dismissed H-1B Case: Machine Learning

U.S. Citizenship 
and Immigration 
Services 
In Re : 9090470 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 6, 2020 
The Petitioner, a manufacturing company, seeks to temporarily employ the Beneficiary as a "machine 
learning engineer" under the H-lB nonimmigrant classification for specialty occupations . See 
Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U .S.C . 
§ l 10l(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 (1) the Petitioner will have an employer-employee relationship with the 
Beneficiary, and (2) the proffered position qualifies as a specialty occupation. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
Upon de nova review, we will dismiss the appeal. 
I. SPECIAL TY OCCUPATION 
We will first address the issue of whether the proffered position is a specialty occupation . 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-IB nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added) . Section 214(i)(l) of the Act, 8 U.S.C . § l 184(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(l) of the Act, but adds a non­
exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 1 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(]) states that an H-lB classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 2 l 4.2(h)( 4)(iii)(A). The services the Beneficiary will perform in the position determine: (1) the normal 
minimum educational requirement for entry into 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) 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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Further, 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 that is necessary to perform that particular work. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b )(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
B. Analysis 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the services in a specialty occupation that the Beneficiary would perform during the requested period 
of employment, which precludes a determination of whether the proffered position qualifies as a 
1 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 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. See Royal 
Siam Cmp. v. Chertoff, 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"). 
2 
specialty occupation under sections 101(a)(l5)(H)(i)(b), 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A).2 
The Petitioner initially identified the path of contractual succession for the Beneficiary's services as 
follows: 
Petitioner -
(End-Client) 
In its letter of support accompanying the petition, the Petitioner stated that it "has directly contracted 
with [the end-client] and there is [sic] no intermediate Vendors. [End-Client] has refused to provide 
Client letter. However, we are providing [a Statement of Work] that clearly establishes the nature of 
ongoing contractual relationship." The Petitioner submitted a copy of the referenced Statement of 
Work (SOW) with the end-client, which indicated that one worker would provide services to the 
end-client for the period from February 25, 2019, until April 27, 2019. 
The Director found the submitted documentation insufficient, and issued a request for evidence (RFE). 
In response to the Director's request, the Petitioner identified a new path of contractual succession for 
the Beneficiary's services as follows: 
Petitioner -
(1st Mid-Vendor) (2nd Mid-Vendor) (End-Client) 
In a statement accompanying its RFE response, the Petitioner stated that the Beneficiary's services 
will be provided "[p ]ursuant to a Master Services Agreement" between the end-client, the vendors, 
and the Petitioner. In support of this assertion, the Petitioner submitted a copy of its offer of 
employment letter to the Beneficiary, a copy of its Professional Services Agreement (PSA) and 
Purchase Order with the 1st mid-vendor, and a letter from the 1st mid-vendor. 
The Director subsequently issued a notice of intent to deny (NOID), noting that the Petitioner 
submitted no documentation to substantiate the role of the 2nd mid-vendor or the end-client in the 
claimed contractual path. In response to the NOID, the Petitioner submitted a copy of a PSA between 
the 1st mid-vendor and the 2nd mid-vendor, and a letter from the 2nd mid-vendor. Although the 
Director specifically requested copies of letters and other contractual documentation from the 
end-client in both the RFE and the NOID, the Petitioner declined to submit such documentation. 
Upon review, we concur with the Director's determination that the record does not contain sufficient 
evidence to establish the services the Beneficiary will perform. Specifically, the record (1) contains 
insufficient and inconsistent information regarding the proffered position; (2) does not describe the 
position's duties with sufficient detail; and (3) does not establish that the job duties require an 
educational background, or its equivalent, commensurate with a specialty occupation. 
2 The Petitioner submitted documentation to suppmt the H-lB 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. 
3 
The Petitioner initially stated that there were no intermediate vendors involved in the Beneficiary's 
assignment with the end-client. In response to the RFE, however, the Petitioner introduced two 
mid-vendors to the contractual path, not previously identified. This change in the contractual path 
contradicts its initial claim regarding its direct contractual agreement with the end-client for the 
Beneficiary's services. No explanation for this discrepancy was provided. 
Moreover, there are discrepancies in the record regarding the duration of the Beneficiary's proposed 
assignment. In the Form 1-129 petition and on the accompanying Labor Condition Application (LCA), 
the Petitioner states that the Beneficiary will work on the end-client project, at the end-client location, 
until July 14, 2022. However, the SOW submitted in support of the petition indicates that the period 
of the assignment is from February 25, 2019, until April 27, 2019. The Beneficiary's offer of 
employment letter states that the duration of the assignment will be from May 6, 2019, until August 
18, 2019. The purchase order for the Beneficiary's services states that the project duration is 12 
months beginning on April 10, 2019. On appeal, the Petitioner submits an updated offer of 
employment letter, indicating that the duration of the assignment is from September 3, 2019, until 
December 15, 2019. 3 The Petitioner must resolve these discrepancies in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency 
of other evidence submitted in support of the requested immigration benefit. Id. 
Finally, the PSA between the Petitioner and the 1st mid-vendor, along with the accompanying 
purchase order, were executed subsequent to the filing of the petition. A petitioner must establish 
eligibility at the time of filing a nonimmigrant visa petition. 8 C.F.R. § 103.2(b)(l). A visa petition 
may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new 
set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). Moreover, 
the Petitioner's attempt to make material changes to the petition by submitting new information 
modifying the claimed contractual path governing the Beneficiary's off-site employment raises 
concerns as to the validity of the proffered position. Again, the Petitioner must resolve inconsistencies 
with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 
591-92. 
Here, the Petitioner initially claimed to have a direct contractual agreement with the end-client, but 
modified this claim in response to the RFE by introducing new intermediate vendors and contractual 
agreements not in effect at the time of filing. If a petitioner's intent changes with regard to a material 
term and condition of employment or the beneficiary's eligibility, an amended or new petition must 
be filed. To allow a petition to be amended in any other way would be contrary to the regulations. 
Taken to the extreme, a petitioner could then simply claim to offer what is essentially speculative 
3 Both offer letters indicate that the Beneficiary will be paid $42 per hour, which is significantly less than the prevailing 
wage in the certified LCA of $51.50 per hour. A petitioner submits the LCA to DOL to demonstrate that it will pay an H­
IB worker the higher of either the prevailing wage for the occupational classification in the area of employment or the 
actual wage paid by the employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) 
of the Act; 20 C.F.R. § 655.73l(a). The Petitioner's offer letters suggest that it will not be paying the Beneficimy the 
prevailing wage set forth in this LCA. The Petitioner must resolve this discrepancy in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 T&N Dec. 582, 591-92 (BIA 1988). 
4 
employment when filing the petition only to "change its intent" after the fact, either before or after the 
H-1 B petition has been adjudicated. 4 
On appeal, the Petitioner submits documentation from the end-client, including a letter, a copy of an 
Amendment to Master Services Agreement with the Petitioner, and documentation regarding the 
"C-W orker" program. We note that the Director requested this type of material within both the RFE 
and NOID, but the Petitioner did not submit it at that time. Where, as here, a petitioner has been put on 
notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, 
we will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 
764, 766 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988). If the 
Petitioner had wanted the submitted evidence to be considered, it should have submitted the documents 
in response to the Director's RFE or NOID. Id. Under the circumstances, we need not and do not 
consider the sufficiency of the evidence submitted for the first time on appeal. 
In summary, due to the inconsistent and insufficient evidence in the record, we are unable to determine 
the extent of the proffered position's uniqueness, specialization, complexity, and the level of 
knowledge it requires, which limits our ability to determine whether the position may qualify as a 
specialty occupation. In addition to the unresolved inconsistencies noted above, the record does not 
contain detailed information from the end-client regarding its project or the duties associated with it. 
When determining whether a position is a specialty occupation, we look at the nature of the business 
offering the employment and the description of the specific duties of the position as it relates to the 
particular employer. Without information regarding assignments that the Beneficiary would engage 
in, the general description of the duties provided by the Petitioner and the vendors does not provide 
sufficient basis to conclude that the position requires the theoretical and practical application of a body 
of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific 
specialty, or its equivalent. That is, the record does not adequately communicate (1) the nature of the 
work that the Beneficiary will perform; (2) the complexity, uniqueness, or specialization of the tasks; 
and (3) the correlation between that work and a need for a particular level of education and knowledge. 
4 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-lB 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). While a petitioner is certainly permitted to change its intent with regard to non­
speculative employment. e.g., a change in duties or job location, it must nonetheless document such a material change in 
intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
5 
Further, the record lacks sufficient information regarding what the end-client may or may not have 
specified with regard to the educational credentials and experience of persons assigned to its project; 
therefore, we cannot determine whether the end-client's requirements meet the requirements of a 
specialty occupation. See Defensor, 201 F.3d at 387-88 (where the work is to be performed for entities 
other than the petitioner, evidence of the client companies' job requirements is critical). Even if we 
were to accept the newly submitted end-client documentation on appeal, we note that this 
documentation does not outline the duties to be performed by the Beneficiary or the end-client's 
educational requirements. 
Without sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine 
whether the Beneficiary will be employed in an occupation that meets the statutory and regulatory 
definitions of a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F .R. 
§ 2 l 4.2(h)( 4)(iii)(A). The services the Beneficiary will perform in the position determine: (1) the normal 
minimum educational requirement for entry into 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) 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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
The Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and 
hereby reserve the Petitioner's appellate arguments regarding whether an employer-employee 
relationship will exist between the Petitioner and the Beneficiary. See INS v. Bagamasbad, 429 U.S. 
24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of which 
is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
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. 
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