dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 6174965 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 13, 2020 
The Petitioner, a company engaged in software development and information technology services, seeks 
to temporarily employ the Beneficiary as a systems administrator 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 evidence of 
record does not establish that the proffered position qualifies as a specialty occupation . On appeal, 
the Petitioner asserts that the Director erred in the decision. 
The Petitioner must establish eligibility by a preponderance of the evidence. Matter of Chawathe, 
25 I&N Dec. 369, 375-76 (AAO 2010) . Upon de nova review, we will dismiss the appeal. 
I. SPECIALTY OCCUPTION 
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 inDefensor, 201 F.3d at 387-88, where, as here, the work is to be performed 
for entities 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. 
B. Analysis 
Upon review of the record in its totality, we conclude that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation because the record lacks sufficient evidence of the 
actual work that the Beneficiary will perform for the end-client. 1 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). 
The Petitioner stated on the Form I-129, Petition for a Nonimmigrant Worker, and on the certified labor 
condition application (LCA), that the Beneficiary would work as a systems administrator for an 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 
located inD Texas, for the petition's entire employment period, September 2018 to September 2021. 2 
The Petitioner indicated the relationship with the end-client as follows: 
The Petitioner submitted a contractor agreement (CA) between the Petitioner and the mid-vendor. The 
scope of the agreement stated that the Petitioner "agrees to provide personnel ('Consultants') who are 
employees of[the Petitioner] .... " In addition, the consultants will be "supplied by [the Petitioner] through 
[the mid-vendor] to [the mid-vendor's] client ('Client') which has requested [the mid-vendor] to locate 
temporary information technology staffing for Client's project according to the training, skills, abilities 
and experience required by the Client." Thus, the agreement is between the Petitioner and the mid-vendor 
to provide personnel for the end-client, but it does not commit the mid-vendor to any contract with the 
Petitioner for any particular services during any period or at any location. The terms of the agreement 
stated that "nothing in this agreement obligated [the Petitioner] to accept any offer to supply a Consultant 
candidate." In sum, the CA has little probative weight towards establishing actual work to be 
performed by the Beneficiary for the end-client for any specific period or location. 
As part of the terms of the CA, the Petitioner submitted a purchase order (PO) signed by the Petitioner 
and the mid-vendor. The PO indicated that the Petitioner will perform work for the mid-vendor/prime 
vendor/end-client, and the Beneficiary will be placed with the end-client as a systems administrator. This 
PO provided very limited information regarding the Beneficiary's work with the end-client, and did not 
include the job duties of the Beneficiary, the scope of the project, the phase of the project, or the team 
supporting the project. The PO does not sufficiently explain the work to be performed by the Beneficiary 
at the end-client location. 
In addition, the Petitioner submitted a two-page document entitled, "Professional Services Agreement" 
between the mid-vendor and the prime vendor whereas the prime vendor will "locate a client who requires 
temporary staffing of a specific project" and the mid-vendor will provide staffing for these projects. The 
documentation shows a working relationship between the mid-vendor and the prime vendor but it 
provides little probative weight toward establishing the actual work to be performed by the Beneficiary. 
Further, the Petitioner did not submit the agreement between the prime vendor and the end-client to 
understand the scope of services between the parties. Without supporting documentation such as 
contracts, detailed purchase orders or statements of work, it is hard to determine the scope of services and 
the nature of the relationships between the parties. The Petitioner provided insufficient evidence towards 
substantiating that the petition was filed based on actual work that the Petitioner had secured for the 
Beneficiary for the end-client's location for the employment period sought in the petition. 
2 A petitioner submits the LCA to the U.S. Department of Labor (DOL) to demonstrate that it will pay an H-lB worker 
the higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage 
paid by the employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.73l(a). 
3 
The Petitioner submitted letters from the mid-vendor, prime vendor, and the end-client confirming that 
the Beneficiary will work for the end-client. The letters provide nearly identical job duties for the 
Beneficiary's position. The letter from the end-client stated that the Beneficiary will work on the Cloud 
team but does not provide sufficient detail regarding this project. Although the end-client provided a 
general overview of the Beneficiary's responsibilities, it did not provide sufficient information of the 
Cloud project such as the mission and scope of the project, the team members on the project, an 
explanation of how the responsibilities are delegated to the team members; the detailed timeline of the 
project; or the complexity and milestones of the project. 
The Petitioner submitted an affidavit from an individual that worked with the Beneficiary on the 
project with the end-client. The affidavit lists the same job duties and confirms that the Beneficiary 
is working for the end-client. However, the documentation does not provide sufficient evidence 
regarding the Beneficiary's project or assignment and a detailed explanation of the team, department 
and actual work that the Beneficiary will perform for the end-client on a specific project. 
In addition, the record does not sufficiently establish the project's duration. The purchase order indicated 
the end date of work as November 2019. The letter provided by the mid-vendor, dated October 2018, 
stated that the "duration of the project is long term for a year (with possible extensions)." The letter from 
the mid-vendor stated that "we are expecting his continuous services until 12/31/2020." Finally, the end­
client letter stated that it "expects to continue using the services of [the Petitioner] through November 
2019." The Petitioner did not explain these inconsistencies on the project duration. In addition, the 
Petitioner did not submit sufficient evidence such as contracts or similar corroborating evidence that 
the project with the end-client will continue until February 2020 and will require the services of the 
Beneficiary as a systems administrator for that entire period. 3 
USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking 
at the time the petition is filed. See 8 C .F .R. § 103 .2(b )( 1 ). A visa petition may not be approved based 
on speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under a new 
set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). The 
3 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-lB 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). 
4 
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). 
Because the Petitioner has not established the substantive nature of the Beneficiary's work, we are unable 
to evaluate whether 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. 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. 
5