dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6596252 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 18, 2020 
The Petitioner, a "managed outsourcing and strategy company" seeks to extend the Beneficiary's 
temporary employment as an "enterprise applications systems analyst" 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 California 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, or that the Petitioner would enjoy an employer-employee relationship with 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. 2 
We review the questions in this matter de nova. 3 Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C . § l 184(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 . § 2 l 4.2(h)( 4)(ii) adds a non-exhaustive list of fields of endeavor. 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § l 101(a)(l5)(H)(i)(b). 
2 Section 291 of the Act; Matter ofChawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
II. ANALYSIS 
The Petitioner, located in Illinois, stated it has a contractual relationship withl I (vendor). 
Based on this relationship, the vendor would place the petitioning organization's personnel to perform 
work at an off site location in Texas forl I< end-client). Based on a lack of sufficient 
evidence, 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 criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
The Petitioner offers multiple services, to include staffing and outsourcing. The end-client is a 
multinational computer technology-related entity specializing in developing modem technology 
infrastructure for other organizations. The Petitioner initially provided the position's description and 
indicated its education requirements for the proffered position. However, 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. 4 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. 
First, the present scenario is analogous to that of the Defensor decision, as one in which the duties the 
Beneficiary will actually perform and the qualifications to perform them should originate from the 
end-client. 5 The material from the end-client should sufficiently convey the functions the Beneficiary 
would actually perform in his daily work. Within the appeal, the Petitioner states that it believes their 
responses to the Director's requests for evidence (RFE) offered enough detail and specificity relating 
to the duties and the qualifications to perform them. We note the Director clearly informed the 
Petitioner that the record did not offer a sufficient level of specificity as it related to the Beneficiary's 
duties. 
We note several issues surrounding the duties. The Petitioner provided a set of duties at the time it 
filed the petition in October 2016. Those duties consisted of the following eight bullets: 
4 Id. 
• Define processes for updates, fixes, launches and enhancements. 15% 
• Coordinate with offshore teams and vendors regarding code changes for upcoming features. 
10% 
• Perform code and gap analysis to address inaccuracies, inconsistencies, and updates. 10% 
• Participate in the launching of periodic updates to the end-client's desktop application and web 
site. 10% 
5 It is important to note that within the reference to the Defensor decision, we are not correlating the Petitioner's business 
model as a simple token employer. However, it is apparent that the Beneficiary would provide services to the end-client, 
not to the Petitioner. Furthermore, we conclude that it is more likely than not that the end-client possesses the technical 
knowledge of the duties that would comprise the proffered position, as well as the requirements to perform those duties. 
2 
• Design and document requirements for enhancements and fixes in current and future versions 
of the end-client's application. 10% 
• Validate code changes before they get deployed to servers. 10% 
• Implement enhancements using C# and ASP .NET to templates to address periodic product 
updates. 20% 
• Debugging code for maintenance tool, the end-client's desktop application and their web 
application. 15% 
Now in March 2019, the end-client offers the same set of duties. It appears that the duties within the 
end-client letter actually originated with the Petitioner. The duties within the end-client letter are 
almost identical to the Petitioner's set of functions. Even the Petitioner's correspondence dated in 
June 2018 responding to the Director's RFE at page 3 reflected that it was the petitioning organization 
that was providing a much more "detailed and meaningful job description," rather than such a 
description coming 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. 6 When correspondence contains 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. 7 Given the unique similarities in the letters 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 the Petitioner has not 
demonstrated these elements are the end-client's actual requirements. The Petitioner must resolve this 
ambiguity in the record with independent, objective evidence pointing to where the truth lies. 8 
Because someone other than the author appears to have drafted a portion of the end-client letter, it carries 
diminished probative value. In evaluating the evidence, the truth is to be determined not by the quantity 
of evidence alone but by its quality. 9 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. 10 Here, the Petitioner has not offered 
sufficiently probative evidence in this matter. 
In addition to not demonstrating that the presented duties originated with the end-client, evidence that 
the Petitioner submits after U.S. Citizenship and Immigration Services (USCIS) issues an adverse 
finding, is not sufficiently independent and objective evidence. Necessarily, independent and 
objective evidence would be evidence that is contemporaneous with the event to be proven and existent 
at the time of filing. The Petitioner offers no explanation of why it did not submit the end-client letter 
in October 2016 when it filed the petition, or when it responded to the first or the second RFE. While 
6 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 1. 8 (1st Cir. 
2011 ). 
7 See Mei Chai Ye v. U.S. Dept. of Justice, 489 F.3d 517,519 (2d Cir. 2007). 
8 Ho, 19T&NDec.at591-92. 
9 See Chawathe. 25 T&N Dec. at 376 (quoting Matter of E-M-, 20 T&N Dec. 77, 79-80 (Comm'r 1989)). 
10 Defensor, 201 F.3d at 387-88. 
3 
we consider the end-client letter as evidence, it carries less evidentiary weight based on the similarities 
between the Petitioner's and the end-client's duties and the lack of timeliness associated with the 
end-client's letter. 
Even ifwe did not conclude it was unlikely that the duties originated with the end-client, the record only 
contains vague and copied duties from----or endorsed by-the end-client, the company that will actually 
be utilizing the Beneficiary's services, which undermines the Petitioner's claims that the position's duties 
are specialized and complex. 11 For example, it is unclear what theoretical and practical application of a 
body of highly specialized knowledge is required to: (1) define processes for updates, fixes, launches 
and enhancements; (2) coordinate with offshore teams and vendors regarding code changes; (3) 
perform code and gap analysis to address inaccuracies, inconsistencies, and updates; or (4) participate 
in the launching of periodic updates to the end-client's applications. 12 
We conclude the letter from the end-client carries farther diminished evidentiary value, as it reflects 
that in addition to a bachelor's degree, it requires work experience as "an important prerequisite" for 
the position. However, neither the Petitioner nor the end-client offered more specific information to 
establish the number of years of experience the client requires. 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 number of years the client requires. 
We note that the opinion letter from an associate professor.I I restated the same duties 
listed in the Petitioner's initial correspondence. He did not discuss the duties in the specific context 
of the end-client's business, or the end-client project upon which the Beneficiary would work. Rather, 
he based his opinion on the context of the Petitioner's business as an information technology 
development firm. There is no indication that he possessed any knowledge of the proffered position 
beyond this limited job description prior to documenting his opinion . 
.__ _____ _.l's level of familiarity with the actual job duties, as they would be performed in the 
context of the end-client project, has therefore not been substantiated. This significantly reduces the 
value of the opinions within this letter. We may, in our discretion, use opinion statements submitted by 
the Petitioner as advisory. 13 However, where an opinion is not in accord with other information or is in 
any way questionable, we are not required to accept or may give less weight to that evidence. 14 
11 We note the greater detail the Petitioner offered in its June 2018 RFE response; however, the record does not reflect that 
the granularity offered in that correspondence originated from the end-client. As a result, those functions should not factor 
into whether the Petitioner has demonstrated the substantive nature of the work the Beneficiary performs at end-client 
worksite. See Id. 
12 Moreover, the Director requested a detailed job description from the end-client within the June 2017 RFE (the first RFE), 
but the Petitioner filed to provide this type of evidence at that time. In Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 
1988), the Board of Immigration Appeals held that if a petitioner was put on notice of an evidentiary requirement (by 
statute, regulation, form instructions, RFE, etc.) and was given a reasonable opportunity to provide the evidence, then any 
new evidence submitted on appeal pertaining to that requirement would not be considered, and the appeal would be 
adjudicated based on the evidentiary record before the director. Sec also Matter of Obaigbcna, 19 I&N Dec. 533, 537 
(BIA 1988). 
13 Matter of Caron lnt'l,Jnc., 19 l&N Dec. 791, 795 (Comm'r 1988). 
14 Id. 
4 
Within the denial decision, the Director explained that the duties originating from the end-client were 
overly generalized, vague, and insufficient to demonstrate eligibility. On appeal and in response, the 
Petitioner refers to the detailed job description it offered in the RFE response. However, as we noted 
above, the Petitioner has not demonstrated that its detailed job description originated with the end-client, 
and as a result it is much less probative to our analysis than the material from the end-client. 
Finally, within the appeal brief the Petitioner claims that the Statement of Work (SOW) executed between 
the vendor and the end-client established the nature of the position. We disagree, as that SOW did not 
contain project requirements limited solely to the work the Beneficiary would perform. Instead, it 
included all the work the vendor agreed to perform for the end-client relating to that portion of the 
project. This SOW didn't even identify the Beneficiary as a resource assigned to the project, and as a 
result, it is unclear how that SOW established the nature of the position. 
Inherent with employing foreign nationals are additional burdens a U.S. employer must satisfy when 
compared to hiring U.S. workers. Part of that burden in the H-lB context is to demonstrate the actual 
duties a beneficiary will perform while deployed to an end-client worksite, by a preponderance of the 
evidence. The most expedient method is to provide material directly from the entity where the work 
will take place-the entity that possesses the greatest knowledge and understanding of how a foreign 
national's contributions will factor into its business model and its projects. 15 
An absence of such material can create material gaps in the evidence, while also undermining a 
petitioner's eligibility claims. The scenario in the present case is one in which the Petitioner presented 
vague and uninformative duties from the end-client. This does not sufficiently inform USCIS of the 
substantive nature of the duties to be performed, and any particular academic requirements for the 
proffered position. It is unclear from the record how the end-client's proposed generalized functions 
would translate into specific duties the Beneficiary would perform and how such functions necessitate 
a bachelor's degree in a specialized field of knowledge. 
Although not raised within the Director's decision, we conclude that the Petitioner has not 
demonstrated the Beneficiary's qualifications in accordance with the H-lB regulation. The 
Beneficiary earned a foreign degree and accumulated a number of years of experience I I 
determined that the combination of his education and experience was equivalent to a U.S. bachelor's 
degree. Despite the claim within the February 2018 letter from the assistant registrar.I ts 
institution of higher education does not have a program for granting college-level credit in the specialty 
based on an individual's training and/or work experience. This is a primary requirement under the 
regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D)(l). 
The institution's website provides information relating to its Prior Leaming Assessment (PLA) process 
and states that "[ c ]redits earned through the PLA process may be used to fill open electives. They may 
not be used to fill general education or major course requirements." 16 We note that open electives are not 
in the specialty as the regulation requires. Due to the limitations imposed on the program, we cannot 
find that it folly equates to a program for granting college level credit "based on an individual's 
15 Defensor, 201 F.3d at 387-88. 
16 Life Experience Creditl._ ___ _.lUniversity (Apr. 7, 2020), https:/.__ ______________ __. 
5 
training and/or work experience in the particular specialty," as required by the plain language of the 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(D)(]). 
III. CONCLUSION 
Given the lack of detailed information from the end-client, the Petitioner has not sufficiently 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. 17 
ORDER: The appeal is dismissed. 
17 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 discuss the Petitioner's other assertions on appeal. 
Further, the dispositive nature of the appeal eliminates the necessity that we make a determination on the 
employer-employee relationship issue identified within the Director's decision. 
6