dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10107894 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WLY 23, 2020 
The Petitioner, an information technology services company, seeks to employ the Beneficiary 
temporarily under the H-lB nonimmigrant classification for specialty occupations.1 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 Form 1-129, Petition for a Nonimmigrant Worker, 
concluding : 
(1) The duties as described did not establish the depth, complexity, level of specialization, or 
substantive aspects of the work the Beneficiary would perform; 
(2) The record did not demonstrate that the Beneficiary would perform services in a specialty 
occupation for the requested period of employment; and 
(3) The record did not establish that the proffered position qualified as a specialty occupation 
under the four criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
The matter is now before us on appeal. The Petitioner bears the burden of proof to demonstrate 
eligibility by a preponderance of the evidence. 2 We review the questions in this matter de nova. 3 
Upon de nova review, we will dismiss the appeal. 
I. ANALYSIS 
For the reasons set out below , we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. The Director concluded that the Petitioner did 
not establish that the offered position qualifies as a specialty occupation. In her decision, the Director 
thoroughly discussed the Petitioner's failure to establish that the duties were sufficiently described to 
1 See Immigration and Nationality Act (the Act) section 10 l(a)(l 5)(H)(i)(b ), 8 U.S.C. § l 10l(a)(l5)(H)(i)(b ). 
2 Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
demonstrate the substantive nature of the position. Upon consideration of the entire record, including 
the evidence submitted and arguments made on appeal, we adopt and affirm the Director's decision as 
it relates to that aspect (i.e., item number three listed above) with the following comments. 4 
We begin noting that the Petitioner initially provided the position's description and indicated its 
education requirements for the proffered position. However, 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. 5 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. 
A. Defensor 's Application 
First, the present scenario is analogous to that of the Defensor decision, as one in which the duties the 
Beneficiary will actually perform and the qualifications to perform them should originate from the 
end-client. 6 The material from the end-client should sufficiently convey the functions the Beneficiary 
would actually perform in his daily work. 
We observe multiple issues with the material from the end-client. When it filed the petition, the 
Petitioner provided the first letter from the end-client that simply reflected he would be working as a 
database administrator, but it did not detail any duties the Beneficiary would perform in that role. 
When it responded to the Director's request for evidence (RFE), the Petitioner provided a second letter 
from the end-client. Notably, the duties the client provided are overly generalized, which undermines 
the Petitioner's claims that the position's duties are specialized and complex. For example, while it 
appears the functions listed in the end-client letter relate to the occupational code listed on the labor 
condition application (LCA), the record lacks adequate detail to demonstrate how these functions are 
incorporated into the end-client's project. Stated differently, the Petitioner has not established that the 
generalized functions it claims the Beneficiary would perform for the end-client is the actual work he 
would execute at the end-client worksite. 
We note that the Petitioner provided additional position details in an attempt to demonstrate the duties 
were so specialized and complex that they would require the attainment of at least a bachelor's degree 
4 See Matter of P. Singh, Attorne_v, 26 T&N Dec. 623 (BIA 2015) ( citing Matter of Burbano, 20 T&N Dec. 872, 874 (BIA 
1994) ); see also Chen v. INS, 87 F .3d 5, 7-8 (1st Cir. 1996) ("[I]f a reviewing tribunal decides that the facts and evaluative 
judgments prescinding from them have been adequately confronted and correctly resolved by a trial judge or hearing 
officer, then the tribunal is free simply to adopt those findings" provided the tribunal's order reflects individualized 
attention to the case). 
5 Id. 
6 It is important to note that within the reference to the Defensor decision, we are not correlating the Petitioner's business 
model as a simple token employer. However, it is apparent that the Beneficiary would provide services to the end-client, 
not to the Petitioner. Furthermore, we conclude that it is more likely than not that the end-client possesses the technical 
knowledge of the duties that would comprise the proffered position, as well as the requirements to perform those duties. 
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in a specific specialty. However, as the Beneficiary would perform those functions at and on behalf 
of the end-client, we conclude that such job details should also originate from the end-client who 
possesses the greatest familiarity with its own project. 7 
From the indeterminate nature of the duties, it is not self-evident that they are qualifying under the H-lB 
program. Without more, it would be difficult to conclude that such generalized duties relating to 
databases are so specialized and complex, or that the duties comprise a position that is so complex or 
unique, that one must attain a bachelor's degree in a specific specialty in order to perform them. 8 It is 
always the Petitioner's responsibility to ensure the record demonstrates what functions make up a 
position, and how those tasks demonstrate eligibility. 9 Additionally, the truth is to be determined not by 
the quantity of evidence alone but by its quality. 10 The Petitioner should ensure the material duties 
sufficiently convey the Beneficiary's regular activities at the end-client location, which allows a person 
without a great familiarity with the technical nature of these functions to be able to grasp what the position 
consists of, and why it and the duties are so specialized and complex. 11 
To establish eligibility, the end-client should describe the Beneficiary's specific duties and 
responsibilities in the context of the assigned project; but it has not done so here. We farther note that 
the end-client did not provide sufficient information with regard to the order of importance and/or 
frequency of occurrence (e.g., regularly, periodically, or at irregular intervals) with which the 
Beneficiary will perform the stated functions and tasks. Thus, the record does not specify which tasks 
are major functions of the proffered position. 
Second, the opinion letter fron1 I a professor at the University ofl I, also does 
not establish that the position in the petition satisfies the requirements under the H-1B program. Of 
notable importance,! I did not discuss the duties of the proffered position in any substantive 
detail. Rather, he restated the same duties listed in the Petitioner's RFE response and in the end-client 
letter. He did not discuss them in the specific context of the end-client's business, or the end-client 
project upon which the Beneficiary would work. There is no indication that he possessed any 
knowledge of the proffered position beyond this limited job description prior to documenting his 
opinion regarding the proffered position ( e.g., interviewed the end-client's managerial teams, observed 
either entity's employees about the nature of their work, or documented the knowledge that these 
workers apply on the job). His level of familiarity with the actual job duties as they would be 
performed in the context of the end-client froject has therefore not been substantiated. We observe 
several other deficiencies within!~---~ s opinion; however, we deem it unnecessary to detail each 
one of them here. 
7 See Defensor, 201 F.3d at 387-88. 
8 Cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988) (indicating U.S. Citizenship and Immigration 
Services (USCIS) must evaluate the actual tasks, demands, and duties to determine whether a petitioner has established 
the position realistically requires the specialized knowledge-both theoretical and applied-which is almost exclusively 
obtained at the baccalaureate level). A broad and generalized presentation of a position's responsibilities prevents USCIS 
from making such a determination. See also Saga1wala v. Cissna, 387 F. Supp. 3d 56, 68 (D.D.C. 2019). 
9 Section 291 of the Act, 8 U.S.C. ~ 1361. 
1° Chawathe, 25 T&N Dec. at 376 ( citing Matter of E-M-, 20 I&N Dec. 77, 80 (Comm'r 1989)). 
11 See Sagarwala, 387 F. Supp. 3d at 68-70. 
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B. Origin of Position's Duties 
Third, even if the duties contained within the end-client's second letter were sufficient under the H-1 B 
program and in accordance with the Defensor decision, the Petitioner provided these same functions 
within the initial filing nearly eight months prior to the second letter from the end-client in which the 
client provided the generalized duties. As a general concept, when a petitioner has provided material 
from different entities, but the language and structure contained within is notably similar, the trier of fact 
may treat those similarities as a basis for questioning a petitioner's claims. 12 When correspondence 
contain such similarities, it is reasonable to infer that the petitioner who submitted the strikingly similar 
documents is the actual source from where the similarities derive. 13 
Given the unique similarities in the duties and the order in which the Petitioner presented the evidence, 
we conclude that the Petitioner has not established, by a preponderance of the evidence that the duties 
originated from the end-client. We conclude that-in accordance with Defensor, 201 F.3d at 387-88, 
which provides that when the work is to be performed for entities other than the petitioner, evidence of 
the client companies' job requirements is critical-the Petitioner has not demonstrated these elements are 
the end-client's actual requirements. The Petitioner must resolve this ambiguity in the record with 
independent, objective evidence pointing to where the truth lies.14 
Because someone other than the author of the end-client's email appears to have drafted a portion of the 
end-client correspondence as it relates to the duties, we ascribe it with diminished probative value. In 
evaluating the evidence, the truth is to be determined not by the quantity of evidence alone but by its 
quality. 15 While we are unable to determine the original source of the proposed duties, it remains the 
Petitioner's burden to establish the duties are the requirements actually imposed by the entity using 
the Beneficiary's services. 16 Here, the Petitioner has not offered sufficiently probative evidence in 
this matter. 
Notwithstanding the above deficiencies, the Petitioner has failed within its appellate filing to 
sufficiently respond to this element within the Director's denial. The Director concluded that the 
duties presented before her did not convey the actual work the Beneficiary would perform as they were 
overly vague. On appeal, the Petitioner merely contends that the duties as previously presented aligned 
with the database administrator's occupation, and that the position was sufficiently complex or unique. 
The Petitioner provides a new letter from the end-client on appeal. However, that letter contains the 
same set of duties the end-client previously offered without any further details. Those functions remain 
insufficient to demonstrate the position qualifies under the H-lB regulatory requirements. 
Even if the above deficiencies were not present, we would still question whether the duties contained 
within the end-client correspondence are the actual job functions the Beneficiary would perform at the 
12 See Matter of R-K-K-, 26 l&N Dec. 658, 665 (BIA 2015); Surinder Singh v. Board of Immigration Appeals, 438 F.3d 
145, 148 (2d Cir. 2006); Wang v. Lynch, 824 F.3d 587, 592 (6th Cir. 2016); Dehonzai v. Holder, 650 F.3d L 8 (1st Cir. 
2011 ). 
13 See Mei Chai Ye v. US. Dept. of Justice, 489 F.3d 517, 519 (2d Cir. 2007). 
14 Matter of Ho, 19 T&N Dec. 582, 591-92 (BIA 1998). 
15 See Chawathe, 25 I&N Dec. at 376. 
16 Defensor, 201 F.3d at 387-88. 
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client worksite. Ninety percent of the duties in the end-client letters can be found either within online 
job advertisements, or within online sample database administrator resumes. 17 While such a general 
description may be appropriate when defining the range of duties that one may perform within an 
occupation, such a generic description generally cannot be relied upon by the Petitioner when discussing 
the duties attached to specific employment for H-lB approval. 
In establishing such a position as a specialty occupation, the proffered position's description must include 
sufficient details to substantiate that the Petitioner has H-lB caliber work for the Beneficiary, and must 
adequately convey the substantive work that the Beneficiary usually performs within the end-client's 
business operations. 18 Here, the job description from the end-client does not sufficiently 
communicate: (1) the actual work that the Beneficiary would perform; (2) the complexity, uniqueness 
and/or specialization of the tasks; and/or (3) the correlation between that work and a need for a particular 
level of knowledge in a specific specialty. 
Given the lack of detailed information from the end-client, the Petitioner has not sufficiently established 
the substantive nature of the work that the Beneficiary will perform. This precludes a finding that the 
proffered position satisfies 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 one; (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 two; (3) the level of complexity or uniqueness of the proffered position, which is the focus of 
the second alternate prong of criterion two; (4) the factual justification for a petitioner normally requiring 
a degree or its equivalent, when that is an issue under criterion three; and (5) the degree of specialization 
and complexity of the specific duties, which is the focus of criterion four. 19 
C. Additional Eligibility Issue 
Based on one of the end-client's job postings the Petitioner stated was a similar job to the one in the 
petition, we question whether the Petitioner designated the correct wage level on the LCA. The 
end-client required a bachelor's degree plus five years of work experience in that similar job 
17 See the following URLs visited on July 6, 2020, for examples that are also attached to this decision in PDF form: 
https://lensa.com/senior-oracle-database-administrator-jobs/salt-lake-city/j d/63 2tb073d79dc 15 3 bf8e31039688283 5; 
https://www.postjobfree.com/resume/ac6ai 1 /rac-dba-guard-aix-pl-ux-import-denver-co; and 
https ://www.hireitpeople.com/resume-database/7 8-oracle-dba-resumes/83 513-oracle-database-administrator-resume­
detroi t-mi. 
18 U.S. Department of Labor guidance states that for a wage level determination, it is important that the job description 
include "sufficient information to determine the complexity of the job duties, the level of judgment, the amount and level 
of supervision, and the level of understanding required to perform the job duties." U.S. Dep't of Labor, Emp't & Training 
Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available 
at http://www. foreign laborcert. do !eta. gov /pd t1/NPWH C _Guidance_ Revised_ I l _ 2009. pd f 
19 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, and 
we decline to reach and hereby reserve the issues regarding whether the position qualifies as a specialty occupation under 
the four regulatory criteria at 8 C.F.R. ~ 2 l 4.2(h )( 4)(iii)(A ). Additionally, while this appeal was pending, the U.S. District 
Court for the District of Columbia issued a decision in Itserve Alliance, Inc. v. Cissna, --- F.Supp.3d---, 2020 WL 1150186 
(D.D.C. 2020). Subsequently, USCIS rescinded previously issued policy guidance relating to H-IB petitions filed for 
workers who will be employed at one or more third-party worksites. USCIS Policy Memorandum PM-602-0114, 
Rescission of Policy Memoranda at 2 (June 17, 2020), http://www.uscis.gov/legal-resources/policy-memoranda. 
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advertisement. If we were to take the Petitioner at its word that the position in the job advertisement 
was sufficiently similar to the position in this petition, that would mean the Petitioner designated the 
incorrect prevailing wage rate on the LCA, which should have been a Level IV wage rate. This would 
require the Petitioner to compensate the Beneficiary at a much higher annual salary than it proposed 
to in the petition; more than a $31,000 pay increase. 
II. 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 a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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