "Consulting Agreement, Individual Work Order" between the 
prime vendor and the mid-vendor. This one-page document indicates that the Beneficiary will be 
assigned to perform services as a software engineer for the end-client for the period from October 1, 
2019 to October 7, 2021. This document includes no additional details regarding the nature of the 
assignment or the duties to be performed by the Beneficiary. 
Regarding the relationship between the mid-vendor and the end-client, the Petitioner submits letters 
and emails from the end-client, which acknowledge its relationship with the mid-vendor. The two 
letters from the end-client are identical in content, and state that the Beneficiary is working at itc=J 
.__ _ ___,l California location pursuant to an agreement with the mid-vendor. No other details are 
provided, and the letters indicate that it is not the end-client's "standard practice to provide these 
details in the form of an 'end-client letter."' 
The end-client emails contained copies of statements of work (SOW) between the mid-vendor and the 
end-client for fiscal year 2019 (FYI 9) and fiscal year 2020 (FY20). Specifically, the SOWs indicate 
start and end dates of October 9, 2019, to July 31, 2019, and August 1, 2019, to July 31, 2020, 
respectively. The SOWs indicate that they are governed by a Professional Services Agreement signed 
by the mid-vendor and the end-client on September 22, 2014, but a copy of this document was not 
submitted into the record. We note that the SOW for FY19 indicates that it is an extension of SOW 
#4766 and does not identify the Beneficiary as a resource, nor was a copy of the referenced SOW 
#4766 submitted. The SOW for FY20 does not appear to be an extension of these prior SOWs, and 
identifies the Beneficiary and two other individuals as resources for the project. Both SOWs provide 
a list of deliverables to be conveyed. 
2 The Petitioner submitted documentation to suppmt the H-lB petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
3 
The Petitioner also submitted letters from both vendors. The letters from the vendors submitted prior 
to adjudication state that the Beneficiary's assignment is expected to continue until July 31, 2020 with 
the probability of extension. The letters also outline the contractual path of the Beneficiary's 
assignment, list the duties to be performed by the Beneficiary, and include a sentence stating that the 
proffered position requires at least a bachelor's degree in computer science or computer information 
systems. On appeal, the Petitioner submitted a new letter from the mid-vendor, which adds new duties 
to the list of tasks to be assigned to the Beneficiary. The letter also states that the Beneficiary's project 
is expected to continue until October 2021 with possible extensions. 
On the Form I-129, the Petitioner requested approval of the instant petition through August 12, 2022. 
The record of proceedings, however, does not contain sufficient documentary evidence from the vendors 
and the end-client that establishes the contractual path under which the Beneficiary's assignment will 
commence or its duration. The MSA between the Petitioner and the prime vendor is simply a general 
agreement for the provision of personnel by the Petitioner to support unidentified projects for the 
prime vendor. Although the Petitioner submitted a "revised purchase order" indicating an agreement 
with the prime vendor for the provision of the Beneficiary's services to the end-client until October 7, 
2021, this document is insufficient to establish that the Beneficiary will be placed at the end-client 
location as asserted in the record. Moreover, we note that the term of the MSA is twelve months, and 
that the agreement may be renewed in writing beyond that period. As the record does not contain a 
copy of a written renewal of the MSA between the Petitioner and the prime vendor beyond the initial 
12-month validity period, it appears that this agreement terminated in September 2019. 
The "individual work order" between the vendors appears to represent an agreement for the 
Beneficiary's services for the periods from October 1, 2019, to October 7, 2021. This one-page 
document contains no details or information regarding the project or its requirements beyond the name 
of the Beneficiary, the end-client, and the project location. No additional contractual documentation, 
such as any contracts or other formal agreements pursuant to which this work order was executed, was 
submitted. 
Furthermore, as noted above, the Petitioner submitted a new letter from the mid-vendor on appeal, 
which added additional tasks to the original list of duties contained in prior letters, and which indicated 
that the effective date of the project had been extended to October 2021. The SOWs between the 
mid-vendor and the end-client, however, contradict this claimed duration of the assignment, since at 
best, these documents indicate an assignment for the Beneficiary through July 31, 2020. The Petitioner 
must resolve these inconsistencies with independent, objective evidence pointing to where the truth 
lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies may 
lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the 
requested immigration benefit. Id. In addition to these discrepancies, we note that the revised 
purchase order between the Petitioner and the prime vendor, and the individual work order between 
the vendors, are general work orders, and do not include details about the project/assignment. Based 
on the lack of detail in these documents, we cannot the true nature of the assignment at the end-client 
location. 
4 
Finally, there is no contractual documentation in the record between the end-client and the mid­
vendor. 3 Although the record contains two emailed copies of SOW s between the mid-vendor and the 
end-client, the referenced Professional Services Agreement which governs the SOWs was not 
submitted. Absent fully executed contracts and accompanying statements of work ( or similar 
documentation) between the Petitioner and the prime vendor, the prime vendor and the mid-vendor, 
and the mid-vendor and the end-client, the record lacks evidence of any legal obligation on the part of 
the end-client to provide the position described by the Petitioner in this petition. 4 The Petitioner did 
not document the contractual terms and conditions of the Beneficiary's employment as imposed by 
the end-client. See 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). 
While relevant, the letters from the end-client and vendors are not sufficient to fill this gap, as they do 
not sufficiently describe the contractual relationship between the parties such that we can ascertain the 
nature and terms of that relationship and determine whether there is, in fact, a legal obligation on the 
part of the end-client to provide the position the Petitioner describes. For instance, while the letters 
indicate that the Beneficiary's work at the end-client location has been arranged through a series of 
contracts between the vendors and the end-client, they do not discuss the terms and conditions of the 
agreements between all of the parties. Again, the record lacks evidence of any legal obligation on the 
part of the end-client to provide the position to the Beneficiary as described by the Petitioner in this 
petition, let alone determine its substantive nature so as to ascertain whether it is a specialty 
occupation. 
In summary, if we cannot determine whether the proffered position as described will actually exist, 
then we cannot ascertain its substantive nature so as to determine whether it is a specialty occupation. 5 
The lack of contractual documentation, coupled with the numerous work orders and purchase orders 
identifying inconsistent and conflicting start and end dates for the apparent assignment, renders it 
impossible to determine the substantive nature of the proffered position. The Petitioner must resolve 
these inconsistencies and ambiguities in the record with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. 
The evidence in the record is also insufficient to establish the m1mmum requirements for the 
Beneficiary's position at the end-client location. We acknowledge that the Petitioner and the vendors 
specified that a degree in computer science, computer information systems, or a related discipline was 
required. However, despite the submission of several letters and internal emails from the end-client, 
the end-client is silent on the minimum requirements for the position. Without more, the Petitioner 
has not established the end-client's minimum requirements of the proffered position. See Defensor, 
201 F.3d at 387-88 
3 We note the Petitioner's submission of an email from the human resources department of the mid-vendor, which states 
that its "contract and SOW are confidential and we will not be able to share it with your employer." Nevertheless, we note 
the submission of some of its contractual documentation, such as the individual work order with the prime vendor and the 
SOWs with the end-client into the record. There is insufficient explanation as to why these documents, but not others, 
could be submitted. 
4 Cf Galaxy Software Solutions, Inc. v. USCIS, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) 
(describing the petitioner's "fail[ure] to provide all of the contracts governing the relationships between the corporate 
entities in the chain" as a "material gap"). 
5 The agency made clear long ago that speculative employment is not permitted in the H-lB program. See, e.g.. 63 Fed. 
Reg. 30419, 30419 - 30420 (June 4, 1998). 
5 
The Petitioner submitted affidavits from one of the Beneficiary's coworkers, in which he confirms the 
Beneficiary's assignment at the end-client's location and lists the minimum educational requirements 
and the duties that were listed in various documents in the record. However, the affidavits do not shed 
any light onto the nature and scope of the project on which the Beneficiary works. As we noted above, 
without information regarding assignments that the Beneficiary would engage in, the description of 
the duties does not provide sufficient basis to conclude that the position 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, or its equivalent. Therefore, the affidavits provided by the 
Beneficiary's coworker have little probative weight towards establishing the actual work to be 
performed by the Beneficiary for the end-client. 
Finally, we note the Petitioner's submission of detailed overviews of the duties of the proffered 
position, Though the Petitioner described the duties of the position in multiple documents in the 
record, the submitted material does not communicate the actual work that the Beneficiary will perform 
on a day-to-day basis within the context of the end-client's project, and the correlation between that 
work and a need for a particular education level of highly specialized knowledge in a specific specialty. 
The Petitioner's failure to establish the substantive nature of the work to be performed by the Beneficiary 
precludes a finding that the proffered position is a specialty occupation under 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 profiered position, which is the focus of the second alternate prong ofcriterion 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. 
The Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h) (4) (iii) (A) and, therefore, it 
cannot be found that the proffered position qualifies as a specialty occupation. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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. 
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