dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6418200 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 23, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"computer systems administrator" under the H-lB nonimmigrant classification for specialty 
occupations. Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 110l(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 Vermont Service Center denied the petition, concluding that the record did not 
establish the position qualifies as a specialty occupation . 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 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 : 
( 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. PROFFERED POSITION 
The Petitioner provided the following job duties for the position: 
75%1 of Time Allocated to: 
• Installing, configuring, administrating, troubleshooting, tuning, security, 
backup/recovery and upgrading Linux (Red Hat & S[U]SE) in large 
environments. 
• Security compliance on the OS for internal audits. 
• Creating and maintaining users, profiles, security, rights, disk space and process 
monitoring. 
• Performing migration of [ v ]irtual and [p ]hysical servers. 
• Installing and updating packages from the network, [r]emote [r]epository, or 
[l]ocal Filesystem [sic]. 
• Windows Active Directory configuration and [m]anagement. 
• Installation of Splunk and Qualys on SUSE and Windows. 
• Supporting both the SUSE and Red Hat operating systems, as well as any 
applications related those [sic] operating systems. 
1 On appeal, the Petitioner asserts that the Beneficiary would allocate 90% of his time to these duties and 22 additional 
duties. The Petitioner also omits the duty of"[s]ecurity compliance on the OS for internal audits" on appeal. The extent 
of the differences between the reported duties raise questions regarding the substantive nature of the proffered position. 
Furthermore. 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 )(I). A visa petition may not be approved at a future 
date after a petitioner or beneficiary becomes eligible under a new set of facts. Sec Matter of Michelin Tire Corp., 
17 T&N Dec. 248, 249 (Reg'l Comm'r 1978). 
2 
• Creating mount points for [ s ]erver directories, and mounted directories on the 
[ s ]ervers. 
15%2 of Time Allocated to: 
• Participation in project meetings/design groups with other team members in 
preparing [r]isk [a]nalysis reports and project development reports according to 
industry regulations. 
• Assisting Operations team in optimizing and stabilizing the platform through 
identifying and tuning performance bottlenecks. 
• Managing scheduling of reports, maintenance of public and individual folders, 
distribution lists, users, groups and roles using Linux. 
• Providing ongoing technical development project reports to [the Petitioner's] 
[t]echnical [m]anager. 
10%3 of Time Allocated to: 
• Providing end client's technical manager with bi-weekly project status updates, 
including any technical development needs. 
• Preparing [ u] ser documentation to train users and functionality of each report. 
• Train [u]sers on the use of the Linux [s]ystems. 
According to the Petitioner, the position requires "a Bachelor's degree or its equivalent in computer 
science, computer information systems, or information technology." 
III. 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).4 
The Petitioner asserted the Beneficiary would work at the end-client location. However, the record 
does not contain sufficient evidence to establish the terms and conditions of the Beneficiary's 
assignment during the requested employment period. 
The record contains a professional services agreement (PSA) between the Petitioner and the first 
mid-vendor. The PSA is a general agreement for the Petitioner to "famish ... the services of one or 
more Consultants as needed by Client in accordance with the written Purchase Order(s) [(POs)] 
approved by [the first mid-vendor], for the assignment(s) described in such [POs]." However, the 
PSA does not identify a particular client of the first mid-vendor, a consultant to be famished by the 
Petitioner, the services to be performed, the duration of such an assignment, and other salient 
information. Additionally, the record does not contain a PO between the Petitioner and the first 
mid-vendor, as referenced in the PSA. Accordingly, the record raises questions regarding the 
2 On appeal, the Petitioner asserts that the Beneficiary would allocate only 5% of his time to these duties. 
3 On appeal, the Petitioner asserts that the Beneficiary would allocate only 5% of his time to these duties. 
4 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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substantive nature of the work for which the parties contracted the Beneficiary to perform at the 
end-client location during the requested period. 
The record also contains a staffing services supplier agreement (SSSA) between the first and second 
mid-vendors. Similar to the PSA, the SSSA is a general agreement for the first mid-vendor to "provide 
staffing services to [the second mid-vendor's] client." The SSSA identifies the second mid-vendor's 
client; however, the Petitioner identifies this entity as the "implementation partner" of the end-client. 5 
The SSSA farther states that the first mid-vendor would "assign certain employees ('Contingent 
Worker[s]') with the skills [the prime vendor] requests, to perform services for [the prime vendor]." 
However, the SSSA does not identify the skills requested by the prime vendor, the services to be 
performed, the individual worker to perform the services, and other salient information. Furthermore, 
the record does not contain a separate request for services, as indicated in the SSSA. Accordingly, as 
addressed above, the record raises questions regarding the substantive nature of the work for which 
the parties contracted the Beneficiary to perform at the end-client location during the requested period. 
Beyond the issues discussed above, the record does not contain documentary evidence of a contract 
between any of the parties and either the prime vendor or the end-client identified by the Petitioner. 
Furthermore, although the record contains letters from the Petitioner and the two mid-vendors, it does 
not contain letters from either the prime vendor or the end-client. Accordingly, the record raises 
questions regarding "the services ... needed by Client" referenced in the PSA and "the skills [the 
prime vendor] requests" referenced in the SSSA, among the questions raised regarding the substantive 
nature of the work for which the parties contracted the Beneficiary to perform at the end-client location 
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 an 
entity 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. Here, the record does not adequately establish that the Beneficiary would provide 
services in a specialty occupation for the end-client for the employment period requested in the 
petition. 
The Petitioner also asserts on appeal that an opiDiau Jetter written bv Ur I I an adjunct 
professor of cyber security at the University of I l submitted for the first 
time on appeal, satisfies the first criterion. As a matter of discretion, we may use opinion statements 
submitted by the Petitioner as advisory. Matter of Caron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 
1988). However, we may give an opinion less weight if it is not in accord with other information in 
5 The Petitioner refers to the first mid-vendor as a "subvendor" and the second mid-vendor as the "prime vendor." We 
generally refer to vendors in a contractual chain between a petitioner and an end-client as a mid-vendor, and if there is 
more than one mid-vendor, we generally refer to the vendor with a direct contractual relationship with the end-client as a 
prime vendor. Accordingly, our references to the prime vendor apply to the entity the Petitioner identifies as the 
"implementation partner" of the end-client, not the second mid-vendor. Although the record contains little information 
about the prime vendor, it does not appear to be a subsidiary of the end-client, a prominent beverage company. 
4 
the record or if it is in any way questionable. Id. We are ultimately responsible for making the final 
determination regarding an individual's eligibility for the benefit sought; the submission of expert 
opinion letters is not presumptive evidence of eligibility. Id.; see also Matter of V-K-, 24 I&N Dec. 
500, 502 n.2 (BIA 2008) ("[E]xpert opinion testimony, while undoubtedly a form of evidence, does 
not purport to be evidence as to 'fact' but rather is admissible only if 'it will assist the trier of fact to 
understand the evidence or to determine a fact in issue."'). 
In his opinion letter, Dr.I I states that "[t]he employee itinerary, position description, and [first 
and second mid-vendor] letters confirm the contract relationship between thel [partier] and vendor­
specific job duties performed by the Computer Systems Administrator." Dr. opines that "a 
Computer Systems Administrator with the [P]etitioner-specific duties ... would be considered a 
professional position and would normally be filled by a graduate with a minimum of a Bachelor's 
Deeee in lomputer Science, Information Technology, or a related area, or the equivalent." However, 
Dr. does not state that he reviewed evidence of the end-client's job reJuireme
1
ts, which, as 
discussed above, is critical. 6 Defensor, 201 F.3d at 387-88. We note that Dr. discusses his 
"research[] [into] the specific labor market and commerce standards for Delaware, in which [the 
Petitioner] is headquartered." As a result, Dr. I I concludes that "the Computer Systems 
Administrator position with [the Petitioner] as a Network and Computer Systems Administrator 
occupation is typical and increasingly common within [Delaware's] job market." However, the record 
establishes the Beneficiary would work in Georgia, not Delaware, raising questions regarding the 
relevance of DrJ Is research into Delaware's job market, and regarding the extent to which Dr. 
I I is familiar with the position for which he opines. Given that Dr. I I's opinion is not 
substantiated by objective research or studies relevant to the proffered position, and the extent to which 
his opinion is not in accord with other information in the record, it bears minimal probative value. See 
Matter of Caron Int 'l, Inc., 19 I&N Dec. at 795. 
In summation, we conclude that the ambiguities, 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 ofcriterion 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. 7 
6 Furthermore, Dr.I I paraphrases the Petitioner's new duty description, containing 22 duties presented for the first 
time on appeal, not the Petitioner's duty description presented to the Director for review. As noted above, a visa petition 
may not be approved at a future date after a peti~beneficiary becomes eligible under a new set of facts. See Matter 
of Michelin Tire Corp., 17 T&N Dec. at 249. DrL__Jalso lists "vendor-specified duties," paraphrasing duties provided 
by both the first and second mid-vendors. 
7 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 
IV. 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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