dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 5917290 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 27, 2020 
The Petitioner, a company engaged in information technology services, seeks to employ the 
Beneficiary as a "software engineer" under the H-1 B 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 California Service Center denied the petition, concluding that the evidence of 
record does not establish that: ( 1) the Petitioner will engage the Beneficiary in an employer-employee 
relationship; and (2) the proffered position qualifies as a specialty occupation. On appeal, the 
Petitioner asserts that the Director erred in the decision. 
The Petitioner must establish eligibility by a preponderance of the evidence. Matter of Chawathe, 
25 I&N Dec. 369, 375-76 (AAO 2010). Upon de nova review, we will dismiss the appeal. 
I. SPECIAL TY OCCUPTION 
A. 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. 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). 
As recognized by the court inDefensor, 201 F.3d at 387-88, where, as here, the work is to be performed 
for entities 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. 
B. Analysis 
Upon review of the record in its totality, we conclude that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation because the record lacks sufficient evidence of the 
actual work that the Beneficiary will perform for the end-client. 1 We find that the Petitioner has not 
established the substantive nature of the position, which precludes a determination that the Petitioner 
will engage the Beneficiary in an employer-employee relationship, and that the proffered position 
qualifies as a specialty occupation under at least one of the four regulatory specialty-occupation criteria 
enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
1 The Petitioner submitted documentation to support the H- IB 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. 
2 
The Petitioner stated on the Form I-129, Petition for a Nonimmigrant Worker, and on the certified labor 
condition application (LCA), that the Beneficiary would work as a software engineer for an end-client in 
I I Ohio, for the petition's entire employment period, October 2018 to September 2021. 2 
In response to the Director's request for evidence, the Petitioner indicated the relationship with the end­
client as follows: 
- -(Petitioner) (End-client) 
The record of proceedings does not contain sufficient information regarding the specific job duties 
that the Beneficiary would perform for the end-client and the period of any such employment. 
The Petitioner submitted a supplier agreement (SA) between the Petitioner and the vendor that indicated 
the Petitioner will "introduce technical services personnel candidates to [the vendor] and [the vendor] 
may submit said technical services personnel to provide their services to Client." The SA also stated that 
"[i]f [the Petitioner's] candidates are selected by Client to provide services, [the Petitioner] will be 
compensated by [the vendor] in accordance with a Work Agreement." Under the third paragraph of the 
SA, it stated that the "work to be performed by the technical services personnel providing services under 
this Agreement shall be set forth by Client and stated in a Work Agreement ( or similar form)." Thus, this 
SA does not commit the end-client to any contract with the Petitioner for any particular services during 
any period or at any location. Instead, the SA indicated that the client will select the candidates and 
determine the work that it requires and will provide a work agreement. As such, the record's SA 
document does not bind the vendor to any specific contract with the Petitioner. In sum, the SA has 
little probative weight towards establishing actual work to be performed by the Beneficiary for the 
end-client for any specific period or location. 
The Petitioner also submitted a work agreement (WA) signed by the vendor and the Petitioner that 
confirmed that the Beneficiary is contracted to work for a client. The WA does not list the end-client but 
it provided an address that appears to be the address of the end-client listed on the Form I-129. The WA 
also stated that the Beneficiary's assignment with the end-client commenced on April 25, 2017 and will 
end on September 4, 2021. The WA stated that according to the SA, "this contract can be terminated at 
any time if for any reason the services of [the Petitioner] are no longer desired." Although the WA stated 
the Beneficiary's end-date with the end-client, it also stated that the contract can be terminated by the 
end-client at any time, and it did not provide any evidence that the end-client requires the Beneficiary's 
services until the listed end-date. The WA named the Beneficiary and stated he will be performing 
services for an end-client; however, the WA did not indicate the details of the project for the client, or the 
job title and the specific duties of the Beneficiary when working for the end-client. The documentation 
shows a working relationship between the Petitioner and the vendor, but it has little probative weight 
towards establishing actual work to be performed by the Beneficiary for the end-client. 
2 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 
The Petitioner submitted a statement of work (SOW) between the vendor and the end-client that stated 
that the end-client seeks the vendor to "perform analysis, requirements, design, development and testing 
for implementation ofIT Claims 2019 projects and provide production support testing, maintenance and 
enhancements for [the end-client's] I I ClaimCenter." According to this SOW, the project dates 
are from January 1, 2019 through December 31, 2019. The SOW indicated that the Beneficiary will 
provide services as a business analyst. However, the SOW did not list the Beneficiary's duties or job 
description, and it is not clear if the duties of a business analyst will be the same as the duties listed for 
the proffered position as a software engineer. Therefore, this documentation is not sufficient in providing 
details of the scope and terms of the agreement between the Petitioner and the end-client, and is not 
sufficient evidence to establish the projects, duties and responsibilities and scope of work between the 
parties. 
The Petitioner submitted a document that listed "recent assigned tasks to the beneficiary on the projects" 
with the end-client. The project for the end-client is named "Claim Center Upgrade & Maintenance." 
Although this document is extensive, it was prepared by the Petitioner and not confirmed by the end­
client In addition, it provided information of work already performed by the Beneficiary and does not 
provide sufficient evidence of work required for the requested employment dates of this petition. The 
Petitioner also submitted an itinerary for the Beneficiary that provided some information regarding the 
project the Beneficiary will be assigned to. Although this document provided a better understanding of 
the scope of the project, it was prepared by the Petitioner only and it is not clear if the vendor and the end­
client support the details of the project as presented by the Petitioner. 
The Petitioner also submitted a document prepared by the end-client entitled, "D7752 ClaimCenter - TH 
Upgrade, Project Charter," which listed the details of the Claim Center upgrade project. According to the 
schedule listed for this project, it appears that the last date of this project is April 2018. It is not clear if 
this project will go on after that listed date. In addition, this document listed the names of individuals 
working on this project but the Beneficiary is not listed. Further, the position of a software engineer is 
also not listed as resources required for this project. 
The Petitioner submitted a letter from the end-client confirming that the Beneficiary will "perform 
analysis, requirements, design, development and testing for upgrading! lclaimCenter V7 to 
ClaimCenter V9, implementation of Medical Bill review vendor and provide production support, testing 
and maintenance for [the end-client's] I I ClaimCenter." The end-client did not list the 
Beneficiary's job title or a detailed description of the day-to-day duties to be performed. The letter does 
not provide sufficient evidence regarding the Beneficiary's project or assignment, or a detailed 
explanation of the team, department and actual work that the Beneficiary will perform for the end-client 
on the specific project. In addition, the end-client did not indicate that a bachelor's degree is a minimum 
requirement to fill the position. A petitioner must demonstrate that the proffered position requires a 
precise and specific course of study that relates directly to the position in question. Further, the end­
client stated that the Beneficiary is employed by the vendor rather than the Petitioner, and does not 
indicate the Petitioner in any part of the letter. The Petitioner did not explain this discrepancy. 
In addition, the record does not sufficiently establish the project's duration. The work agreement between 
the Petitioner and the vendor stated that the end date of the project is September 4, 2021 but "can be 
terminated at any time if for any reason the services of [ the end-client] are no longer needed." The letter 
from the end-client indicated that the current contract with the vendor for the services of the Beneficiary 
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is valid through December 31, 2018. The statement of work between the vendor and the end-client lists 
the end-date as December 31, 2019 which conflicts with the information provided in the end-client letter. 
The Petitioner did not explain the inconsistencies in the record regarding the duration of the project for 
the end-client. The Petitioner did not submit sufficient evidence such as contracts or similar 
corroborating evidence that the project with the end-client will continue until September 2021, and 
will require the services of the Beneficiary as a software engineer for that entire period. 3 
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). 
For the reasons discussed above, we conclude that the petition was filed for employment that was 
speculative, and, therefore for which the substantive nature of the associated duties had not been 
established. 
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. 
3 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 tempormy 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). 
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II. ADDITIONAL GROUNDS OF DENIAL 
Because the specialty occupation issue is dispositive of the appeal, we need not address any other 
issues raised by the Director. We note, however, that if the Petitioner were to overcome the Director's 
basis for denying the petition (which it has not), the Petitioner would be required to address the 
additional issues of whether the Petitioner will engage the Beneficiary in an employer-employee 
relationship; and the proffered position qualifies as a specialty occupation. 
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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