dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 9042004 
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: SEPT. 4, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"sr. software engineer" 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 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 services 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 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christa's Inc., 26 l&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 non immigrant 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)(I) of the Act, 8 U.S.C. § 1184(i)(I), 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)(I) of the Act, but adds a non­
exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(ii i)(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){1) states that an H-1B 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. 
§ 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, 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)(1) 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 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 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"). 
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 North 
Carolina. However, the record does not contain sufficient evidence to establish the terms and 
conditions of the Beneficiary's assignment, and the services to be performed during the requested 
period. 
The record contains a consultant agreement (CA) between the Petitioner and the mid-vendor.3 The 
CA is a general agreement for the Petitioner to "furnish various [s]ervices requested by [the 
mid-vendor] from time to time for the period set forth in Exhibit A," noting that "[the mid-vendor] 
may terminate this [CA] or any [statement of work (SOW)] at any time upon three (3) days['] prior 
written notice." The CA further states that "[t]he engagement is specific to the individual 
employee/consultant named in Exhibit A provided by [the Petitioner] and no changes to the resource 
shall be effected without the written consent of [the mid-vendor]." Without the referenced Exhibit A, 
the CA does not specifically identify the services to be performed, the qualifications to perform the 
services, the individual assigned to perform the services, the client to receive the services to be 
performed, and other salient details. The record also contains Exhibit A (also titled an SOW) to the 
CA; however, the Petitioner and the mid-vendor signed and dated Exhibit 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 l&N Dec. 248, 249 (Reg'I Comm'r 1978). Because 
the parties signed and dated Exhibit A after the petition filing date, it may not establish eligibility. 
Even if the parties had signed and dated Exhibit A as of the petition filing date, it would not establish 
the services for which they had contracted the Beneficiary to perform. The two-page Exhibit A 
identifies the end-client and the Beneficiary as the "individual consultant"; however, the extent of the 
description of the Beneficiary's "deliverables ... currently planned" are as follows: 
I Identify tasks, timeline and ownership of [d]esign activities; 
I Develop the code as per the [d]esign document; and 
I Continuous [d]evelopment and [i]ntegration for the modules. 
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 
2 The Petitioner submitted documentation to support the H-1B 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 
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. Exhibit A does not otherwise provide the "various [s]ervices requested by [the mid-vendor]," 
as referenced in the CA. Furthermore, Exhibit A indicates that the assignment's "term" would be 
"07/1/2019 - 12/31/2019," ending shortly after the requested employment period. Accordingly, the 
record does not establish the services for which the Petitioner and the mid-vendor contracted, either 
before or after the petition filing date, the Beneficiary to perform during the requested employment 
period. 
The record also contains a master professional services agreement (PSA), and the fifth amendment to 
the PSA, between the mid-vendor and the end-client. The record does not contain the four prior 
amendments. Like the CA, the PSA is a general agreement that "[f]rom time to time during the [t]erm, 
[the end-client] may engage [the mid-vendor] to perform [s]ervices for [the end-client] ... more fully 
described in the applicable [SOW]." The PSA states that "[i]n each instance when [the end-client] 
desires to engage [the mid-vendor] to perform [s]ervices, [the end-client] and [the mid-vendor] will 
develop and agree upon [an SOW] defining the [s]ervices and [d]eliverables to be provided by [the 
mid-vendor]." Neither the PSA nor its fifth amendment more specifically identify the services to be 
performed, the requirements to perform the services, an individual assigned to perform the services, 
or other salient details. However, we note that the fifth amendment lists 14 pages of various possible 
"SOW Worker Role[s]," including more than 70 different roles in the "Software Engineer ... Family 
(Category)," with differing "Job Description[s]." 
The record also contains a one-page purchase order (PO) between the mid-vendor and the end-client.4 
However, similar to Exhibit A discussed above, the mid-vendor and the end-client signed and dated 
the PO in August 2019, after the petition filing date; therefore, it may not establish eligibility. See 
8 C.F.R. § 103.2(b)(1); see also Matter of Michelin Tire Corp., 17 l&N Dec. at 249. Additionally, 
although the PO identifies the Beneficiary as the "[c]onsultant" assigned to the project with a position 
title of "sr. software engineer," it does not further identify the services the Beneficiary would perform, 
or otherwise indicate which of the more than 70 different roles in the software engineer category listed 
in the PSA's fifth amendment the Beneficiary's position matches. None of the roles in the software 
engineer category listed in the amendment refer to the position as a "sr." software engineer. 
Furthermore, the PO states that the Beneficiary's "project start date" at the end-client location was 
"08-21-2017," conflicting with Exhibit A's statement that the Beneficiary's "term" began on 
"07/1/2019." The PO does not otherwise reference the "term" of "07/1/2019 - 12/31/2019," but 
instead describes the project duration as "[l]ong term." The record also contains an ICE Form 1-20, 
Certificate of Eligibility for Nonimmigrant Student Status, dated "12/27/2017," reporting that the 
Beneficiary was employed byl I between "03 April 2017" and "18 September 2017," and by 
I I from "21 August 2017" until an anticipated end date of "04 February 2020." 
4 Despite being titled a PO instead of an SOW, we construe the PO to be the type of document referenced in the PSA as 
an SOW. 
4 
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 l&N Dec. 582, 591 (BIA 
1988). The extent of the difference between the project start dates in the PO and Exhibit A, the PO's 
general lack of acknowledgement of the term described in Exhibit A, and the evidence in the record 
that the Beneficiary was employed by two other employers during the Beneficiary's assignment period 
reported by the end-client casts doubt on the veracity of information in the record about the 
assignment, even if either the PO or Exhibit A could establish eligibility despite being signed and 
dated after the petition filing date. 
We also note that the record contains letters from the mid-vendor and the end-client. However, the 
letters do not establish that the parties contracted, as of the petition filing date, for the Beneficiary to 
work at the end-client location, or the services to be performed. In summation, the record does not 
establish the services for which the mid-vendor and the end-client contracted the Beneficiary to 
perform. 
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. 
We further note that the record contains an opinion letter written byl I an associate 
professor of computer information systems atl I University. As a matter of discretion, we may 
use opinion statements submitted by the Petitioner as advisory. Matter of Caron Int' I, Inc., 19 I &N Dec. 
791, 795 (Comm'r 1988). However, we may 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 l&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 opines that the proffered position "would normally be filled by a graduate with a minimum 
of a Bachelor's Degree or higher in Computer Science or Computer Engineering." In order to form 
his opinion! I asserts that he "review[ed] the letter of support submitted with the H-lB petition 
by [the Petitioner and the job description of the Sr. Software Engineer position it now seeks to fill." 
However,~--~does not assert that he reviewed evidence of the end-client's job requirements, 
which, as noted above, is critical. Defensor, 201 F.3d at 387-88. Furthermore,! ldoes not 
acknowledge that, as of the petition filing date, the Petitioner, mid-vendor, and end-client had not 
contracted for the Beneficiary to perform services, as discussed above. Based on these concerns,c=J 
I Is opinion bears minimal probative value. See Matter of Caron lnt'I, Inc., 19 l&N Dec. at 795; 
see also Matter of V-K-, 24 l&N Dec. at 502 n.2. 
5 
In summation, we conclude that the ambiguities, inconsistencies, 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 4.5 
111. 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. 
5 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