dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V-S-G- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 3, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner , an information technology consulting company , seeks to employ the Beneficiary 
temporarily as a "collateral data analyst" under the H-1B 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-1B 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 Form 1-129, Petition for a Nonimmigrant 
Worker, concluding that the record did not establish that the proffered position qualified as a specialty 
occupation. On appeal, the Petitioner asserts that the Director's denial was in error. 
Upon de nova review , we will dismiss the appeal. 
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) A baccalaureate or higher degree or its equivalent is nonnally the minimum 
requirement for entry into the particular position; 
Matter of V-S-G- LLC 
(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. 1 
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. 2 
II. ANALYSIS 
The Petitioner is located in New York and stated it has a contractual relationship wit~ I 
~-~!(end-client) for the petitioning organization's personnel to perform work at an offsite location. 
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 any of 
the regulatory criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
We begin noting that because the Petitioner has not established definitive, non-speculative 
employment for the Beneficiary, the record does not establish that the position described in this 
petition actually exists. 3 To illustrate, the record of proceedings does not contain copies of any 
contracts executed between the Petitioner and the end-client. Nor are there any copies of the types of 
documents commonly executed pursuant to such contracts, such as work orders, statements of work, 
invoices, receipts, or similar evidence. 4 The "amendment" documents are not sufficient to fill the gap 
created by the absence of these materials, as the project they collectively govern ended before this H­
lB's petition start date and are not sufficient to demonstrate the existence of ongoing work. Nor are 
the documents titled "work product" sufficient to meet the Petitioner's burden, as the record contains 
no context within which to place this material. 
In other words, the record does not establish a binding obligation on the part of the end-client to 
provide any work for the Beneficiary. 5 This is particularly important in a case such as this where the 
1 8 C.F.R. § 214.2(h)(4)(iii)(A). 
2 See Royal Siam COip. v. Chertof(, 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). 
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. 
4 See Matter ofChawathe, 25 T&N Dec. 369, 371-72 (AAO 2010) (discussing assertions that are not supp01ted by probative 
material will not meet a filing party's burden ofproot). 
5 The agency has made clear that speculative employment has not historically been permitted in the H-1 B program. See, e.g., 
2 
Matter of V-S-G- LLC 
existence of the proffered position appears dependent entirely upon outside clients to provide it. Without 
greater detail relating to the projects and the Beneficiary's role in the projects, the Petitioner has not 
demonstrated how the foreign national's role in future assignments requires "attainment of a 
bachelor's or higher degree in the specific specialty." 6 This evidence is insufficient to establish that, 
at the time of filing, the Petitioner had secured the Beneficiary's assignment on any particular project, 
which is insufficient to demonstrate eligibility. 7 For the reasons discussed above, the Petitioner has not 
demonstrated that the petition was filed for non-speculative employment. If it is not preponderant that 
the position exists, then we cannot determine the substantive nature of its associated responsibilities. 8 
Turning to the position's duties, even if we set aside the above deficiencies, we would still determine 
the evidence ofrecord was insufficient to establish that the proffered position is a specialty occupation. 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for 
entities other than a petitioner, evidence of the client companies' job requirements is critical. The 
court held that the agency 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. 9 Such evidence must be 
sufficiently detailed to demonstrate the educational level and type of highly specialized knowledge in 
a specific discipline that is necessary to perform that particular work. The Petitioner provided a set of 
duties and position qualifications within the initial filing, and amended those within its response to the 
Director's request for evidence. However, similar to the Defensor case, the duties, education details, 
and experience requirements the Petitioner provided are much less probative to our analysis than the 
end-client's requirements. 
In this matter, the record does not contain sufficient probative documentation on this issue from ( or 
endorsed by) the end-client, the company that will actually be utilizing the Beneficiary's services, that 
identifies the essence and duration of the project, the substantive nature of the duties she will perform, 
and any particular academic or work experience requirements for the proffered position. Since the 
Petitioner did not provide the end-client's requirements, we must question the accuracy of its 
statements and how it determined the precise day-to-day functions the Beneficiary would perform. 
These Petitioner-provided details appear to be speculative or anticipatory, at best. A petitioner's 
preference for high-caliber employees is not sufficient to establish a position as a specialty occupation. 
The Petitioner has offered inconsistent information that farther calls its eligibility into question. First, 
the Petitioner claimed the position required a bachelor's degree in computer and information science. 
However, the Petitioner provided an opinion letter from.__ ____ ____. an associate professor at 
I I University, which indicated the Petitioner-provided duties would require a master's degree 
and coursework in information systems analysis. The record lacks independent, objective, and 
probative evidence that resolves the incongruous information the Petitioner provided versus D 
~-~rs opinion, and points to where the truth lies. 10 
63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). 
6 Section 2 l 4(i)(l)(B) of the Act. 
7 See 8 C.F.R. § 103.2(b)(l ); Matter of Michelin Tire Corp., 17 T&N Dec. 248, 249 (Reg'l Comm'r 1978). 
8 Further, without full disclosure, we are unable to determine whether the requisite employer-employee relationship will 
exist between the Petitioner and Beneficiary. 
9 Id. 
10 See Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
3 
Matter of V-S-G- LLC 
Therefore, based upon our review of the record, we conclude that the Petitioner has not established 
the substantive nature of the work the Beneficiary will perform. This precludes a conclusion 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 entry into 
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. 
Based on the foregoing, we cannot conclude that the proffered position qualifies as a specialty 
occupation, and we will dismiss the appeal. 11 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a 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. 
Cite as Matter of V-S-G- LLC, ID# 3321460 (AAO Sept. 3, 2019) 
11 Because the issues identified above preclude approval of this petition we will not discuss any of the additional 
deficiencies we have observed in our de novo review of this matter, except to advise the Petitioner that the current record 
is not sufficient to establish that it will engage the Beneficiary in an employer-employee relationship. The Petitioner 
should be prepared to address this issue in any future H-lB filings. 
4