dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-G- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 18, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting company, seeks to temporarily employ the 
Beneficiary as a "business systems analyst" under the H-lB 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 of the California Service Center denied the petition concluding that the Petitioner did not 
establish hat the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits a brief and asserts that the Director erred in denying the petition. 
Upon de nova review, we will dismiss the appeal. 1 
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 : 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter of C-G- LLC 
(]) 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). 
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. 
II. THE PROFFERED POSITION 
The Petitioner stated that it "contracts with various clients to develop the client's in-house computer 
programs and other IT services under [its] supervision and per [its] project plans." The Petitioner, 
which is located in Colorado, stated that the Beneficiary will perform her duties at its client's site in 
I I Delaware for I I ( client), pursuant to contracts executed 
directly between the Petitioner and its client. The Petitioner submitted a letter from its client that 
provided a description of the assigned project and a list of job duties, including additional tasks the 
Beneficiary would perform in carrying out each duty, along with the percentage of time the Beneficiary 
would devote to each. The client indicated that the Beneficiary would devote 5% of her time to 
performing application support - monitoring system and interface alerts; 40% of her time to 
performing user support - reviewing system mailbox, responding to user application and process 
questions, executing and documenting support requests, researching data issue; 5% of her time to 
defining SQL queries for ad hoc reports and data extracts; 5% of her time to administering system user 
accounts; 15% of her time to contributing to knowledge management activities in defining functional 
specifications, test plans, test scenarios, and test strategy, and managing test data; 25% of her time to 
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Matter of C-G- LLC 
executing tests to verify functionality against requirements of various parts and aspects of the system; 
and 5% of her time to collaborating with code development teams to resolve failed tests. 
According to the client, the minimum education requirement for entry into the proffered position is a 
bachelor's degree in computer science, engineering, or a related field. 
III. ANALYSIS 
For the reasons set out below, we have determined that the proffered position does not qualify as a 
specialty occupation. Specifically, we find that the Petitioner has not established the substantive 
nature of the position, which precludes a determination that the proffered position qualifies as a 
specialty occupation under at least one of the four regulatory specialty-occupation criteria enumerated 
at 8 C.F.R. § 214.2(h)(4)(iii)(A)(])-(4). 
The record of proceedings lacks sufficient information regarding the existence of the proffered 
position. For H-lB approval, the Petitioner must demonstrate a legitimate need for an employee exists 
and to substantiate that it has H-lB caliber work for the Beneficiary for the period of employment 
requested in the petition. It is incumbent upon the Petitioner to demonstrate it has sufficient work to 
require the services of the Beneficiary in a specialty occupation. We conclude that the Petitioner has 
not established the existence of definitive, non-speculative employment for the Beneficiary. In other 
words, the current record is not even sufficient to establish that the proffered position actually exists, 
let alone whether it is a specialty occupation. 
In its initial letter of support, the Petitioner explained that on June 8, 201 7, it purchasedl , ,I a 
company founded in 1974, and assumed all of I Is "immigration related liabilities as well as 
contracts, clients, etc." At the time of filin the Petitioner submitted a co of a Master Services 
Agreement (MSA) betweenl I and~------..--------.--.---- ....... effective 
January 1, 2009. The MSA specifically indicates states that ~-----' does not guarantee the 
Petitioner any business resulting from or arising out of the agreement. It further states that any 
previous business is not an indication of future business, the level of any business may increase or 
decrease during the term of the agreement, and neither I lnor any of its affiliates is under 
any obligation to execute a Statement of Work (SOW) under the agreement. 
The Petitioner also submitted an SOW between I 7 and I I specifically, for 
the Petitioner to provide services in support ofl fs' speaker management systems, to include 
ongoing maintenance to I I The SOW includes a project description, indicates that the 
Petitioner's employees will work at the client site inl !Delaware, and lists the "timeframe" 
for the project as January 1, 2018 to December 31, 2018, two months after the Beneficiary's intended 
start date. The SOW also lists the Beneficiary as "key personnel" for the project, indicating her role 
as "application support specialist" for an estimated 1,936 hours (about 12 months). The SOW 
specifically references an MSA between I I and I , I dated 
November 1, 2017, and states that the SOW is executed pursuant to that agreement. However, the 
Petitioner did not submit the referenced MSA withl ldated November 1, 2017, nor any 
other direct agreement withl I 
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Matter of C-G- LLC 
Further, the SOW specifically states: "This SOW shall not bind the parties unless and until a purchase 
order is issued against the SOW." However, the record is also deficient of this evidence. The 
Petitioner submitted a Purchase Order (PO) from I I to I I dated 
December 18, 2015. The PO lists a "delivery date" of December 31, 2016, and the description of the 
deliverable on the PO states "20161 !Program." 
First, the Petitioner did not submit its underlying MSA with I I to establish the terms and 
conditions of its contractual relationship to the client. While the Petitioner submitted an MSA between 
I I and I I that MSA is from January 2009, more than 10 years ago,2 and not the 
MSA specifically referenced in the SOW. Therefore, it is unclear how the submitted MSA could 
reflect the Petitioner's contractual relationship with the client for the current proffered position. Thus, 
this document has little probative value in these proceedings. 
Second, the Petitioner did not submit the required PO to accompany the SOW in order to "bind the 
parties" to the agreements. While the Petitioner submitted a PO between I I and I I 
that PO is from December 2015, for a deliverable due December 2016, 22 months prior to the 
Beneficiary's intended start date, and not related in any way to the SOW submitted. Thus, this 
document also has little probative value in these proceedings. 
Third, the Petitioner submitted a letter from I l dated September 19, 2018, which does not 
indicate any duration for the referenced project. While the letter indicates that it has "contracted with 
.__ _______ _.Ito provide programming, networking, consulting and engineering- related 
services," and that the Petitioner has assigned the Beneficiary to this project, it does not provide a 
timeframe for the duration of the contract or completion of the project. 
Finally, all of the evidence in the record, as it relates to the Petitioner's relationship to the client and 
the project to which the Beneficiary would be assigned, indicates that the work would be completed 
on December 31, 2018, two months after the Beneficiary's intended start date. While the Petitioner 
submitted a letter from the client, dated September 18, 2018, about one month prior to the 
Beneficiary's intended start date, that letter did not provide a timeframe for the duration of the contract 
or completion of the project and the Petitioner did not submit any evidence of a contractual obligation 
on the part of the client to use the services of the Petitioner at any period within the requested duration 
listed on the petition. 
Though the Petitioner has requested that H-1 B approval be granted from October 2018 until September 
2021, the record is not currently sufficient to demonstrate that it has a foll-time position 3 available for 
the Beneficiary to fill. The 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., l 7 I&N Dec. 248, 249 
(Reg'l Comm'r 1978). Absent additional evidence, the record lacks evidence of an obligation on the 
2 Necessarily, independent and objective evidence would be evidence that is contemporaneous with the event to be proven 
and existent at the time of filing the petition. 
3 The Petitioner stated in the LCA that this is a full-time position. 
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Matter of C-G- LLC 
part of the client ( or anyone else) to provide the position described by the Petitioner in this petition. 
If we cannot determine whether the proffered position as described will actually exist, then we cannot 
ascertain its substantive nature so as to determine whether it is a specialty occupation. 4 
As a result, we conclude that the petition was filed for speculative employment, and that the Petitioner 
has not established the substantive nature of the work that the Beneficiary will perform. This precludes 
a finding that the proffered position satisfies 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 normal minimum educational 
requirement for the particular position, which is the focus of criterion one; (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 two; (3) the level of complexity or uniqueness of the 
proffered position, which is the focus of the second alternate prong of criterion two; (4) the factual 
justification for a petitioner normally requiring a degree or its equivalent, when that is an issue under 
criterion three; and ( 5) the degree of specialization and complexity of the specific duties, which is the 
focus of criterion four. Therefore, we cannot conclude that the proffered position qualifies for 
classification as a specialty occupation. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reason. 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. 
Cite as Matter of C-G-LLC, ID# 3847008 (AAO Sept. 18, 2019) 
4 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or undetermined, 
prospective employment. The H-1 B classification is not intended as a vehicle for an alien to engage in 
a job search within the United States, or for employers to bring in temporary foreign workers to meet 
possible workforce needs arising from potential business expansions or the expectation of potential new 
customers or contracts. To determine whether an alien is properly classifiable as an H-lB nonimmigrant 
under the statute, the Service must first examine the duties of the position to be occupied to ascertain 
whether the duties of the position require the attainment of a specific bachelor's degree. See section 
214(i) of the Immigration and Nationality Act (the "Act"). The Service must then determine whether 
the alien has the appropriate degree for the occupation. In the case of speculative employment, the 
Service is unable to perform either part of this two-prong analysis and, therefore, is unable to adjudicate 
properly a request for H-1 B classification. Moreover, there is no assurance that the alien will engage in 
a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 1998) 
(to be codified at 8 C .F.R. pt. 214 ). While a petitioner is certainly permitted to petition for H- IB classification on the basis 
of facts not in existence at the time the instant petition was filed, it must nonetheless file a new petition to have these facts 
considered in any eligibility determination requested, as the agency may not consider them in this proceeding pursuant to 
the law and legal precedent cited, supra. 
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