dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6255392 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 11, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"systems analyst" 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 Beneficiary is qualified for the position. 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 preponderance of the evidence standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
(]) 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 described the proffered "systems analyst" position's duties, and the percentage of the 
Beneficiary's time required to perform them as follows: 
• Drafting [p ]roject [b ]usiness requirement document [30%]; 
• Perform [f]unctional, integration and system testing, UAT testing's [sic] [40%]; 
and 
• Day to [d]ay activities logged into defect [t]racking [t]ool [30%].2 
According to the Petitioner, the position requires "a bachelor's degree or equivalent in a relevant 
technology 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. 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 support the H- IB 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 stated that the Beneficiary would work at the end-client location. However, the record 
does not contain sufficient evidence to establish the contractual terms between the parties for the 
Beneficiary's assignment during the requested period. 
The record contains three purchase orders (POs) between the Petitioner and the mid-vendor. Each PO 
indicates that it is "Attachment A." However, the record does not establish the document to which 
each PO is attached, nor does the record contain any additional documentary evidence of a contract 
between the Petitioner and the mid-vendor. Although the POs identify the Beneficiary as the 
"consultant" and the end-client, the extent of each PO' s "description of services" is "business analyst," 
without any details regarding duties or services to be provided, raising questions regarding the 
substantive nature of the work for which the parties contracted the Beneficiary to perform. 
Moreover, even if the record established the substantive nature of the work for which the parties 
contracted the Beneficiary to perform, the POs do not establish that the Beneficiary would perform 
such work throughout the requested period. The first PO indicates that its duration would be "6 
months, extendable," beginning in February 2016; however, the PO does not bear a signature or date 
from the mid-vendor's representative, indicating that the parties did not agree to the assignment. 
Although the second PO indicates that its duration would be "12 months plus," beginning "9-1-18," 
the third PO bears minor differences apparently superseding the second PO, indicating instead that its 
duration would be "12 months plus," beginning "9-15-18." 4 However, the record does not establish 
the extent of the duration beyond 12 months after September 2018. Accordingly, the duration of the 
latest dated PO in the record ended before the beginning of the requested period. 
The record does not contain documentary evidence of a contract between the end-client and any party. 
Instead, the record contains a three-paragraph letter from the end-client, indicating that the Beneficiary 
"has worked as an independent contractor with [the end-client] through [its] contract agreement with 
[the mid-vendor] from September 2018 through [February 2019]." The letter summarizes the 
Beneficiary's duties; however, it does not indicate that the end-client requires a bachelor's or higher 
degree in a specific specialty, or its equivalent, for the position. Furthermore, the letter does not 
indicate the duration of the contract beyond "the present," in February 2019. 5 
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 
4 Moreover, as noted, both the second and third POs, signed and dated within one day of each other, both identify 
themselves as "Attachment A." Therefore, the third PO appears to supersede the second PO as "Attachment A" in 
connection to an unidentified document outside the record. 
5 We note that the record contains a letter rrom the mid-vendor, stating that "[t]he [s]ervice [a]greement between [the 
mid-vendor] and [the end-client] is confidential and will not be disclosed." The mid-vendor letter indicates, among other 
things, that the project would continue "for the next three years." However, the mid-vendor letter also states that the 
Beneficiary's "day-to-day deliverables are reviewed by the client's [p]roject [m]anager to ensure that it conforms to the 
client's quality and acceptance standards," raising questions regarding whether the Petitioner would have an employer­
employee relationship with the Beneficiary during the requested period. Furthermore, despite a letter from the mid-vendor. 
evidence of the client company's job requirements remains critical. See Defensor, 201 F.3d at 387-88. 
3 
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. 
We note that the record contains an opinion letter written by'----------~ a senior lecturer 
of business at the University ofl I As a matter of discretion, we may use opinion statements 
submitted by the Petitioner as advisory. Matter o_f Caron Int'!, 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 of 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.'"). 
In forming his opinion regarding the requirements for the position,! I quotes duties listed 
in letters in the record from the Petitioner and the mid-vendor. However, I.__ ____ _.I does not 
indicate that he reviewed information from the end-client regarding the position's duties and the 
end-client's requirements, which is critical, as noted above. See Defensor, 201 F.3d at 387-88. 
Furthermore, even if we consider I I's limited review sufficient, which we do not, D I ts opinion regarding the duties' academic requirement does not match the mid-vendor's 
stated requirement. 1 I opines that "the specific duties ... would normally be filled by a 
graduate with a minimum of a Bachelor's Degree in Management Information Systems, or a related 
area, or the equivalent." However, the mid-vendor-on whose duty description! lbased 
his opinion-states that the duties "require at least a bachelor's degree in Business Administration, 
Finance and Commerce (or the equivalent)." Given the extent to which I Is opinion did 
consider the end-client's requirements and furthermore is not in accord with other information in the 
record, it bears minimal probative value. See Matter o_fCaron Int'!, Inc., 19 I&N Dec. at 795; see also 
Matter ofV-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. 6 
6 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 Beneficiary is not qualified for the position. 
4 
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. 
5