dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-1- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 11, 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 developer" 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 three separate grounds, concluding 
that the Petitioner did not establish: ( 1) that the proffered position qualifies as a specialty occupation; 
(2) that it will maintain an employer-employee relationship with the Beneficiary; and (3) that the 
Beneficiary is qualified to perform the duties of the proffered position. 
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 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. 
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-I- Inc. 
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: 
(]) 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 Texas, stated that the BeneficiarJi will perform his duties at the end-
client site in California forl ( end-client), pursuant to contracts 
executed between the Petitioner andl fvendor), and between the vendor and the end-
client. The Petitioner provided a list of job duties for the proffered position almost identical to that 
provided by the end-client and vendor in their letters. The end-client also stated that the minimum 
education requirement for entry into the proffered position is a bachelor's degree, or its equivalent, in 
computer science, engineering, or a related field. 
2 
Matter of C-1- Inc. 
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 
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). 
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 sufficient to demonstrate that it is a specialty 
occupation. Specifically, the record lacks important evidence setting forth the contractual obligations 
of the corporate entities in the chain of contractual succession. 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. 
As noted above, in this case there are three actors in the contract chain: (1) the Petitioner; (2) the 
vendor; and (3) the end-client. Though we acknowledge the Consulting Firm Agreement executed 
between the Petitioner and the vendor in February 2018, we observe the following language at the first 
page of the Agreement: (1) at item 1, it states that "[ a ]t [ the vendor's] request, [ the Petitioner] agrees 
to supply employees or subcontractors ... to provide the services described on Exhibit A attached 
hereto," (2) at item 2.1, it states that workers "will be required to report to the designated Project Lead 
(referenced in Exhibit B) concerning the Services performed under this Agreement," and (3) at items 
2.2 and 5.3, the Agreement utilizes the acronym "SOW" which, though undefined, we presume refers 
to a "statement of work." The record, however, lacks any Exhibit A, Exhibit B, or SOW documents. 
The record, therefore, does not appear to contain the complete contractual agreement between the 
Petitioner and the vendor. 
The evidence regarding the agreement between the vendor and the end-client appears similarly 
incomplete. As above, we acknowledge the Petitioner's submission of the "Application Provider 
Program Services Agreement" executed between the vendor and the end-client. However, the fourth 
page of that contract specifically states that the vendor's "obligation to perform, and [the end-client's] 
obligation to pay for, the Services are conditioned on an Order having been signed by both parties." 
The record, however, contains no such order. The record therefore does not establish a contractual 
obligation on the part of the end-client to provide the position that the Petitioner describes in this H-
1B 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 
2 The Petitioner submitted documentation in support of the H-1 B 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 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. See, e.g., 63 Fed. 
Reg. 30,419, 30,419-20 (proposed June 4, 1998). Cf Galaxy Software Solutions, Inc. v. USC1S, 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"). 
3 
Matter of C-1- Inc. 
Even if we were to set this foundational deficiency aside we would still conclude that the Petitioner 
had not established the substantive nature of the proffered position. A crucial aspect of this matter 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 an updated letter from the end-client, on appeal, confirming that the Beneficiary will be 
working as a "software developer" 4 at its office in I I California. 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 develop a robust and comprehensive automation framework (infrastructure) that 
significantly improves product quality, software release times; standardize, automate, and document 
setup of development and production environments and audit environments periodically; enable Dev 
and Ops to build and deploy applications from code to production and internal environments; help 
define best practices for source control, continuous integration, automated testing, and release 
management; develop test plans, test cases, and test data as part of a comprehensive strategy to 
improve and maintain product quality and drive improvements to our build and release scripts, tools, 
and processes; evaluate and recommend automation tools that work well; bring new automation 
technologies to improve the velocity and quality of our engineering efforts; collaborate with peers on 
work estimation/planning and implementation of new versions/features of tools; and contribute to 
tools that orchestrate automated phases and tooling that provide insights as code flows from dev 
machine all the way to production. However, while the letter includes a list of "duties and 
responsibilities" the Beneficiary would perform, it does not identify a specific project he will be 
assigned to. 
Further, the Petitioner provided the same list of duties as the end-client that the Beneficiary would 
perform in the proffered position, along with the percentages of time he would devote to each, adding 
two additional "proficiency" -related duties amounting to 10% of his time. However, the Petitioner 
did not make a direct connection from the listed duties to an end-client project. Furthermore, the lists 
of duties provided by the Petitioner, the vendor, and the end-client do not actually contain a detailed 
description explaining what particular duties the Beneficiary will perform on a day-to-day basis for 
4 We note that the vendor references the proffered position as an "application software developer" in its Work Order and 
letters in the record. 
4 
Matter of C-1- Inc. 
the end-client or its 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 
end-client. 
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 three 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. BENEFICIARY QUALIFICATIONS 
The Director denied the petition on three separate grounds, one of which concluded that the 
Beneficiary is not qualified to perform the duties of the proffered position. However, a beneficiary's 
credentials to perform a particular job are relevant only when the job is found to be a specialty 
occupation. As discussed in this decision, the proffered position does not require a baccalaureate or 
higher degree in a specific specialty, or its equivalent. Therefore, we will reserve this issue as we have 
concluded that the proffered position is not a specialty occupation. 
VI. 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 C-1- Inc., ID# 4264343 (AAO Sept. 11, 2019) 
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