dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-P-S-, INC . 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 18, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting company , seeks to temporarily employ the 
Beneficiary as a "computer programmer analyst" under the H-lB nonimmigrant 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 California Service Center denied the petition on two separate grounds , concluding 
that the Petitioner did not establish: ( 1) that the proffered position qualifies as a specialty occupation; 
and (2) that it will maintain an employer-employee relationship with the Beneficiary. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying 
the petition. Upon de nova review , we will dismiss the appeal. 1 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the tenn "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: 
1 We follow the preponderance of the evidence standard as specified in Matter ofCha wathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter of S-P-S-, Inc. 
(]) 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). 
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 PROFFERED POSITION 
The Petitioner, which is located in Texas, stated that the Beneficiary will perform her duties at the 
end-client site in Colorado forl !(end-client), pursuant to contracts 
executed between the Petitioner andl l(vendor) and between the vendor and the end-
client. The Petitioner submitted three letters from the end-client that provided a list of job duties for 
the proffered position. 
III. ANALYSIS 
For the reasons set out below, we have determined that the proffered position does not qualify as a 
specialty occupation. Specifically, the record does not: (1) describe the proffered position in sufficient 
detail; and (2) establish that the job duties require an educational background, or its equivalent, 
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Matter of S-P-S-, Inc. 
commensurate with a specialty occupation. 2 In particular, we find 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). 
A. Speculative Employment 
We conclude first that the Petitioner has not established the existence of definitive, non-speculative 
employment for the Beneficiary. In other words, the current record is not even sufficient to establish 
that the proffered position actually exists, let alone demonstrate that it is a specialty occupation. While 
we acknowledge the evidence setting forth the contractual relationship between the Petitioner and the 
vendor, the corresponding evidence of the contractual relationship between the vendor and the end­
client is deficient. At page 2, the Professional Services Service Order Contract executed between the 
vendor and the end-client in July 2015 states the following: "the [vendor] may be requested by the 
[end-client] from time to time to provide professional services of the general nature detailed in the 
'Scope of Work,' attached hereto as Exhibit A[.]" At page 1, the contract stated, in part, that the 
following documents were attached: (1) Exhibit A, "Scope of Work," (2) Exhibit B, "Service Orders 
for Professional Services," and (3) Exhibit D, "Schedule ofValues." 3 
However, the record does not contain the referenced Exhibit A, "Scope of Work" document which, 
per the wording of the contract at page 2, would appear to be one of the primary instruments triggering 
the obligation on the part of the end-client to provide the position the Petitioner has described in this 
H-IB petition. The record does contain a "Service Order," which would appear to correspond to 
"Exhibit B" above, as well as a "Schedule of Values," which while appearing to correspond to "Exhibit 
D" above as described, is instead labeled as "Exhibit A." 
These documents are not sufficient to establish the existence of any obligation on the part of the end­
client to provide the position the Petitioner has described in this H-lB petition. The "Service Order" 
and "Schedule of Values" do not describe the project in any meaningful detail, identify the 
Beneficiary, or describe his duties. Though the "Schedule of Values" document names the roles the 
vendor will fill for the end-client, the position for which this petition was filed - "Computer 
Programmer Analyst" - does not appear. Moreover, the apparent mismatch between the lettering of 
the exhibits raises questions as to whether the "Service Order" and "Schedule of Values" were in fact 
executed pursuant to the submitted contract, or to another contract not contained in the record. When 
considered collectively, we find that these shortcomings raise significant questions as to whether an 
obligation on the part of the end-client to provide the Beneficiary's position had been secured before 
this petition was filed. 4 If we cannot determine whether the proffered position as described will 
2 The Petitioner submitted documentation in support of the H-IB petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 Though not submitted either, Exhibits C, E, and F do not appear relevant to our analysis. 
4 Cf Galaxy Software Solutions, Inc. v. USCIS, 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"). 
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Matter of S-P-S-, Inc. 
actually exist, then we cannot ascertain its substantive nature so as to determine whether it is a specialty 
occupation. 5 
Though acknowledged, the end-client's June 2018 letter does not fill this gap. In fact, that letter's 
awkward English, unusual spacing, and uneven font sizes lead us to question whether its writer 
possesses the authority to make attestations on behalf of the claimed end-client - which appears to be 
a government entity - before USCIS. In other words, instead of resolving or even diminishing the 
concerns identified above, the end-client's letter heightens them. It is not sufficient to establish an 
obligation on the part of the end-client to provide the position described in this petition, either. Again, 
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. 
For this reason alone, the record is insufficient to establish the substantive nature of the proffered 
position. 
B. Position Requirements 
Moreover, the end-client and Petitioner have provided inconsistent information regarding the 
minimum requirements for the proffered position, which raises additional questions as to its 
substantive nature. The table below summarizes the variances in the requirements. 
Record of Proceedings Degree Requirements 
Petitioner's Letter - bachelor's or master's degree in computer science, 
February 21, 2017 (page 3) information systems, management, information 
systems, electrical/electronics, engineering, physics, 
or a closely related field 
Petitioner's Letter- July 2, 2018 (page 5) bachelor's degree in computer science, mathematics, 
electrical, electronics, IS, or a closely related field 
End-Client's Letter-June 27, 2018 (page 1) bachelor's degree m computer science, 
electrical/ electronics engmeenng, IS, or other 
closely related field 
End-Client's Letter - December 20, 2018 bachelor's degree (or the equivalent) in computer 
(page 1) engineering, a field closely and directly related to the 
nature of the work 
End-Client's Letter - December 27, 2018 bachelor's degree m electronics/ electrical & 
(page 1) communications engineering or computer science 
5 Speculative employment is not permitted in the H-lB program. See, e.g., 63 Fed. Reg. 30419, 30419-20 (proposed June 
4, 1998). 
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Matter of S-P-S-, Inc. 
As noted, the end-client and the Petitioner have provided varying accounts of the educational 
background requirements necessary for the performance of the duties of the proffered position. 
Neither the end-client nor the Petitioner provided an explanation for the variances in the requirements. 
While the end-client submits documentation on appeal asserting its requirement for a bachelor's 
degree and explaining its reasons for requiring the degree, it does not acknowledge its inconsistent 
statements regarding the specific specialty of the degree. Inconsistencies in the requirements 
undermine the credibility of the Petitioner's claims regarding the proffered position. The Petitioner 
must resolve these inconsistencies 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. They also raise yet more questions as to the actual, substantive 
nature of the position. 
C. Position Description 
Moreover, a crucial aspect in determining the substantive nature of the proffered position is whether 
the Petitioner has sufficiently described the duties of the proffered position such 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. The Petitioner has not. 
We determine that the evidence is insufficient to establish that the proffered position qualifies for 
classification as a specialty occupation. As recognized in Defensor, 201 F.3d at 387-88, it is necessary 
for the end-client to provide sufficient information regarding the proposed job duties to be performed 
at its location in order to properly ascertain the minimum educational requirements necessary to 
perform those duties. In other words, as the nurses in that case would provide services to the end­
client hospitals and not to the petitioning staffing company, the Petitioner-provided job duties and 
alleged requirements to perform those duties were irrelevant to a specialty occupation determination. 
See id. 
Here, the record of proceedings does not provide sufficient information from the end-client regarding 
the project assignment or the specific job duties to be performed by the Beneficiary. The Petitioner 
submitted three letters from the end-client confirming that the Beneficiary will be working as a 
"computer programmer anallst" on its I I 
lproject." The end-client's first letter states that the Beneficiary will 
perform software development work in a team-oriented environment including new development as 
well as support, maintenance, or enhancement of existing applications that will entail complex 
business requirements and processes. The letters include a list of the Beneficiary's job duties in brief: 
generalized terms that do not convey the substantive nature of the proffered position and its constituent 
duties. For example, the end-client's third letter states that the Beneficiary will analyze and design 
new functionalities using agile methodology; migrate and rewrite the legacy applications (.Net 
application) into Microsoft Service Fabric applications in order to overcome the performance and 
complexity issues; develop web user interface, REST API services, and Windows user interface and 
business logic layer using latest Microsoft .Net technologies; design and implement! I 
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Matter of S-P-S-, Inc. 
~----------------------------~ ; implement and design 
workflow scenarios for application communication using Microsoft Service Fabric; implement 
Microsoft Message Queueing (MSMQ) by adding and retrieving queues; designing the ASP.NET 
application authentication using .NET framework, Model View Controller MVC 4.0 and IIS security 
model;' contribute to production deployments, including technical documentation, participation in 
change control processes, and creation ofrelease notes; and manage Team Foundation Servicer (TFS) 
and GIT for version control and for maintaining source code. 
While the Petitioner provided additional tasks and duties the Beneficiary would perform in the 
proffered position, along with the percentages of time she would devote to each, it does not make a 
direct connection from the listed duties to the end-client's project. This list of duties provided by the 
end-client, while somewhat extensive, does not actually contain a detailed description explaining what 
particular duties the Beneficiary will perform on a day-to-day basis for the end-client's project. Nor 
is there a detailed explanation regarding the demands, level of responsibilities, complexity, or 
requirements necessary for the performance of these duties from the vendor or the end-client. 
Additionally, on appeal the Petitioner submits information pertaining to the end-client and its current 
toll operations. However, while the record indicates that the Beneficiary will work on thel I 
~~------------------~-------~ project for the end-client, it 
does not specifically describe the project or explain the specific role of the Beneficiary for this project. 
For all of these reasons, we conclude that the Petitioner has not 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. Therefore, 
we cannot conclude that the proffered position qualifies for classification as a specialty occupation. 
IV. EMPLOYER-EMPLOYEE RELATIONSHIP 
The Director denied the petition on two separate grounds, one of which concluded that the Petitioner 
is not a United States employer, as described at 8 C.F.R. § 214.2(h)(4)(ii). As detailed above, the 
record of proceedings lacks sufficient documentation evidencing what exactly the Beneficiary would 
do for the period of time requested or for the assigned project at the end-client facility. Given this 
specific lack of evidence, the Petitioner has not corroborated who has or will have actual control over 
the Beneficiary's work or duties, or the condition and scope of the Beneficiary's services. However, 
we will reserve this issue as we have concluded that the proffered position is not a specialty occupation. 
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Matter of S-P-S-, Inc. 
V. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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. 
Cite as Matter of S-P-S-, Inc., ID# 3844055 (AAO Sept. 18, 2019) 
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