dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 8776252 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 23, 2020 
The Petitioner, an information technology company , seeks to temporarily employ the Beneficiary as a 
"sr. J2EE boot developer" under the H-lB nonimmigrant classification for specialty occupations. 
Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § l 10l(a)(l5)(H)(i)(b) . 
The H-IB 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 that the position is a specialty occupation. The Director also concluded that the record did 
not establish the Petitioner would have an employer-employee relationship with the Beneficiary during 
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. 
Section 291 of the Act; Matter of Chawathe, 25 I&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. 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 
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).1 
The Petitioner, located in Iowa, asserted the Beneficiary would work at the end-client location in 
Arizona. However, the record does not contain sufficient evidence to establish the terms and 
conditions of the Beneficiary's assignment during the requested period. 
The record contains contracts among parties involved in the Beneficiary's assignment. First, the 
record contains a network supplier agreement (NSA) between the Petitioner and the mid-vendor. The 
NSA is a general agreement for the Petitioner to "provide temporary contract personnel to the 
mid-vendor] for performing services to [the mid-vendor]." In addition to stating that the Petitioner 
would perform services to the mid-vendor, not the end-client, the NSA defines "[the mid-vendor's] 
client" as "the [e]nterprise engaging the services of [the mid-vendor] ... to provide procurement 
services or offerings as determined by [the client]"; however, it does not further identify an end-client. 
Additionally, the NSA does not specify a particular project, the services to be provided, a position title 
to provide such services, the duties of such a position, or the individual assigned to such a position. 
Instead, the NSA states that the "services shall be subject to [the mid-vendor's client's] requirements 
and the applicable Addendum, Exhibit A, and Statement of Work [(SOW)]." 
1 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. 
2 
Initially, the Petitioner did not submit Exhibit A, referenced in the NSA; however, in response to the 
Director's request for evidence, the Petitioner submitted an SOW the Petitioner and the mid-vendor 
signed and dated July 2019, after the petition filing date. A petitioner must establish that all eligibility 
requirements for the immigration benefit have been satisfied from the time of the filing and continuing 
through adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future date 
after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin 
Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). Because the parties signed and dated the SOW 
after the petition filing date, it may not establish eligibility. 
Even if the parties had signed and dated the SOW as of the petition filing date, it states that the project 
"end date" would be "3 l-Dec-2020," and the extent of its "task description" for the Beneficiary 
working on the end-client project appears to be a summarized job announcement, as follows: 
Senior Java/J2EE [s]oftware [e]ngineers with back-end to middle-tier focus. Java web 
stack with MySQL experience is required. NoSQL [sic] and cloud experience is 
desired. 
• Java [ d]esign [p ]attems 
• 5-6 year developer [sic] experience 
• Spring [f]ramework & [s]pring [b]atch 
• Webservices, RESTFUL and SOAP experience 
• Strong Database experience 
• TDD (Test Driven Devlopment) 
• Tools - GITHUB, Jenkins, Maven and any other CI tools experience 
The limited "task description" of Java/J2EE software engineering with back-end to middle-tier focus, 
along with an assortment of desired qualifications, and a project "end date" of "3 l-Dec-2020," raise 
questions regarding the substantive nature of the work for which the parties contracted the Beneficiary 
to perform during the requested period, even if they had contracted for such work as of the petition 
filing date. 
Next, the record contains an excerpt from a professional services agreement (PSA) between the 
mid-vendor and the end-client. The first page, numbered "l of 36," begins a section titled "1.0 
Definitions," in part indicating that the term "deliverables" is defined as "the [ d]eliverables that must 
be supplied to [the end-client] by the [mid-vendor] under any Order Form, Purchase Order, or SOW, 
... and which shall be folly defined and specified, as well as all reports, information, materials, and 
other Work Product that [the mid-vendor] and its Personnel develop that arise out of its performance 
of such SOW." The only other page of the PSA in the record at the time of the Director's decision, 
numbered "21 of 36," contains the signatures of the parties' representatives, a list of exhibits including 
"Exhibit A: Statement of Work," and a section titled "34.0 Vendor Compliance with [the end-client's] 
Ethical Standards." 2 The omission of the entirety of sections 2-33, the majority of section 34, and 
what appears to be 15 pages of supplemental exhibits, obscures the terms of the agreement between 
the mid-vendor and the end-client. Furthermore, the record does not contain the SOW specifically 
referenced in the PSA. 
2 On appeal, the Petitioner submits pages numbered ·'Page 1 of 36" through ·'Page 21 of 36." However, the record does 
not contain the remaining 15 pages and much of the pages submitted on appeal bear heavy redaction. 
3 
Instead, the record contains two memoranda of understanding (MOU) between the mid-vendor and 
the end-client, the first dated before the petition filing date and the second dated after the petition filing 
date. Each MOU states that it is "issued at the request of [the Petitioner] in order to assist with [the 
Petitioner's] HlB petition on behalf of its resource(s)." Each MOU then states that "[the end-client's] 
contract is directly with [the Petitioner]"; however, the record does not contain a contract directly 
between the Petitioner and the end-client. 3 
Although, in the absence of the SOW between the mid-vendor and the end-client referenced in the 
PSA, each MOU summarizes the Beneficiary's tasks to be performed at the end-client location, the 
end-client states that it "requires ... the equivalent of a U.S. year [sic] bachelor's degree or higher in 
Computer Science, Information Systems, Management Information Science, Business or a relevant 
Engineering degree or the foreign equivalent to perform the essential duties." 
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 spec[fic discipline that is necessary to perform 
that particular work. 
The inclusion of a degree in business along with fields related to computer science is inadequate to 
establish that a position qualifies as a specialty occupation. A petitioner must demonstrate that the 
proffered position requires a precise and specific course of study that relates directly and closely to 
the position in question. Since there must be a close correlation between the required specialized 
studies and the position, the requirement of a degree with a generalized title, such as business, without 
further specification, does not establish the position as a specialty occupation. Cf Matter of Michael 
Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). In addition to demonstrating that a job requires 
the theoretical and practical application of a body of specialized knowledge as required by section 
214(i)(l) of the Act, a petitioner must also establish that the position requires the attainment of a 
bachelor's or higher degree in a specialized field of study or its equivalent. As explained above, we 
interpret 8 C.F.R. § 214.2(h)(4)(iii)(A) as requiring a degree in a specific specialty that is directly 
related to the proposed position. We have consistently stated that, although a general-purpose 
bachelor's degree, such as a degree in business, may be a legitimate prerequisite for a particular 
position, requiring such a degree, without more, will not justify a conclusion that a particular position 
qualifies for classification as a specialty occupation. Royal Siam Corp., 484 F.3d at 147. 
Furthermore, each MOU states that the Beneficiary's assignment would be "until December 2019." 
Although each MOU also asserts that "[t]he SOW may be extended at CVS' option ... and renewals 
3 Each MOU bears the end-client's logo. Therefore, although representatives of both the mid-vendor and the end-client 
signed each MOU without specifying which party authored it, we construe terms such as "our" to mean the end-client. 
Additionally, each MOU begins with "[the mid-vendor] in partnership with [the Petitioner] ('Vendor') ... ," not "[the 
mid-vendor] ('Vendor') in partnership with [the Petitioner] ... ," defining the Petitioner as the vendor with which the 
end-client states it has a direct contract. Because "vendor" appears in the singular, we do not construe "vendor" to mean 
the mid-vendor and the Petitioner jointly. 
4 
are often not finalized until after the contract end date," at the time of the Director's decision the record 
did not indicate that the parties extended the SOW beyond December 2019. On appeal, the Petitioner 
submits "Amendment No. 9" to the PSA, indicating that the parties "extend[ ed] the term of the through 
[sic] March 31, 2020"; however, the record does not establish that the parties extended the contract 
beyond March 2020. Regardless of the duration of any extensions to the PSA, the record does not 
contain the referenced SOW. Accordingly, similar to other issues discussed, the record does not 
establish the substantive nature of the work for which the parties contracted the Beneficiary to perform 
during the requested period. 
We note that the record contains jn opinion letter from Dr.~------~ a professor of 
information systems management at University. As a matter of discretion, we may use opinion 
statements submitted by a petitioner as advisory. Matter of Caron Int'!, Inc., 19 I&N Dec. 791, 795 
(Comm'r 1988). However, we will 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 I&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."'). 
Dr.I I stated that he "had the opportunity to review the letter of support submitted with the H-lB 
petition by [the Petitioner and the job description of the Sr. J2EE/Spring Boot Developer position it now 
seeks to fill." Dr. then uotes 22 duties and 71 subtasks spanning eight full pages of text.4 
Notably, the duties Dr.~--~reviewed differ substantially from the single paragraph "task 
description" in the SOW between the Petitioner and the mid-vendor, quoted above, raising ~uestions 
regarding the substantive nature of the proffered position and the extent to which Dr. I ~ I is 
familiar with it. 5 
Additionally, Dr. I I does not indicate that he reviewed evidence of the end-client's 
requirements in addition to "the letter of support submitted with the H-lB petition by the Petitioner 
and the job description of the Sr. J2EE/Spring Boot Developer position." As noted above, where the 
work is to be performed for entities other than the petitioner, evidence of the client companies' job 
requirements is critical. Defensor, 201 F.3d at 387-88. Despite opining that "the described job duties 
... require preparation at the Bachelor's Degree level in Computer and Information Science, 
Computer Information Systems at a minimum," Dr.I I does not comment on the end-client's 
inclusion of a generalized "Business" degree field in its requirement of "the equivalent of a U.S. year 
[sic] bachelor's degree or higher in Computer Science, Information Systems, Management 
Information Science, Business or a relev.aut Ern1ilering degree or the foreign equivalent to perform 
the essential duties." In other words, Dr.I s conclusions are not adequately substantiated and 
inconsistencies in his letter undermine his knowledge and understanding of the proffered position. 
Based on the concerns we addressed, and considered in light of the entire record, Dr.I Is 
opinion bears minimal probative value. See Matter of Caron Int'!, Inc., 19 I&N Dec. at 795. 
4 Although we omit the eight pages of duties for brevity, we have reviPwed tbem in their entirety. 
5 We also note that the eight full pages of 22 duties and 71 subtasks Dr] I quotes do not match the three duties and 
21 subtasks, spanning approximately two pages of deeply indented text, that appear in the MOU, discussed above. 
5 
In summation, we conclude that the ambiguities, inconsistencies, and lack of documentation in the 
record does 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. 6 
III. 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. 
6 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 fmther discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. ~ 214.2(h)(4)(iii)(A). 
Additionally, we reserve our decision regarding the Director's separate conclusion that the Petitioner would not have an 
employer-employee relationship with the Beneficiary during the requested period. 
6