dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10106708 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 3, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"software developer" under the H- lB nonimmigrant classification for specialty occupations. 
Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 8 U.S.C. § l 10l(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 Vermont Service Center denied the petition, concluding that the record did not 
establish that the 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 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 10l(a)(l5)(H)(i)(b) of the Act defines an H-lB nonimrnigrant 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. § l 184(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 The regulation at 8 C.F.R. § 214.2(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 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 
8 C.F.R. § 214.2(h)(4)(i)(A)(l) states that an H-lB classification may be granted to a foreign national 
who "will per:form services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
review 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 nmmal 
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, 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. 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 
specialty occupation under sections 10l(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 
Royal Siam Corp. v. Chertof(, 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"). 
2 The Petitioner submitted documentation to support the H-1B 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 
We are unable to determine the services the Beneficiary would provide during the requested period. 
In the petition, the Petitioner indicated that the Beneficiary would not work off-site at another comp~ 
or organization's location, and further indicated that the Beneficiary would work at an address in LJ 
I I Texas.3 The Petitioner also submitted a product specification document regarding a 
proprietary 'I I based advertising system for site publishers to manage and maximise [sic] 
returns from their website easily." The product specification document includes a product roadmap, 
listing the following milestones: 
• October 2017: DiscovefY, UX [d]esign; 
• 2018 QI: Agile I l[d]evelopment; 
• 2018 Q4: Android, i[OS] Mobile app development; 
• 2019 Q2: Beta release [and m]arketing kick-off; and 
• 2019 Q4: Product launch. 
Given that the product specification document indicates the referenced product would be launched in 
2019 Q4, it does not indicate the Beneficiary would provide the pre-launch services described in the 
document for that product during the requested period, beginning in October 2019. Furthermore, 
neither the product specification document nor any other document initially submitted in support of 
the petition specifically identifies the Beneficiary and describes the services he would perform during 
the requested period. 4 
In response to the Director's request for evidence (RFE), the Petitioner submitted information that 
conflicts with the Petitioner's initial statements regarding the Beneficiary's work location, and further 
confuses the services he would perform. A purchase order (PO) between the Petitioner and a client, 
signed and dated in May 2019, after the petition filing date, identifies the Beneficiary as a I I 
developer" for a project located inl florida, not inl I Texas. 5 A petitioner must 
establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be eligible 
for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at 
a future date after a 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). Because the parties signed and 
dated the PO after the petition filing date, it may not establish eligibility. 8 C.F.R. § 103.2(b)(l); see 
also Matter a/Michelin Tire Corp., 17 I&N Dec. at 249. 
3 Whether the I IAddress is the Petitioner's location is unclear. On both the petition and the Labor Condition 
Application submitted to the U.S. Department of Labor, the Petitioner provided an address in New Jersey. However, the 
record also contains Articles of Organization filed with the California Secretary of State in 20
1
14, proliding a California 
address. The record also contains T.R.S. Forms 1065 for 2016 and 2017, providing an address in Texas. The record 
does not claiify which of its employees would work or have worked at the various locations in the record. 
4 A half-page employment offer letter addressed to the Beneficiaiy describes the position using its title, "software 
developer." However, it does not identify the software the Beneficiary would develop or describe the services he would 
perfmm. 
5 Although a petitioner is not required by existing regulation to submit contracts or legal agreements between the petitioner 
and third parties to establish an employer-employee relationship, "the petitioner must demonstrate eligibility for the benefit 
sought" and "if a petitioner provides contracts or legal agreements, [an] officer is not precluded from evaluating that 
evidence in the adjudication ofother eligibility criteria." USCIS Policy Memorandum PM-602-0114, Rescission of Policy 
Memoranda at 3 (June 17, 2020), http://www.uscis.gov/legal-resources/policy-memoranda. 
3 
Even if the PO could establish eligibility, it does not establish the services the parties contracted the 
Beneficiary to perform. The PO indicates that the Beneficiary's start date would be May 1, 2019, for 
a duration of "12 Months+Possible Extension." The PO does not describe the services the Beneficiary 
would perform. The PO states that the "[ s ]tandard terms will apply from the Master Services 
Agreement [(MSA)] executed between both the parties"; however, the record does not contain the 
referenced MSA or any other similar document to establish the services the parties contracted the 
Beneficiary to perfmm. 
Creating further confusion, the Petitioner also submitted a letter from a different client company, 
stating that the Beneficiary "is needed at [the second client company], located [inll I TX." 
The second client company dated its letter "08/01/2019," before the start date for the first client 
assignment in Florida, and the second client stated that "it is our intent to continue to have [the 
Beneficiary provide these services through 10/01/2022." Therefore, the record indicates a total of 
three work locations, including worksites for two different clients in Florida and Texas, during the 
requested period. Although the second client's letter states that the Beneficiary's "work at [that 
client's location] has been arranged through contracts between [the Petitioner] and [that client]," the 
record does not contain those contracts in order to establish the terms, the services the parties 
contracted the Beneficiary to perform, and other salient information. Other than the date of 
"08/01/2019 ," the second client's letter does not indicate when the parties "arranged" the Beneficiary's 
work "through contracts," and whether that occmred as of the petition filing date. See 8 C.F.R 
§ 103.2(b)(l); see also Matter ofMichelin Tire Corp., 17 I&N Dec. at 249. 
Furthermore, although the second client's letter describes the Beneficiary's title as "software 
developer," it does not specifically identify the software the Beneficiary would develop, and how that 
software may relate to the software described in the product specification document the Petitioner 
initially submitted. Additionally, although the second client's letter includes a bullet-point list of 
seven duties, 6 it states that those duties "require at least a bachelor's degree ( or the equivalent) in a 
field closely and directly related to the nature of the work," without specifying a particular academic 
field. 
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. In this case, the various evidence from the client companies conflict with each 
other and contradict the Petitioner's prior statements regarding the position. Furthermore, the second 
client company's degree requirement does not indicate that a bachelor's or higher degree in a specific 
specialty, or its equivalent, would be required to perform the position's services. 
6 Six of the seven duties consist oflanguage that appears verbatim in a one-page "job description" document, bearing the 
Petitioner's logo. that the Petitioner submitted in response to the Director's RFE. We note that, as with other documents 
in the record, the job desc1iption does not specifically identify the software the Beneficiary would develop. 
4 
We also note that the Petitioner provided inconsistent information about its general operation. In the 
petition, the Petitioner stated that the "current number of employees in the United States" at the time 
of filing the petition was "2." However, in response to the Director's RFE, the Petitioner submitted a 
document identified as an "employee organizational chart," identifying 15 individuals, excluding the 
Beneficiary. Although the organizational chart provides the employees' position titles, it identifies 
each individual with either only a single name or one name and an initial. The organizational chart 
identifies one individual's position title as "project manager (US)," supervising six other workers, with 
a handwritten note that one of those workers would be the "Beneficiary's supervisor." None of the 
names on the organizational chart match the name of the signatory for the Petitioner, with a position 
title simply as "human resources," at an address in New Jersey. Considered as a whole, we are unable 
to confirm the identity of any of the workers indicated on the organizational chart and how many 
employees the Petitioner had in the United States at the time of filing the petition. 
As another example of inconsistent information from the Petitioner about its general operation, in 
response to the Director's RFE it submitted an undated, one-page advertisement, describing its 
operation, in part, as "[f]ull time on site US trainers who are [i]ndustry [l]eading [t]echnical experts," 
"[s]mall class size for personal attention from the instructor," "[v]ery aggressive marketing team for 
quick placement on a client project along with a [c]ompetitive pay," and "HI [v]isa and GC 
sponsorship." The advertisement does not indicate that the Petitioner hires workers to develop its own 
proprietary software; instead, it appears to train individuals-outside of a bachelor's degree 
program-to work on client projects. If that advertisement does not accurately describe the 
Petitioner's current operation, the record does not reconcile why the Petitioner submitted it in response 
to the RFE. 
In summation, we conclude that the ambiguities, inconsistencies, and lack of documentation in the 
record do not establish the services for the Beneficiary to 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 (I) 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 
nmmally 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 
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. 
7 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 need not address the Petitioner's assertions on appeal regarding 
the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
5