dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 4665857 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 11, 2020 
The Petitioner , an IT consulting and real estate business, seeks to temporarily employ the Beneficiary 
as a "systems analyst" under the H-lB nonirnrnigrant classification for specialty occupations. See 
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 Form I-129, Petition for a Nonimmigrant 
Worker, concluding that the Petitioner did not establish that the proffered position qualifies as a 
specialty occupation. The Director also determined that the Petitioner did not provide sufficient 
evidence to establish the substantive nature of the actual work to be performed by the Beneficiary. On 
appeal, the Petitioner submits a brief and additional evidence and asserts that the Director erred in 
denying the petition. 
Upon de nova review, we will dismiss the appeal. We follow the preponderance of the evidence 
standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
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 offered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(]) 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. 1 
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. 2 
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. 
II. THE PROFERRED POSITION 
The Petitioner states that the Beneficiary is being offered employment in the position of IT Systems 
Analyst, and described the duties of the proffered position as follows: 
• Software and Systems analysis and conversion; 
• Business information resources management; 
• Data mapping, processing and modeling; 
• Analyzing and integrating systems for IT applications; 
• Providing technical oversight of IT tasks, and; 
• Designing and developing programs and systems. 
1 8 C.F.R. § 214.2(h)(4)(iii)(A). 
2 See Royal Siam COip. v. Chertof(, 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). 
2 
The Petitioner states that the job can "only be performed by highly trained/specialized professionals 
who have at least a Bachelor's degree (if not a Masters) in computers, information systems, 
engineering, business or a related field and extensive knowledge and experience in information 
technology, web developing and internet security." 
The Petitioner designated the proffered position under the occupational category "Computer Systems 
Analysts" corresponding to the Standard Occupational Classification (SOC) code 15-1121, at a Level 
II wage on the labor condition application (LCA)3 submitted in support of the H-lB petition. We note 
here that at the time of petition filing, the Petitioner indicated that the Beneficiary would not work off­
site at another company organization or location. 
In response to a request for evidence (RFE) issued by the Director, the Petitioner for the first time 
indicated that it is in the business of IT consulting and therefore has ongoing obligations that could 
require the reassignment of employees (including the Beneficiary) to different client projects/locations 
on very short notice depending on the urgency of service agreements. The Petitioner requested that 
we collectively view the Petitioner's in-house project and client service agreements to conclude that 
there is "ample work available for the requested H-lB duration." Additionally, the Petitioner 
referenced several agreements it executed with clients which were also submitted in response to the 
Director's RFE. This documentation consists of the following: 
• A March 8, 2018 letter from the~----~--.------ in I I Delaware 
stating that the Petitioner has been providing cyber security services tol ~ since August 
2016, and although the agreement was initially signed for one year it has been extended on an 
annual basis since then. The letter further states that pursuant to this contract, the Petitioner 
"is required to assign one of their senior security engineers (Cyber security expert) to provide 
the following Cyber Security Services": 
o Determining initial threat impact and then taking action, respond or escalate an 
incident. 
o Respond to alerts ( automated alerts, human reported events); assigning severity ratings. 
o Supporting compliance-related tasks, and details required for the investigation and 
further analysis, threat resolution, intelligence and indicator capture, requesting 
mitigations, and recommending additional decisions. 
o Coordinating of resources during enterprise incident response efforts, driving incidents 
to resolution. 
o Employing advanced forensic tools and techniques for attack reconstruction. 
o Performing network traffic analysis utilizing raw packet data, net flow, IDS and 
customer sensor input as it pertains to cyber security of communication networks. 
o Correlating actionable security events from various sources and develops unique 
correlation techniques. 
3 A petitioner submits the LCA to the U.S. Department of Labor to demonstrate that it will pay an H-1 B worker the higher 
of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid by the 
employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. 
§ 655.731(a). 
3 
o Utilizing understanding of attack signatures, tactics, techniques and procedures 
associated with advanced threats. 
o Conducting malware analysis of attacker tools providing indicators for defense 
measures, and reverse engineer attacker encoding protocols. 
The March 18, 2018 letter froml ~ closes by stating that they "will have a need for 
such services for foreseeable future and we look forward to continued services from 
[Petitioner]." Notably, this letter contains no reference to the Beneficiary at all. 
The Petitioner also submitted an Independent Contractor Agreement executed between .... 1 ____ __, 
I ~ and the Petitioner dated August 11, 2016 in response to the RFE. This agreement 
contains no reference to the Beneficiary and is therefore of minimal evidentiary value. 
III. ANALYSIS 
Upon review of the record, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. In particular, we conclude that the Petitioner 
has not established the substantive nature of the position, which precludes a determination that the 
proffered position qualifies as a specialty occupation under at least one of the four regulatory specialty­
occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
We conclude first that the Petitioner has not established its eligibility for the benefit sought at the time 
it filed this petition, as required by 8 C.F .R. § 103 .2(b )(1 ). The Petitioner initially stated at the time 
of petition filing that the Beneficiary would work on-site at its company headquarters in I I 
Delaware. Specifically, in Section 4 of the H-lB and H-lBl Data Collection and Filing Fee 
Exemption Supplement to the Form I-129 petition, which relates to off-site assignment of H-lB 
Beneficiaries, the Petitioner clearly marked the "No" box when responding to the question of whether 
the Beneficiary would be assigned to work at an off-site location. 
As we have noted, in response to the RFE the Petitioner stated for the first time that its contractual 
agreements could require the reassignment of employees (including the Beneficiary) to different client 
projects/locations on very short notice depending on the urgency of those service agreements. The 
record does not resolve this inconsistency with independent, objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies 
may lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the 
requested immigration benefit. Id. This inconsistency and change in the terms and conditions of 
employment is significant, and clearly establishes that the petition was not eligible for approval at the 
time of filing. The 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 )(1 ). 
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, 249 (Reg'l Comm'r 
1978). For this reason alone the petition may not be approved, and the inconsistency and change call 
into question the actual, substantive nature of the position. 4 
4 In addition to calling into question the actual, substantive nature of the position's duties, these changes raise significant 
questions as to whether the LCA corresponds to and supports this H-lB petition, as required. They also raise evidentiary 
concerns in that the record contains no evidence regarding the credentials these end-clients would require per Defensor. 
4 
Setting aside this threshold foundational deficiency which precludes approval of the petition, we also 
agree with the Director's determination regarding the existence of non-speculative work for the 
Beneficiary to perform. Specifically, absent documentation executed between the vendor and the end­
client for the Beneficiary's assignment with the end-client, the record lacks evidence of any legal 
obligation on the part of the end-client to provide the position described by the Petitioner in this 
petition. 5 It is the Petitioner's burden to prove by a preponderance of evidence that it is qualified for 
the benefit sought. Matter of Chawathe, 25 I&N Dec. at 376. In summary, if we cannot determine 
whether the proffered position as described will actually exist, then we cannot ascertain its substantive 
nature so as to determine whether it is a specialty occupation. 6 We consider this an additional 
foundational deficiency which also prevents us from ascertaining the substantive nature of the 
proffered position. 
Moreover, a crucial aspect of this matter is whether the Petitioner has sufficiently described the 
proffered position's duties sufficiently that we may discern the nature of the position, and whether the 
position actually requires the theoretical and practical application of a body of highly specialized 
knowledge attained through at least a baccalaureate degree in a specific discipline. We conclude that 
the Petitioner has not done so. As noted, the Petitioner states that some of the important 
responsibilities are software systems analysis and conversion, business information resources 
management, data mapping, processing and modeling, analyzing and integrating systems for IT 
applications, providing technical oversight over IT tasks, and designing and developing programs and 
systems. The lack of specificity here is problematic. The Petitioner's description of the proposed 
duties in terms of generic information technology functions does not sufficiently convey substantive 
information to establish the relative complexity, uniqueness, and/or specialization of the proffered 
position or its duties. 
On appeal the Petitioner states again that it is seeking to hire the Beneficiary as a Software 
Developer/Engineer on its in house project. No explanation has been provided by the Petitioner 
regarding its claim that the Beneficiary's employment would be in-house when the record clearly 
contains countervailing evidence strongly suggesting otherwise. Rather, the Petitioner has chosen to 
completely avoid addressing this glaring discrepancy. This severely diminishes the overall credibility 
of the Petitioner's entire claim to eligibility in this matter, and raises yet more questions as to the 
actual, substantive nature of the proffered position. 
We farther note that the Petitioner states that "a baccalaureate or higher degree or its equivalent is 
normally the minimum requirement for entry into the position of Sr. Software Developer/Engineer 
under the ONET/OES Occupation title Computer Systems Analyst and ONET/OES Code 15-1121 
that is designated as a Level 3 position with an annual salary of $110,000 per year." We pointedly 
question the relevancy of this statement from the Petitioner as well, given the fact that later in the same 
brief the Petitioner references the proffered position in this matter as being a Level 2 position with a 
5 Cf Galaxy Sofiware Solutions, Inc. v. USC1S, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) 
(describing the petitioner's "fail[ure] to provide all of the contracts governing the relationships between the corporate 
entities in the chain" as a "material gap"). 
6 The agency made clear long ago that speculative employment is not pennitted in the H-1 B program. See, e.g., 63 Fed. 
Reg. 30419, 30419 - 30420 (June 4. 1998). 
5 
salary of $81, 723 per year. 7 
These identified discrepancies, inconsistences, and conflicting statements put forth by the Petitioner 
in this matter remain unresolved and therefore preclude approval of the petition. The Petitioner must 
resolve discrepant information with independent, objective evidence pointing to where the truth lies. 8 
Here the Petitioner has not done so. 
We conclude that the Petitioner has not established the substantive nature of the work the Beneficiary 
will perform. This precludes us from evaluating whether 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 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. 
Even if the proffered position were established as being located within the "Computer Systems 
Analysts" occupational category as claimed, a review of the U.S. Department of Labor's (DOL) 
Occupational Outlook Handbook (Handbook) would not indicate that, simply by virtue of its 
occupational classification, it would qualify as a specialty occupation in that the Handbook does not 
state a normal minimum requirement of a U.S. bachelor's or higher degree in a specific specialty, or 
its equivalent, for entry into the occupation of programmer analyst. See Bureau of Labor Statistics, 
U.S. Department of Labor, Occupational Outlook Handbook, Computer Systems Analysts, 
https://www.bls.gov/ooh/computer-and-information-technology/computer-systems-analysts.htm (last 
visited Mar. 4, 2020). As such, absent evidence that the position satisfies one of the alternative criteria 
available under 8 C.F.R. § 214.2(h)(4)(iii)(A), the instant petition could not be approved for this 
additional reason. 
Based on the foregoing, we cannot conclude that the proffered position qualifies as a specialty 
occupation. 
IV. 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. 
7 We question the LCA's wage-level designation regardless. As noted, the Petitioner stated that it requires a bachelor's 
degree in one of several fields combined with "extensive experience." While the record does not clarify what the Petitioner 
considers "extensive," we nonetheless question whether that requirement was accurately captured by the Level II 
designation. 
8 Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
6