dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 4536398 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 27, 2020 
The Petitioner, an information technology consulting company, seeks to temporarily employ the 
Beneficiary as a "QA analyst" 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)(15)(H)(i)(b). The H-IB 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 proffered position qualifies as a specialty occupation . 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying 
the petition . Upon de nova 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 We follow the preponderance of the evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
(]) 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). 
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. THE PROFFERED POSITION 
The Petitioner, which is located in Texas, stated that the Beneficiary will perform his duties at the 
client site in Wisconsin forl l{end-clientj' pursuant to contracts executed between 
the Petitioner and I (vendor), and between the vendor and the 
end-client. The Petitioner submitted a letter from the vendor and a letter from the end-client, both 
including different duties that the Beneficiary would perform in the proffered position. While the end­
client did not provide a minimum education requirement for the proffered position, the vendor stated 
that the duties require at least a bachelor's degree, or equivalent, in a science or relevant engineering 
field, and the Petitioner stated that the proffered position requires a bachelor's degree, or equivalent, 
in a related computer, engineering, business, or finance field. 
2 
III. SPECIALTY OCCUPATION 
For the reasons set out below, we have determined that the proffered position does not qualify as a 
specialty occupation. 2 Specifically, we find that two separate factors independently bar approval of 
this petition: (1) the Petitioner's lack of a requirement for a bachelor's degree in a specific specialty, 
or the equivalent; and (2) the Petitioner's failure to satisfy at least one of the four regulatory specialty­
occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). In particular, we find 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 
specialty-occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
A. Lack of a Requirement for a Bachelor's Degree in a Specific Specialty, or the Equivalent 
First, the petition is not approvable because the Petitioner's claimed entry requirement of at least a 
bachelor's degree, or equivalent, in related computer, engineering, business, or finance field, without 
more, is inadequate to establish that the proposed position qualifies as a specialty occupation. 
A petitioner must demonstrate that the proffered position requires a precise and specific course of study 
that relates directly and closely to the position in question. There must be a close correlation between the 
required specialized studies and the position; thus, the mere requirement of a general degree, such as 
business, without further specification, does not establish the position as a specialty occupation. 3 Royal 
Siam Corp., 484 F.3d at 147 (a general-purpose bachelor's degree in business may be a legitimate 
prerequisite for a particular position, but such a degree, without more, will not justify a finding that a 
particular position qualifies for classification as a specialty occupation). Cf Matter of Michael Hertz 
Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The mere requirement of a college degree for the sake 
of general education, or to obtain what an employer perceives to be a higher caliber employee, also does 
not establish eligibility."). 
And similarly, since there must be a close correlation between the required "body of highly specialized 
knowledge" and the position, a minimum entry requirement of a degree in disparate fields, such as 
"business" and "computers," 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 214(i)(l)(B) of the Act (emphasis added).4 
2 The Petitioner submitted documentation in support of the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example, an entry requirement of a bachelor's or higher degree in business with a concentration in a 
specific field, or a bachelor's or higher degree in business combined with relevant education, training, and/or experience 
may, in certain instances, qualify the proffered position as a specialty occupation. In either case, it must be demonstrated 
that the entry requirement is equivalent to a bachelor's or higher degree in a specific specialty that is directly related to the 
proffered position. 
4 In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," we do not so narrowly 
interpret these provisions to exclude positions from qualifying as specialty occupations if they permit, as a minimum entry 
requirement, degrees in more than one closely related specialty. See section 214(i)(l)(B) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(ii). This also includes even seemingly disparate specialties providing, again, the evidence of record 
3 
The Petitioner has not done so here. The evidence ofrecord does not establish how these dissimilar fields 
of study, which range from business to computer science or math, form either a body of highly specialized 
knowledge or a specific specialty, or its equivalent, as required. Without more, it cannot be found that 
the proffered position requires anything more than a general bachelor's degree and accordingly it does 
not qualify under the definition of a specialty occupation. 
B. Position Assignment 
We conclude next that the Petitioner has not established the existence of definitive, non-speculative 
employment for the Beneficiary. In other words, the current record is not even sufficient to establish 
that the proffered position actually exists, let alone sufficient to demonstrate that it is a specialty 
occupation. Specifically, the record lacks important evidence setting forth the contractual obligations 
of the corporate entities in the chain of contractual succession. This is important because, in this case, 
the existence of the proffered position is dependent entirely upon the willingness of an end-client to 
provide it. 
The Petitioner submitted a letter from the end-client, dated March 2018, which does not indicate any 
duration for the referenced project. While the letter indicates that the end-client "is using the services 
of [the Beneficiary], on behalf of [the vendor], through his employer [the Petitioner]," it does not 
provide a timeframe for the duration of the contract or completion of the project. The Petitioner also 
submitted a letter from the vendor, dated February 2018, that simply states, "this is a long-term 
assignment and [the Beneficiary] is currently contracted to the end of 2019 with likely extensions 
beyond that year." However, as will be discussed below, the Petitioner did not submit any evidence 
of a contractual obligation on the part of the end-client or the vendor to employ the services of the 
Beneficiary in the proffered position. 
As noted above, in this case there are three actors in the contract chain: (1) the Petitioner; (2) the 
vendor; and (3) the end-client. Though we acknowledge the Subcontractor Consulting Services 
Agreement executed between the Petitioner and the vendor in January 2018, we observe the following 
language at the first page of the Agreement: 
WHEREAS, [the vendor] has entered into an agreement (the "Prime Agreement") with 
the Client identified on the Contract Schedule attached hereto to provide computer 
consulting services; and 
WHEREAS, the purpose of this Agreement is to engage [ the Petitioner] to assist [ the 
vendor] in performing some of those services in accordance with the terms and 
conditions set forth in the Prime Agreement; 
establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
position. 
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d. A Contract Schedule shall become a part hereof and incorporated herein 
when executed by authorized representatives of the parties hereto. In the event 
of a conflict between any provisions of this Agreement and any Contract 
Schedule, the language of the Contract Schedule shall prevail, but only with 
respect to that Contract Schedule. 
The Agreement farther states, at item 4d, "[the Petitioner] shall exercise such discretion consistent 
with the goal of competing the service project described in the Contract Schedule." The record, 
however, lacks a copy of any Contract Schedule. The record, therefore, does not appear to contain the 
complete contractual agreement between the Petitioner and the vendor. 
The evidence regarding the agreement between the vendor and the end-client is also not in the record. 
The Agreement between the Petitioner and vendor references a Prime Agreement between the vendor 
and the end-client. However, the Petitioner has not submitted any evidence of such Agreement. The 
record therefore does not establish a contractual obligation on the part of the end-client to provide the 
position that the Petitioner describes in this H-lB petition. 5 This is important in a case such as this as 
the very existence of the proffered position is dependent solely on the willingness of an end-client to 
provide it. Ifwe cannot determine whether the proffered position as described will actually exist, then 
we cannot ascertain its substantive nature so as to determine whether it is a specialty occupation. 
Though the Petitioner has requested that H-1 B approval be granted from October 2018 until September 
2020, the record is not currently sufficient to demonstrate that it has a foll-time position 6 available for 
the Beneficiary to fill. The 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 the Petitioner or Beneficiary 
becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 1 7 I&N Dec. 248, 249 
(Reg'l Comm'r 1978). Absent additional evidence, the record lacks evidence of an obligation on the 
part of the client ( or anyone else) to provide the position described by the Petitioner in this petition. 
If we cannot determine whether the proffered position as described will actually exist, then we cannot 
ascertain its substantive nature so as to determine whether it is a specialty occupation. 7 
5 Cf Galaxy Sofiware Solutions, Inc. v. USC1S, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) 
(describing the petitioner's "fail[ure] to provide all of the contracts governing the relationships between the corporate 
entities in the chain" as a "material gap"). 
6 The Petitioner stated in the LCA that this is a full-time position. 
7 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 tempormy 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-1 B 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 
5 
As a result, we conclude that the petition was filed for speculative employment, and that the Petitioner 
has not 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. Therefore, we cannot conclude that the proffered position qualifies for 
classification as a specialty occupation. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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. 
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). While a petitioner is certainly permitted to petition for H-1 B classification on the basis 
of facts not in existence at the time the instant petition was filed, it must nonetheless file a new petition to have these facts 
considered in any eligibility determination requested, as the agency may not consider them in this proceeding pursuant to 
the law and legal precedent cited, supra. 
6