dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 8977173 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY . 1, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "UI developer" under the H-lB 
nonirnrnigrant 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 evidence of 
record does not establish that the proffered position qualifies as a specialty occupation. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 25 l&N Dec. 799, 806 (AAO 
2012). Upon de nova 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: 
( I) 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). 
II. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the Petitioner has not established the substantive nature of the work that the Beneficiary 
will perform, which precludes a finding that the proffered position satisfies any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 1 
The Petitioner, located in California, indicates in the petition and on the labor condition application that 
it will deploy the Beneficiary to an end-client's location in Georgia to work as a "UI developer" through 
two intermediary vendors pursuant to contractual agreements, as follows: 
Petitioner ➔ P-C- (mid-vendor) ➔ A-O- (prime vendor) ➔ D-A-L- (end-client). 
The Petitioner provided contractual documentation to illustrate this relationship. Nonetheless, it has not 
established definitive, specialty occupation employment for the Beneficiary. 2 The Petitioner provided 
a letter from the prime vendor which states that it "is a managed services program (MSP) serving as a 
single point-of-contract to manage [the end-client's] workforce procurement and governance 
strategies, streamline talent acquisition processes and provide insight to supplier and temporary labor 
performance." 
1 The Petitioner submitted documentation to suppmt the H-1 B 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. 
2 The Petitioner most recently employed the Beneficiary through STEM-related post-completion optional practical 
training. 8 C.F.R. § 274.a.12(c)(3)(i)(C); 8 C.F.R. 214.2(t)(10)(ii)(C), and has provided copies of wage statements for her 
employment with the Petitioner. 
2 
On appeal, the Petitioner submits pages 1 and 12 of the end-client's 12-page Managed Services 
Agreement (MSA) with the prime vendor which states the following: 
WHEREAS, [the end-client] wishes [the prime vendor] to implement a Managed 
Services Program to: engage staffing suppliers; manage the acquisition of [the end­
client's] contingent workforce and independent contractors that will perform work for 
[the end-client] as provided herein; manage project based initiatives; provide-strategic 
reporting capabilities; make available to [the end-client the prime vendor's] web-based 
automated tools known as Acceleration, customized to meet [the end-client's] 
requirements; capture time and attendance; provide an auditable trail of information, 
provide staffing management services to [the end-client]; and provide the other services 
described in this Agreement. 
WHEREAS, [the prime vendor] wishes to provide the Managed Services Program to 
[the end-client] in accordance with the terms and conditions set forth in this Agreement; 
NOW THEREFORE, in consideration of the mutual covenants and promises herein 
contained, the parties hereto agree as follows: 
This is all the information provided on page 1 of the MSA. Page 12 includes the signatures and job 
titles of the end-client and the prime vendor officials who executed the agreement in August 2010. 
Given the omitted pages of the MSA, it does not establish what the parties agreed to. We conclude 
that the Petitioner has not substantiated the relevant terms and conditions of the end-client's 
contractual arrangements with the prime vendor for the administration of the end-client's MSP through 
the submission of copies of the end-client's contractual documents which were largely omitted. This 
is important because the Petitioner asserts that the Beneficiary is to be hired as a contract worker for 
the end-client pursuant to the MSP. 
The Petitioner also provided an Amendment 1 to Information Technology Supplier Agreement 
executed between the prime vendor and the mid-vendor. The amendment states that "[the prime 
vendor] and [the mid-vendor] wish to mutually amend the Information Technology ("IT") Supplier 
Agreement ("Agreement") in reference to Services provided to [the end-client]." Notably, the 
Petitioner did not submit the referenced Information Technology Supplier Agreement. Considering 
the end-client and prime vendor material, it appears that the prime vendor is performing certain 
contractual management responsibilities for the end-client that in part form the basis of the 
Beneficiary's employment at the end-client location. However, the record contains no affirmation 
from the end-client that the Amendment 1 to Information Technology Supplier Agreement adequately 
reflects the terms and conditions of the actual agreement between the end-client and the prime vendor. 
Therefore, the Petitioner has not established that the Amendment 1 to Information Technology 
Supplier Agreement sufficiently reflects the relevant contractual framework through which the prime 
vendor will operate the end-client's MSP in order to "manage the acquisition of [the end-client's] 
contingent workforce and independent contractors that will perform work for [the end-client]." 
In addition, the Petitioner provided a Supplier Agreement (SA) executed between the Petitioner and 
the mid-vendor. The SA states "[the mid-vendor] and [the Petitioner] wish to enter into this 
Agreement pursuant to which [the Petitioner] will introduce technical services personnel candidates 
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to [the mid-vendor] and [the mid-vendor] may submit said technical services personnel (the 
"Consultants") to provide their services to Client." The Petitioner has not established this document's 
relevance to the Beneficiary's assignment as it does not reference the Beneficiary; the job title of the 
proffered position; the job duties and tasks to be performed by a UI developer, the proffered position; 
or the end-client. This document also does not reference the Petitioner's specific role with respect to 
the Beneficiary's day-to-day work with the end-client, or the expected duration of the Beneficiary's 
work for the end-client. 
Moreover, the Petitioner submitted a purchase order, along with an addendum to the purchase order, 
executed between the Petitioner and the mid-vendor. Although the documents mention the 
Beneficiary and the end-client, they do not reference the job title of the proffered position; or the job 
duties and tasks to be performed by a UI developer, the proffered position. Further, the purchase order 
states that the Petitioner is contracted to work on the end-client's project from October 2018 to March 
2019. It appears that the Beneficiary's services will end prior to the requested H-1 B start date. 3 
Therefore, the referenced documents are not sufficient to substantiate what type of work the 
Beneficiary would perform for the end-client for the duration of the requested validity period. 
These documents are the only legal documents that purport to create any obligation to provide work 
for the Beneficiary to perform. 4 They create no obligation on the part of the end-client. They do not 
establish the existence of a specialty occupation position at the end-client's worksite. In other words, 
there is no evidence of any obligation on the part of end-client to provide the position the Petitioner 
describes in this petition for the Beneficiary. There is little indication that this petition was filed for 
non-speculative employment. 5 If we cannot determine whether the position as described by the 
petitioner actually exists, then we cannot ascertain its substantive nature, let alone determine whether 
it is a specialty occupation. 
Beyond the speculative nature of the petition in general, the record does not establish the substantive 
nature of the proffered position. First, we observe that the record lacks sufficient detail and concrete 
explanation regarding the project for which the Beneficiary will be assigned, to establish the 
3 Though acknowledged, the second purchase order extending the Beneficiary's services through December 2021 does not 
demonstrate the Petitioner's eligibility at the time of filing because it was executed in July 2019, approximately three 
months after the petition was filed and approximately one month after the Director issued her request for additional 
evidence. We therefore question whether the second purchase order was created for purposes of bolstering this H- IB 
petition. 
U.S. Citizenship and Immigration Services (USCIS) 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. § I 03.2(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'l Comm'r 1978). A petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 
I&N Dec. 169, 176 (Assoc. Comm'r 1998). The second purchase order executed between the Petitioner and the mid­
vendor therefore carries little evidentiary weight. 
4 Though acknowledged, the letters from the Petitioner, the vendors, and the end-client do not serve to fill this gap, as they 
are not evidence ofan obligation on the part of the end-client to provide the position the Petitioner describes. 
5 Speculative employment is not permitted in the H-1 B program. See. e.g., 63 Fed. Reg. 30419, 30419-20 (proposed June 
4, 1998) (to be codified at 8 C.F.R. pt. 214). 
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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. 
Moreover, as recognized in Defensor, 201 F.3d at 387-88, it is necessary for the end-client to provide 
sufficient information regarding the proposed job duties to be performed at its location(s) in order to 
properly ascertain the minimum educational requirements necessary to perform those duties. In other 
words, as the employees in that case would provide services to the end-client and not to the petitioning 
staffing company, the job duties and alleged requirements to perform the duties that the Petitioner 
provided were irrelevant to a specialty occupation determination. See id. 
In the instant matter, the Petitioner submitted two letters from the end-client, which include the 
Beneficiary's job duties. 6 Upon review, we observe that the job duties provided by the end-client are 
recited virtually verbatim from the U.S. Department of Labor's Occupational Information Network 
(O*NET) Summary Report's list of duties for "Computer Programmers" - Standard Occupational 
Classification code 15-1131.00. 7 Providing job duties for a proffered position from O*NET is 
generally not sufficient for establishing H-lB eligibility. That is, while this type of description may 
be appropriate when defining the range of duties that may be performed within an occupational 
category, it cannot be relied upon by the Petitioner or the end-client when discussing the duties 
attached to specific employment for H-1 B approval as this type of generic description does not 
adequately convey the substantive work that the Beneficiary will perform on a day-to-day basis. 
In sum, the record contains insufficient evidence from the end-client to establish that specialty 
occupation work exists for the Beneficiary. Without contracts or agreements between all the parties 
that outline the terms and conditions of the Beneficiary's employment, we are not able to fully 
ascertain what the Beneficiary is expected to do and the substantive nature of the proffered position. 
Given this specific lack of evidence and the insufficient job descriptions contained in the record, we 
cannot determine the substantive nature of the work to be performed by the Beneficiary. 
Because the Petitioner has not established the substantive nature of the work that the Beneficiary will 
perform for the stated end-client, 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 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. 
6 It must be noted that the letters from the mid-vendor include the same generally-stated job duties provided by the end­
client. Thus. the vendor letters are insufficient to establish the substantive nature of the proffered position. 
7 See O*NET OnLine at https://www.onetonline.org/link/summary/15-l 13 l .OO. 
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III. CONCLUSION 
Based on the foregoing, we cannot conclude that the proffered position qualifies as a specialty 
occupation. The appeal will be dismissed for the above stated reasons. 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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