dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 9609068 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 8, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"systems administrator" 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 Vermont 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 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)(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)(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)(1) 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. 
§ 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)(1) 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"). 
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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 Texas, asserted the Beneficiary would work at the end-client location in 
Virginia. 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. 
At the time of the Director's decision, the record contained an untitled agreement between the 
Petitioner and the mid-vendor. 3 The mid-vendor agreement is a general agreement for the "provision 
of the services of the [Beneficiary]." Although the mid-vendor agreement identifies the end-client as 
the recipient of the Beneficiary's services, and states that the Beneficiary's title would be "systems 
engineer, "4 the agreement does not further describe the services to be performed for the end-client, the 
qualifications required to perform those services, and other salient details. Moreover, the mid-vendor 
agreement states that the "estimated assignment end date" would be "1/10/20," without indicating that 
the assignment may be extended beyond January 2020. Accordingly, even if the mid-vendor 
agreement established the services to be performed, it would not establish such services to be 
performed throughout the requested period of employment. 
On appeal, the Petitioner submits for the first time a staffing services agreement (SSA) between the 
Petitioner and the mid-vendor. The SSA is a general agreement for the Petitioner "to furnish the 
Consultant(s) in accordance with the terms and conditions included in Appendix A, Confirmation of 
Assignment." Without Appendix A, the SSA does not further describe the services to be performed 
for the end-client, the qualifications required to perform those services, and other salient details. In 
turn, Appendix A identifies the Beneficiary and states her title would be "systems engineer." Although 
Appendix A supplements the Beneficiary's job title with a bullet-point list of seven tasks, titled "job 
description," Appendix A states that the "approximate end date" would be "01/10/2020," without 
indicating that the assignment may be extended beyond January 2020. The tasks listed consist of 
generalized duties, such as "[m]aintain solutions once they are live in production, by measuring and 
monitoring availability and overall system health; incident triage and management," without 
elaborating on the solutions, what the solutions solve, how the Beneficiary would maintain them, how 
she would measure and monitor availability, what availability she would measure and monitor, and 
2 The Petitioner submitted documentation to support 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. 
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. 
4 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. 
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other details that would assist us in understanding the substantive nature of the services to be 
performed. Therefore, like the other mid-vendor agreement, the SSA and Appendix A do not establish 
the services to be performed throughout the requested period of employment. 
The record also contains an excerpt from a master services agreement (MSA) between the managed 
service provider and the end-client. 5 The MSA, in its excerpted form, consists of three pages: an 
unnumbered title page; a page numbered "1," which contains a preamble and five defined terms;6 and 
a page numbered "36," which bears signatures from the parties' signatories. The MSA is a general 
agreement for the managed service provider "to provide Managed Service Provider (MSP) Services 
for [the end-client] as described in detail in the Statement of Work [(SOW)] or Services Schedule 
[(SS)] attached to [the MSA]." The MSA does not further describe the services to be performed, 
reference the Petitioner or the Beneficiary, or address a specific assignment and its duration. The 
record does not contain the referenced SOW or SS, or any similar document "describ[ing] in detail" 
the services to be provided. 
On appeal, the Petitioner submits for the first time a staffing services supplier agreement (SSSA) 
between the mid-vendor and the managed service provider. The SSSA is a general agreement for the 
mid-vendor "to provide the Services to [the managed service provider] in support of [the managed 
service provider's] managed recruitment solution for [the end-client]." The SSSA defines the services 
to be provided as "the contingent staffing services provided by [the mid-vendor] including without 
limitation the sourcing and introduction, [sic] of [c]andidates for [a]ssignments, performing all 
[end-client] [r]equirements and the payrolling and management of [c]andidates and [c]ontingent 
[w]orkers." The SSSA does not further elaborate on the actual services to be performed, the 
end-client's requirements, the duration of a particular assignment, or other salient details. 
Additionally, like the MSA, the SSSA does not reference the Petitioner or the Beneficiary. Therefore, 
the MSA and SSSA do not establish the services to be performed during the requested period of 
employment. 
The record also contains an undated letter from the end-client's enterprise supplier management senior 
manager, generally addressed to USCIS. 7 The end-client letter acknowledges that the managed service 
provider: 
serves as [the end-client's] outsourced provider responsible for processes and functions 
intended to improve [the end-client's] operations and expenses, which includes 
management of supplier relationships and applicable contracts with staffing suppliers 
5 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."). Both the Freedom 
of Information Act and the Trade Secrets Act provide for the protection of a petitioner's confidential business information 
when it is submitted to U.S. Citizenship and Immigration Services (USCIS). See 5 U.S.C. § 552(b)(4), 18 U.S.C. § 1905. 
Additionally, the petitioner may request pre-disclosure notification pursuant to Executive Order No. 12,600, "Predisclosure 
Notification Procedures for Confidential Commercial Information." Exec. Order No. 12,600, 52 Fed. Reg. 23,781 (June 
23, 1987). 
6 The terms defined are "affiliate," "agreement," "applicable laws," "approved subcontractors," and "assignment manager." 
7 The record also contains a second undated letter from the end-client, addressed "to whom it may concern," which consists 
of a three-sentence paragraph reiterating the other letter and no signatory. 
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utilized by [the end-client], services related to responding to employment authorization 
letters, verification of employment/employment dates and confirmation of the staffing 
suppliers' consultant work location and job responsibilities. 
However, the end-client letter does not reference the Petitioner or the Beneficiary, describe the services 
to be performed by the Beneficiary, identify a specific assignment, address the end-client's 
requirements for the proffered position, and other salient details. We acknowledge that the record 
contains a letter from the managed service provider, which bears a bullet-point lists of seven tasks 
matching the list in Appendix A to the SSA. However, as noted above, the task list consists of 
generalized language that does not contain sufficient details that would assist us in understanding the 
substantive nature of the services to be performed. Furthermore, the managed service provider's letter 
states that the "basic qualifications" for the position include a "Bachelor's degree," without specifying 
that the degree, or its equivalent, must be in a specific specialty. 8 
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. 
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 4.9 
8 Although the managed service provider's letter states that the assignment would be from "April 15, 2019[,] through April 
14, 2021," as discussed above the few relevant contracts in the record that provide a project duration state that the 
assignment would end in January 2020. 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). In this case, the repeated statements in contracts that the assignment would end in January 2020 casts doubt on the 
managed service provider's uncorroborated statement that the assignment would continue through April 2021. The record 
does not establish that the parties extended the assignment beyond January 2020. 
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). 
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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. 
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