dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-T- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 4, 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 "software engineer" 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 on two separate grounds , concluding 
that the Petitioner did not establish: ( 1) that the proffered position qualifies as a specialty occupation; 
and (2) that it will maintain an employer-employee relationship with the Beneficiary. 
On appeal, the Petitioner submits additional evidence 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 tenn "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 ofCha wathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter of A-T- Inc. 
(]) 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, which is located in Florida, stated that the Beneficiary will perform her duties at the 
end-client site in Maryland for I le end-client), pursuant to contracts 
executed between the Petitioner and I l(vendor) and between the vendor and the end-
client. On appeal, the Petitioner submits a letter from the end-client that provides a list of job duties 
for the proffered position. The end-client also stated that the minimum education requirement for 
entry into the proffered position is a bachelor's degree in computer science 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, the record does not: (1) describe the proffered position in sufficient 
detail; and (2) establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation. 2 In particular, we find that the Petitioner has not 
2 The Petitioner submitted documentation in support of the H-1 B petition, including evidence regarding the proffered 
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Matter of A-T- Inc. 
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)(l)-(4). 
A. Speculative Employment 
We conclude first 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 demonstrate that it is a specialty occupation. 
Specifically, we observe that although the record contains a copy of the contractor agreement and 
associated work order executed between the Petitioner and the vendor, it does not contain copies of 
similar documents executed between the vendor and the end-client. 
This is important because, in this case, the existence of the proffered position is dependent entirely 
upon the willingness of an end-client to provide it. Absent those documents, the record lacks evidence 
of a contractual obligation on the part of the end-client 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. 3 Though relevant, the letters from the end-client are not sufficient to fill this evidentiary 
gap, as is it is not evidence of a contractual obligation on the part of the end-client to provide the 
position the Petitioner has described in this H-1 B petition, either. 
Again, ifwe 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 For 
this reason alone, the petition cannot be approved. 5 
B. Inconsistent Information Regarding Position Assignment 
Next, we find that the Petitioner's provision of inconsistent information pertaining to the Beneficiary's 
assignment raises additional questions as to the actual, substantive nature of the proffered position. 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 We acknowledge the claim that this evidence is confidential. However, that claim does not relieve the Petitioner from 
its obligation to satisfy its burden of proof. Although a petitioner may always refuse to submit confidential commercial 
information if it is deemed too sensitive, the Petitioner must also satisfy the burden of proof and rnns the risk of a denial. Cf 
Matter of Marques, 16 l&N Dec. 314 (BIA 1977) (holding the "respondent had every right to assert his claim under the 
Fifth Amendment; [however], in so doing he rnns the risk that he may fail to carry his burden of persuasion with respect 
to his application."). 
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 USCIS. See 5 U.S.C. § 552(b)(4), 18 U.S.C. § 1905. Additionally, the 
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). 
4 Cf Galaxy Software Solutions, Inc. v. USCIS, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) 
( describing the petitioner's "fail[ ure] to provide all of the contracts governing the relationships between the corporate 
entities in the chain" as a "material gap"). 
5 The agency made clear long ago that speculative employment is not permitted in the H-lB program. See, e.g., 63 Fed. 
Reg. 30419, 30419 - 30420 (June 4, 1998). 
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Matter of A-T- Inc. 
Though the Petitioner now identif,.:.1e:..:::s=I ====,-------~I as the end-client and I 
as vendor, it originally identified I I as the end-client and did not identify a ve~n-do_r __ --~ 
The Petitioner does not provide an explanation for this discrepancy. Inconsistencies in the record 
undermine the credibility of the Petitioner's claims regarding the proffered position. The Petitioner must 
resolve these inconsistencies with independent, objective evidence pointing to where the truth lies. Matter 
of Ho, 19 I&N Dec. at 591-92. Unresolved material inconsistencies may lead us to reevaluate the 
reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. Id. 
C. Inadequate Position Description 
Finally, a crucial aspect of ascertaining the substantive nature of a proffered position t is whether the 
Petitioner has sufficiently described the duties of the proffered position such that we may discern the 
nature of the position and whether the position actually requires the theoretical and practical 
application of a body of highly specialized knowledge attained through at least a baccalaureate degree 
in a specific discipline. The Petitioner has not. 
We determine that the evidence is insufficient to establish that the proffered position qualifies for 
classification as a specialty occupation. As recognized in Defensor, 201 F.3d at 387-88, it is necessary 
for the end-client to provide sufficient information regarding the proposed job duties to be performed 
at its location in order to properly ascertain the minimum educational requirements necessary to 
perform those duties. In other words, as the nurses in that case would provide services to the end­
client hospitals and not to the petitioning staffing company, the Petitioner-provided job duties and alleged 
requirements to perform those duties were irrelevant to a specialty occupation determination. See id. 
Here, the record of proceedings does not provide sufficient information from the end-client regarding 
the project assignment or the specific job duties to be performed by the Beneficiary. The Petitioner 
submits a letter from the end-client[ on a=pealj confirming that the Beneficiary will be working as a 
"software developer" at its office in,__ __ ~Maryland. However, while the letter includes a list of 
"primary duties" the Beneficiary would perform, it does not identify a specific project she will be 
assigned to. The letter includes a list of the Beneficiary's job duties in brief: generalized terms that do 
not convey the substantive nature of the proffered position and its constituent duties. For example, 
the end-client's letter states that the Beneficiary will resolve program logic errors, perform upgrades 
and access data for clients using Python Scripting, UNIX, and SQL programming; understand global 
requirements for brand new projects; maintain Oracle SQL Developer database, create complex views 
and stored procedures; develop web application and implement user interface CSS, HTML%, 
JavaScript, jQuery; create and develop existing SSIS packages and generate SSRS reports; perform 
evaluations of configurations, design XMLs and stylesheets; participate in the evaluation and selection 
of performance tools; develop complex SSRS reports and Dashboards; isolate and resolve complex 
problems using appropriate diagnostic tools; devise and implement solutions to correct performance 
problems; perform testing in tool sets like Power BI and Tableau; and manage and coordinate test 
activities for assigned application. 
While the Petitioner provided additional tasks and duties the Beneficiary would perform in the 
proffered position, along with the percentages of time she would devote to each, it does not make a 
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Matter of A-T- Inc. 
direct connection from the listed duties to the end-client's project. This list of duties provided by the 
end-client does not actually contain a detailed description explaining what particular duties the 
Beneficiary will perform on a day-to-day basis for the end-client's project. Nor is there a detailed 
explanation regarding the demands, level of responsibilities, complexity, or requirements necessary 
for the performance of these duties from the vendor or the end-client. 
Additionally, in response to the RFE and again on appeal, the Petitioner submits information 
pertaining to the end-client and its 1 I Replacement Project." 
However, the end-client has not identified a specific project in which the Beneficiary would work and 
does not describe or explain the specific role of the Beneficiary in this, or any, project. 
For all of these reasons, we conclude 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. EMPLOYER-EMPLOYEE RELATIONSHIP 
The Director denied the petition on two separate grounds, one of which concluded that the Petitioner 
is not a United States employer, as described at 8 C.F.R. § 214.2(h)(4)(ii). As detailed above, the 
record of proceedings lacks sufficient documentation evidencing what exactly the Beneficiary would 
do for the period of time requested or for the assigned project at the end-client facility. Given this 
specific lack of evidence, the Petitioner has not corroborated who has or will have actual control over 
the Beneficiary's work or duties, or the condition and scope of the Beneficiary's services. However, 
we will reserve this issue as we have concluded that the proffered position is not a specialty occupation. 
V. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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 A-T-Inc., ID# 3790308 (AAO Sept. 4, 2019) 
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