dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 8799120 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
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 
"Java developer" under the H-lB nonimmigrant classification for specialty occupations. Immigration 
and Nationality Act (the Act) section 101(a)(l5)(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 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 Ohio. 
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 a series of contracts among multiple vendors involved in the Beneficiary's 
assignment. First, the record contains a master services agreement (MSA) between the Petitioner and 
the mid-vendor. The MSA is a general agreement for the Petitioner to "perform services for [the 
mid-vendor] as described in the Appendix A. CLIENT shall prepare the entire direction, scope, control 
and interpretation of any systems work to be performed by the [Petitioner]." The MSA does not 
identify the end-client, the services to be performed, the position title to perform the services, the 
individual assigned to the position, the qualifications to perform the services, or the duration of the 
assignment. Instead, the MSA states that, without "any new end date established by a renewal or 
extension of the term, ... [the Petitioner's] services under [the MSA] will terminate on ... the 'end 
date' reflected on Appendix A." 
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 
Although the record contains a one-page purchase order (PO) titled "Appendix A," referencing the 
MSA, the Petitioner and the mid-vendor signed and dated it in 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 )(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 (Reg'l Comm'r 1978). 
Because the parties signed and dated the PO after the petition filing date, it may not establish 
eligibility. 
Even if the parties had signed and dated the PO as of the petition filing date, the extent of its description 
of the Beneficiary's "scope ofresponsibilities" for the end-client project is "Java developer," without 
additional details. Furthermore, the PO indicates that the "duration of the project" is "till December 
2019." 2 As noted above, the MSA states that, without a specific "renewal or extension," it would 
terminate on the end date in the PO. The record does not establish that the parties extended either the 
MSA or the PO beyond December 2019, so the limited duty description and apparent project 
termination in December 2019 raise questions regarding the substantive nature of the work for which 
the parties contracted the Beneficiary to perform during the requested period. 
Next, the record contains a redacted corporate agreement (CA) between the mid-vendor and the prime 
vendor, dated May 2018. The CA is a general agreement for the mid-vendor "to provide ... [s]ervices 
... in the area of information technology ... to [ the end-client]." Similar to the MSA, the CA contains 
a five-line document titled "Addendum A," identifying the Beneficiary as the "personnel," the 
"position title" as "Java developer," the assignment's start date as "05/21/18," a redacted line similar 
in length to the prior line, and a section captioned "additional terms," which contains only the signature 
of the mid-vendor's "business head," dated the day after he signed the CA. 3 The CA-in its redacted 
form-and its addendum do not otherwise describe the services to be provided, the duration of the 
assignment, or other salient information. Accordingly, the CA does not establish the substantive 
nature of the work for which the parties contracted the Beneficiary to perform during the requested 
period. 
The record also contains an excerpt from a staffing agreement (SA) and corresponding work 
authorization (WA) between the prime vendor and the end-client. The SA, dated March 2018, consists 
of three pages. The first two pages are from a section titled "1. Definitions," in part indicating that 
the term "services" is defined as "the staff augmentation for computer programming, system analysis, 
project management, engineering, and facilities management, development, and any other services 
requested by [the end-client] as more folly described in the applicable [WA]." The third page of the 
SA contains the signatures of the parties' representatives and a section titled "14.14 Compliance 
Failures." The omission of the entirety of sections 2-13, and the majority of section 14, obscures the 
2 Although the parties signed and dated the PO in July 2019, it states that the "assignment start date" was "May 21st[.] 
2018." 
3 On appeal, the Petitioner submits an additional, essentially identical CA, indicating instead that the "start date" is "Sept. 
30, 2019." In addition to redacting the line following the "start date," the appeal CA also redacts the "additional tenns" 
line. Like the prior CA, the mid-vendor's "business head" signed and dated the appeal CA in September 2019, along with 
the signature of an otherwise unidentified individual named M-J-, who also dated it September 2019. Therefore, the appeal 
CA, dated after the petition filing date may not establish eligibility, as discussed above. See 8 C.F.R. § 103.2(b )(1 ); see 
also Matter of Michelin Tire Co1p., 17 l&N Dec. 248. 
3 
terms of the agreement between the prime vendor and the end-client. In tum, the one-page WA 
describes the project as "R&D" (research and development) and the Beneficiary's duties as a "Java 
developer - video analytics" as follows: 
• Lead and participate in the design and implementation of large and/or 
architecturally significant applications. 
• Work to continuously improve software delivery processes and practices. 
• Build partnerships across the application, business, and infrastructure teams. 
• Develop programming specifications. Design, code and unit test application code 
using Software Development Life Cycle (SDLC) best practices. 
• Participate on an Agile software development team including active participation 
in all Agile ceremonies (refinement, planning, retrospectives, and showcases). 
• Create technical system documentation and ensure that this documentation remains 
current throughout all phases of the SDLC. 
The generalized duty description in the WA does not establish the substantive nature of the work for 
which the parties contracted the Beneficiary to perform. For example, the WA does not elaborate on 
the applications, which aspects characterize them as "architecturally significant," and the specific 
work the Beneficiary would perform in either leading or participating in the design and 
implementation of those applications. The WA also does not specify the "delivery processes and 
practices" and provide an example of how the Beneficiary would improve them. Similarly, the WA 
does not clarify the tasks the Beneficiary would perform in order to "[b ]uild partnerships" among 
various teams; "[ d]evelop programming specifications"; "[ d]esign, code[,] and unit test application 
code"; "[p ]articipate on an Agile software development team"; and "[ c ]reate technical system 
documentation." 
The WA farther indicates that the project's "start date" was "9/10/18," with an "end date" of 2/7 /20." 
We note that the start and end dates in the WA do not correspond to those indicated on the Form I-129, 
Petition for a Nonimmigrant Worker, or those indicated on other documents in the record from the 
parties. Regardless of the inconsistent project dates, the record does not establish that the parties 
extended the assignment beyond February 2020, even if the record established the substantive nature 
of the work for which they contracted the Beneficiary to perform. The record does not otherwise 
contain evidence of the end-client's job requirements, such as whether it requires a bachelor's or higher 
degree in a specific specialty, or its equivalent, to perform the position's 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 specific discipline that is necessary to perform 
that particular work. We farther note that the MSA between the Petitioner and the mid-vendor 
specifically stated that "CLIENT shall prepare the entire direction, scope, control and interpretation 
of any systems work to be performed by the [Petitioner]," albeit without specifying which entity is the 
client it contemplates. 
4 
We note that the record contains an opinion letter from Dr. an associate professor 
of computer science and engineering at~-----~ University College of Engineering. As a 
matter of discretion, we may use opinion statements submitted by a petitioner as advisory. Matter of 
Caron Int'l, 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 observed the following: 
[T]he Sr Java Developer for [the Petitioner] will be required to: 
• Developing APl's [sic J using Restful webservices that performs [sic J 
business validations while fetching data from different tables of database. 
• Working on get/[p Jost and [p Jut request mappings to map the requested 
data, while performing the appropriate get/post operations. 
• Using [JJava8 language, spring and spring boot framework in coding the 
methods. 
• Involved in writing queries using JP A, JDBC and Hibernate ORM that 
communicate with database [sic J to retrieve and update database [sic J for 
features changed, added removed by business on admin screen. 
• Working on Drools - rules engine concept which is a spreadsheet that 
provides clear understanding on all the rules/logics [ sic J implemented in the 
code to business. 
• Working on maintaining code using bitbucket and used [SJonar[QJube for 
inspecting code and to improve the code coverage. 
• Working on database development using SQL in SQL Server 
environments. 
• Involved in deploying application on PCF in DEV, TEST and Stage 
environments. 
• Involved in working with QA team to resolve bugs or defects during 
regression and smoke testing. 
• Working on unit test cases for services using Mockito framework. 
• Involved in using Gray log validation tool to validate logs. 
The record uniformly refers to the position as a "Java developer." Accordingly, Dr. I i's 
repeated references to the position as a "Sr Java Developer" throughout his opinion raises questions 
regarding the extent to which he is familiar with both the position and the evidence in the record. 
Moreover, the duties of a "Sr Java Developer" that Dr.I I quoted appear verbatim-including 
typographical and grammatical errors-in the Petitioner's duty description. Dr. I I does not 
indicate that he reviewed the duty description in the WA between the prime vendor and the end-client, 
or any other evidence of the end-client's requirements. As noted above, where the work is to be 
5 
performed for entities other than the petitioner, evidence of the client companies' job requirements is 
critical. Defensor, 201 F.3d at 387-88. In other words, Dr I O ts 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 ts opinion bears minimal probative value. See Matter of Caron Int 'l, Inc., 
19 I&N Dec. at 795. 
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. 4 
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. 
4 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 further 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