dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 7872061 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 31, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"software engineer" 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. § l 10l(a)(l5)(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 California Service Center denied the petition, concluding that the record does not 
establish the position qualifies as a specialty occupation. The Director also concluded that the record 
does not establish the Petitioner would have an employer-employee relationship with the Beneficiary 
during the requested period . On appeal, the Petitioner submits a brief and asserts that the Director 
erred. 
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. 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010) . 
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: 
( I) 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). 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the substantive nature of the work the Beneficiary would perform during the intended period of 
employment, which precludes the determination of whether the proffered position qualifies as a 
specialty occupation under 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A).2 
The Petitioner, located in Illinois, asserted the Beneficiary would work at the end-client location in 
North Carolina. 3 However, the record does not contain sufficient evidence to establish the terms and 
conditions of the Beneficiary's assignment during the requested period. 
The record contains a master subcontractor services agreement (MSSA) between the Petitioner and 
the mid-vendor. The MSSA is a general agreement for the Petitioner to "assist with the provision of 
temporary staffing services to Customer ... pursuant to an agreement between [the mid-vendor] and 
Customer (the 'Prime Agreement')"; however, the MSSA does not identify a particular client to whom 
the parties would provide temporary staffing services. Additionally, the record does not contain the 
referenced "Prime Agreement" between the mid-vendor and any other entity. The MSSA also does 
2 The Petitioner submitted documentation to suppmt the H-1 B 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. 
3 The record establishes that the end-client would be a particular subsidiary of a healthcare provider group. Although we 
distinguish between the two entities, we refer to both in this decision as ·'the end-client" for simplicity. 
2 
not specify the substantive nature of the services the temporary staff would provide. Furthermore, the 
MSSA does not identify the Beneficiary or any other individual who would provide such services. 
Instead, the MSSA states that "[f]or each [of Petitioner's] Employee placed with Customer, the parties 
shall memorialize in writing the name, standard and overtime hourly billing rates, and starting date for 
such [worker]." The record does not contain a statement of work, or a similar document, identifying 
information such as the client to whom the parties contracted for the Petitioner to provide services, the 
substantive nature of such services, the position title( s) to provide the services, the duties of the 
position(s), the qualifications required for the position(s), and the name(s) of any individual(s) 
assigned to the position(s). 
The record also contains an excerpt of a 45-page document titled "IT labor contract services 
agreement" (LCSA) between the mid-vendor and the end-client. 4 The LCSA excerpt-which in turn 
is heavily redacted-consists of four pages numbered "Page 1 of 45," "Page 3 of 45," "Page 15 of 
45," and "Page 16 of 45." Accordingly, the LCSA excerpt does not establish the full terms of the 
contract between the mid-vendor and the end-client. The LCSA excerpt is a general agreement for the 
mid-vendor to "use its good faith best effort to supply qualified Consultants to [the end-client] to 
perform information technology Services." The unredacted portion of the LCSA excerpt does not 
elaborate on the substantive nature of the services for which the end-client contracted the mid-vendor 
to provide, the qualifications required by the end-client for consultants to provide such services, and 
the identity of any such consultant. Furthermore, even if the LCSA excerpt provided that type of 
salient information, it states that "[the end-client] will not be obligated to select [the mid-vendor's] 
Consultants for the Services. The selection of [the mid-vendor's] Consultants for performance of the 
Services will be subject to [the end-client's] discretion and approval." Therefore, even if the record 
contained the LCSA in its full, unredacted form, and even if the LCSA described the substantive nature 
of the services the parties contracted the mid-vendor to provide, and even if the LCSA identified the 
Beneficiary as a worker assigned to provide such services, without more the LCSA would not establish 
that the end-client elected in its discretion to approve the Beneficiary's assignment. 
Additionally, the record contains a document titled "memorandum of understanding" (MOU), which 
states that "[i]t is the [ mid-vendor's and the end-client's] understanding that the resources will on [sic] 
our client project in the Role listed below," identifying the Beneficiary as the "resource," and 
describing the role as "software engineer." However, the MOU is dated July 2019, after the petition 
filing date. A petitioner must establish eligibility at the time of filing the petition. See 8 C.F.R. 
§ 103 .2(b )(1 ). A petition may not be approved at a future date after the Petitioner or Beneficiary 
becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Comm'r 1978). Because the MOU is dated after the petition filing date, it cannot be used to establish 
eligibility. Id. 
Moreover, even if the MOU were dated as of the petition filing date, it raises doubt regarding its 
legitimacy. The MOU states that "[the mid-vendor] and [the end-client] sign this [MOU] for purposes 
of assisting [ the Petitioner] to obtain approval" for the H-1 B petition. However, although a 
representative of the mid-vendor signed and dated the MOU, it does not contain a signature-or even 
a signature block to be completed-from a representative of the end-client. Doubt cast on any aspect 
of a petitioner's proof may undermine the reliability and sufficiency of the remaining evidence offered 
4 This document title does not match the "Prime Agreement" referenced in the MSSA, discussed above. 
3 
in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). The mid-vendor 
speaking for the end-client without apparent authorization to do so in the MOU raises doubt regarding 
its legitimacy and raises further doubt regarding the reliability and sufficiency of the remaining 
evidence in the record, particularly from the mid-vendor and the end-client. Id. 
We note that the record contains two letters from the end-client, the second sent in response to the 
Director's request for evidence. Both letters are essentially verbatim and consist of two paragraphs, 
confirming "that [the end-client] will be the end-user of the services of the ... [B]eneficiary." 
However, neither or the letters identify the Beneficiary's position or elaborate on the substantive nature 
of the services for which the parties contracted the Beneficiary to perform during the requested period. 
Furthermore, neither of the letters establish what qualifications-if any-the end-client requires for 
such a position. 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for an 
entity other than the petitioner, evidence of the client company's 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. Here, the record does not adequately establish that the Beneficiary would provide 
services in a specialty occupation for the end-client for the employment period requested in the 
petition. 
We also note that the record contains two sets of emails between the Beneficiary and the end-client's 
"senior principal engineer." In both exchanges, the Beneficiary requests the senior principal engineer 
to "confirm my job assignment," followed by a bullet-point list of language that appears verbatim in 
other documents in the record, such as letters from the Petitioner and the mid-vendor. 5 Although both 
emails contain a degree requirement for the position, the senior principal engineer's responses-both 
consisting of a one-sentence reply-specifically state that the Beneficiary's email "accurately reflects 
the work that you do" and "this accurately describes your job assignments," without commenting on 
whether the Beneficiary's emails accurately describe the end-client's requirements for the position. 6 
Regardless of whether the senior principal engineer's brief email responses demonstrate the type and 
educational level of knowledge required by the end-client for the position, which they do not, the 
record does not establish whether the senior principal engineer has the authority to represent the 
end-client regarding the work for which it contracted and the qualifications it requires for the 
performance of such work. Given the issues addressed, the record casts doubt regarding the probative 
value of the sets of emails between the Beneficiary and the end-client's senior principal engineer. See 
Matter of Ho, 19 I&N Dec. at 591; see also Defensor, 201 F.3d at 387-88. 
5 We note that the font size and formatting of the bulleted list does not match the remainder of the email text; instead, it 
matches the font size and formatting in a letter rrom the Petitioner. 
6 Furthermore, the senior principal engineer's comments on "the work that you do" and "your job assignments" does not 
comment on the work for which the parties contracted the Beneficiary to perform. 
4 
We further note that the record contains an opinion letter written by~ _______ _., an adjunct 
professor at the University ofl 17 As a matter of discretion, we may use 
opinion statements submitted by the Petitioner as advisory. Matter of Caron Int 'l, Inc., 19 I&N Dec. 
791, 795 (Comm'r 1988). However, we may give an opinion less weight if it is not in accord with 
other information in the record or if it is in any way questionable. Id. We are ultimately responsible 
for making the final determination regarding an individual's eligibility for the benefit sought; the 
submission of expert opinion letters is not presumptive evidence of eligibility. Id.; see also Matter of 
V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion testimony, while undoubtedly a form 
of evidence, does not purport to be evidence as to 'fact' but rather is admissible only if 'it will assist 
the trier of fact to understand the evidence or to determine a fact in issue."'). 
~---_.I states that he based his conclusion on his "thorough review of all documentation provide 
to [him] by [the Petitioner], [his] knowledge of the industry through firsthand field experience and 
professional consulting activities, [his] careful following of current trends in [his] academic field," 
and other sources outside the record, such as "mentoring students and graduates in their pursuit and 
attainment of job opportunities." Specifically, I I asserts that "[ c ]orrespondence from the 
end-client ... and a vendor letter from the mid-vendor ... have confirmed the range of duties as well 
as the work location of the [B]eneficiary." However, as discussed above, the end-client letters do not 
comment on either the substantive nature of the position's duties or the end-client's requirements for 
a worker to be qualified for the position. Similarly, even if the end-client's senior principal engineer 
had the authority, which the record does not establish, to speak on behalf of the end-client, his one­
sentence responses to the Beneficiary regarding "the work that you do" does not establish the work 
for which the end-client contracted the Beneficiary to perform or the qualifications the end-client 
requires for a worker to perform such work. 
Additionally, as discussed, the record does not otherwise establish the work for which the parties 
contracted the Beneficiary to perform. Accordingly, without more information, the"[ c ]orrespondence 
from the end-client" in the record does not provide sufficient information on which to base an opinion 
regarding whether the position qualifies as a specialty occupation. See Defensor, 201 F.3d at 387-88. 
Furthermore, there is no indication that I I has conducted any research or studies pertinent to 
the educational requirements for such a position, and no indication of recognition by professional 
organizations that he is an authority on those specific requirements. Accordingly,! Is opinion 
bears minimal probative value. See Matter of Caron Int'!, Inc., 19 I&N Dec. at 795; see also Matter 
of V-K-, 24 I&N Dec. at 502 n.2. 
In summation, we conclude that the inconsistencies and lack of documentation in the record raise 
questions regarding the actual substantive nature of the proffered position, 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 ( 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 
7 We note that, soon afterl,....._ __ _.lwrote the opinion letter, the college name changed to the University oti._ __ _. 
I I 
5 
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 
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. 
8 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 will not further discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. ~ 214.2(h)(4)(iii)(A). 
Additionally, because this issue is dispositive, we reserve our decision regarding the Director's separate conclusion that 
the Petitioner would not have an employer-employee relationship with the Beneficiary during the requested period. 
6