dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8420136 
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 21, 2020 
The Petitioner, an information technology consulting company, seeks to temporarily employ the 
Beneficiary as a software developer, applications 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, concluding that the Petitioner did 
not sufficiently establish that: ( 1) it qualifies as a United States employer with an employer-employee 
relationship with the Beneficiary; and (2) the proffered position qualifies as a specialty occupation . 
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 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 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)(l) of the Act, 8 U.S.C. § 1184(i)(l), 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)(l) 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, 
1 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii) . We construe the tenn "degree" to mean not just any 
8 C.F.R. § 214.2(h)(4)(i)(A)(I) 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 
look to 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, 87-88 (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)(l) 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)(l). 
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 perform during the requested period 
of employment, which precludes a determination of whether the proffered position qualifies as a 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Cmp. 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 pa1iicular position"). 
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specialty occupation under sections 101(a)(l5)(H)(i)(b), 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A).2 
The Petitioner, which is located in Missouri, asserts the Beneficiary will work for an end-client [ via a 
first and second vendor] inl !New Jersey. However, the record does not contain sufficient 
evidence to establish the services the Beneficiary will perform. Specifically, the record (1) does not 
describe the position's duties with sufficient detail; and (2) does not establish that the job duties require 
an educational background, or its equivalent, commensurate with a specialty occupation. 
The Petitioner stated on the Form 1-129, Petition for a Nonimmigrant Worker, and on the certified labor 
condition application (ICA), thatlthe Beneficiary would work as a software developer, applications for 
an end-client located in New Jersey, for the petition's entire employment period, August 2019 
to August 2022. 3 The Petitioner indicated the relationship with the end-client as follows: 
-(Second vendor) -(End-Client) 
The Petitioner submitted two agency agreements to demonstrate the working relationships between the 
three parties. One agency agreement is between the Petitioner and the first vendor, and the second agency 
agreement is between the first vendor and the second vendor. Each agreement indicated that employees 
or contractors will be provided for various technology projects, but it does not commit the Petitioner or 
any vendors for any particular services during any period or at any location. In sum, the agency 
agreements have little probative weight towards establishing actual work to be performed by the 
Beneficiary for the end-client for any specific period or location. 
Further, the submitted agency agreements each state that the work to be performed by the consultant 
must be described in a written purchase order. However, the Petitioner did not submit a purchase 
order from the first vendor or the second vendor to indicate that the services of the Beneficiary will be 
utilized to perform duties as a software developer for the end-client. In addition, the agency agreement 
between the first and second vendor stated that "all such assignments will be under the direction and 
control of [ the second vendor]." Thus, it is not clear if the work to be performed by the Beneficiary 
will be under the direction and control of the second vendor. Finally, the Petitioner did not submit a 
contract or purchase order between the second vendor and the end-client to understand that working 
relationship and the scope of the assignment with the end-client. Although the Petitioner explained 
that the end-client will not release the contract between the second vendor and the end-client, without 
2 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. 
3 A petitioner submits the LCA to the U.S. Department of Labor (DOL) to demonstrate that it will pay an H-lB 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. § 655.73l(a). 
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further documentation it is difficult to understand the scope of duties and the working relationship 
with the end-client. 
The Petitioner submitted letters from the first and second vendor confirming that the Beneficiary will be 
working for the end-client as a software developer, applications. Both letters provide an identical job 
description of the duties to be performed by the Beneficiary. The Petitioner also submitted a letter from 
the end-client also confirming the Beneficiary's assignment at the end-client's location. The end-client 
also repeated the same job duties that were found in the vendor letters. The end-client also stated that the 
Beneficiary is assigned to the I !project but did not provide any information regarding this 
project. The vendor letters and the end-client letter indicated identical duties for the Beneficiary, and do 
not provide sufficient detail of the project the Beneficiary will work for and how the Beneficiary will 
perform these duties within that specific project for the end-client. This overview of the Beneficiary's 
assignment does not elaborate on what the Beneficiary will be required to focus on and does not detail 
his particular duties within the teams and projects. This limited description does not demonstrate the 
type and educational level of highly specialized knowledge in a specific discipline that is necessary to 
perform the generally described work. Additionally, neither the end-client nor the vendors explain in 
detail the scope of the project, the number and type of resources needed for any particular project, a 
timeline, milestone tables, technical documentation, or other evidence to establish the existence and 
ongoing nature of the project. 4 Without consistent, probative evidence of the proposed duties detailed 
in the context of a specific project, the record does not communicate (1) the actual work that the 
Beneficiary will perform on a day-to-day basis; (2) the complexity, uniqueness and/or specialization 
of the tasks; and, (3) the correlation between that work and a need for a particular level education of 
highly specialized knowledge in a specific specialty. 
The Petitioner submitted an affidavit from an individual that is employed by the end-client and has 
worked with the Beneficiary at the end-client location. The affidavit lists the exact same job duties 
provided by the Petitioner, the vendors and the end-client, and confirms that the Beneficiary is working 
for the end-client. However, the documentation does not provide sufficient evidence regarding the 
Beneficiary's project or assignment and a detailed explanation of the team, department and actual 
work that the Beneficiary will perform for the end-client on a specific project. 
In addition, the record does not sufficiently establish the project's duration. The Petitioner stated in the 
itinerary that it is anticipated that the Beneficiary's services with the end-client would be required until 
August 2022. The letter from the first vendor indicated the expected end date of the project as September 
2022. The letter from the second vendor stated the expected end date as three years with possible 
extensions. However, the letter from the end-client stated that the Beneficiary is assigned to a project 
through December 31, 2020 with "possible extensions." It is not clear why the dates of service are not 
consistent. In addition, the Petitioner did not submit sufficient evidence such as contracts, budget 
proposals, project timelines, or similar corroborating evidence that the project with the end-client will 
continue until August 2022 and will require the services of the Beneficiary as a software developer, 
4 The Petitioner submitted a presentation ofthel lproject that provided a very general outline of the goals of 
the project, but it did not provide specific information such as a project budget, the team members for the project, or the 
duration of the project with the important milestones. In addition, this information of the project was not confirmed by the 
vendors or the end-client. 
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applications for that entire period. 5 USCIS regulations affirmatively require a petitioner to establish 
eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. § 103.2(b)(l). A 
visa petition may not be approved based on speculation of future eligibility or 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). The agency made clear long ago that speculative employment 
is not permitted in the H-lB program. See, e.g., 63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). 
Because the Petitioner has not established the substantive nature of the Beneficiary's work, we are unable 
to evaluate 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 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. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
Further, the petition cannot be approved because the Petitioner has not demonstrated that it qualifies 
as a United States employer. Without contracts or agreements between all the parties that detail the 
terms and conditions of the Beneficiary's employment, we are not able to fully ascertain what the 
Beneficiary will do, where the Beneficiary will work, as well as how this impacts the Petitioner's 
ability to control and direct the Beneficiary's day-to-day work. 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. In other words, the Petitioner has not 
established it will have and maintain the requisite employer-employee relationship with the 
Beneficiary for the duration of the requested employment period. See 8 C.F.R. § 214.2(h)(4)(ii) 
5 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or undetermined, 
prospective employment. The H-lB classification is not intended as a vehicle for an alien to engage in 
a job search within the United States, or for employers to bring in temporary foreign workers to meet 
possible workforce needs arising from potential business expansions or the expectation of potential new 
customers or contracts. To determine whether an alien is properly classifiable as an H-lB nonimmigrant 
under the statute, the Service must first examine the duties of the position to be occupied to ascertain 
whether the duties of the position require the attainment of a specific bachelor's degree. See section 
214(i) of the Immigration and Nationality Act (the "Act"). The Service must then determine whether 
the alien has the appropriate degree for the occupation. In the case of speculative employment, the 
Service is unable to perform either part of this two-prong analysis and, therefore, is unable to adjudicate 
properly a request for H-1 B classification. Moreover, there is no assurance that the alien will engage in 
a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 1998) 
(to be codified at 8 C.F.R. pt. 214). 
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( defining the term "United States employer" and requiring the Petitioner to engage the Beneficiary to 
work such that it will have and maintain an employer-employee relationship with respect to the 
sponsored H-1 B nonimmigrant worker). Therefore, the petition cannot be approved for this additional 
reason. 
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. 
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