dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6255675 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 27, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"technical lead" 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 proffered 
position does not qualify as a specialty occupation. The Director also concluded that the record does 
not establish the Petitioner would have an employer-employee relationship with the Beneficiary during 
the requested period . On appeal, the Petitioner asserts that the Director erred . 
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 preponderanc e of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010) . 
( 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 describes the proffered "technical lead" position's duties, and the percentage of the 
Beneficiary's time required to perform them, as follows: 
• Domain [m]odelling, [s]oftware [d]esign and [d]evelopment [35%]; 
• Business solutioning [sic], design and verification [25%]; 
• Implementing [the Petitioner's] [p]roprietary [p]rocess and [t]ools [20%]; and 
• Continual [p]rocess [i]mplementation and [v]alue [c]reation [a]ctivities [20%].2 
According to the Petitioner, the position requires "a Bachelor's degree or its equivalent in the fields 
of Computer Science, Information Systems, Electrical Engineering or a related field." 
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).3 
2 The Petitioner provided more than 30 expanded descriptions of the duties. Although we omit the expanded descriptions 
for brevity, we have reviewed them in their entirety. 
3 The Petitioner submitted documentation to suppmt the H-1 B 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. 
2 
The Petitioner, located in Georgia, asserted the Beneficiary would work at the end-client location in 
Texas. However, the record does not contain sufficient evidence to establish the terms and conditions 
of the Beneficiary's assignment during the requested period. 
The record contains a master service agreement (MSA) 4 between the parties. The MSA is an extensive 
but general agreement for the Petitioner to "provide [its system] for end-to-end realtime cargo services 
that will replace the vast majority of the existing systems used by [the end-client]." The MSA states 
the Petitioner will "(a) interface with other systems and software used by [the end-client] and [t]hird 
[p ]arties as applicable; and (b) implement enhancements and value-added products, [ and] match 
initiatives in the highly dynamic airline cargo and related services industry." In response to the 
Director's request for evidence (RFE), the Petitioner submitted exhibits to the MSA, which, in part, 
state the following: 
[The end-client] may elect to include in the Services certain [ of the Petitioner's] onsite 
production support services ("PSS") to assist the [end-client's] Level 2 Support .... If 
[the end-client] elects to require [the Petitioner] to provide PSS, then the Parties shall 
negotiate in good faith and enter into a Statement of Work [(SOW)] describing the PSS. 
Although the record contains two SOWs, neither establish that the parties contracted for the 
Beneficiary to provide services during the requested period. The first SOW, dated September 12, 
2017, specifically states that it is "[e]xpiring on February 12, 2018," which predates the petition filing 
date. Additionally, the first SOW states that it "shall be provided in accordance with and shall be 
governed by the terms of the Professional Services Agreement ... executed between the Parties, dated 
April 6, 2017." However, the parties dated the MSA in the record January 24, 2018. Accordingly, 
the first SOW does not correspond to the MSA in the record. Moreover, even if the first SOW 
corresponded to the MSA in the record, it does not identify the Beneficiary as a worker assigned to 
the project described therein, or the requirements for such a worker, or that the assignment would 
occur during the requested period. 
Although the MSA references the second SOW by a corresponding "Exhibit 4.01," the SOW states 
that it is "dated January [ • ], 2018," raising questions regarding whether it is only a draft proposal. 5 
Additionally, regardless of whether the parties intended the second SOW to state finalized terms, it 
does not identify the Beneficiary as a worker assigned to the project described therein, or the 
requirements for such a worker. Similarly, although the MSA contains another exhibit addressing 
"Key Personnel," it does not identify the Beneficiary as a worker assigned to the project, or the 
requirements for such a worker. 
Also in response to the Director's RFE, the Petitioner submitted a letter from the end-client. However, 
the letter does not bear the letterhead of the end-client, a~ lair line with decades of common 
public recognition, raising questions regarding its authenticity. Although the letter identifies the 
Beneficiary, it states that the Beneficiary's project is "subject to ... the terms and conditions of the 
4 The document bears the title of"End-to-End Cargo Services System Agreement." We refer to it as an MSA for brevity. 
5 The second SOW does not appear to be an extension of the first SOW because the first SOW indicates it is "[SOW] 
Number Two," whereas the second SOW is titled "Initial [SOW]." 
3 
agreement between [the Petitioner] and [the end-client] ... signed on 24th January 2017." However, 
as noted above, the parties signed and dated the MSA in the record January 24, 2018.6 Accordingly, 
the letter raises questions regarding the probative value of the MSA in the record, and any other 
documents that may correspond to it, as they may apply to the Beneficiary's assignment. Moreover, 
even if the record contained documentary evidence of the contractual terms the end-client recognizes 
as applicable to the Beneficiary's assignment, which it does not, the letter does not state that the 
end-client requires the Beneficiary to have a bachelor's or higher degree in a specific specialty, or its 
equivalent. 
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. 
On appeal, the Petitioner submits a second letter from the end-client. Like the prior letter, the appeal 
letter identifies the Beneficiary; however, it states that a contract "signed on 24th January 2017" 
governs the Beneficiary's assignment, again raising questions regarding the probative value of the 
MSA in the record dated January 2018, and any other documents that may correspond to it, as they 
may apply to the Beneficiary's assignment. Additionally, like the prior letter, the appeal letter does 
not state that the end-client requires the Beneficiary to have a bachelor's or higher degree in a specific 
specialty, or its equivalent. See Defensor, 201 F.3d at 387-88. 
We also note that, in response to the Director's RFE, the Petitioner submitted an opinion letter wptten, 
byl I a professor of electrical engineering and computer science at L_J 
University. As a matter of discretion, we may use opinion statements submitted by the Petitioner as 
advisory. Matter o_fCaron Int'l, 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 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 o_f 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."'). 
6 We note that if there is a prior MSA between the parties dated January 2017 omitted from the record, that may explain 
why the first SOW in the record is dated before the parties signed and dated the MSA January 2018. 
4 
.__ ___ _.[ states that, in order to form his opinion, he reviewed the following information: 
• The [RFE]; 
• U.S. Bureau of Labor Statistics Occupational Outlook Handbook [(Handbook)]; 7 
• The Occupational Information Network (O*NET); 
• Support letter from [the Petitioner]; and 
• [The Beneficiary's] academic degree certificates and transcripts. 
However,! [does not state that he reviewed information regarding whether the end-client 
requires a bachelor's or higher degree in a specific specialty, or its equivalent, to perform the position's 
duties, which is critical. See Defensor, 201 F.3d at 387-88. Even if I [asserted that he 
reviewed such a statement from the end-client, the end-client letters in the record do not provide 
sufficient information on which to base an opinion regarding whether the position qualifies as a 
specialty occupation, as discussed above. Furthermore, there is no indication thatl I has 
conducted any research or studies pertinent to the educational requirements for such a position, and 
no indication of recognition by professional organizations that he is an authority on those specific 
requirements. AccordinglyJ Is opinion bears minimal probative value. See Matter of 
Caron Int'!, Inc., 19 I&N Dec. at 795; see also Matter of V-K-, 24 I&N Dec. at 502 n.2. 
In summation, we conclude that the 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 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. 8 
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. 
7 We consider the Handbook regarding the duties and educational requirements of the wide variety of occupations that it 
addresses. However, we do not maintain that the Handbook is the exclusive source of relevant information. 
8 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). 
Additionally, because this issue is dispositive, we reserve our decision regarding the Director's separate conclusion that 
the Petitioner would not have an employer-employee relationship with the Beneficiary during the requested period. 
5