dismissed H-1B Case: Management Consulting

U.S. Citizenship 
and Immigration 
Services 
In Re: 6221265 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 6, 2020 
The Petitioner, a management consulting firm, seeks to temporarily employ the Beneficiary as a 
"technical consultant" under the H-lB nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(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 Petitioner did 
not demonstrate that the proffered position qualifies as a specialty occupation. On appeal, the 
Petitioner asserts that it has established eligibility for the benefit sought. 
Upon de nova review, we will dismiss the appeal.' 
I. LEGAL FRAMEWORK 
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: 
(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 We follow the preponderance of the evidence standard. Matter ofCha wathe, 25 I&N Dec. 369, 375-76 (AAO 2010) . 
(1) 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 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 Corp. 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
As recognized by the court inDefensor, 201 F.3d at 387-88, where, as here, the work is to be performed 
for entities other than the petitioner, evidence of the client company's 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. 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation because the record lacks sufficient evidence of the 
actual work that the Beneficiary will perform for the end-client. 2 We find that the Petitioner has not 
established the substantive nature of the position, which precludes a determination that the proffered 
position qualifies as a specialty occupation under at least one of the four regulatory specialty­
occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
The Petitioner stated on the Form I-129, Petition for a Nonimmigrant Worker, and on the certified labor 
condition application (LCA)3, that the Beneficiary would work as a technical consultant for the Petitioner 
2 The Petitioner submitted documentation to support the H- IB 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 A petitioner submits the LCA to the U.S. Department of Labor (DOL) to demonstrate that it will pay an H-1 B worker the 
higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid 
2 
and end-clients inl INew York, for the petition's entire employment period, October 2018 to 
August 2021. The "forecasted itinerary" submitted with the initial l)etition sta~fd the "current a0<~ 
projected project itinerary" for the Beneficiary, and the listed clients were L..I ___ _,L~-------l 
and] I The Beneficiary will work at both the end-client site and the Petitioner's offices. 
The record of proceedings does not contain sufficient information from the end-client regarding the 
specific job duties that the Beneficiary would perform; the educational requirements; and the period 
of any such employment. 
As noted, the Petitioner's itinerary outlined the "intended client sites" based on engagements with 
I 11 I andl lnce. The Petitioner provided contracts with these 
companies but they do not name the Beneficiary ~n any of these documents. On appeal, the Petitioner 
notes that "when seeking to hire a foreign national for prospective employment, the foreign national will 
not be listed on the Statement ofWork until they have secured proper U.S. work authorization." However, 
the record does not have sufficient supporting documentation regarding the intended client's business 
activities; the specific projects for which the Beneficiary will be assigned; the actual work that the 
Beneficiary would perform during the intended period of employment; and the minimum educational 
requirements from the clients for the position; to establish the substantive nature of the work the 
Beneficiary will be performing for the end-client, and the associated applications of specialized 
knowledge that their actual performance will require. As recognized by the court in Defensor, 201 F.3d 
at 387-88, where, as here, the work is to be performed for entities other than the petitioner, evidence 
of the client company's 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. 
We also note that the Petitioner has not established that the petition was filed for non-speculative 
employment. Upon review of the work order from the eriod of erformance is from January 
2018 through June 2018. The period of performance from is from January 2019 to 
December 2019. The statement of work from~----~ is for a project that starts in January 2018 
and ends in December 2019. Although the projects may be "renewable" and extend for a longer period, 
the Petitioner did not submit documentation to corroborate this claim. Thus, all of these projects will end 
prior to the requested H-lB employment dates requested on behalf of the Beneficiary. Furthermore, as 
noted above, none of the contracts submitted for these clients specifically list the Beneficiary or the 
proffered position. Thus, it is not clear if the Beneficiary would be eligible to work on these projects. 
Further, the Petitioner's forecasted itinerary also stated that the ability to place the Beneficiary on these 
projects is dependent upon "l) the validity of HlB petition approval; and (2) our commitment to 
delivering expected results to each client." Thus, it is not clear if the Beneficiary will actually be 
placed in these anticipated projects. 
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). 
3 
The Petitioner provided several contracts and work orders for local end-clients as "evidence of 
continued work in thel I New York area." Upon review, 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. 4 Moreover, the statements of work indicate that the services will end prior to the end 
of the requested H-lB validity period. There is insufficient documentary evidence in the record 
corroborating the availability of work for the Beneficiary for the requested period of employment and, 
consequently, what the Beneficiary would do and where the Beneficiary would work, as well as how 
this would impact the circumstances of the Beneficiary's relationship with the Petitioner. A petition 
must be filed for non-speculative work for the Beneficiary, for the entire period requested, that existed 
as of the time of the petition's filing. 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)(l). 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'l Comm'r 1978). 
For all the reasons discussed above, we find that the pet1t10n was filed for employment that was 
speculative, and, therefore for which the substantive nature of the associated duties had not been 
established. 
Because the Petitioner has not established the substantive nature of the Beneficiary's work as it will be 
performed for the stated end-clients, we are unable to evaluate whether 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 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 
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-lB 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 tempormy 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). 
4 
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. 
III. CONCLUSION 
In visa petition proceedings, it is the 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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