dismissed H-1B Case: It Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-C- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 14,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a consulting firm, seeks to temporarily employ the Beneficiary as a "SAP FSCM 
analyst" under the H-1 B 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)(l5)(H)(i)(b). 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 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 California Service Center denied the petition, concluding that the evidence of 
record does not establish that: (1) the proffered position qualifies as a specialty occupation; and (2) 
the Petitioner will engage the Beneficiary in an employer-employee relationship. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in the 
decision. Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
We will first determine whether the record of proceedings establishes that the proffered position 
qualifies as a specialty occupation. 
A. 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. 
Matter of B-C- Inc. 
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 protlered position 
must meet one of the following criteria to qualify as a specialty occupation:. 
(J) 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 have consistently interpreted 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. Cherto.ff, 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). 
B. Proffered Position 
In the H -1 B petition, the Petitioner stated that the Beneficiary will serve as a "SAP FSCM analyst." 
In response to the Director's request for evidence (RFE), 1 the Petitioner provided the Beneficiary's 
job duties for the position, along with the approximate percentage of time he will spend on each 
duty. According to the Petitioner, the position requires a bachelor's degree in electronics 
engmeenng. 
C. 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? 
1 
In the response to the RFE, the Petitioner repeatedly referred to the proffered position as a "senior" SAP FSCM analyst. 
No explanation for the variance was provided. 
2 
The Petitioner submitted documentation in support of the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
2 
.
Matter of B-C- Inc. 
1. Inconsistencies in the Beneficiary's Place of Employment 
First, we find that the Petitioner has provided inconsistent information regarding the Beneficiary's 
place of employment. The table below summarizes the variances in the Petitioner's statements. 
Record of 
Proceedings 
Form I-129 
Labor 
Condition 
Application 
(LCA) 
Letter of 
Support 
(March 21, 
Employment Information 
I ~!lft 5~~ Basiclnformation About the Proposed Employment and Employer (continued) 
3. Adrlress where the beneticimy(ies) will work if different tlom address in Part l. 
Street Nmnber and Name , .~t ~ 8 1
,N_m_ul_)e_r ------,~ 
'-------~-----' 
City or Town Stare ZIP Code 
~~~~~~-'----'-'~~~~---'-"-----~----'11====-:ll_~-~ 
4. Did you include an itinerary with the petition' 
5. Will the beneficiary(ies) work for you oft:site at another company or organization's location' 
Page 5 
rsection 4. - Off-Site Assignment of H-lB Beneficiaries 
1. The beneficiary of this petition will be assigned to work at an otT-site location hw all or part of the 
period for which H-JB classificmion sought. 
If no. do not complete Item Numbns 2. and 3. 
No 
[8] Yes No 
IX Yes !No 
2. Placement of the beneticrmy off-site dnring the period of employ1uent will comply with the statutory 
and regulatOiy requirements of the H-lB noninmugrant classification. 
[:>(_Yes D No 
3. The beneficimy will be paid the higher of the prevailing or actual wage at any and all ofk;ite locations. 
Page 21 
a. Place of Employment 1 
1_ Address 1 * L J - .- --:-
2_ Address 2 
. 
3_ City • 4. County* 
' . l l 
5. St~~e/Distncu1 ermor • 
ryll I ·.. · 
6. Postal code * 
Page 3 
Our analysts need to report to client sites to work on their systems and analyze their 
needs to design new processes and applications, or modify and transform existing 
outdated systems. But after the initial contract is fulfilled, the SAP analysts return to 
3 
.
Matter of B-C- Inc. 
2016) 
Itinerary of 
Services 
Declaration 
of 
Opinion 
[the Petitioner] to continue supporting, maintaining and promoting [the Petitioner's] 
products and services. (Page 3) 
Upon approval of the H-1 B petition, [the B]eneficiary will be assigned to work for 
the company headquarters, in MD. Training and familiarity with [the 
Petitioner's] services and products may take 3 - 6 months. 
Once training is complete, anytime between January 2017 through April 2017 
worker will be reassigned to client site for duration of H-1 B period. . . . Long-term 
off-site placement assignment scheduled to last the entire H-1 B validity period. 
However, H-1B worker may be re-assigned to more urgent end-client matters. 
2. [O]ur SAP analysts and employees are defined as: LONG TERM 
PLACEMENT AT A THIRD PARTY WORK SITES. (Page 1) 
4. The [P]etitioner is a company specializing in delivering automated process 
solutions with an Enterprise software known as SAP. The [P]etitioner maintains 
standing contracts through long-term business relationships with another, unrelated 
company to develop automated processes, using the [P]etitioner's proprietary 
"SPECIALIZED software design, know how and expertise" for a Leading Enterprise 
software product known as SAP [www.sap.com]. (Page 1) 
5. In order to complete this project, [P]etitioner has contracted to place SAP 
Analysts at the client's main warehouse/facility where they will develop the 
automated processed for the client 
using the [P]etitioner's "SPECIALIZED software 
design, know how and expertise." [The Petitioner] sends in a team of SAP Analysts 
and Engineers to analyze the client's needs, requirements and objectives, [the 
Petitioner] then formulates SAP solutions which its employees then carry out under 
the careful supervision and direct management of [the Petitioner]. (Page 1) 
6. The [B]eneficiary is a SAP FSCM Analyst who has been offered employment to 
fulfill the needs of the contract in place between the [P]etitioner and the third-party 
client, a contract where the [Petitioner] is required to upgrade or create a SAP 
process for the third-party client. The [B]eneficiary performs his duties at the client 
company's facility using [the Petitioner's] specialized financial software designs, 
know how and expertise. (Pages 1-2) 
16. Our analysts may need to report to client sites to work on their systems and 
analyze their needs to design new processes and applications. But after the initial 
contract IS fulfilled, the SAP analysts return to [the Petitioner] to continue 
supporting, maintaining and promoting [the Petitioner's] products and services. 
(Page 3) 
When [the Petitioner] wins a contract they send their employees to begin working on 
4 
.
Matter of B-C- Inc. 
Letter from 
(July 18, 
2013) 
Right to 
Control 
Response to 
request for 
evidence 
(RFE) 
the project. .. _. [T]hey only provide work based on the agreement between [the 
Petitioner] and the customer. (Page 3) 
Once the project is completed, the employees return to [the Petitioner] for their next 
assignment. . 
. . If there is no project work, the employees provide support to other 
employees currently working on an off-site project. (Page 3) 
I have reviewed the job duties and job descriptions for four positions that exist at 
[the Petitioner], the[y] include the SAP Basis Engineer II, the SAP Basis Analyst, 
Sap Business Systems Analyst, and SAP Security Systems Analysts. . 
. . The job 
duties listed for each of the above mentioned positions would be carried out in off­
site project work, as well as work at [the Petitioner]. (Page 4) 
1. [The Petitioner] assigns employees to work site. (Page 1) 
7. All of [the Petitioner ' s] employees work on more than one project at the same 
time. (Page 1) 
15. Employee can either opt to move to work site with all relocation expenses paid 
by [the Petitioner] or employer will pay for all weekly travel expenses to and from 
site. (Page 2) 
29. We serve high-end clients , provide the convenience of being on site (like a 
house-call) and are paid a higher premium for deploying our employees to the site. 
(Page 4) 
[The Beneficiary] may be assigned to this project in New York 
depending on if he makes it to the U.S. before the job is completed. (Page 3) 
PLEASE AMEND THE I-129 TO REFLECT ONE LOCATION AT THIS TIME 
IN MARYLAND. Worker will be assigned to unknown locations in 
the future and the H-1B will be amended 
pursuant to SIMEO , which the prop er 
mechanism for changes to the worker location . We cannot anticipate which cite [the 
Beneficiary] will be placed until the H-1 B is approv
ed. It is illegal to place/contract 
labor with our clients for persons not authorized to work in the United States . Once 
the worker is authorized with a valid social security number , then we can legally 
place the worker at a work cite. (Page 4) 
As stated in the LCA attestations , Form 1-129, Employer Offer Letter and previously 
submitted itinerary signed by the Director and founder of fthe 
Petitioner] , [the Beneficiary] will be placed at 
MD . ... [The Beneficiary] is expected to work at this ofT-site placement 
as long as [the Petitionerl requires him to be there. (Page 17) 
5 
.
~-----------
Matter of B-C- Inc. 
Petitioner's 
Letter 
(November 
18, 2016) 
Petitioner's 
Job Posting 
Appeal Brief 
Worker will be assigned to a [Petitioner] project at the client site located at: [No 
location was listed] 
Upon approval of the H-1 B petition, [the B]eneficiary will be assigned to work for 
the company headquarters, in MD. Training and familiarity with [the 
Petitioner's] services and products may take 3-6 months. 
Once training is complete, anytime between April 2017 through June 2017 worker 
will be reassigned to client site for duration of H-1B period .... Long-term off-site 
placement assignment scheduled to last the entire H-1 B validity period. However, 
H-1B worker may be re-assigned to more urgent end-client matters. (Page 5) 
IN-HOUSE EMPLOYMENT: Beneficiary will be assigned to work the Help Desk 
at the Maryland office and is responsible for resolving technical and software issues 
for the company headquarters in MD. . 
. . Beneficiary is expected to 
work for the main office becoming familiar with all [of the Petitioner's] proprietary 
services, products, clients and service contracts before being assigned to any long­
term off-site supervised placement. . . . If a new client bid is accepted then the 
[B]eneficiary may be transferred to that location. 
Workers are required to work from the main office in Maryland when their on-site 
client projects are completed to work the help desk (technical support) and assist 
with project architecture/development on other ongoing projects. 
Long-term off-site placement assignment scheduled to last the entire H-1 B validity 
period. However, H-1B worker may be re-assigned to more urgent end-client 
matters. 
Beneficiary will most likely work for more than one project of [the Petitioner] .... 
We are asking our employees to stretch themselves over several ofT-site client 
projects since we are not able to hire enough qualified engineers/analysts due to· a 
shortage of this rare skill. (Page 6) 
TRAVEL REQUIREMENTS: 
Short-term travel or long-term relocation to unanticipated client sites throughout the 
U.S. is required. This is not a telecommuting job. 
[The Petitioner] has evidenced numerous current ongoing jobs, clients and projects, 
however, without knowing exactly when the H-lB worker will come on board the 
employer cannot commit the worker to a specific job site with an exact date. There 
is an abundance of work available to the H-1B worker, thus the employer's need to 
hire more workers. Once the worker comes on board and is trained at the main 
Matter of B-C- Inc. 
office, the worker will be placed in one of the many numerous job sites and current 
projects. (Page 29) 
Once [the Petitioner] knows the exact date the worker will enter the United States 
then they can give them an existing job assignment. (Page 3 5) 
[The Petitioner] cannot honestly assign the worker to a project until they know when 
the worker is coming. . . . However, they were honest with the fact that they have no 
idea in March of 2016 where they will assign the worker in 2017 to their many, 
many ongoing projects. (Page 36) 
2. Speculative Employment 
Furthermore, we find that, while the Petitioner may be able to eventually locate some type of work 
for the Beneficiary, it has not established that the petition was filed for non..,speculative work for the 
Beneficiary that existed as of the time of the petition's filing. 3 In the app.eal brief, the Petitioner 
states that it had no idea in March 2016 where it would assign the Beneficiary. 
Our regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at 
the time the petition is filed. See 8 C.F .R. § 103 .2(b )( 1 ). A visa petition may not be approved based 
on speculation of future eligibility or after the Pt;titioner or Beneficiary becomes eligible under a 
new set of facts. See Matter of Michelin Tire Corp., 17 l&N Dec. 248, 249 (Reg'l Comm'r 1978). 
3 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
. expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). 
Matter of B-C- Inc. 
3. Job Description 
Moreover, although the Petitioner provided information about its current projects and statements of 
work between itself and various clients, the Petitioner has not specifically explained the duties and 
role of the proffered position in the context of any of these projects. For example, the Beneficiary's 
name and job title are not mentioned in these documents. We must review the actual duties the 
Beneficiary will be expected to perform to ascertain whether those duties require at least a 
baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a 
specialty occupation. To accomplish that task in this matter, we review the duties in conjunction 
with the specific project(s) to which the Beneficiary will be assigned. To allow otherwise, results in 
generic descriptions of duties that, while they may appear (in some instances) to comprise the duties 
of a specialty occupation, are not related to any actual services the Beneficiary is expected to 
provide. 
Here, the Petitioner has not provided sufficient details regarding the nature and scope of the 
Beneficiary's employment or substantive evidence regarding the actual work that the Beneficiary 
would perform. Without such information, the record lacks evidence sufficiently concrete and 
informative to demonstrate that the proffered position requires a specialty occupation's level of 
knowledge in a specific specialty. The tasks as described do not communicate: (1) the actual work 
that the Beneficiary would perform; (2) the complexity, uniqueness or specialization of the tasks; or 
(3) the correlation between that work and a need for a particular level of knowledge in a specific 
specialty. 
As the Petitioner has not established the substantive nature of the work 4 to be performed by the 
Beneficiary, 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 ofthat work that determines (1) the normal 
minimum educational requirement for 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;5 (4) the factual justification for a petitioner normally requmng a degree or its 
4 Even if the proffered positiOn had been established as one located within the "Computer Systems Analysts" 
occupational category (the occupational category selected by the Petitioner on the labor condition application), we note 
that the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) states that although many 
computer systems analysts have technical degrees, such a degree is not always a requirement. See Bureau of Labor 
Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Systems Analysts (20 16-17 ed.). Without 
more, the Handbook therefore would not support the Petitioner's statements regarding the proffered position qualifying 
as a specialty occupation. 
5 The Petitioner classified the proffered position at a Level 11 wage. The "Prevailing Wage Determination Policy 
Guidance" issued by the DOL provides a description of the wage levels. A Level 11 wage rate is for a petitioner who 
expects its employee to perform moderately complex tasks that require limited judgment. U.S. Dep't of Labor, Emp't & 
Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), 
available at http://tlcdatacenter.com/download/NPWHC_Guidance_Revised_11_2009.pdf A prevailing wage 
determination starts with an entry level wage and progresses to a higher wage level after considering the experience, 
8 
Matter of B-C- Inc. 
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. 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
Finally, we will briefly address the issue of whether or not the Petitioner qualifies as a United States 
employer with standing to file the H -1 B petition. · 
As detailed above, the record of proceedings lacks sufficient documentation evidencing what exactly 
the Beneficiary would do for the period of time requested or where exactly and for whom the 
Beneficiary would be providing services. Given this specific Jack of evidence, the Petitioner has not 
established who has or will have actual control over the Beneficiary's work or duties, or the 
condition and scope of the Beneficiary's services. In other words, the Petitioner has not established 
whether it has made a bona fide offer of employment to the Beneficiary based on the evidence of 
record or that the Petitioner, or any other company which it may represent, will have and maintain an 
employer-employee relationship with the Beneficiary for the duration of the requested employment 
period. See 8 C.F .R. § 214.2(h)( 4 )(ii) (defining the term "United States employer" and requiring the 
Petitioner to engage the Beneficiary to work such that it will have and maintain an employer­
employee relationship with respect to the sponsored H-1 B nonimmigrant worker). 
As previously discussed, there is insufficient evidence detailing where the Beneficiary will work, the 
specific projects to be performed by the Beneficiary, or for which company the Beneficiary will 
ultimately perform these services. Therefore, the Director's decision is affirmed, and the appeal is 
dismissed for this additional reason. 
III. CONCLUSION 
For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought. 
ORDER: The appeal is dismissed. · 
Cite as Matter of B-C- Inc., ID# 576461 (AAO Aug. 14, 2017) 
education, and skill requirements ofthe Petitioner's job opportunity. !d. 
9