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 
business analyst" under the H-1B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(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 California Service Center denied the petition, concluding that the evidence of 
record does not establish that there is sufficient specialty occupation work available for the 
Beneficiary for the entire requested H-lB validity period. 
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. 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 normally the minimum 
requirement for entry into the particular position; 
Matter of B-C- Inc. 
(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.P.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. 20_07) (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 
In the H-1B petition, the Petitioner stated that the Beneficiary will serve as a "SAP FSCM business 
analyst." In its letter of support, the Petitioner provided the Beneficiary's job duties for the protlered 
position. According to the Petitioner, the position requires a bachelor's degree in business 
administration, commerce, or accounting. 
III. 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 
A. 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. 
1 
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. 
Record of 
Proceedings 
Form I-129 
Labor 
Condition 
Application 
(LCA) 
Letter of 
Support 
(March 21, 
2016) 
Itinerary of 
Services 
Employment Information 
I 
3. Address where the beuetkimy(ies) will work iJ ctifthent n·om address in Part l. 
Sn·eet N1unber and Name Apt. Sre. Fir. r-N-=u•:.::.nbe::...:..:....r -------, 
o o 'l I[____ __ ______JI ·-.·~_N_;, __ · __ -,f_·_._,A_·~~_~: ___ ·:r.:~.--.·_-.-~--~_:_.~._-/·_._.-_>_·,_-.· .... · __ :_ , . <- , -~~->:(";_';:~,~:_:~;:=< :. · ... ·: ·:,. --~ ~~·~, 
. . "! .. - ........ ___ __ ________ ·_ --~- -- ----~· ___ .._-.:...._ _ ___:_,_, _____ :.:___. ___ _:_ _ _o: ___ _ 
City or Town State ZIP Code 
'---:.: ... ·>"-'-';:-\_.<-~·'l·.;_~j~: ·~~<''"-.\'~·----~:c'"-··· ~"-"-"-'---~'-' ._, '-'-;, '"":'-'-;~'-:"""-._ ~· ~~-~---'----~ r-----;lJ -----~---' 
4. Did you include an itinermy with the pention'' 
5. Will the beneficiary(ies) work for you off-site at another company or organization's location? 
Page 5 
I. The beneficimy of this petition will be assigned to work at an otT-site location for all or jXlrt of the 
period for which H-IB classificmion sought. 
If no. do not complete Itt>m Numbers 2. and 3. 
2. Placement of the benetlmry oft: sire during the Jmiod of employmem will comply with the stamtory 
and regnlnrory requirements of the H-lB noninuuJgrant classification. 
3. TI1e beneficimy will be paid th<' higher of the prevailing or actual wage many and all oft:site locations. 
Page 21 
a. Place of Employment 1 -.· •-- .?::;:{><-. · ":: ;'-: : 
1. Address 1* :-:__ •, ··· _,,, _ _ ,,. <-•. --
! __ 
2. Address 2 · ·~-> _ __._,..-, 
:g] Yes No 
2S] Yes- · No 
IX Yes 1-INo 
[EY es 0No 
[8)Yes 0No 
3. City ~ _ , 4. County' 
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 
[the Petitioner] to continue supporting, maintaining and promoting [the Petitioner's] 
products and services. (Page 3) 
Upon approval of the H-IB 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. 
3 
.
Matter of B-C- Inc. 
Declaration 
of 
Expert 
Opinion 
Evaluation 
from 
(July 
18, 2013) 
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-1 B 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 I) 
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. ln order to complete this project, [the 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 Business 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 
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 
4 
.
. Matter of B-C- Inc. 
Right to 
Control 
Response to 
request for 
evidence 
(RFE) 
Petitioner's 
Letter 
(December 
14, 2016) 
[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 I) 
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) 
The job is that of an engineer. (Page 12) 
As stated in the LCA attestations , Form I-129, Employer Offer Letter and previously 
submitted itinerary signed [by] the Director and founder of [the 
Petitioner], [the Beneficiary] will be placed at the Maryland office until 
training is complete .... Job assignments and commitments cannot be finalized until 
the worker is authorized for employment. [The Beneficiary] is expected to work at 
this off-site placement once he arrives in the United States. (Page 17) 
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 6 months. 
Once training is complete , anytime between June 2017 through July 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-1 B worker may be re-assigned to more urgent end-client matters. (Page 6) 
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. 
. . . Beneficiar y is expected to 
work for the main office becoming familiar with all [of the Petitioner ' s] proprietary 
5 
Matter of B-C- Inc. 
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. (Page 6 - 7). 
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 off-site client 
projects since we are not able to hire enough qualified engineers/analysts due to a 
shortage of this rare skill. (Page 7) 
Once the worker has secured an H -1 B v1sa we can legally place him/her for 
employment. (Page 8) 
Appeal Brief [The Petitioner] has the projects and work assignments that currently exist, however, 
they cannot assign the work until they know the start date for the worker. (Page 1 7 -
18) 
Once [the Petitioner] knows the exact date the worker will enter the United States 
then they can give them an existing job assignment. 
[The Beneficiary] still has an initial pending H -1 B visa and as such cannot be 
contracted out to work on specific projects until his H is granted. (Page 18) 
[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 201 7 to their many, 
many ongoing projects. (Page 19) 
B. Bachelor's Degree in Business Administration 
In addition, the Petitioner repeatedly stated that a bachelor's degree in business administration is 
acceptable. However, the requirement of a bachelor's degree in business administration is 
inadequate to establish that a position qualifies as a specialty occupation. A petitioner must 
demonstrate that the proffered position requires a precise and specific course of study that relates 
directly to the position in question. Since there must be a close correlation between the required 
specialized studies and the position, the requirement of a degree with a generalized title, such as 
business, without further specification, does not establish the position as a specialty occupation. C.Y 
6 
Matter of B-C- Inc. 
Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). We have consistently 
stated that, although a general-purpose bachelor's degree, such as a degree in business 
administration, may be a legitimate prerequisite for a particular position, requiring such a degree, 
without more, will not justify a finding that a particular position qualifies for classification as a 
specialty occupation. Royal Siam Corp., 484 F.3d at 147. 
C. 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 qf the time of the petition's filing. 2 In the appeal 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 Petitioner or Beneficiary. becomes eligible under a 
new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'! Comm'r 1978). 
D. 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. That is, 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 must analyze the actual duties in 
1 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. 
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 work3 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 of that 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;4 ( 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. 
IV. CONCLUSION 
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. 
3 
Even if the proffered posttJOn 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 ahalysts 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 claim that the proffered position is a specialty 
occupation. 
4 The Petitioner classified the proffered position at a Level II wage. The "Prevailing Wage Determination Policy 
Guidance" issued by the DOL provides a description of the wage levels. A Level II 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://flcdatacenter.com/download/N PWHC _Guidance_ Revised _11_2009 .pdf A prevai I ing wage 
determination starts with an entry level wage and progresses to a higher wage level after considering the experience, 
education, and skill requirements of the Petitioner's job opportunity. !d. 
8 
Matter of B-C- Inc. 
ORDER: The appeal is dismissed. 
. 
Cite as Matter ofB-C- Inc., ID# 550875 (AAO Aug. 14, 2017) 
9