dismissed H-1B Case: Information Technology

Non-Precedent Decision of the 
Administrative Appeals Office 
MATTER OF D-C-S-, LLC DATE: AUG. 3, 2016 
\ 
APPEAL OF VERMONT SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting firm, seeks to temporarily employ the Beneficiary 
as a project manager under the H-1B 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-1B 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, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner did not establish that a work assignment existed at the time of filing. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence of record was sufficient to establish its claim by a preponderance of the 
evidence. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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: 
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(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree r.equirement 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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 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. PROFFERED POSITION 
The H-1B petition states that the Petitioner is a two-employee company established in 2007. The 
Petitioner indicates that the Beneficiary will work at its location in Kentucky, and the labor 
condition application (LCA) was certified for employment in that location. When it filed the H-1B 
petition, the Petitioner stated that the Beneficiary would perform the following duties as a project 
manager: 
• Manages and delivers project plan (largely independently), including regular 
reviews of project team activities and the development & delivery of project 
reports. 
• Directs and/or provides oversight to cross-functional teams; ensuring the 
development, evaluation and/or review of project plans and criteria; including the 
feasibility assessment of proposed plans or projects and ensuring the 
organizational readiness at targeted sties. 
• Establishes and continually manages project expectations with team members; 
including proactively managing changes in project scope, identifying/escalating 
issues (as needed), and devising contingency plans to ensure delivery on and/or 
execution of organizational objectives. 
• Ensures procurement and delivery of project materials/services per the Project 
Plan requirements (i.e., time, cost, quality, etc.). 
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Matter of D-C-S-, LLC 
• Identifies emerging material distribution and/or service process issues; along with 
opportunities for continuous improvement. 
• Collaborates with and/or coordinates all matters with applicable team 
lead/members. 
• Develops metrics to measure the efficiency and effectiveness of end-to-end 
project processes and control[.] 
• Initiates 
applicable actions by applying best-practice processes, tools, and 
techniques in accordance with established governance, processes, standards, and 
procedures. 
• Coaches, leads, and/or motivates project team members and influences them to 
accept accountability for and/or take positive action for assigned 
tasks. 
• Manages training and change management aspects of projects and provides 
. ongoing business support as needed[.] 
• Monitors and continually assesses need for additional resources where applicable. 
The Petitioner also stated, "[ m ]inimum requirements for this professional position are at least a 
Bachelor's degree in Computer Science, Engineering, Information Systems, or its equivalent and 
relevant work experience." It further states, "[a]ll of our 'Project Managers' are required to have at 
least the minimum of a Bachelor's degree in the specific field of endeavor." 
In response to the Director's request for evidence (RFE), the Petitioner stated that the Beneficiary 
will "perform the duties of a Project Manager for [the Petitioner's] clients, based on their unique 
user needs and requirements." The Petitioner further stated that "[s]ince the initial submission, [the 
Beneficiary] has been assigned to [the Petitioner's] client, ... to the software 
re-factoring IT project team." 
In addition, the Petitioner provided a revised list of the duties for the project with 
as follows: 
• Manage technical delivery and technology project scope (refinements and change 
controls) 
• Create and maintain project schedule for technical delivery, work breakdown 
schedule, project budget and finances 
• Actively manage technical issues and risks 
• Define and manage critical path and dependencies between sub projects and or 
tasks 
• Run weekly status meeting and generate detailed project status reporting 
(including critical path impact, dependencie-s, milestones, resources, cost, work 
breakdown structures, etc.) 
• Gather and update project documentation 
• Promote smooth workflow and communication between departments 
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Matter of D-C-S-, LLC 
• The ability to work in a matrix environment across cross functional teams 
• Provide risk management and issue/problem resolution as required 
• Strong negotiation skills 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not establish that the petition was filed for non-speculative work for the 
Beneficiary that existed at the time of filing. Further, 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. 
For example, the Petitioner submitted contracts that postdate filing of this petition. As noted above, 
in response to the RFE, the Petitioner stated for the first time that the Beneficiary will be placed on a 
project working with The Petitioner provided a consulting agreement, effective 
on September 11, 2015, which sets out general terms pursuant to which the Petitioner might provide 
workers to The Petitioner, also provided a work order, ratified on September 11, 
2015, showing that agreed to use the Beneficiary's services beginning on 
October 1, 2015 and continuing for two years. However, both the consulting agreement and 
associated work order postdate the filing of the visa petition; thus, they are not evidence that the 
Petitioner had secured non-speculative work for the Beneficiary to perform at the time it filed the 
petition. 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 )(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, 249 (Reg'l Comm'r 
1978). 
On appeal, the Petitioner states that it submitted several contracts and service agreements "as 
evidence of sufficient software development work for the Beneficiary from the date of filing the 
petition (April 1, 2015) through the duration of the requested H-IB validity period, August 30, 
2018." Upon review of the contracts and agreements submitted with the RFE and on appeal, we 
note that most contracts also postdate filing of this petition. Further, some contracts, such as the 
master service agreement with are not signed by the client; the,refore, we are 
unable to determine if the contracts are valid. Moreover, the contracts do not indicate that the 
Beneficiary would be assigned to the project. In addition, the contract with 
executed on November 8, 2014, states that will supply consultants to work for 
the Petitioner, thus, it does not appear that this is an actual project for work to be provided by the 
Petitioner. 
The Petitioner also states that at the time of filing, it "has had ongoing software development since 
long before this petition was filed." Specifically, the Petitioner asserts that the Beneficiary would 
have been assigned to the '' · project for at the time of filing the 
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Matter of D-C-S- , LLC 
petition. In support, the Petitioner submitted a consulting agreement between the Petitioner and 
The agreement commenced on May 10, 2013, and states that will "receive 
consulting services from [the Petitioner] from time to time." However, the agreement does not 
define the length of the contract and it is not clear if the agreement is still valid. Notably, the record 
also contains a work order for another employee, not the Beneficiary, in Kentucky for 
for one year beginning on May 23, 2013. By the terms of that work order, the work 
was completed almost a year prior to the filing of the instant visa petition. Further, the Petitioner did 
not provide a work order for the Beneficiary to work on this project and did not submit any 
information on the work duties that would be performed by the Beneficiary if he was placed on this 
project. 
We find that the Petitioner has not established that the petition was filed for non-speculative work 
for the Beneficiary, for the entire period requested, that existed as of the time of the petition's filing. 
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 )(1 ). 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. at 249.1 
However, even if we assume that the Petitioner had sufficiently established that the Beneficiary will 
be working on a project with we find that the Petitioner did not submit a job 
description to adequately convey the substantive work to be performed by the Beneficiary. 
As reflected in the descriptions of the position as quoted above, the proffered position has been 
described in terms of generalized and generic functions that do not convey sufficient substantive 
information to establish the relative complexity, uniqueness and/or specialization of the proffered 
1 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-1 B 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-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) ofthe 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) . While a petitioner is certainly permitted.to change its intent with regard to 
non-speculative employment , e.g., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E) . 
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Matter of D-C-S-, LLC 
position or its duties. For example, the letter submitted by indicates that the 
Beneficiary will "manage technical delivery and technology project scope"; "actively manage 
technical issues and risks"; and, "create and maintain project schedule for technical delivery, work 
breakdown schedule, project budget and finance." The job description is generalized and generic in 
that the Petitioner does not convey the substantive nature of the work that the Beneficiary would 
actually perform, or any particular body of highly specialized knowledge that would have to be 
theoretically and practically applied to perform it. The responsibilities for the proffered position 
contain generalized functions without providing sufficient information regarding the particular work, 
and associated educational requirements, into which the duties would manifest themselves in their 
day-to-day performance. 
Further, the record contains inconsistent information regarding the requirements of the proffered 
position. As noted, the Petitioner indicated in its support letter that it requires a Bachelor's degree in 
computer science, engineering, information systems, or its equivalent and relevant work experience 
for the proffered position. However, does not state in its letter any minimum 
. educational requirement or work experience. 
We note that, 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. See Defensor v. Meissner, 201 F.3d at 387-88. 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. !d. 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 find that the Petitioner has not sufficiently established the substantive nature of the work to be 
performed by the Beneficiary, which therefore 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 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 forreview 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. 
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Matter of D-C-S-, LLC 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F .R § 
214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies for classification .as a 
specialty occupation. 2 
IV. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofD-C-S-, LLC, ID# 17345 (AAO Aug. 3, 2016) 
2 Since the identified basis for denial is dispositive of the Petitioner's appeal, we will not address other grounds of 
ineligibility we observe in the record of proceedings.