dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-1-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 25,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology solutions and services company, seeks to temporarily 
employ the Beneficiary as a "software developer" under the H -1 B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 
8 U.S.C. § 1101(a)(l5)(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 of the Vermont Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that the proffered position is a specialty occupation. 
On appeal, the Petitioner submits additional evidence and contends that the petition should be 
approved. 
Upon de novo 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 ofthe evidence standard as specified in Matter ofChawathe, 25 l&N Dec. 369, 375-76 
(AAO 2010). 
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Matter of M-1-, Inc. 
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 have consistently interpreted 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. Cherto.ff, 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 Petitioner stated in the H-lB petition that the Beneficiary will serve as a "software developer" 
and provided multiple work locations: (1) its address in New Jersey "and/or local 
client sites"; (2) anaddress in Texas, "and/or local client sites"; and (3) an address in 
Pennsylvania "and/or local client sites." In its support letter, the Petitioner stated that it 
would assign the Beneficiary "to its work at approved work site(s)" and stated that the Beneficiary 
"may" perform the following duties: 
Analyze, design, develop, configure, implement and deploy software applications. 
Confer with clients, analyze and document business requirements, design technical 
and functional specifications, prepare technical design documentation, develop 
prototype, determine feasibility of design. Develop software testing and validation 
procedures, map and validate data, perform data loads, develop programs, design 
system architecture, develop components and modules, create user interface, write 
scripts, integrate hardware and software, generate reports, re-engineer business 
processes, perform software installations, develop work flow charts and diagram. 
Write and review codes, test, performance tune, debug, resolve technical issues, track 
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Matter of M-1-, Inc. 
defects, and provide end user support. Identify new software for upgrades and 
conversions and troubleshoot problems. 
The Petitioner explained that these duties require an individual with a bachelor's degree m 
engineering, computer science, or information technology, or the equivalent. 
In response to the Director's request for additional evidence (RFE), the Petitioner stated that the 
Beneficiary would now be working solely on an in-house project, and requested that the Director 
"disregard all other addresses in the petition as they are no longer relevant." According to the 
Petitioner, the Beneficiary would now perform her duties pursuant to contracts executed between the 
Petitioner and (vendor), and the vendor and (end-client). The 
contractual path of succession would therefore be as follows: Petitioner -7 Vendor -7 End-client. 
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 demonstrate that (1) the Petitioner had secured definite, non­
speculative work for the Beneficiary at the time of filing; and (2) the proffered position requires an 
educational background, or its equivalent, commensurate with a specialty occupation? 
As noted, when the Petitioner filed this petition it identified its address in New Jersey, and also other 
addresses in Texas, and Pennsylvania, as well as "local client sites," as the Beneficiary's work 
locations. However, the Petitioner did not submit any contracts or other documents with the initial 
petition to substantiate availability of work in-house or at other locations. In the "Itinerary of 
Services" submitted with the petition, the Petitioner stated it "has work that it will carry out at 
approved worksites, and will assign [the Beneficiary] to the same." The Petitioner also referenced 
the possibility of placing the Beneficiary "at our other clients." However, the itinerary did not 
provide the dates and locations of the services to be provided as required under 8 C.F.R. 
§ 214.2(h)(2)(i)(B). 
Then, in response to the RFE, the Petitioner claimed that the Beneficiary would 
work in-house on 
the end-client project at its New Jersey office for the duration of the requested employment period. 
The Petitioner did not explain this change other than to state that the Director should "disregard all 
other addresses in the petition as they are no longer relevant." In support, the Petitioner submitted 
letters from the end~client and vendor. However, both letters were dated November 2016, seven 
months after filing this petition. Further, none of the letters indicated start or end dates for the 
project. The Petitioner also submitted "Agreement 4 i 77" with the vendor dated January 2016. 
However, the agreement is a general contract to establish general terms and conditions between the 
2 The Petitioner submitted documentation to support 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. 
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Matter of M-1-, Inc. 
Petitioner and vendor, and does not specify details of the assignment such as the name of the 
personnel, services to be provided or duration of services. Notably, the agreement states that details 
regarding consulting assignment will be specified in another document referred to as "Assignment"; 
however, that document was not provided. 
The Petitioner attempts to cure this deficiency on appeal by submitting several documents titled 
"Assignments." However, each "Assignment" identifies a different client and none of the 
documents sufficiently establish existence of non-speculative employment for the Beneficiary for the 
duration of the requested employment period at the time of filing. The Petitioner had indicated that 
the Beneficiary will be employed from October 2016 to September 2019. However, "Assignment 
6466" is dated January 2016 for the end-client for a three-month period, ending in April 2016. 
"Assignment 6485" is dated June 2016, for another client, for three-months, 
ending on or around SeptembeF 2016. In other words, both assignments had ended prior to the 
Beneficiary's start date. 
On appeal, the Petitioner submits a copy of an email that the Beneficiary sent to the end-client 
requesting that it confirm the content of the email. The email states in part that the "development 
work should proceed for 2+ years, as required." However, the email is dated February 2017. Even 
if we assume that the Beneficiary will be assigned to the end-client as claimed for at least two years, 
the email is dated ten months after the filing of the petition, and five months after the Beneficiary's 
requested start date. The email does not indicate when the Beneficiary's assignment began. 
Therefore, the email does not establish a bona fide project at the time of filing. 
The· Petitioner also submitted a document titled "Task Report" that contains information such as 
tasks for the Beneficiary and start and end dates for the tasks. While the Petitioner claims that this 
document is evidence of in-house work for the Beneficiary for the duration of the requested 
employment period, the document does not identify the client, author of the document, and there is 
no other corroborating evidence to authenticate the content of this document. 
On appeal, the Petitioner also submitted additional contracts with other clients. However, none of 
the contracts pertain to the Beneficiary; therefore, they are not relevant to this matter. 
In any event, we find that Petitioner has not established that it had secured non-speculative 
employment for the Beneficiary at the time it filed this petition. The Petitioner is required to 
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 the Beneficiary becomes eligible under a new set of 
facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). As such, 
eligibility for the benefit sought must be assessed and weighed based on the facts as they existed at 
the time the instant petition was filed and not based on what were merely speculative facts not then 
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Matter of M-1-, Inc. 
in existence.3 Here, the Petitioner has not established that it had secured definitive, non-speculative 
employment for the Beneficiary for the duration of the requested validity period at the time of filing. 
However, even if we assume that the Petitioner had secured non-speculative employment for the 
Beneficiary at the time of filing, the petition could still not be approved because Petitioner did not 
submit a job description to adequately convey the substantive work to be performed by the 
Beneficiary. 
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. !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. 
As mentioned, the Petitioner submitted letters from the vendor and end-client in response to the 
RFE. Both letters contained the following listing of duties for the Beneficiary: 
• Gathering and understanding user business requirements and communicating with 
supervisors and other coworkers on the business requirements. 
• Analyze, develop, test and implement software application based on business 
requirements. 
• Performance tuning, development data loading, and data mapping programs using 
Oracle Hyperion and related tools. 
• Development of reports and data validation using Oracle Hyperion tools. 
3 The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. Specifically, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 8 classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 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 8 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 properly a request for H-1 8 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). 
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Matter of M-1-, lfic. 
The Petitioner amends the duties again on appeal, stating that the Beneficiary would not be 
,performing the first duty identified by the vendor and the end-client - gathering business 
requirements. 
Further, the duties submitted by the end-client are vague and do not convey the specific work to be 
completed by the Beneficiary. On appeal, the Petitioner also submitted an email drafted by the 
Petitioner that defines scope of the work and the end-client appears to confirm it. However, the 
email also does not sufficiently describe the work. For example , the scope of the work includes 
"resolve all the existing issues with the in development ," "develop automation tools to 
load and cleanup metadata" or "define and document user training requirements." · The overall 
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 within the end-client's project 
Moreover, the Petitioner has not established that the educational requirements for the position 
qualify the position as a specialty occupation. As noted, the court in Defensor, 201 F.3d at 387-88, 
requires a petitioner to produce evidence that a proffered position qualifies as a specialty occupation 
on the basis of the requirements imposed by the entities using a beneficiary's services (emphasis 
added). The end-client here does not specify the educational requirements for the position. 
Without documentation directly from the end-client that provides information regarding the project 
itself, including a description of the Beneficiary's specific duties and responsibilities in relation to 
the project on which he will be working , the position ' s educational requirements , and other pertinent 
aspects of the proposed employment , we cannot determine the substantive nature of the proffered 
position. 
Consequently, we are precluded from 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 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. 
Accordingly, as the evidence does not satisfy any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) , it 
cannot be found that the proffered position qualifies as a specialty occupation. 
IV. CONCLUSION 
Matter of M-1-, Inc. 
We find that the Petitioner has not established that the proffered position is a specialty occupation. 4 
ORDER: The appeal is dismissed. 
Cite as Matter of M-1-, Inc., ID# 411625 (AAO July 25, 2017) 
4 
Because this issue precludes approval of the petition we will not address additional issues we have observed in our d1 
novo review of this matter.