dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10271063 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JULY 27, 2020 
The Petitioner, an information technology company, seeks to employ the Beneficiary temporarily under 
the H-lB nonimmigrant classification for specialty occupations. 1 The H-IB 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 know ledge; 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 (1) the record did not demonstrate that the Beneficiary would perform services in a 
specialty occupation for the requested period of employment and (2) the Petitioner 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 
eligibility 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. ANALYSIS 
For the reasons set out below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. In both her decision and request for evidence 
(RFE) , the Director explained that, 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. Id. Such evidence must be 
sufficiently detailed to demonstrate the type and educational level of highly specialized knowledge in 
1 See Immigration and Nationality Act (the Act) section 101 (a)(l 5)(H)(i)(b ), 8 U.S.C. § 11 0l(a)(l 5)(H)(i)(b ). 
2 Section 291 of the Act; Matter ofChawathe , 25 I&N Dec. 369,375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
a specific discipline that is necessary to perform that particular work. Upon consideration of the entire 
record, including the evidence submitted and arguments made on appeal, we adopt and affirm the 
Director's decision as it relates to this issue with the following comments. 4 
In this matter, there are multiple issues with the material from the end-client. Regarding the original 
December 2019 letter froml !Investment Manager at the end-client, the Petitioner did 
not provide any evidence that he is an authorized signatory for the end-client. Regardless, the provided 
duties are taken verbatim from Schedule B of the June 2019 Terms and Conditions of Employment 
document between the Petitioner and Beneficiary. 5 As a general concept, when a petitioner has provided 
material from different entities, but the language and structure contained within is notably similar, the 
trier of fact may treat those similarities as a basis for questioning a petitioner's claims. 6 When 
correspondence contain such similarities, it is reasonable to infer that the petitioner who submitted the 
strikingly similar documents is the actual source from where the similarities derive.7 
Given the order in which the Petitioner presented the evidence, the Petitioner has not established, by a 
preponderance of the evidence, that the duties originated from the end-client. 8 In evaluating the evidence, 
the truth is to be determined not by the quantity of evidence alone but by its quality.9 It remains the 
Petitioner's burden to establish the duties are from the entity using the Beneficiary's services. 10 Here, 
the Petitioner has not done so. 
Further, the letter does not include the end-client's minimum requirements for the position. Instead, 
it refers the reader to the "Letter of Engagement. .. or the Petitioner's Supplemental Letter." Not only 
did the Petitioner not provide the referenced "Letter of Engagement," or provide any explanation for 
its failure to do so, but, again, as stated in Defensor, the petitioner must provide 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. While we acknowledge the statement in the letter that the 
Beneficiary's "bachelor's degree in [c]omputer science was an important consideration related to his 
selection for this assignment," such a statement does not establish that the end-client required such a 
degree to perform the duties of the proffered position. In addition, the two affidavits from co-workers 
at the end-client attest that the end-client "would usually prefer candidates to have at least a bachelor's 
degree in Computer Science (or) a closely related field (or) equivalent experience." A preference for 
a degree in not equivalent to a minimum degree requirement. Thus, even if we were to rely on the 
information from the end-client, by their own admission, the proffered position does not require a 
4 See Matter of P. Singh, Attorney, 26 I&N Dec. 623 (BIA 2015) (citing Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 
1994)); see also Chen v. INS, 87 F .3d 5, 7-8 (1st Cir. 1996) C[I]f a reviewing tribunal decides that the facts and evaluative 
judgments prescinding from them have been adequately confronted and correctly resolved by a trial judge or hearing 
officer, then the tribunal is free simply to adopt those findings" provided the tribunal's order reflects individualized 
attention to the case). 
5 Similarly, the affidavits from two co-workers not only contain the same duties in the same order, but are also identical 
except for their names and titles. 
6 See Matter of R-K-K-, 26 I&N Dec. 658, 665 (BIA 2015); Surinder Singh v. Board of Immigration Appeals, 438 F.3d 
145, 148 (2d Cir. 2006); Wang v. Lynch, 824 F.3d 587,592 (6th Cir. 2016); Dehonzai v. Holder, 650 F.3d 1, 8 (1st Cir. 
2011). 
7 See Mei Chai Ye v. US. Dept. of Justice, 489 F.3d 517,519 (2d Cir. 2007). 
8 On appeal, the Petitioner provided the identical letter from the end-client with a new date of February 6, 2020. 
9 See Chawathe, 25 I&N Dec. at 376. 
10 Defensor, 201 F.3d at 387-88. 
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bachelor's level education in any specific field and thus would not meet the statutory or regulatory 
definitions of a specialty occupation. 
The Director also found the provided duties to be described "in relatively generalized and abstract 
terms" and failed to "adequately convey the substantive work that the beneficiary would perform." 
On appeal, as previously noted, the Petitioner simply provides the same letter from the end-client with 
an updated date of issuance. As such, the duties remain insufficient to demonstrate the position qualifies 
under the H-lB regulatory requirements. 
In establishing such a position as a specialty occupation, the proffered position's description must include 
sufficient details to substantiate that the Petitioner has H-lB caliber work for the Beneficiary, and must 
adequately convey the substantive work that the Beneficiary usually performs within the end-client's 
business operations. Here, the job description from the end-client does not sufficiently communicate the 
actual work that the Beneficiary would perlorm or the correlation between that work and a need for a 
particular level of knowledge in a specific specialty. 
Given the lack of detailed information from the end-client, the Petitioner has not sufficiently established 
the substantive nature of the work that the Beneficiary will 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 dete1mines: (1) the nmmal 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. 11 
Without more, it would be difficult to conclude that such generalized duties would require the attainment 
of a bachelor's degree in a specific specialty in order to perform them. 12 It is always the Petitioner's 
responsibility to ensure the record demonstrates what functions make up a position, and how those tasks 
demonstrate eligibility. 13 The Petitioner should ensure the material duties sufficiently convey the 
Beneficiary's regular activities at the end-client location, which allows a person without a great 
11 As the lack of probative evidence in the record precludes a conclusion that the proffered position is a specialty occupation 
and is dispositive of the appeal, we decline to reach and hereby reserve the remaining issues. Additionally, we note that 
while this appeal was pending, the U.S. District Court for the District of Columbia issued a decision in Itserve Alliance. 
Inc. v. Cissna, --- F.Supp.3d ---, 2020 WL 1150186 (D.D.C. 2020). Subsequently, USCIS rescinded previously issued 
policy guidance relating to H-lB petitions filed for workers who will be employed at one or more third-paiiy worksites. 
USCIS Policy Memorandum PM-602-0114, Rescission of Policy Memoranda at 2 (June 17, 2020), 
http://www.uscis.gov/legal-resources/policy-memoranda. 
12 Cf Matter of Michael HertzAssocs., 19 I&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). 
13 Section 291 of the Act, 8 U.S.C. § 1361. 
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familiarity with the technical nature of these functions to be able to grasp what the position consists o±: 
and why it and the duties are so specialized and complex. 14 
II. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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. 
14 See Sagmwala, 387 F. Supp. 3d at 68-70. 
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