dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10692604 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 19, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"Java developer II - SDET" under the H-1B nonimmigrant classification for specialty occupations. 
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-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 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 the record did not establish the services to be performed. 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 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christa's Inc., 26 l&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-1B 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)(I) of the Act, 8 U.S.C. § 1184(i)(I), 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)(I) 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)(1) 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. 
§ 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, 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)(1) 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)(1). 
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)(1) 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 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"). 
2 
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 Florida, 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 assignment, and the services to be performed during the requested 
period. 
The record contains an excerpt from a "Professional Services Agreement" (PSA) between the 
Petitioner and the end-client.3 The PSA in the record consists of four pages, numbered "Page 1 of 
23," "Page 2 of 23," "Page 11 of 23," and "Page 13 of 23." Based on the limited information in the 
record, the PSA excerpt appears to be a general agreement for the Petitioner to "provide to [the 
end-client] the services ... described in each Statement of Work [(SOW)] ... which references this 
[PSA]." Without the referenced SOW, the PSA excerpt does not specifically identify the services to 
be performed, the qualifications to perform the services, the individual assigned to perform the 
services, the duration of the assignment, and other salient details. 
The record also contains a two-page work order (WO) between the Petitioner and the end-client. The 
WO indicates that its "create date" and "submit date" were both "07/22/2019," after the petition filing 
date. The WO also indicates that it is "Rev. 6," but the record does not establish whether that comment 
means that it is the sixth revision of the WO. The record does not include a prior version of the WO. 
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)(1). A visa petition 
may not be approved at a future date after a petitioner or beneficiary becomes eligible under a new set 
of facts. See Matter of Michelin Tire Corp., 17 l&N Dec. 248, 249 (Reg'I Comm'r 1978). Because 
the WO is dated after the petition filing date, it may not establish eligibility. See id. 
Even if the WO had been dated as of the petition filing date, it would not establish the services to be 
performed. The WO displays the Beneficiary's name, associated with a "job posting" titled "US 
Software Engineer," followed by a job posting number, and indicates the work location would be the 
end-client's location in Massachusetts. However, the WO does not elaborate on the services to be 
performed; moreover, the WO does not reference the PSA. Therefore, the WO does not conform to 
the PSA's requirement of a supplemental document describing the services and referencing the PSA. 
Furthermore, even if the WO had been dated as of the petition filing date, referenced the PSA, and 
established the services to be performed, it would not establish the services to be performed during 
the requested period. The WO indicates in multiple locations that its period is "09/25/2019 to 
03/30/2020." The record does not establish that the parties extended the WO beyond March 2020. 
2 The Petitioner submitted documentation to support the H-1B 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 Although a petitioner is not required by existing regulation to submit contracts or legal agreements between the petitioner 
and third parties to establish an employer-employee relationship, "the petitioner must demonstrate eligibility for the benefit 
sought" and "if a petitioner provides contracts or legal agreements, [an] officer is not precluded from evaluating that 
evidence in the adjudication of other eligibility criteria." USCIS Policy Memorandum PM-602-0114, Rescission of Policy 
Memoranda at 3 (June 17, 2020), http://www.uscis.gov/legal-resources/policy-memoranda. 
3 
Accordingly, even if the WO could establish eligibility, it would not establish the services to be 
performed beyond March 2020. 
The record also contains a two-page letter from the end-client. The letter asserts the Petitioner and 
end-client "entered into a Master Service Agreement ('MSA')," under which the Beneficiary has been 
assigned to the end-client location. However, the record does not contain the referenced MSA; instead, 
it contains the PSA and WO discussed above. 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 l&N Dec. 582, 591 {BIA 1988). In this case, the end-client's reference to 
an MSA, rather than the PSA and WO in the record, cast doubt on the signatory's familiarity with the 
actual contractual documents that address the Beneficiary, undermining the reliability and sufficiency 
of the end-client letter and other evidence in the record from the end-client regarding the services to 
be performed. 4 
Regardless of the extent to which the end-client is familiar with the contract for the Beneficiary to 
perform services, the letter states that the end-client's "minimum requirement for this position is a 
bachelor's degree or foreign [sic] or experiential equivalent," without identifying a specific specialty 
required to perform the services. 
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. 
Even if the letter established that the end-client requires a bachelor's or higher degree in a specific 
specialty, or its equivalent, the letter states that "[the Beneficiary] is assigned to work on this project 
until 03/30/2020, with extensions if needed," similar to the WO's "period" ending in March 2020. 
Accordingly, even if the end-client otherwise established the services to be performed and the 
end-client's requirements, it would not establish the services to be performed beyond March 2020. 
On appeal, the Petitioner asserts that the Director erred by "refus[ing] to acknowledge the existence 
of so many exhibits in the record that demonstrates the proof of specialty occupation requirement," 
including the two-page end-client letter, discussed above; three pages of "technical documents"; five 
pages of "work assignments"; the Petitioner's two-page "detailed position description"; information 
from the Department of Labor's Occupational Outlook Handbook (Handbook) and O*NET; "letters 
from industry related associations"; "similar job postings"; and "past and present job postings by [the 
4 We recognize that contractual documents may bear synonymous titles, such as PSAs and MSAs. For example, if the WO 
in the record had referenced the PSA, we would recognize it as the type of document the PSA specifically identified as an 
SOW, despite the inconsistent terminology. However, the extent of inconsistent titles in the record for documents the 
parties believe are probative, and the lack of information about the Beneficiary's assignment and services to be performed 
within those documents, regardless of their titles, presents a pattern of inaccurate, unreliable, or inconsistent information. 
See Matter of Ho, 19 l&N Dec. at 591. 
4 
Petitioner]." We have reviewed the record in its entirety; however, aside from the end-client letter, 
discussed above, none of the other evidence listed by the Petitioner on appeal addresses the 
end-client's requirements for the services to be performed, which is critical. See Defensor, 201 F.3d 
at 387-88. For example, the "technical documents" and "work assignments" consist of screenshots 
produced by the Beneficiary, not from an authorized representative of the end-client, and furthermore 
depict little more information than brief email messages the Beneficiary exchanged with the 
end-client's workers, none of whom appear to have the authority to speak on behalf of the end-client 
regarding its contractual agreements. Similarly, the information from the Petitioner's position 
description, the Handbook, O*NET, industry letters, and job postings do not establish the services the 
Petitioner and end-client agreed, as of the petition filing date, for the Beneficiary to perform, or the 
end-client's requirements for such services. Accordingly, considered in light of the record in its 
totality, those items of evidence bear minimal probative value and need not be further addressed. 
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 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. 5 
111. 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 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