dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 7863801 
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 . 26, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"software developer" under the H-lB nonimrnigrant 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. 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. § l 184(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 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010) . 
( 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 Iowa, asserted the Beneficiary would work at the end-client location ine=] 
I I 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 series of contracts among multiple vendors involved in the Beneficiary's 
assignment. First, the record contains a vendor agreement (VA) between the Petitioner and the 
mid-vendor. The VA is a general agreement for the mid-vendor to "occasionally send the [Petitioner] 
Work Orders [(WOs)]. Such [WOs] may apply to the requirements of [the mid-vendor's] internal 
projects and/or the requirements of one or more of [the mid-vendor's] Client(s)." The corresponding 
WO identifies the Beneficiary as a worker "to perform work for [the end-client]"; however, it does not 
elaborate on the Beneficiary's position, the substantive nature of the work for which the parties 
contracted the Beneficiary to perform, or the duration of the assignment. We farther note that the VA 
specifies that "Client requirements shall supersede the [WO] to the extent that these requirements 
comply with such Work Order's scope and cost constraints, as applicable." 
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. 
2 
Next, the record contains a partnership agreement (PA) between the mid-vendor and the prime vendor. 
Similar to the VA, the PA is a general agreement for the mid-vendor to provide the following: 
• [P]roject approach based on the signed Task Order [(TO)], company's 3 
understanding of [the end-client's] stakeholder preferences and expectations[;] 
• [S]olution architecture and design based on the company's knowledge of [the 
end-client's] environment, systems and standards[;] 
• [P]roject management and technical leadership familiar with Agile [p ]roject 
[ m ]anagement to ensure the approach is followed, and the architecture and design 
are implemented properly[; and] 
• [D]elivery resources to work under the direction of the company's project manager 
and technical lead. 
Also similar to the VA and its corresponding WO, the PA does not elaborate on the Beneficiary's 
position, the substantive nature of the work for which the parties contracted the Beneficiary to perform, 
or the duration of the assignment. 4 We forth er note that the PA states that "[ a ]11 terms of the [TO] will 
be incorporated into the [PA]." 
In tum, the record contains a business requirements document (BRD), TO, and TO amendment 
between the prime vendor and the end-client. The BRD, dated January 2019, generally describes the 
project scope, pertaining to modifying the functionality of a computer system to enable construction 
entities to seek authorization to use cranes inl I and pay appropriate fees, a process 
previously requiring paper forms. However, the TO, dated May 2016, contains six pages of 
"deliverables" pertaining to deployments of 'job filings" for "standpipe," "mechanical," "fire 
protection plan," "facades compliance," "boiler," "fuel burning," "fire suppression," "elevator," 
"boiler compliance," "electrical," "elevators compliance," and other categories broader in scope than 
those in the BRD, raising questions regarding the substantive nature of the project in general and of 
the work for which the parties contracted the Beneficiary to perform as a "software developer." 
Although much of the TO is redacted, including its specific duration, it states that the "Post­
Implementation Support and Maintenance begins at the end of the Implementation Project (after 
Month 11 )," indicating that the implementation project duration would be 11 months, beginning 
presumably in 2016. The TO farther states that the end-client may purchase "up to an additional 13 
months' post-implementation," totaling a 24-month project. Corroborating the calculation of a total 
24-month project, the TO contains an appendix titled "Breakdown of Enhanced Support Resources"­
again, heavily redacted-that groups resources in the following categories: 
• Expected month 3; 
• Expected months 4, 11-24; 
• Expected month 1 O; and 
• Expected months 5-9. 
3 The PA-as it appears in the record-does not clarify which company it refers to as "company," among the mid-vendor, 
prime vendor, or any other company. 
4 The PA does not identify the Beneficiary or any other worker assigned to the project. 
3 
Accordingly, even if the TO corresponded to the BRD, the project described in the TO appears to have 
ended in 2018 (24 months after beginning presumably at some point in 2016), prior to the 2019 BRD. 
The TO amendment, dated October 2017, generally refers to "crane-related and other construction 
accidents" as deferred "to a future contract instrument." 5 Instead, the TO amendment limits itself to 
"addressing certain other [c]omponents within the scope of the [end-client's] project under this [TO]," 
again raising questions regarding the extent to which it corresponds to the BRD. The TO amendment 
reiterates the list of deliverables provided in the TO, striking through some deliverables such as "fire 
protection plan job filings deployment," "fire suppression job filings deployment," and 
"licensing/renewals deployment," and adding certain deliverables such as "fuel storage," "place of 
assembly," and "antenna job filing deployment," again beyond the BRD scope, raising questions 
regarding the substantive nature of the project in general and of the work for which the parties 
contracted the Beneficiary to perform. 
The TO amendment specifically redacts the "period of performance" section, and moreover omits 
pages 23 through 39 of 40. The TO amendment, in its redacted, excerpted form, does not provide a 
timetable other than the total 24-month period initially provided; however, even if the timetable began 
anew in October 2017, the "implementation" phase would have ended in September 2018, prior to the 
BRD, and the "post-implementation support and maintenance phase" would have ended in October 
2019, raising questions regarding the substantive nature of the work for which the parties contracted 
the Beneficiary to perform during the requested period. 
We note that the record contains letters from the mid-vendor, prime vendor, and end-client; however, 
they refer to the duration of the project as "long-term," without further clarification. 
The Director specifically addressed the record's ambiguities regarding the duration of the work for 
which the parties contracted the Beneficiary to perform, concluding that the record "is insufficient to 
establish ... that the [B]eneficiary will perform services in a specialty occupation for the requested 
period." On appeal, the Petitioner asserts that the redacted or missing pages from contracts in the 
record "are confidential and they cannot be shared." 6 Rather than specifying how the Director's 
decision was based on an erroneous conclusion of law or statement of fact, see 8 C.F.R. 
§ 103.3( a)(l )(v), on appeal the Petitioner submits a new letter from the end-client dated September 2019, 
5 We note that the BRD may be the "future contract instrument" to which the TO amendment refers; however, the TO and 
its amendment appear to have expired prior to the BRD, raising questions about the substantive nature of the work for 
which the parties contracted the Beneficiary to perform during the requested period, as discussed. 
6 Although a petitioner should always disclose when a submission contains confidential commercial information, a claim 
does not provide a blanket excuse for a petitioner not providing such a document if that document is material to the 
requested benefit. Both the Freedom of Information Act and the Trade Secrets Act provide for the protection of a 
petitioner's confidential business information when it is submitted to U.S. Citizenship and Immigration Services. See 
5 U.S.C. § 552(b )( 4), 18 U.S.C. § 1905. Additionally, a petitioner may request pre-disclosure notification pursuant to 
Executive Order No. 12,600, "Predisclosure Notification Procedures for Confidential Commercial Information." Exec. 
Order No. 12,600, 52 Fed. Reg. 23,781 (June 23, 1987). A petitioner may always refuse to submit confidential commercial 
inf01mation if it is deemed too sensitive; however, such a petitioner must also satisfy the burden of proof and run the risk 
of a denial. Cl Matter of Marques, 16 I&N Dec. 314 (BIA 1977) (holding that the "respondent had every right to assert 
his claim under the Fifth Amendment[; however], in so doing he runs the risk that he may fail to carry his burden of 
persuasion with respect to his application."). 
4 
stating that "[t]his [p ]roject will go on for two years with ongoing extensions." However, none of the 
contractual documents in the record-in their redacted, excerpted forms-are consistent with a project 
lasting through 2021. 7 The Petitioner supplements the end-client's new letter with an undated, one-page 
document titled "timelines," without specifying the project to which it corresponds, listing "estimated 
component completion date[ s ]" between March 2020 and September 2021. 8 However the "timelines" 
document lists components that do not appear to correspond to the BRD, the TO, or the TO amendment, 
such as "[b ]uild [ e ]arthwork," "[b ]uild [g]reen [ r ]oof," and [b ]uild OTCR, [ f]lood [p ]lain," raising 
questions regarding the substantive nature of the work for which the parties contracted the Beneficiary to 
perform. Furthermore, the column heading of "estimated component completion date" includes a 
footnote marker; however, the one-page timelines document does not contain the footnote text, raising 
questions regarding the extent of the document and its full terms. 9 
The quality and consistency of the end-client information in this case is particularly important, given that 
the other contractual documents specifically state that "Client requirements shall supersede the [WO]" 
and "[a]ll terms of the [TO] will be incorporated into the [VA]." Furthermore, 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 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 
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. 10 
7 On the contrary, as discussed, the project(s) referenced in the TO and its amendment apparently ended in 2018 and 2019. 
8 A petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied from the time 
of the filing and continuing 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 Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 
17 T&N Dec. 248 (Reg'! Comm'r 1978). The undated, one-page document does not establish that, at the time of filing, the 
parties contracted for the Beneficiary to perform specialty occupation work during the requested period. 
9 Doubt cast on any aspect of a petitioner's proof may undermine the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. Matter of Ho, 19 T&N Dec. 582, 591 (BIA 1988). 
10 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). 
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. 
6