dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 7593596 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 27, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB 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)(l 5)(H)(i)(b ). 
The Vermont Service Center Director denied the petition, concluding that the record did not establish 
that the proffered position is a specialty occupation. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. Upon 
de novo 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 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: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
(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. PROFFERED POSITION 
The Petitioner, an information technology consulting company, seeks to employ the Beneficiary as a 
"SAP technical consultant." The Petitioner's supporting documentation included a job description for 
the proffered position which identified the duties and responsibilities of the Beneficiary, along with 
the approximate percentage of time the Beneficiary will spend on each duty. 2 According to the 
Petitioner, the proffered position requires at least a bachelor's degree in engineering or a related field. 3 
III. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently 
demonstrated the substantive nature of the proffered position and that the proffered position requires 
an educational background, or its equivalent, commensurate with a specialty occupation. 
2 For the sake of brevity, we will not quote the job descriptions; however, we have closely reviewed and considered them. 
3 Throughout the record, the Petitioner maintains that no one specific area of study is required for the proffered position, 
and notes that degrees in various STEM fields (science, technology, engineering and math) would be acceptable. 
2 
Preliminarily, we note that the work location and circumstances of the Beneficiary's proposed 
employment are unclear. Based on the documentation provided, it appears that the contractual path 
of the Beneficiary's services is as follows: 
Petitioner ~ 
(Vendor) (End-Client) 
The record contains a subcontract agreement between the Petitioner and the vendor, and a 
subcontractor services agreement between the vendor and the end-client, which indicates that the 
vendor will provide IT-related services to the end-client. A copy of a work order between the vendor 
and the end-client, identifying the Beneficiary as the contractor assigned to perform these services, 
was also submitted. A letter from the vendor indicates that the Petitioner has agreed to provide the 
Beneficiary as the resource to perform these services, and further indicates that the Beneficiary's 
services will be performed at the offices of the end-client in I I Illinois. According to 
the vendor, the project is anticipated to continue through February 1, 2022. 
In contrast, the Petitioner's offer of employment to the Beneficiary indicates that he will work at the 
Petitioner's offices located at.__ ___________________________ _. 
New Jersey, and the Petitioner further confirms that this is the Beneficiary's work location in Part 5, 
Question 3 of the Form I-129, Petition for a N onimmigrant Worker. The Petitioner did not answer 
Question 5 in this section, which asks "Will the beneficiary(ies) work for you offsite at another 
company or organization's location?" Therefore, while the documentation submitted into the record 
suggests that the Beneficiary will work offsite at the end-client location, the Petitioner makes no 
specific claim with regard to this relationship, and its statements regarding the Beneficiary's work 
location directly contradict the contractual documentation between the vendor and the end-client. 
Moreover, the labor condition application (LCA)4 submitted in support of the petition is certified for 
thel I New Jersey work location and not for the end-client location in I I 
Illinois. It is unclear, therefore, where the Beneficiary will actually work, for whom he will render his 
services, and how his performance will be supervised and evaluated. 5 The Petitioner must resolve this 
discrepancy in the record with independent, objective evidence pointing to where the truth lies. Matter 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In addition to this discrepancy, the record as currently constituted is not sufficient to establish 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)(])-(4). 
4 A petitioner is required to submit an LCA to the Depaitment 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. § 655.73l(a). 
5 Absent additional evidence, it appears that the Petitioner has not established that it meets the regulatory definition of a 
United States employer. 8 C.F.R. § 214.2(h)(4)(ii). Specifically, based on these unresolved discrepancies, the Petitioner 
has not established that it will have "an employer-employee relationship with respect to employees under this part, as 
indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee." Id. As 
the petition is not otherwise approvable we will not address this issue further, other than to advise the Petitioner that it 
should be prepared to address the matter in any future H-1 B filings. 
3 
The Petitioner designated the position on the LCA as falling under Standard Occupation Classification 
(SOC) code 15-1199, "Computer Occupations, All Other," at a Level III wage. We have reviewed the 
Petitioner's broad overview of the proposed duties. While we acknowledge those duties, as well as 
the similar duties provided by the vendor in its letter, the record lacks documentation from the 
end-client regarding the duties to be performed and its other requirements for the position, such as its 
minimum educational requirements. 6 Where the work is to be performed for entities other than the 
petitioner, evidence of the client companies' job requirements is critical. Defensor, 201 F.3d at 387-
88. For this reason alone, the Petitioner has not established the substantive nature of the proffered 
position. 
Moreover, we note farther discrepancies regarding the nature of the proffered position. While we 
agree that the Petitioner's description fits broadly into a technology occupation wherein the 
Beneficiary will be expected to perform various information technology consulting services, the duties 
as described do not illuminate the substantive application of knowledge involved or any particular 
educational requirement associated with such duties. Furthermore, the duties are not described within 
the context of the actual project upon which the Beneficiary would be working. It is therefore not 
possible to ascertain the nature and level ofresponsibility of the proposed position, including whether 
the duties as generally described correspond to the occupation and wage level designated on the LCA. 
The apparent mismatch between the H-lB petition and the vendor's letter raises additional questions 
as to the actual, substantive nature of the position. While the H-lB petition was filed for a "SAP 
technical consultant" position under SOC Code 15-1199, the vendor letter states that the Beneficiary 
would instead be working as a software developer. This discrepancy suggests that the Petitioner, the 
vendor, and the end-client do not share the same understanding of the proffered position, which forces 
the lack of documentation from the end-client regarding the position into greater focus. If we cannot 
determine with accuracy what the Beneficiary would actually be doing, then we cannot ascertain 
whether his duties would collectively constitute a specialty occupation. 
Furthermore, the discrepancy also raises significant wage protection concerns: as noted by the 
Petitioner in the LCA, the prevailing wage for a Level III SAP technical consultant ( classified under 
the "Computer Occupations, All Other" category) inl I New Jersey was $84,282 at the 
time this petition was filed, and the Beneficiary's salary of $100,000 was sufficient to exceed that 
minimum. However, the prevailing wage for a Level III software developer ( classified under the 
Software Developers, Applications category, SOC Code 15-1132), was $103,834 at the time of LCA 
6 We again note that the Petitioner's claim that there is no specific degree field for the proffered position, and its willingness 
to accept a variety of degrees in various fields, is inadequate to establish that the proposed position qualifies as a specialty 
occupation. In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum of a 
bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in the specific specialty ( or 
its equivalent)" requirement of section 214(i)(l )(B) of the Act. In such a case, the required "body of highly specialized 
knowledge" would essentially be the same. Since there must be a close correlation between the required "body of highly 
specialized knowledge" and the position, however, a minimum entry requirement of a degree in two disparate fields, such 
as philosophy and engineering, would not meet the statutory requirement that the degree be "in the specific specialty ( or 
its equivalent)," unless the Petitioner establishes how each field is directly related to the duties and responsibilities of the 
particular position. Section 2 l 4(i)( I )(B) of the Act ( emphasis added). Nevertheless, we cannot examine this issue further 
due to the absence of the end-client's educational requirements for the proffered position. 
4 
certification - a minimum the Beneficiary's salary did not meet. 7 In addition to calling into question 
the substantive nature of the position, these concerns raise significant questions as to whether the LCA 
corresponds to and supports the H-1 B petition, as required. 8 
Upon review, the unexplained discrepancies regarding the work location of the Beneficiary, the nature 
of his proposed assignment, and his exact job title and associated duties render it impossible to evaluate 
the proffered position under the specialty occupation criteria. On appeal, the Petitioner references the 
O*NET summary report for "Business Intelligence Analysts" under SOC code 15-1199 .08, and states 
for the first time that this is the most appropriate classification for the proffered position. This 
reference farther complicates the nature of the position, and is farther not supported by the vendor or 
the end-client. The numerous unresolved inconsistencies raise yet more questions as to the position's 
actual, substantive nature. 
For all of these reasons the record as currently constituted is not sufficient to establish the substantive 
nature of the work to be performed by the Beneficiary, which farther precludes a conclusion 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 entry into 
the particular position, which is the focus of criterion 1; 9 (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. 
7 See https://flcdatacenter.com/OesQuickResults.aspx?code= 15-1132&area~&year= 19&source= 1 (last visited Feb. 
26, 2020). It is further noted that, in response to the Director's request for evidence, the Petitioner submitted a copy of the 
O*NET Summary Report for the occupation of"Mathematical Science Teachers, Post-Secondary," corresponding to SOC 
Code 25-1022. While the Petitioner's intent in relying on this occupational classification is unclear, as it appears to greatly 
differ rrom the duties of the position as described, it should also be noted that the prevailing wage for this occupational 
category was $110,853 at the time of LCA certification, which was also not met by the Beneficiary's proposed salary. See 
https://flcdatacenter.com/OesQuickResults.aspx?code=25- l 022&area~&year= l 9&source= 1 (Last visited Feb. 26, 
2020). 
8 As the petition is not otherwise approvable we will not address this issue further, other than to advise the Petitioner that 
it should be prepared to address the matter in any future H-lB filings. 
9 Even if we agree that the proposed position incorporates the duties of a position located within the "Computer 
Occupations, All Other" occupational category, we would not fi~d that such a °f ~ld categorically be a specialty 
occupation. On appeal, the Petitioner submits an opinion letter b ~---~ L___J equates the proffered position 
to that of a "Business Intelligence Analyst," and he relies on the O*NET summary report for this occupational category in 
concluding that the proffered position is a specialty ocC)Jnatiau While the O*NET summary report provides general 
information regarding the occupation, it does not suppod Is assertion regarding the educational requirements for 
the occupation. For example, the Job Zone Four designation indicates that most, but some do not, require a four-year 
bachelor's degree. It does not specify the specific field of study, if any, from which the degree must come. The 
occupation's Specialized Vocational Preparation (SVP) rating of7 < 8 is even less persuasive. An SVP rating of7 to less 
than ("<") 8 indicates that the occupation requires "over 2 years up to and including 4 years" of training. While the SVP 
rating indicates the total number of years of vocational preparation required for a particular position, it is important to note 
that it does not describe how those years are to be divided among training, experience, and formal education which, by 
definition, includes high school education and commercial or shop training. The SVP rating also does not specify the 
~ular type of degree, if any, that a position would require. For all of these reasons, we are not persuaded by D 
L__l's citations to O*NET. 
5 
IV. CONCLUSION 
Upon review of the totality of the evidence submitted, the Petitioner has not established that, more 
likely than not, the proffered position is a specialty occupation under any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). Moreover, the record does not establish that the Petitioner satisfied the statutory 
and regulatory definitions of specialty occupation. 10 
ORDER: The appeal is dismissed. 
10 As the Petitioner did not establish the proffered position is a specialty occupation, we will not discuss other deficiencies 
in the record which also preclude approval of the petition. 
6