dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 3479172 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 22, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as an 
"analytical software developer" under the H-lB nonimmigrant classification for specialty occupations . 
See Immigration and Nationality Act (the Act) section 101(a)(l5)(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 proffered position 
does not qualify as a specialty occupation. 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 preponderanc e of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010) . 
( 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). 
II. PROFFERED POSITION 
The Petitioner describes the proffered "analytical software developer" position's duties as follows: 
• Composing the load testing plan; 
• Directly writes scripts to implement the plan; 
• Creation of the test plan and test scenarios whose scope include new code or 
changes in existing code; 
• Provide input to technical lead and architect on development solutions; 
• Design cutting-edge websites and web based applications; 
• Ensure site design integrity and quality control consistency throughout a projects 
[sic] lifecycle; 
• Communicate with the project team throughout all stages of development; 
• Manage time effectively, and work on multiple project timelines simultaneously in 
a demanding deadline driven environment. 2 
According to the Petitioner, the position requires "a Bachelor's degree, or its foreign equivalent, in 
Computer Science, Information Systems, a Computer-Related field of Engineering or a related field." 
2 The Petitioner provided expanded descriptions of the duties. Although we omit the expanded descriptions for brevity, 
we have reviewed them in their entirety. 
2 
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 under 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A).3 
The Petitioner asserted the Beneficiary would work at the end-client location. However, the record 
does not contain sufficient evidence to establish the terms and conditions of the Beneficiary's 
assignment during the requested period. 
The record contains a master services agreement (MSA) and statement of work (SOW) between the 
Petitioner and the mid-vendor. The MSA is a general agreement for the Petitioner to "provide 
programming and/or engineering and other specialized services of its own payroll (only W2) 
employees as an independent contractor directly to the Third Party User (TPU) who has engaged [the 
mid-vendor] to locate temporary staffing according to the training, skills, abilities and experience 
required by the TPU." The MSA does not identify the end client, the services to be provided, or "the 
training, skills, abilities and experience required by" such a client. Instead, the MSA states that "[t]he 
services to be performed by the [Petitioner's] personnel shall be set forth in the individual [SOW]." 
In tum, the SOW identifies the Beneficiary with a position title of "Java developer," assigned to the 
end-client project. However, the SOW does not elaborate on the substantive nature of the work the 
Beneficiary would perform as a "Java developer," or "the training, skills, abilities and experience 
required by [the end-client]," as stated in the MSA. Furthermore, even if the SOW described the work 
to be performed and the end-client's requirements, the SOW states that the project was "beginning 
December 04, 2017 ('start date') and terminating approximately on TBD ('end date')." Accordingly, 
the SOW does not establish the duration of the project for which the parties contracted, raising 
questions regarding the work the Beneficiary would perform during the requested period. 
The record also contains an excerpt of an MSA and SOW between the mid-vendor and the end-client. 
The MSA excerpt consists of pages numbered 1-3 and 33; however, it obscures the terms that may be 
addressed in its 29 omitted pages. Similar to the MSA between the Petitioner and the mid-vendor, 
the MSA between the mid-vendor and the end-client is a general agreement for the mid-vendor to 
"provide the Services in accordance with the terms of this [MSA] and as provided for in [an SOW]," 
although it does not elaborate on the substantive nature of the project or identify any particular worker 
assigned to perform any services. In tum, the SOW excerpt between the mid-vendor and the end-client 
consists of pages numbered "l of 13," "2 of 13," "8 of 13," and "9 of 13"; however, like the MSA, it 
obscures the terms that may be addressed in its nine omitted pages. The SOW generally describes the 
services as "develop[ing] new functionality for the [end-client's] platform"; however, it does not-in 
its excerpted form-elaborate on the new or existing functionality or the process of developing that 
functionality. Moreover, even if the excerpted SOW established the substantive nature of the work 
for which the parties contracted, it states that the "[ s ]ervices authorized by this SOW will commence 
[in December 2017] and will continue until December 31, 2018, subject to the earlier of (1) the 
3 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. 
3 
completion of the Project or (2) termination of [s]ervices under the [MSA]." The record does not 
establish that the parties contracted to extend the project beyond 2018, raising questions regarding the 
work for which they contracted the Beneficiary to perform during the requested period. 
The record contains a letter from the end-client dated before the project expired in 2018. Although 
the letter confirms the Beneficiary "is currently a contractor on site" as of May 2018, the end-client 
states that it "does not have enough information to verify the contractors used on [the SOW project 
ending in 2018]." Additionally, the end-client letter does not describe the duties the Beneficiary would 
perform. Therefore, it raises questions regarding both whether the Beneficiary would work at the 
end-client location under the terms of the SOW excerpt in the record, and the substantive nature of the 
position. Moreover, even if the end-client confirmed the Beneficiary worked at its location pursuant 
to the excerpted SOW between the mid-vendor and the end-client, the letter does not state that the 
end-client requires the Beneficiary to have a bachelor's or higher degree in a specific specialty, or its 
equivalent. 
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 
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. 
In summation, we conclude that the ambiguities and lack of documentation in the record does not 
sufficiently establish the 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. 4 
4 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). 
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. 
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