dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6480681 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 6, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "database administrator" under the H-lB 
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 Vermont Service Center Director denied the petition, concluding that the record did not establish 
that the Petitioner will have specialty occupation available for the Beneficiary to perform and that the 
Beneficiary will perform specialty occupation services . 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 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: 
(1) 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. Chertojf, 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 and for the reasons set out below, the Petitioner has not 
demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the record 
does not include sufficient consistent, probative evidence of the existence of specialty occupation work 
for the Beneficiary to perform. The Petitioner also has not demonstrated the substantive nature of the 
proffered position and has not established that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 
The Petitioner, an information technology company located in Virginia, stated on the Form 1-129, 
Petition for a Nonimmigrant Worker, that the Beneficiary would work offsite. The labor condition 
application (LCA) 1 submitted in support of the petition, indicated that the Beneficiary would work in 
Missouri. To support this off site work, the Petitioner submitted a letter on the letterhead of I I I ~ a mana ed services rovider MSP which indicated that it had entered into a 
supplier agreement with '------------r-----..-------'(vendor) to provide services in 
connection with the use of contract workers to '---=------:!(end-client). 2 The chain of employment 
appears to flow as follows: Petitioner ➔ Vendor ➔ MSP ➔ End-client. 
We conclude first that the Petitioner has not established the existence of definitive, non-speculative 
employment for the Beneficiary. This is particularly important in a case such as this, where the very 
existence of the proffered position is dependent entirely upon the willingness of an end-client to 
provide it. And if we cannot determine whether the proffered position as described in this petition 
would actually exist then we cannot ascertain its substantive nature, let alone determine whether it is 
a specialty occupation. 
1 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-lB 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 experience and qualifications who are performing the same services. Section 212(n)(l) 
ofthe Act; 20 C.F.R. § 655.73l(a). 
2 The record does not include the contract between the vendor and the MSP. 
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The initial record included, in addition to the MSP's letter, a January 1, 2017 letter on the end-client's 
letterhead identifying the MSP in this matter as the end-client's centralized staffing provider manager. 
The initial record also included a subcontractor agreement between the Petitioner and the vendor and 
a purchase order dated April 6, 2018. The purchase order identified the vendor, the Petitioner, and the 
end-client, as well as the Beneficiary as a"( consultant)- Sr. Engineer-Data Engineer." The purchase 
order farther indicated an anticipated duration of one year with a start date of April 30, 2018. 3 
In response to the Director's request for evidence (RFE), the Petitioner provided a December 11, 2018 
letter it claimed was from the end-client. We question the authenticity of this letter. First, the letter 
is a copy and the end-client logo is not on the same side as the initial January 1, 2017 end-client letter 
submitted for the record. The record does not include evidence that the claimed author of the 
December 11, 2018 letter, an HR Services manager, has authority to discuss potential temporary 
positions at the end-client or has actual knowledge of the duties and requirements of such positions. 
We note, for example, that an individual in the sourcing and supplier management department signed 
the end-client's January 1, 2017 letter. Moreover, the text of the letter is an almost verbatim version 
of the MSP letter initially submitted, raising questions, at the least, as to the independent nature of the 
December 18, 2018 letter's authorship. 4 
Upon review, none of these documents create a legal obligation on the part of the end-client to provide 
work for the Beneficiary to perform. The record does not include a contract between the vendor and 
the MSP and accompanying statement of work (SOW) or work order. Thus, there is insufficient 
evidence establishing that the MSP requisitioned and then selected specific candidates for particular 
work on behalf of the end-client through the vendor, the only entity with a contract with the Petitioner. 
The heavily redacted copy of a master services agreement (MSA) between the MSP and the end-client 
submitted for the first time on appeal does not cure this deficiency. This redacted MSA necessarily 
cannot establish all the legal obligations and restrictions set out in the document. Nor does such a 
document provide the necessary information establishing the requisition and selection process and 
requirements for particular candidates or projects. Similarly, an "Assignment Edit - Detail" printout 
with the end-client logo does not include comprehensible references to particular contracts, SOWs, 
work or purchase orders, sufficient to ascertain its legitimacy and more significantly the legal 
obligation of the end-client or the MSP to provide work for the Beneficiary. The record does not 
include sufficient evidence corroborating the contractual chain and the availability of actual work to 
be assigned. 
Without the context of all the documents in the contractual chain with corresponding SOWs, work 
orders, or similar documents, the record does not contain probative evidence of a legal obligation on 
the part of the end-client to actually provide the position the Petitioner proposed with this H-1 B 
3 The Petitioner requested an employment period for the Beneficiary beginning May 10, 2018 to February 28, 2020. 
4 The record also includes an email chain, dated May 30, 2018, between the Beneficiary and the vendor's HR manager 
wherein the Beneficiary requests a client invite letter in the format he has shared. The response is that the end-client limits 
the information provided for H-lB candidates and refers to an attached letter (it appears this is the January 1, 2017 letter) 
regarding the relationship of the end-client and the MSP as the only type of letter the end-client releases. This information 
further undermines the authenticity of the December 11, 2018 letter as it appears the letter was manufactured in an effort 
to bolster the H-1 B petition. 
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petition. 5 Even if we were to set this foundational deficiency aside entirely we would still have 
significant questions as to the proffered position's actual, substantive nature due to the inconsistencies, 
discrepancies, and unanswered questions regarding the proposed position. 
For example, the Petitioner initially provided an 8-bullet point description of the proposed duties 
indicating that the Beneficiary would manage and upgrade exadata machines, handle and support Oracle 
products, interface and provide technical assistance to various teams, tune databases and generally design, 
implement, and maintain database systems and design and plan security measures. The Petitioner does 
not place these duties within the context of a project or particular assignment. 6 Although the Petitioner 
designated the proffered position under the occupational category "Database Administrators" 
corresponding to the Standard Occupational Classification (SOC) code 15-1141, at a Level II wage, on 
the LCA, the brief description is insufficient to convey an understanding of what exactly the Beneficiary 
will be required to do in the proffered position and whether the certified LCA actually supports the 
position. 
Moreover, the record includes ambiguities, inconsistencies, and a general lack of information regarding 
the actual proposed position. For instance, the purchase order between the Petitioner and the vendor 
refers to the proposed position as a "Sr. Engineer-Data Engineer" but does not provide the context for this 
particular position within a particular project. That is, the purchase order does not indicate that the 
Beneficiary will perform the duties of a "Database Administrator," the occupation designated on the 
certified LCA. Although we do not rely on the title of a particular position to establish the nature of a 
position, the record must include some evidence of the actual position that is the subject of the petition. 
The record does not include probative evidence in the form of a purchase order, SOW, or other document 
that actually describes the duties of the position in relation to specific projects or assignments at the 
end-client facility. Without the context of the proposed position within a specific project or project team, 
we cannot ascertain the nature of the position or the level of responsibility required of the position. 
We reviewed the May 23, 2018 MSP letter, in order to gain some understanding of what might be 
expected of the Beneficiary at the end-client's facility. The MSP representative provides an 18-bullet list 
of duties and skills such as "[p]rovide world-class support and expertise to all of Client's Database 
environments," "[ r] epresent Client's Data Architectural team as a subject matter expert," and "[ a ]bility to 
work with minimal supervision seeking direction as required."7 This level of expertise and ability to 
work with minimal supervision appears to conflict with the Petitioner's designation of the proffered 
position as requiring only a Level II wage, a wage which is reserved for positions involving only 
moderately complex tasks requiring limited judgement. 8 This raises further questions regarding the actual 
5 Speculative employment is generally not permitted in the H-lB program. See, e.g., 63 Fed. Reg. 30419, 30419-20 
(proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). 
6 The Petitioner also does not offer an explanation for the difference between its initial description and the MSP's 
description in its letter. 
7 In response to the Director's RFE, the Petitioner provided a December 11, 2018 letter it claimed was from the end-client 
that provided the same list of duties and qualifications for the proposed position as set out in the MSP's letter. On appeal, 
the Petitioner submits a letter. also dated December 11, 2018, which is on the letterhead of the vendor in this matter. The 
Petitioner does not explain why the vendor's letter was not previously submitted for the record. Both of these letters copy 
the duties and qualifications of the proposed position as set out by the MSP. We observe here that the duties in these letters 
do not correspond to the Petitioner's initial description of the proposed position except in the most vague and general way. 
8 The "Prevailing Wage Determination Policy Guidance" issued by the DOL provides a description of the wage levels. 
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nature of the proposed position and undermines any claim that the Petitioner's proposed position will 
incorporate the same duties and level of judgement as that expected by the MSP/end-client. If the 
proposed position actually requires the expertise and judgement set out in the MSP letter, we question 
whether the Petitioner has selected the appropriate wage level corresponding to the level of responsibility 
and complexity of tasks that the MSP expects the Beneficiary to perform. 
An examination of the remaining job duties in the MSP letter raises further questions regarding the nature 
of proposed duties. The duties described include tasks such as "[ d]emonstrates excellent verbal and 
written communication skills," "[ d]isplays excellent collaborative skills to facilitate cross-functional 
teams," [ a ]bility to work with team members located in multiple geographies and time zones," "[p ]erform 
production level support and be part of the on call rotation when required," and work with Oracle support, 
multiple application teams and developers, and lead and set direction for the end-client's use of best 
practices and application database solutions. These duties do not illuminate the substantive application 
of knowledge involved or any particular educational requirement associated with such duties. Many of 
the bullet points in the list do not identify particular duties but refer to desired skills. The job description 
does not communicate (1) the actual work the Beneficiary would perform on a day-to-day basis; (2) 
the complexity, uniqueness and/or specialization of the tasks; or (3) the correlation between that work 
and a need for a particular level of education of highly specialized knowledge in a specific specialty. 
It is not possible to ascertain the substantive nature of the proposed position from the descriptions 
provided. 
Although we recognize that the Beneficiary will be tasked to work within several technical environments 
and systems, there is insufficient consistent information in the record to conclude that the Beneficiary will 
perform the duties of a database administrator, rather than some other technology occupation. The 
descriptions do not establish the substantive nature of the proposed position or demonstrate that 
performing the duties described would require the theoretical and practical application of highly 
specialized knowledge and attainment of at least a bachelor's degree in a specific specialty or its 
equivalent. Here the broad and jargon-laden descriptions do little to establish the substantive nature of 
the position. 
The lack of consistent, clear, and corroborated information in the record regarding the nature of the 
proposed position precludes a conclusion that the 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 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 
DOL's wage-level guidance specifies that a Level TT designation is reserved for positions involving only moderately 
complex tasks requiring limited judgment. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance. Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised_ 11 _ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. Id. 
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focus of criterion 4. The Petitioner has not established that the proffered position is a specialty occupation 
under the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
The Petitioner also has not established that the proposed position satisfies the definitions of specialty 
occupation as set out in the statute and regulation. 
ORDER: The appeal is dismissed. 
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