dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10108699 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-18) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 19, 2020 
The Petitioner, an information technology consulting company, seeks to employ the Beneficiary 
temporarily under the H-18 nonimmigrant classification for specialty occupations.1 The H-18 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 California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified as a specialty 
occupation. The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate el igibi I ity by a preponderance of the evidence. 2 
We review the questions in this matter de novo.3 Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-18 nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) . .. " Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the term "specialty 
occupation" as an occupation that requires "theoretical and practical application of a body of highly 
specialized knowledge, and 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 section 214(i)(I) of the Act, but adds a non-exhaustive list of 
fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the proffered position must 
meet one of four criteria to qualify as a specialty occupation position.4 Lastly, 8 C.F.R. 
1 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(15)(H)(i)(b) . 
2 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
4 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe the term "degree" to mean not just any 
§ 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national who "will 
perform services in a specialty occupation ... " 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
II. ANALYSIS 
The Petitioner, located in California, seeks to employ the Beneficiary at an end-client location in 
Pennsylvania through a mid-vendor. Based on a lack of sufficient evidence, we conclude 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 
criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1)-(4). 
As recognized by the court in Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir 2000), 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.5 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. In other words, as the nurses in that case would 
provide services to the end-client hospitals and not to the petitioning staffing company, the petitioner­
provided job duties and alleged requirements to perform those duties were irrelevant to a specialty 
occupation determination. 6 
First, the present scenario is analogous to that of the Defensor decision, as one in which the duties the 
Beneficiary will actually perform and the qualifications to perform them should originate from the 
end-client. 7 The material from the end-client should sufficiently convey the functions the Beneficiary 
would actually perform in his daily work. When the Petitioner responded to the Director's request for 
evidence (RFE), it provided a letter from the end-client. 
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"). 
5 Id. 
6 See id. 
7 It is important to note that within the reference to the Defensor decision, we are not necessarily correlating the Petitioner's 
business model as a simple token employer. However, it is apparent that the Beneficiary would provide services to the 
end-client, not to the Petitioner. Furthermore, it is more likely than not that the end-client possesses the technical 
knowledge of the duties that would comprise the proffered position, as well as the requirements to perform those duties. 
2 
The letter contains the following four bullet points to describe the duties of the proffered position: 
I Develop automation script and test strategy for validation of IP camera devices; 
I Write test strategy to validate Wi-Fi, Bluetooth, touch pad and video streaming applications; 
I Design and build multiple RDK-C test chambers to stimulate real time environment; 
I Analyze performance metrics, both short-term and long-term, and implement improvements 
to the testing process. 
From the indeterminate nature of the duties, it is not self-evident that they are qualifying under the H-1B 
program. 8 Without more, it is unclear how we could conclude that such duties establish that the proffered 
position qualifies as a specialty occupation. 9 It is always the Petitioner's responsibility to ensure the 
record demonstrates what functions make up a position, and how those tasks demonstrate eligibility.10 
Additionally, the truth is to be determined not by the quantity of evidence alone but by its quality.11 To 
establish eligibility, the end-client must sufficiently describe the Beneficiary's specific duties and 
responsibilities in the context of the assigned project; but it has not done so here.12 
Given the lack of detailed information from the end-client, the record does not sufficiently establish the 
substantive nature or the essential elements of the work that the Beneficiary would perform. This 
precludes a finding 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 the particular position, which is the focus of criterion one; (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 two; (3) the level of complexity or uniqueness of the proffered 
position, which is the focus of the second alternate prong of criterion two; (4) the factual justification for 
a petitioner normally requiring a degree or its equivalent, when that is an issue under criterion three; and 
(5) the degree of specialization and complexity of the specific duties, which is the focus of criterion four. 
As the lack of probative evidence from the end-client precludes a conclusion that the proffered position 
is a specialty occupation and is dispositive of the appeal, we need not further discuss the Petitioner's 
assertions on appeal. However, while not a basis for our decision, we would briefly note a few 
additional issues. First, according to the letter from the end-client, the proffered position requires "at 
least a Bachelor's Degree (or the equivalent) in Computer Science, a field closely and directly related 
to the nature of the work." According to the submitted documentation, however, the Beneficiary holds 
a master of science degree in electrical engineering from.__ _____ ____.University. In addition, 
8 We note that although the Petitioner submitted a portion (pages 1 and 34) of the "Consulting Agreement" between the 
mid-vendor and end-client, it did not include the accompanying "Statements of Work" which, according to the agreement, 
would have provided more detailed information about the project. 
9 Cf. Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988) (indicating U.S. Citizenship and Immigration 
Services (USCIS) must evaluate the actual tasks, demands, and duties to determine whether a petitioner has established 
the position realistically requires the specialized knowledge-both theoretical and applied-which is almost exclusively 
obtained at the baccalaureate level). A broad and generalized presentation of a position's responsibilities prevents USCIS 
from making such a determination. See also Sagarwala v. Cissna, 387 F. Supp. 3d 56, 68 (D.D.C. 2019). 
10 Section 291 of the Act, 8 U.S.C. § 1361. 
11 Chawathe, 25 l&N Dec. at 376 (citing Matter of E-M-, 20 l&N Dec. 77, 80 (Comm'r 1989)). 
12 We further note that the end-client did not provide sufficient information with regard to the order of importance and/or 
frequency of occurrence (e.g., regularly, periodically, or at irregular intervals) with which the Beneficiary will perform the 
stated functions and tasks. Thus, the record does not specify which tasks are major functions of the proffered position. 
3 
he received a bachelor of technology degree in electrical & electronics engineering from a university 
in India. Therefore, even if the Petitioner were to establish that the proffered position qualifies as a 
specialty occupation, it has not demonstrated that the Beneficiary holds the degree required by the 
end-client. Second, in contrast to the end-client's stated educational requirement and its own in its 
initial filing, 13 in its response to the Director's RFE, the president of the petitioning company 
repeatedly states that the position requires a minimum of a bachelor's and a master's level degree.14 
The Petitioner must resolve this discrepancy with independent, objective evidence pointing to where 
the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). Third, we note that the Petitioner 
indicated that it has 31 employees and a net annual income of $41,854, which raises questions as to 
whether the Petitioner has the financial means to meet its labor condition application obligations. 
111. CONCLUSION 
In visa petition proceedings, it is a petitioner's burden to establish eligibility for the immigration 
benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
13 In its initial support letter, the Petitioner stated the position requires "a Bachelor's degree (or equivalent) in a related 
specialty field and preferably some relevant experience." 
14 The accompanying labor condition application provides a Level I wage, which does not reflect a master's level degree 
requirement. 
4