dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 4573463 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 15, 2020 
The Petitioner, a company engaged in information technology consulting and staffing services, seeks 
to employ the Beneficiary as a "senior JIRA 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 Vermont 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. 
Upon de nova review, we will dismiss the appeal. 1 
I. SPECIAL TY 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. 
1 We follow the preponderance of the evidence standard. Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010) . 
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) 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. 2 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). 
2 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position. Although we may not discuss every document submitted, we have reviewed and considered each one. 
2 
The Petitioner stated on the Form I-129, Petition for a Nonimmigrant Worker, and on the certified labor 
condition application (LCA)3, that the Beneficiary would work as a senior JIRA administrator, a position 
falling within the Standard Occupation Classification (SOC) code and category 15-1121, "Computer 
Systems Analysts." In addition, the Beneficiary will work for an end-client inl INew York, 
for the petition's entire employment period, October 2018 to September 2021. The Petitioner indicated 
the relationship with the end-client as follows: 
The Petitioner submitted a consulting service agreement (CSA) between the Petitioner and the vendor. 
Under the section entitled "Services", the agreement stated that the Petitioner "will provide its employees, 
on a temporary basis, to perform IT consulting." The terms in this agreement contains contractual terms 
and conditions to be automatically incorporated into any follow-on contracts executed by the Petitioner 
and the vendor under the CSA's umbrella. In addition, the document does not commit the vendor to 
any contract with the Petitioner for any particular services during any period or at any location. In sum, 
the CSA has little probative weight towards establishing actual work to be performed by the 
Beneficiary for the end-client for any specific period or location. 
The Petitioner also submitted three documents entitled, "Appendix A" that detailed the "rate of 
compensation." These documents indicated that the Beneficiary will work as a Systems (Jira) 
Administrator for the vendor. The three separate copies of this document are the same with different 
start and end dates, and different rates of compensation that could indicate that the Beneficiary's work 
with the vendor was extended. The most recent Appendix stated the Beneficiary's start date as October 
1, 2018 and end date as May 15, 2020 "with possible extensions." These documents indicate the "rate 
of compensation" and do not specifically state the project the Beneficiary will be working on, or provide 
any detail on his duties and responsibilities with the end-client project. Although the documentation 
shows a working relationship between the Petitioner and the vendor, it has little probative weight towards 
establishing actual work to be performed by the Beneficiary for the end-client for any specific period or 
location. 
The Petitioner also submitted a letter from the vendor confirming that the Beneficiary has been assigned 
to work as a Senior Jira Administrator to support the end-client. The vendor explained that it was 
contracted by the second vendor to "provide it with specialized technical services involving software 
development and implementation." The letter from the vendor provided a brief description of the 
Beneficiary's responsibilities on this assignment. The description was made up of twelve responsibilities 
that are general in nature such as the Beneficiary will "analyze data in support of business cases, proposed 
projects and systems requirement," "gather requirements from users, team and departments and propose 
3 A petitioner submits the LCA to the U.S. Department of Labor (DOL) to demonstrate that it will pay an H-1 B 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). 
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solutions that meet their needs;" "prepare technical design documents;" and, "create or modify JIRA 
workflows." The vendor letter did not sufficiently detail or convey what exactly the Beneficiary would 
do for the end-client. For example, the vendor did not provide sufficient information regarding the 
project, or a description of the Beneficiary's role within any particular project team at the end-client's 
location. The Petitioner also submitted letters from the second vendor and the end-client that are 
virtually identical to the letter submitted by the vendor. Again, the letters do not provide sufficient 
information of the work the Beneficiary will perform for the end-client. 
Further, the Petitioner did not submit the agreement between the vendor and the second vendor, or the 
agreement between the second vendor and the end-client to understand the scope of services between the 
three 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 
on the basis of actual work that the Petitioner had secured for the Beneficiary for the end-client's location 
for the employment period sought in the petition. 
In addition, we are not clear as to the project's duration. The itinerary submitted by the Petitioner stated 
that the Beneficiary will work for the end-client until May 2020. In addition, the most recent Appendix 
A between the Petitioner and the vendor indicated the end date of work as May 15, 2020 
"with possible extensions." The letter from the end-client stated that the contract with the second vendor 
ends on May 15, 2010. The Petitioner did not submit sufficient evidence such as contracts or similar 
corroborating evidence that the project with the end-client will continue until September 2021, and 
will require the services of the Beneficiary as a senior JIRA administrator for that entire period. 4 
4 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-1 B 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-1 B 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-lB 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 
United States Citizenship and Immigration Services (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 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. 
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