dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-IT-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 3, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a company engaged in software development and information technology services, seeks 
to temporarily employ the Beneficiary as a "software quality assurance engineer" 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 establish 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. SPECIAL TY OCCUPTION 
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 C-IT-S-, 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 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; 
(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. 
b. 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. 1 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). 
1 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. 
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Matter of C-IT-S-, Inc. 
The Petitioner stated on the Form I-129, Petition for a Nonimmigrant Worker, and on the certified labor 
condition applicatiol (LCA)2f that the Beneficiary would work as a software quality assurance engineer 
for an end-client in Maine, for the petition's entire employment period, September 2018 to 
September 2021. 3 The Petitioner indicated the relationship with the end-client as follows: 
(Managed 
Service 
Provider) 
(End-client) 
The record of proceedings does not contain sufficient information regarding the specific job duties 
that the Beneficiary would perform for the end-client and the period of any such employment. 
The Petitioner submitted a master service agreement (MSA) between the Petitioner and the vendor that 
indicated the scope of the contract as the Petitioner's "consultant shall perform information technology 
services to the Client of [the vendor] identified in the 'Statement of Work' attached as Exhibit A to this 
Agreement." The terms under the "Scope" section contains contractual terms and conditions to be 
automatically incorporated into any follow-on contracts executed by the vendor and the Petitioner 
under the MSA's umbrella. As such, the record's MSA document does not bind the vendor to any 
specific contract with the Petitioner. In sum, the MSA has little probative weight towards establishing 
actual work to be performed by the Beneficiary for the end-client for any specific period or location. 
The Petitioner also submitted a statement of work (SOW) from the vendor that indicated the Beneficiary 
will work as a consultant. The SOW stated a work order number but did not indicate the details of the 
project such as duties, work location, and end-client name. The documentation did not contain a copy of 
the work order, I I as indicated in the SOW and thus, it is not clear what the assignment is and 
whether it will be for the stated end-client. Although the documentation shows a working relationship 
between the Petitioner and the vendor, it has little probative weight towards establishing actual work to 
be performed by the Beneficiary for the end-client for any specific period or location. 
In addition, the Petitioner submitted a two-page document entitled, "Master Services Agreement for 
Services Provided tol ~' between the vendor and the managed service provider whereas the 
vendor will "provide certain temporary information technology staffing services." Again, the 
documentation shows a working relationship between the vendor and the managed service provider but 
2 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 
by the employer to other employees with similar duties, experience, and qualifications. Section 2 l 2(n)(l) of the Act; 
20 C.F.R. § 655.73 l(a). 
3 The intended dates of employment on the Form 1-129 are from October 1, 2018 until September 30, 2019 whereas the 
intended dates of employment on the LCA are from September 7, 2018 until September 6, 2021. The Petitioner did not 
explain this discrepancy. 
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Matter of C-IT-S-, Inc. 
it provides little probative weight toward establishing the actual work to be performed by the Beneficiary. 
Furthermore, the Petitioner submitted a document entitled "Master Agreement" between the end-client 
and the managed service provider for 'I I IT Staff Augmentation Services." The agreement 
commenced on January 14, 2013 until June 30, 2019. This one page document does not provide any 
detail of the scope and terms of the agreement between the two parties, and is not sufficient evidence to 
establish the projects, duties and responsibilities and scope of work between the managed service provider 
and the end-client. 
The Petitioner also submitted letters from the vendor and the managed service provider confirming that 
the Beneficiary has been assigned to work as a Software Quality Assurance Engineer to support the end­
client Both letters are nearly identical in wording, and provided the same job duties performed by the 
Beneficiary. The letters do not explain in detail the project in which the Beneficiary will be working on 
and they provided a brief and general description of the duties to be performed by the Beneficiary. 
In addition, both letters indicated that the minimum requirement for the position is a Bachelor's degree 
but did not indicate a specific field of study. 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. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 
558, 560 (Comm'r 1988). 
The Petitioner submitted three affidavits from individuals that worked with the Beneficiary on the 
project with the end-client. The affidavits list the same job duties and confirm that the Beneficiary is 
working for the end-client. However, the documentation does not provide sufficient evidence 
regarding the Beneficiary's project or assignment and a detailed explanation of the team, department 
and actual work that the Beneficiary will perform for the end-client on a specific project. 
The Petitioner provided email corres ondence from the Director of Special Projects I tthe 
end-client], that confirms that the does not rovide client letters to H-lB consultants 
assigned to IT projects located at~---------~ MRI I' Although the end-client 
does not provide documentation to confirm the Beneficiary's work assignment with them, the Petitioner 
also did not provide a contract or work order to indicate the work the Beneficiary will perform for the 
end-client such as the job title, duties and responsibilities, and duration of the project. Without supporting 
documentation such as contracts, detailed purchase orders or statements of work, it is hard to determine 
the scope of services and the nature of the relationships between the parties. The Petitioner provided 
insufficient evidence towards substantiating that the petition was filed on the basis of actual work that the 
Petitioner had secured for the Beneficiary for the end-client's location for the employment period sought 
in the petition. 
In addition, we are not clear as to the project's duration. The letters from the vendor and the managed 
service provider stated that "we would require [ the Beneficiary's] ongoing contractual service for the next 
several years since the tasks she performs are critical and ongoing." However, the statement of work for 
the Beneficiary indicated a completion date of June 30, 2019 with possible extensions." In addition, the 
Master Agreement submitted between the managed service provider and the end-client indicated an 
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Matter of C-IT-S-, Inc. 
expiration date of the agreement on June 30, 2019. The Petitioner did not explain the inconsistencies in 
the record regarding the duration of the project for the end-client. The Petitioner did not submit sufficient 
evidence such as contracts or similar corroborating evidence that the project with the end-client will 
continue until September 2021, and will require the services of the Beneficiary as a software quality 
assurance engineer for that entire period. On appeal, the Petitioner submitted email correspondence 
that stated the end-client is actively drafting a new contract with the managed service provider for 
"OIT staff augmentation." Although the email correspondence indicated a possible extension of the 
relationship between the managed service provider and the end-client, it did not provide sufficient 
information that the end-client will still require the services of the Petitioner or the Beneficiary. 
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. § 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'l Comm'r 1978). The 
agency made clear long ago that speculative employment is not permitted in the H-lB program. See, 
e.g., 63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). 
For the reasons discussed above, we conclude that the petition 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, 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. 
II. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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. 
Cite as Matter ofC-IT-S-, Inc., ID# 5075347 (AAO Sept. 3, 2019) 
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