dismissed H-1B Case: Information Technology

(b)(6)
MATTER OF A-S- CORP. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 9, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting firm, seeks to temporarily employ the 
Beneficiary as a' applications developer" under the H-1B 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, Vermont Service Center, denied the 
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petition. The Director concluded that the 
Beneficiary will not be substantially employed in the qualifYing duties of a software developer for 
the duration of the petition. 
t 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in finding that the proffered position is not a specialty occupation. 
Upon de novo review, we will dismiss the appeal.1 
I. LAW 
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. 
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We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 
375-76 (AAO 2010). 
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Matter of A-S- Corp. 
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 ot 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 norm·ally requires a degree or its equivalent for the position; or 
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( 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). U.S. Citizenship and Immigration Services (USCIS) has consistently~ 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 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. PROFFERED POSITION 
In the H-lB petitiOn, the Petitioner stated that the Beneficiary will serve as a 
applications developer." In its support letter, the Petitioner provided the following job description: 
[The Beneficiary] will work in the platform and develop applications. 
She will be responsible for application conceptualization based on analysis of client 
and stakeholder requirements, configure, develop code, and build workflows in 
tool to follow business processes. She will migrate code and data 
across environments for UAT and go-live. She will develop Java Code (as per the 
API's) to create and modify objects in and perform unit integration and 
system testing. She will design and develop security framework for performance 
team to access Service Level Agreement (SLA) data through cloud, and act as a 
Subject Matter Expert and assist Process team and Governance team in 
defining processes and metrics. She will also participate in requirement analysis 
meetings and subsequent design specifications meetings to brainstorm available 
technical solution options. She will act as a Subject Matter Expert and 
ass~st il;l designing CMDB (Configuration Management Database) and Asset 
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Matter of A-S- Corp. 
Management modules. Also, she will assist higher management understand 
configuration management best practices and mapping in 
According to the Petitioner, the position requires at least a bachelor's degree in computer science, 
information technology, engineering or a related field. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
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.2 
We find that the record of proceeding does not contain sufficient information regarding the specific 
job duties to be performed by the Beneficiary. That is, while the Petitioner indicated that the 
Beneficiary will be working for its client, (Company N), throughout the duration of the 
petition, the Petitioner has not adequately corroborated its assertion. 
In this case, the Petitioner is located in New Jersey. The Petitioner indicated that the 
Beneficiary will be working for Company Neither at Company N's office in New 
Jersey, or at the Beneficiary's home in New Jersey. The Petitioner claims on appeal that 
the Beneficiary will work on a large project on behalf of Company N as "Company N now serves as 
a [lead provider] and proje~t implementer of the software Tool for 
program participants." 
The record contains a master agreement and statement of work (SOW) with Company N, which 
outlines its contractual arrangement with the Petitioner.3 The Petitioner's SOW with Company N for 
the Beneficiary states that Company N will "provid[e] the requirements of the project." We note 
that, as recognized by the court in Defensor, where the work is to be performed for entities other 
than the Petitioner, evidence of the client companies' job requirements is critical. See Defensor v. 
Meissner, 201 F.3d at 387-88. In that case, 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 
2 The Petitioner submitted documentation to support the H-1 8 petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 On appeal, the Petitioner submits documents demonstrating that is a partial owner of Company N, 
and that his prior ownership interest in the Petitioner no longer exists. We agree with the Petitioner that 
prior ownership interest in the petitioning entity does not automatically negate the existence of a bona fide 
business relationship between the Petitioner and Company N. The Director's finding that the SOW between the 
Petitioner and Company N must have been self-generated due to ownership interest in the 
Petitioner is therefore withdrawn based on the newly-submitted evidence. 
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Matter of A-S- Corp. 
basis of the requirements imposed by the entities using the beneficiary's services. !d. at 384. 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. 
However, Company N's letter does not list the minimum requirements for the position, but only 
discusses why the Beneficiary is qualified to perform the duties of the position. 4 Even if we assume 
that Company N is the ultimate end client, we note that the end client's requirements do not establish 
that a bachelor's degree in a specific specialty is required for the position. 
On appeal, the Petitioner claims that it "requires the services of [the Beneficiary] to join its team of 
software developers and computer engineers to meet contractual obligations" to help Company N 
"fulfill program participant work orders.". However, the Petitioner states "[t]he sampling of 
'program participant work orders' [that it previously provided] was not submitted to directly show 
the work orders on which the Beneficiary will work under the [Company N] project." Therefore, the 
record does not contain documents that outline contractual terms between Company N and its end 
clients for the project(s) on which the Beneficiary would specifically work, but only samples of work 
for other consultants. Without documentary evidence that delineates the contractual agreements 
between Company N and its clients for the actual projects that the Beneficiary is assigned to, 
including the duties and the requirements for the position, we are unable determine the substantive 
nature of the proffered position. 
Moreover, the Petitioner provided a copy of Company N' s lease, which ended on May 31, 2016. 
Company N's letter dated November 23, 2015, states that it "will extend this lease in May 20l6 for 
additional 1 year." Supporting evidence of this was not provided, however even if the Petitioner 
could provide us with a copy of an updated lease for Company N, Company N further states that this 
office space is "about 200 square feet and can seat up to 4 employees." As the Petitioner did not 
submit any documentation regarding the number of workers Company N employs, where all of 
Company N's employees are currently located, or whether Company N has any other offices besides 
the one listed in the lease, we cannot verify whether Company N has sufficient space for the 
Beneficiary to ~ork. "[G]oing on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings." Matter of So.ffici, 22 I&N Dec. 
158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). 
Further, we find that there are inconsistencies and discrepancies in the petition and supporting 
documents, which undermine tqe Petitioner's credibility with regard to its claim that the Beneficiary 
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4 Company N's discussion of the Beneficiary's qualifications is not probative for these proceedings as we cannot 
determine if a particular job is a specialty occupation based on the qualifications of a beneficiary. A beneficiary's 
credentials to perform a particular job are relevant only when the job is first found to qualify as a specialty 
occupation. users is required instead to follow long-standing legal standards and determine first, whether the proffered 
position qualifies as a specialty occupation, and second, whether the beneficiary was qualified for the position at the time 
the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558,560 (Comm'r 1988) 
("The facts of a beneficiary's background only come at issue after it is found that the positiory in which the petitioner 
intends to employ h,im falls within [a specialty occupation]."). 
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Matter of A-S- Corp. 
will work only at Company N's office or the Beneficiary's home for the duration of the petition. 
When a petition includes numerous discrepancies, those inconsistencies will raise serious concerns 
about the veracity of the Petitioner's assertions. ' 
For example, as a sample of "the type of work that contracts out to Company N to 
fulfill and on which the Beneficiary will work," one of the SOWs the Petitioner submits on appeal, 
which is between Company N and is for a senior technology consultant to work from 
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November 16, 2015, to December 31, 2015, at a client site in California. In fact, the majority of 
SOWs the Petitioner submitted in response to the RFE are also for consultants to work at client sites 
at various locations throughout the United States, rather than at Company N' s office indicated in the 
lease. Therefore, if Company N's SOWs are, in fact, typical of the SOWs through which Company 
N will contract the Beneficiary to its clients as the Petitioner claims, it appears likely that the 
Beneficiary's assignments will be short-term in duration and may require· her to travel to different 
client sites. 
As additional evidence that the Beneficiary may work at end-client sites not listed in the petition, the 
SOW between the Petitioner and Company N for the Beneficiary to work as a 
Developer for Company N states that the Petitioner would be responsible for the Beneficiary's 
travel, per diem and lodging costs. The Petitioner has not provided an explanation of why the 
Beneficiary's SOW specifically mentions reimbursement for her travel in contrast to its stated 
intention of employing the B~neficiary only at Company N's office or at the B~neficiary's home, 
both of which are in New Jersey: 
Because of the discrepancies discussed above, we cannot determine the nature and scope of the 
Beneficiary's employment. The record lacks evidence sufficiently concrete and informative to 
demonstrate: (1) the actual wor~ that the Beneficiary would perform; (2) the complexity, uniqueness 
and/or specialization of the tasks; and/or (3) the correlation between that work and a need for a 
particular level edttcation of highly specializedknowledge in a specific specialty. "[l]t is incumbent 
upon the petitioner to resolve the inconsistencies by independent objective evidence." Matter of Ho, 
19 I&N Dec. 582, .591 (BIA 1988). Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the Petitioner submits competent objective evidence pointing to where the truth lies. 
!d. at 591-92. 
Therefore, we are precluded from finding that the proffered position is a specialty occupation under 
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 ~ormal 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. Thus, the 
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Matter of A-S- Corp. 
Petitioner has not satisfied any of the criteria under the applicable provisions at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A). 
IV. RFE ISSUANCE 
Finally, as to the Petitioner's perceived error in the Director's failure to issue a second RFE, we note 
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that there is no requirement for US CIS to issue any RFE (let alone a second RFE) pertinent; to a 
ground later identified in the decision denying the visa petition. The regulation at 8 C.F .R. 
§ 103.2(b)(8) permits the Director to deny a petition for failure to establish eligibility without having 
to request evidence regarding the ground or grounds of ineligibility identified by the Director. Also, 
even if the Director had erred as a procedural matter in not issuing a second RFE or notice of intent 
to deny (NOID) relative to the Petitioner's lack of evidence to establish the proffered position as a 
specialty occupation, it is not clear what remedy would be appropriate beyond the appeal process 
itself. The Petitioner has, in fact, supplemented the record on appeal. Therefore, it would serve no 
useful purpose to remand the case simply to afford the Petitioner yet another opportunity to 
supplement the record with new evidence. 
V. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigratipn benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-S- Corp:, ID# 17647 (AAO Sept. 9, 2016) 
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