dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10274677 
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 services company, seeks to employ the Beneficiary 
temporarily under the H- lB nonimmigrant classification for specialty occupations. 1 The H-1 B 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 (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 her decision, 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 a specific discipline 
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). 
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 
First, the present scenario is analogous to that of the Defensor decision, as one in which the duties the 
Beneficiary will actually perfmm and the qualifications to perfmm them should originate from the 
end-client. 5 The material from the end-client should sufficiently convey the functions the Beneficiary 
would actually perform in his daily work. 
On appeal, rather than address this issue, the Petitioner again asserts that the position qualifies as a 
specialty occupation on the basis of the individual criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). Notably, 
the Director discussed the shortcomings of the submitted evidence and informed the Petitioner that, 
due to the lack of information from the end-client, the substantive nature of the position could not be 
determined, and thus, the decision did not discuss any of the individual criteria. 
Regarding the email chain submitted in response to the Director's request for evidence and on appeal, 
the Petitioner incorrectly asserts that it "confirm[s] that [the end-client] will not provide any end client 
letter." First, the email is purportedly from the Beneficiary's manager at the end-client. However, the 
email does not include the individual's title and there is no evidence that this individual is an 
authorized representative of the end-client. Second, the email response informs the Beneficiary that 
the Petitioner "needs to discuss" the matter with "Legal." The Petitioner did not submit any evidence 
that it followed up with the end-client's legal department, and provided no additional information or 
evidence on appeal in regards to this issue. Third, it appears that the Human Resources Manager at 
the Petitioner was not asking for the end-client to write a letter, but rather simply to place a letter it 
had prepared on the end-client's letterhead and to have it signed by the end-client. Finally, neither the 
email, nor the Petitioner, provides any explanation for the failure to provide the "written 
specifications" provided to the Petitioner or the "job description" discussed in the "Service Provider 
Agreement." 
It is important to note that, even if Defensor were not applicable and we were to rely on the duties as 
presented by the Petitioner, we would still conclude that the provided information does not establish 
the substantive nature of the position. 6 Here, much of the information the Petitioner provided is about 
4 See Matter of P. Singh, Attorney, 26 l&N Dec. 623 (BIA 2015) (citing Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 
1994)); sec also Chen v. INS, 87 F.3d 5, 7-8 (I st Cir. 1996) ("[T]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 The "Service Provider Agreement" between the Petitioner and the end-client states that the Petitioner 1) must "[ a]ssign 
[w]orkers that possess the qualifications [the end-client] requires," and 2) "shall recmit, select, hire, and assign 
experienced, trained, and qualified [ w]orkers that meet all written specifications provided to" the Petitioner from the end­
client," and that the end-client will "us[e] [w]orkers only in assignments that match the job description for which [the 
Petitioner] assigns them." The record does not contain any info1mation from the end-client regarding the requirements or 
written specifications it provided to the Petitioner. 
6 Similarly, the letter from the vendor management company, provides only the following two sentences: 
Android BSP Software Engineer position involves the development of device drivers and operating system 
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the occupation of "software developer" and is copied directly from the Occupational Outlook Handbook. 
Further, the eight bullet-point duties the Petitioner provided do not sufficiently communicate the actual 
work that the Beneficiary would perform for the end-client or the correlation between that work and a 
need for a particular level of knowledge in a specific specialty. 
Given the lack of detailed infmmation from both the Petitioner and the end-client, we agree with the 
Director that 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 of the criteria 
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. 7 
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. 
porting for [the end-client] mobile computers. The candidate is expected to possess a good working knowledge 
of CIC++, strong [k]nowledge o[f] Embedded Driver Development in Linux/Android, strong good working 
knowledge o[t] Android Frameworks and have good problem-solving skills. 
Not only does the letter not establish the substantive nature of the position, but it does not indicate that the proffered 
position requires any specific education. 
7 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 hereby reserve the remaining issue. Additionally, 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-party worksites. USCIS Policy Memorandum PM-602-0114, 
Rescission of Policy Memoranda at 2 (June 17, 2020), http://www.uscis.gov/legal-resources/policy-memoranda. 
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