dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 10106717 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 16, 2020 
The Petitioner, an information technology consulting 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 Vermont Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified as a specialty 
occupation, nor did it demonstrate the Petitioner had specialty occupation work available throughout 
the requested period . 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. 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. § 1184(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 . 4 Lastly, 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b) . 
2 Section 291 of the Act; Matter of Chawathe, 25 J&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
4 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
8 C.F.R. § 214.2(h)(4)(i)(A)(]) 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 
look to 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 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. 5 
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. 6 The Director may request additional evidence 
in the course of making this determination. 7 In addition, a petitioner must establish eligibility at the 
time of filing the petition and must continue to be eligible through adjudication. 8 
II. ANALYSIS 
After reviewing the record in its entirety, we conclude at least three issues preclude the Petitioner from 
demonstrating the position qualifies as a specialty occupation: (1) the organization's own position 
requirements; (2) inconsistent information relating to the position's prerequisites; and (3) a lack of 
probative material from the end-client. As a result, the Petitioner has not demonstrated the substantive 
nature of the position in the petition. That outcome precludes a determination of whether the proffered 
position qualifies as a specialty occupation under sections 101 ( a)(l 5)(H)(i)(b ), 214(i)(l) of the Act; 
8 C.F.R. § 214.2(h)(4)(i)(A)(]), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A).9 
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 pa1iicular position"). 
5 8 C.F.R. § 214.2(h)(4)(iii)(A). 
6 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
7 8 C.F.R. § 103 .2(b )(8). 
8 8 C.F.R. § 103.2(6)(1). 
9 The Petitioner submitted documentation to suppmt the H-lB 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. 
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A. Inconsistencies 
Within the Petitioner's statement accompanying the initial filing, it indicated that the position required 
someone with "at least a bachelor's degree in the relevant field plus some experience. Please note 
that . . . for similar professional level positions, we would not consider anyone with lesser 
qualification[s]." Lacking from this statement was any further detail or guidance regarding what the 
petitioning organization would consider as "a relevant field." We cannot intuit the breadth of the 
disciplines the Petitioner would, or would not, consider to be sufficiently related. Furthermore, what 
one employer might consider to be sufficiently relevant, may differ from what other employers would 
consider to be adequate. This illustrates the manner in which the Petitioner's initial position 
requirements were not sufficiently specific. Additionally, the Petitioner did not offer any information 
on what amount or type of experience it would require considering it stated it "would not consider 
anyone with lesser qualification[s]." This is an important aspect because this requirement could 
impact the prevailing wage level the Petitioner must designate on the labor condition application, 
depending on the amount of required experience. 
Moving to the information contained within the Petitioner's response to the Director's request for 
evidence (RFE), it not only offered dueling accounts of its position requirements, but none of the RFE 
requirements aligned with its initial statement. It the RFE cover letter dated October 29, 2019, it 
indicated in multiple instances that it does not hire or employ anyone into this or similar positions 
without at least a bachelor's degree or an equivalent. Then in a July 19, 2019, letter from its vice 
president of operations, the Petitioner again indicated it required "a Bachelor[']s degree or its 
equivalent as a minimum educational qualification for this position." However within this same letter, 
it stated that the organization has "always hired in this position with a minimum of [a] bachelor's 
equivalent degree in Computer Science/Computer Application/Computer Information 
Systems/Information technology/Electronics and Communications or [a] related field." 10 
Within the appeal, the Petitioner repeatedly reverts back to the requirement of a bachelor's degree, or 
an equivalent, in the relevant field that we already noted was too nebulous to qualify under the H-1 B 
program. We also reviewed several job postings the Petitioner provided for the record and we accessed 
its current job postings listed on its website. 11 Although a position with the same job title as the one 
in the petition does not appear in the material within the record or on their current website, we note 
inconsistencies within its stated requirements for positions that would appear to fall under the Software 
Developers, Applications occupational category that the Petitioner designated on the labor condition 
application accompanying this petition. For instance, several merely require either a "Bachelor's 
degree," a "Bachelor's degree in related area and/or equivalent experience/training," or a "Bachelor's 
degree in Computer Science or Engineering and/or equivalent experience/training." Furthermore, 
when it responded to the RFE, the Petitioner offered a letter from the end-client. However, the client's 
position requirements did not align with those the Petitioner provided at that same time in the RFE 
response. This further causes us to question the reliability of the information within the petition. 
10 The Petitioner also did not explain the manner in which a bachelor's degree in "Electronics and Communications" is 
sufficiently related to the pos,..,.it1=· o=n ..... ' s'--"d=u=ti=es"-'-. ---------------------. 
11 
See Current Job Openings_~~---~-----------~----~ 
3 
The inconsistencies the Petitioner provided go beyond its required degree disciplines, as it initially 
required work experience but failed to discuss that prerequisite in any material within the RFE 
response. Additionally, the Beneficiary's annual salary as stated on the petition differs from the 
amount contained within his employment offer letter. The Petitioner's attempt to resolve these 
inconsistencies must be demonstrated through the submission ofrelevant, independent, and objective 
evidence that illustrates which assertions are the truth. 12 For example, through probative evidence 
such as job announcements demonstrating what the Petitioner has mandated for this position in the 
past. 
The incongruent information the Petitioner has offered calls the veracity of its position requirements 
into question, and it has not satisfied its burden of proof on this issue. As a result, both the statute and 
the regulation mandate this petition's denial, as both sources require a petitioner to establish that, as 
its minimum acceptable education level, the position requires a bachelor's degree in the specific 
specialty, or its equivalent. 13 These definitions constitute the primary statutory and regulatory 
requirement for a position to qualify as a specialty occupation. After complying with this antecedent 
requirement, only then may a petitioner move to demonstrate how it may satisfy one of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). Consequently, we agree with the Director that the Petitioner did not 
establish that the proffered position qualifies as a specialty occupation. 
B. Material from the End-client 
Additionally, 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. 14 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 review of the letter from the end-client reveals that those functions and the position prerequisites are 
identical to those the Petitioner provided within the initial filing nearly seven months prior to the 
correspondence from the end-client. 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. 15 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.16 
12 Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
13 See Section 214(i)(l); 8 C.F.R. § 214.2(h)(4)(ii). 
14 Id. 
15 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). 
16 See Mei Chai Ye v. US. Dept. of Justice, 489 F.3d 517,519 (2d Cir. 2007). 
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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 also resolve this ambiguity in the record with 
independent, objective evidence pointing to where the truth lies. 17 Because someone other than the author 
of the end-client's letter appears to have drafted a portion of that 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. 18 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. 19 Here, the Petitioner 
has not offered sufficiently probative evidence in this matter. 
C. Material Change to the Petition 
Even if we were not faced with the multiple inconsistencies noted above, the Petitioner has made 
material changes to the petition after the filing date. We conclude that the additional disciplines that 
the Petitioner expressed within the July 2019 letter constitute a material change to their claimed 
position requirements as stated in the initial filing. The Petitioner has not explained why it should be 
allowed to make such changes to the position's qualifications subsequent to both the petition's filing 
date and the organization's original eligibility claims. 20 A petitioner must establish eligibility at the 
time it files the nonimmigrant visa petition. 21 U.S. Citizenship and Immigration Services (USCIS) 
may not approve a visa petition at a future date after a petitioner or a beneficiary becomes eligible 
under a new set of facts. 22 A petitioner may not make material changes to a petition that has already 
been filed in an effort to make an apparently deficient petition conform to USCIS requirements. 23 
Given the inconsistencies in addition to the other deficiencies listed above, the Petitioner has not 
sufficiently established the substantive nature of the work that the Beneficiary would 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 
17 Ho, 19 l&N Dec. at 591-92. 
18 See Chawathe, 25 l&N Dec. at 376 (quoting Matter of E-M-, 20 l&N Dec. 77, 79-80 (Comm'r 1989)). 
19 Defensor, 201 F.3d at 387-88. 
20 See 2233 Paradise Rd.. LLC v. Cissna, No. 17-CV-01018-APG-VCF, 2018 WL 3312967, at *3 (D. Nev. July 3, 2018) 
(finding a petitioner's requirements as inconsistent when it changes the degree prerequisites after an RFE). 
21 8 C.F.R. § 103.2(b)(l), (12). 
22 Matter of Michelin Tire Corp., 17 T&N Dec. 248, 249 (Reg'l Comm'r 1978). 
23 See Matter of lzummi, 22 I&N Dec. 169, 175 (Assoc. Comm'r 1998). 
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criterion three; and ( 5) the degree of specialization and complexity of the specific duties, which is the 
focus of criterion four. 24 
III. 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. 
24 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 issue regarding the availability of specialty occupation work. We note that 
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-lB 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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