dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8397446 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 18, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "senior inforrnatica ETL developer" 
under the H-1 B 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 evidence of 
record does not establish that the proffered position qualifies as a specialty occupation. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 
2012). Upon de nova review, we will dismiss the appeal. 
I. SPECIAL TY OCCUPATION 
A. 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). 
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. 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the Petitioner has not established the substantive nature of the work that the Beneficiary 
will perform, which precludes a finding that the proffered position satisfies any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 1 
The Petitioner stated that the Beneficiary would work at the end-client's location inl._ ____ _. 
Missouri, pursuant to contracts executed between the Petitioner and the vendor, and between the 
vendor and the end-client. The path of contractual succession therefore appears to be as follows: 
Petitioner ➔ Vendor ➔ End-Client 
1 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. 
2 
We conclude first that the Petitioner has not established definitive, non-speculative employment for 
the Beneficiary. The current record is not sufficient to establish that the proffered position actually 
exists, let alone that it is a specialty occupation. Again, the Petitioner claims that the Beneficiary will 
work for the end-client at its place of business. In support of this assertion, the Petitioner submitted a 
Master Services Agreement (MSA) executed between the Petitioner and the vendor. The Petitioner 
has not established this document's relevance to the Beneficiary's assignment as it does not reference 
the Beneficiary; the job title of the proffered position; the job duties and tasks to be performed by a 
senior informatica ETL developer, the proffered position; or the end-client. Nor does the document 
reference the Petitioner's specific role with respect to the Beneficiary's day-to-day work with the end­
client, or the expected duration of the Beneficiary's work for the end-client. 
The Petitioner also submitted a Consultant Schedule (CS) executed between the Petitioner and the 
vendor. The CS shows that the Beneficiary will be providing services as a "Senior ETL Developer" 
for the end-client beginning on April 8, 2019 and ending on October 11, 2019. Thus, the Beneficiary's 
services will end eleven days after the requested H-lB start date. The CS does not indicate that the 
Beneficiary's services will be extended beyond October 2019. 
In response to the Director's request for evidence, the Petitioner provided a statement of work (SOW) 
executed between the vendor and the end-client. The SOW shows that the Beneficiary will be 
providing services as an "ETL Developer for Data Warehousing Project" for the end-client. The start 
date for this project is April 8, 2019 and the end date is "6 months (extendable)." Thus, it appears 
that the project will end in October 2019. We acknowledge the end-client letters that assert that the 
project will last through the H-lB requested validity period; however, the record lacks sufficient 
documentary evidence to support these assertions. That is, the Petitioner has not submitted any 
evidence establishing that the end-client project has been extended beyond October 2019. 
On appeal, the Petitioner submits a Master Services Agreement (MSA) between the vendor and the 
end-client. Like the MSA between the Petitioner and the vendor, this MSA does not reference the 
Petitioner; the Beneficiary; the job title of the proffered position; or the job duties and tasks to be 
performed by a senior informatica ETL developer. Nor does the document reference the Petitioner's 
specific role with respect to the Beneficiary's day-to-day work with the end-client, or the expected 
duration of the Beneficiary's work for the end-client. 
In sum, the ambiguity in the MSAs and the lack of valid SOWs at the time of the petition filing to 
establish the full contract terms do not establish that sufficient work, specialty or otherwise, would be 
available. 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. 
Beyond the speculative nature of the petition in general, the record does not establish the substantive 
nature of the proffered position. The Petitioner submitted letters from the vendor and the end-client. 
Upon review, we observe that the vendor's and the end-client's job duty descriptions contain verbatim 
language. The verbatim language found in the duty descriptions in the letters from the end-client and 
the vendor raise questions regarding whether the end-client's signatory actually wrote the descriptions 
and, therefore, whether it reflects the end-client's actual requirements. Where the work is to be 
performed for entities other than the petitioner, evidence of the client companies' job requirements is 
critical. Defensor, 201 F.3d at 387-88. 
3 
Moreover, 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(s) in order to 
properly ascertain the minimum educational requirements necessary to perform those duties. In other 
words, as the employees in that case would provide services to the end-client and not to the petitioning 
staffing company, the job duties and alleged requirements to perform the duties that the Petitioner 
provided were irrelevant to a specialty occupation determination. See id. 
Regardless of whether the end-client's signatory actually wrote the duty description, the duty 
descriptions lack sufficient detail and concrete explanation to establish the substantive nature of the 
work the Beneficiary will be performing for the end-client, and the associated applications of 
specialized knowledge that their actual performance will require. For instance, the end-client states 
that the Beneficiary will contribute "to planning sessions and demonstrate ability to elicit implied 
requirements" and "[p ]rovide technical and/or business application consultation of complex product 
systems to business partners and team members," but neither the Petitioner nor the end-client provide 
any detail regarding the work these duties with the end-client will entail, and how these tasks merit 
recognition of the proffered position as a specialty occupation. Moreover, the Beneficiary's proposed 
job duties include collaborations with "business partners," "technical analysts," and "technology 
teams," but neither the Petitioner nor the end-client have identified the individuals the Beneficiary 
would work with in the proffered position. In other words, the end-client letter would not establish 
the substantive nature of the proffered position. 
In sum, even if the Petitioner established that the parties contracted for sufficient work, when 
considered collectively, we conclude that the ambiguities, and lack of documentation in the record 
raise questions as to 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 
it is the substantive nature of that work that 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. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need not 
fully address other issues evident in the record. That said, we wish to identify an additional issue to 
inform the Petitioner that this matter should be addressed in any future proceedings. 2 Specifically, the 
Petitioner has not demonstrated that it will have a valid employer-employee relationship with the 
Beneficiary. 
2 In reviewing a matter de nova. we may identify additional issues not addressed in the Director's decision. See Spe!lcer 
EJ1te1prises. lJ1c. v. UJ1ited States. 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003) ("The 
AAO may deny an application or petition on a ground not identified by the Service Center."). 
4 
Without documentary evidence from the end-client that covers the duration of the period of 
employment requested, we are not able to ascertain what the Beneficiary would do, where the 
Beneficiary would work, as well as how this would impact circumstances of his relationship with the 
Petitioner. 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. In other words, the Petitioner has not established it will have and maintain the 
requisite employer-employee relationship with the Beneficiary for the duration of the requested 
employment period. See 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer" and 
requiring the Petitioner to engage the Beneficiary to work such that it will have and maintain an 
employer-employee relationship with respect to the sponsored H-lB nonimmigrant worker). 
III. CONCLUSION 
For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought. The 
appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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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