dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8989098 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 29, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"Java application developer" under the H-lB nonimmigrant classification for specialty occupations. 
Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 8 U.S.C. § l 10l(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 record did not 
establish the proffered position qualifies as a specialty occupation. Specifically, the Director 
concluded that the record did not establish the work to be performed by the Beneficiary. The matter 
is now before us on appeal. 
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 I&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
Upon de nova review, 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. § l 184(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, 
8 C.F.R. § 214.2(h)(4)(i)(A)(l) 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 
review 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. 
§ 2 l 4.2(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, 387-88 (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 provide during the intended period 
1 The regulation at 8 C.F.R. § 214.2(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 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 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"). 
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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 Iowa, asserted the Beneficiary would work at the end-client location in 
Massachusetts. However, the record does not contain sufficient evidence to establish the terms and 
conditions of the Beneficiary's employment during the requested period and that she will be employed 
in a specialty occupation. 
The record contains a third-party vendor agreement (TPVA) between the Petitioner and the 
mid-vendor, submitted in response to the Director's request for evidence (RFE). The TPVA is a 
general agreement for the Petitioner "to provide the services more particularly described on [the] 
Vendor Personnel Addendum [ (VP A)] attached hereto." Without the referenced addendum, the TPV A 
does not identify the end-client, the services to be performed, the position to perform the services, the 
individual assigned to the position, the qualifications to perform the services, or the duration of the 
assignment. 
The parties signed and dated the VPA attached to the TPVA "9/20/2019," after the petition filing date. 
A petitioner must 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)(l). A visa petition 
may not be approved at a future date 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). Because 
the parties dated the VPA after the petition filing date, it may not establish eligibility. 
Furthermore, even if the parties dated the VP A as of the petition filing date, it would not establish the 
services the Beneficiary would perform in a specialty occupation. Although the VP A identifies the 
Beneficiary as the "personnel" assigned to the end-client, the extent of its "[ d]escription of [ s ]ervices" 
is "Java [a]pplication [d]eveloper, including any duties and activities necessary to perform the work." 
The VP A does not elaborate the application( s) the Beneficiary would develop and the duties and 
activities that may be necessary to perform the services required by the end-client. Furthermore, 
although the VPA provides an "[a]nticipated [p]eriod for [s]ervices" between October 2018 and 
December 2020, it specifically states that the service period is "not guaranteed." Accordingly, even 
if the VPA could establish eligibility, it does not establish the services for which the parties contracted 
the Beneficiary to provide during the requested period. 
The record also contains an excerpt from a service agreement (SA) between the mid-vendor and the 
prime vendor. The SA excerpt consists of two pages, numbered "2" and "7," but the record does not 
establish the terms described on the omitted pages numbered 'T' and "3-6." In its limited, excerpted 
form, the SA is a general agreement for the mid-vendor to "furnish temporary personnel employed by 
[the mid-vendor] to perform various tasks and projects to [the prime vendor] for CLIENT as may be 
requested from time to time during the term of this [SA]." The SA does not provide salient details, 
such as the client and any tasks or projects, the "personnel employed by [the mid-vendor]" assigned 
to such tasks or projects, and the duties of those personnel. Instead, the SA states that "[the 
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. 
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mid-vendor] shall provide confirmation of the terms relating to each Personnel selected for placement 
with CLIENT using the [prime vendor's] Placement Confirmation Form [(PCF)], attached hereto as 
Exhibit E." However, the record does not contain a PCF required by the SA in order to establish the 
client, its project(s), the duration of the project(s), the position titles assigned to the project(s), the 
duties of the position( s ), the personnel assigned to the position( s ), and the qualifications to perform 
the duties of the position(s). Accordingly, the SA does not establish the services for which the parties 
contracted the Beneficiary to perform during the requested period. 
Even if the record established the work for which the Petitioner and mid-vendor, and the mid-vendor 
and prime vendor, respectively, contracted for the Beneficiary to perform during the requested period, 
the record does not establish the services for which the end-client contracted the Beneficiary to 
perform during the requested period. At the time of the Director's decision, the record did not contain 
a contract between the end-client and any other entity. 
Instead, the record contains a letter from the end-client, submitted in response to the Director's RFE, 
stating that "[the Beneficiary] is working on a project at [the end-client's location] associated with our 
IT development initiative pursuant to a Master Services Agreement [(MSA)] dated December 27, 2011 
between [the prime vendor] and [the end-client]." As noted, at the time of the Director's decision, the 
record did not contain the referenced MSA. Additionally, the end-client letter does not elaborate the 
"IT development initiative" to which the Beneficiary would be assigned or the duration of the 
assignment. The two-page end-client letter lists eight duties in a bullet-point list, such as "[ d]esigning 
and developing user interfaces to intemet/intranet applications by setting expectations and feature 
priorities throughout development life cycle." However, the letter does not describe the applications 
the Beneficiary would design and develop, the methodology she would use to design and develop 
them, and other salient details. Furthermore, the letter does not indicate that the end-client requires a 
bachelor's or higher degree in a specific specialty, or its equivalent, to perform the particular position's 
duties. 3 
On appeal, the Petitioner submits for the first time a partially redacted vendor staffing services 
agreement (VSSA) 4 between the end-client and the prime vendor, which the parties signed and dated 
December 27, 2011. The VSSA is a general agreement for the prime vendor to "furnish temporary 
staffing and payrolling services at the request of [the end-client]." The VSSA, in its partially redacted 
form, does not identify a specific project, duration of the project, position assigned to the project, 
duties of the position, personnel assigned to the position, or qualifications to perform the duties of the 
position. Instead, it states that "[f]or each temporary [a]ssignment [the end-client] desires [the prime 
vendor] to fill, [the end-client] will provide [the prime vendor] with a written description of the skills, 
3 We note that the record contains three letters from the prime vendor and the mid-vendor, respectively. The letters from 
the prime vendor are essentially identical, as are the letters from the mid-vendor. Like the end-client letter, the prime 
vendor letters do not indicate that the prime vendor requires a bachelor's or higher degree in a specific specialty, or its 
equivalent, to perform the particular position's duties. Although the mid-vendor letter requires "a [b ]achelor' s [ d]egree in 
[c]omputer [s]cience or [c]omputer [i]nformation [s]ystems," it does not replace such a statement from the end-client, 
which is critical. See Defensor, 201 F.3d at 387-88. 
4 The VSSA incorporates a group of documents, one of which is titled a "master staffing agreement," not a "master services 
agreement" as specifically identified in the end-client letter; however, despite the inconsistent terminology, we recognize 
the master staffing agreement in the VSSA as the referenced MSA. 
4 
expertise and experience needed to satisfactorily complete the [a]ssignment." The record does not 
contain such a written description from the end-client to the prime vendor. 5 Furthermore, even if the 
record otherwise established the work for which the end-client and prime vendor contracted the 
Beneficiary to perform, the VSSA specifically redacts the duration of the agreement: "The term of 
the [VSSA] shall commence on December 21, 2011[,] and shall continue [redacted] from [the] 
commencement date." Accordingly, the VSSA does not establish the work for which the parties 
contracted the Beneficiary to perform during the requested period. 
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. 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. 
In summation, we conclude that the ambiguities and lack of documentation in the record do not 
establish the services the Beneficiary would perform, 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 proflered 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. 6 
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. 
5 The end-client dated its letter, addressed to U.S. Citizenship and Immigration Services, after the petition filing date. 
Accordingly, that letter does not constitute a written description from the end-client to the prime vendor that may establish 
eligibility as of the petition filing date. See 8 C.F.R. § 103.2(b )(1 ). 
6 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). 
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