dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 7558135 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 21, 2020 
The Petitioner, a company engaged in information technology services, seeks to temporarily employ the 
Beneficiary as a UAT lead 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 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 Vermont Service Center denied the petition, concluding that the evidence of 
record does not establish that the proffered position qualifies as a specialty occupation. On appeal, 
the Petitioner asserts that the Director erred in the decision. We sent a notice of service motion and 
we are reopening this matter sua sponte . 8 C.F.R. § 103.5(a)(5) . 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We will dismiss 
the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services .. . in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(l) of the Act, but adds a non­
exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 1 Lastly, 
1 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii) . We construe the tenn "degree" to mean not just any 
8 C.F.R. § 214.2(h)(4)(i)(A)(I) states that an H-lB classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position determine: (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 focus of criterion 4. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Further, as recognized by the court in Defensor v. Meissner, 201 F.3d 384, 87-88 (5th Cir 2000), 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. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the services in a specialty occupation that the Beneficiary would perform during the requested period 
of employment, which precludes a determination of whether the proffered position qualifies as a 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Cmp. 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"). 
2 
specialty occupation under sections 101(a)(l5)(H)(i)(b), 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 2 
The Petitioner stated on the Form I-129, Petition for a Nonimmigrant Worker, and on the certified labor 
condition ap~lication (LCA), that the Beneficiary would work as a UAT lead for an end-client located in 
I California, for the petition's entire employment period, October 2018 to February 2020. 3 
The Petitioner indicated the relationship with the end-client as follows: 
However, the record does not contain sufficient evidence to establish the services the Beneficiary will 
perform. Specifically, 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. 
The Petitioner submitted an independent contractor agreement (CA) between the Petitioner and the 
vendor. The scope of the agreement stated that the vendor "needs from time to time the services of 
independent contractors to perform consulting services for the [vendor] on various projects." It also stated 
that the Petitioner has "special experience and expertise, and has on its payroll or can obtain employees 
or subcontractors with such experience and expertise as may be required from time to time by [ the 
vendor]." The terms of the agreement also stated that the Petitioner "shall have the right to refuse to 
accept assignment to a project when requested by [the vendor] and/or its Clients." Thus, the agreement 
indicated that the Petitioner would provide personnel to the vendor to work on projects "from time to 
time", but it does not commit the vendor or the Petitioner for any particular services during any period or 
at any location. In sum, the CA has little probative weight towards establishing actual work to be 
performed by the Beneficiary for the end-client for any specific period or location. 
Under the "services of the contractor" section of the CA, it stated that the Petitioner's "work will be at 
the direction of the client." In this case, the client is the I I 
and the documentation does not provide enough evidence of the work to be performed by the Beneficiary 
for that end-client. As noted in the CA, the vendor agrees to provide the Petitioner a description of the 
services required in a "Schedule I" document. As part of the terms of the CA, the Petitioner submitted a 
Schedule I signed by the Petitioner and the vendor that indicated that the Beneficiary will be placed with 
the end-client from March 20, 2018 to February 28, 2020. The scope of work is described as a "Business 
2 The Petitioner submitted documentation to suppmt the H-lB 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 A petitioner submits the LCA to the U.S. Department of Labor (DOL) 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 duties, experience, and qualifications. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.73l(a). 
3 
analyst support services to provide UAT services as a technical consultant [to] support thel I I . I and any other State Agency as needed under the direction of 
the client." This schedule provided very little information of the duties to be performed by the 
Beneficiary, the scope of the project, the phase of the project, or the team supporting the project. The 
schedule does not sufficiently explain the work to be performed by the Beneficiary at the end-client 
location. 
The Petitioner submitted a letter and stated that it was from the end-client. The letter is not on the end­
client's letterhead, and it was written by! la Project Manager, but I I does not confirm that 
he is employed by the end-client. Even if the letter is from the end-client, it provided a very general 
explanation of the project, and a brief outline of the Beneficiary's duties on the project, which are nearly 
identical to the description provided by the vendor and the Beneficiary. The letter from I I stated 
that the end-client is "replacing largely paper-based internal timekeeping and scheduling systems with an 
automated and fully integrated solution," but did not provide details regarding this project. The letter 
froml klid not provide sufficient information of the project such as the mission and scope of the 
project, the team members on the project, an explanation of how the responsibilities are delegated to the 
team members; the detailed timeline of the project; or the complexity and milestones of the project. In 
addition, as noted above, the independent contractor agreement between the Petitioner and the vendor 
stated that the Petitioner's "work will be at the direction of the client," but this letter does not provide 
sufficient information of the work the end-client wishes to give the Beneficiary. 
In response to the Director's request for evidence, the Petitioner submitted a document entitled, 
"Purchasing Authority Purchasing Order," but did not discuss this document or explain its relevance to 
this petition. In addition, the document is missing the final page. Upon review of the document, it appears 
that it is a type of contract between the vendor and the end-client but without an explanation it is 
impossible to determine the relevance of this contract. The purchase order also has a statement work but 
under the section entitled, "Approval and Commencement of Work," it stated that "this Order is of no 
force or effect until approved by State," and "[ s ]hould contractor begin to work prior to receiving notice 
that the order is approved, the work may be considered as having been done at Contractor's risk as a 
volunteer, and Contractor may go unpaid." Thus, it appears that this contract may be a proposal for work 
from the vendor to the end-client rather than a confirmed contract agreement. 
In addition, the statement of work stated that a "trainer and OCM consultant and Business Analyst(s) 
(BA) consultant(s) are required to support the planning and execution of the field activities in the 
preparation and implementation ofboth thd I andLJprojects." Nowhere in the statement 
of work does it state that it requires the services of a UAT lead, or even specifically, the Beneficiary. 
Again, without further information from the Petitioner, it is not clear if this document is an approved 
contract or if it even pertains to the project the Beneficiary will work on with the end-client. 
Further, the Petitioner did not submit the contract or agreement between the vendor and the end-client to 
understand the scope of services between the parties. Without supporting documentation such as 
contracts, detailed purchase orders or statements of work, or similar documentation, it is hard to determine 
the scope of services and the nature of the relationships between the parties. The Petitioner provided 
insufficient evidence towards substantiating that the petition was filed based on actual work that the 
Petitioner had secured for the Beneficiary for the end-client's location for the employment period sought 
in the petition. 
4 
In addition, the record does not sufficiently establish the project's duration. The Petitioner stated in the 
support letter that it is anticipated that the Beneficiary's services would be required until February 2020. 
The "Schedule I" signed by the Petitioner and the vendor indicated the Beneficiary's work end date as 
February 2020. But the letter froml I Project Manager, indicated that the project with the end­
client has "no fixed end date." It is not clear why the letter froml I is not consistent with the 
information provided by the Petitioner and the vendor. In addition, the Petitioner did not submit 
sufficient evidence such as contracts or similar corroborating evidence that the project with the end­
client will continue until February 2020 and will require the services of the Beneficiary as a UAT lead 
for that entire period. 4 
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. 248, 249 (Reg'l Comm'r 1978). The 
agency made clear long ago that speculative employment is not permitted in the H-lB program. See, 
e.g., 63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). 
Because the Petitioner has not established the substantive nature of the Beneficiary's work, we are unable 
to evaluate whether 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 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. 
4 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 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-lB 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 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). 
5 
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. 
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