dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF Z-S- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 13, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software consulting company, seeks to temporarily employ the Beneficiary as a "Sr. 
Data Warehouse Engineer" under the H-1B 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-1B 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 proffered 
position does not qualify as a specialty occupation. 
On appeal, the Petitioner asserts that the Director made an erroneous conclusion, but does not 
provide further explanation. The Petitioner chose not to submit a brief or additional evidence in 
support of the appeal. 
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: 
Matter of Z-S- Inc 
(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 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. 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. PROFFERED POSITION 
In a letter submitted in support of the petition, the Petitioner indicated that the Beneficiary will work 
offsite, assigned to U-M-G-, Inc. (end-client). The Petitioner provided the following job duties for 
the position: 
• Analyze on the Business requirement & involve in designing a new global 
integrated Reporting System. 
• Involve in analyzing the Front End tool to manage the metadata tables. 
• Help in migrating the On-prem SQL Server environment into A WS Cloud. 
• Build Data Pipeline to convert the On Prem ETL Logic & load directly into 
Redshift. 
• Design & develop processes in Hadoop. 
• Coordinate with the reporting team to manage the Partition on MSTR end. 
• Propose new logics to handle the business requirements. 
• Design the ETL Framework in processing the files from different Partners I 
Customers. 
• Manage the Code Deployment across the Environments. 
• Create the Batch Scripts to Trigger the Informatica Jobs. 
• Play major role in scheduling Batch Scripts in ControlM Scheduler to trigger 
Jobs in Production. 
• Coordinate with team to deploy the deliverables in estimated duration. 
• Work on cleaning up the metadata in Royalties I repertoire Systems. 
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Matter of Z-S- Inc 
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The Petitioner further claimed that the position requires the candidate to have a minimum of a 
Bachelor's degree or foreign equivalent in "CS/CIS/CE/Business Administration or other related 
Engineering or Business field with related professional experience." 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not establish that the proffered position requires an educational 
background, or its equivalent, commensurate with a specialty occupation.
1 
Further, the Petitioner 
has not established that it has secured definite, non-speculative specialty occupation work for the 
Beneficiary for the entire validity period requested.2 
As recognized by the court in Defensor, where the work is to be performed for entities other th~m the 
petitioner, evidence of the client companies' job requirements is critical. See Defensor, 201 F.3d at 
387-388. 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 at 384. Such evidence must be sufficiently detailed to demonstrate 
the type and educational level of highly specialized knqwledge in a specific discipline that is necessary 
to perform that particular work. 
Here, the record of proceedings in this case is devoid of sufficient information from the end-client. 
The evidence in the record indicates that the Petitioner has an agreement with a vendor, A-I-
1 The Petitioner submitted documentation to support 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 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 rrieet 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). 
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Matter of Z-S- Inc 
(vendor), who provides services to the end-client. The documents submitted i~ support of this 
relationship, however, contain numerous discrepancies and deficiencies. 
For example, the Petitioner submitted a Statement of Work (SOW) for the Beneficiary. The body of 
the SOW, states that the SOW "defines services to be performed for [D-S- Inc] to be delivered by 
[the Beneficiary]." In other words, the SOW identified a completely different client than the end 
client. Further, the SOW states that the term "will be three years from November 1 22 2016," which 
does not provide a clear start date. However, if we assume that the start date is November 1, 2016, 
since both the itinerary and the offer of employment letter indicate a November 1, 2016, start date, 
we note that the November 1, 2016, start date is in excess of six months from the filing date ofthe 
petition on April 1, 2016, and thus not permitted under 8 C.F.R. § 214.2(h)(9)(i)(B). 
In response to the Director's request for evidence (RFE), the Petitioner submitted a new SOW, 
claiming that the date discrepancy was simply a typographical error. No mention was made 
regarding the references to another company, D-S- Inc, as being the receiver of the Beneficiary's 
services. The new SOW identified the Beneficiary as the employee who would render services to 
the end-'Client, and further indicated that the end-client, not D-S- Inc, would receive the 
Beneficiary's services. This updated SOW modified the start date for the Beneficiary's services to 
October 1, 2016, indicating that they would continue for three years from that date. However, we 
note that 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. § 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). 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 Petitioner also submitted a letter from the vendor, which claimed that the Beneficiary would 
work for its client pursuant to its agreement with the Petitioner. The letter from the vendor further 
indicated that the project would range from October 3, 2016, through December 31,2018, in contrast 
to the updated SOW submitted by the Petitioner. 
Notably, the record of proceedings does not contain a contractual agreement between the Petitioner 
and the vendor, or the vendor and the end-client. Without documentary evidence that delineates the 
contractual terms between the end-client and the vendor, including the duties and the requirements 
for the position, we are unable determine the substantive nature of the proffered position. 
Consistent with Defensor, where the work is to be performed for entities other than the Petitioner, 
evidence of the client companies' job requirements is critical. Here, both the Petitioner and the vendor 
indicate that the Beneficiary will be assigned to work at the end-client's location. Under these 
circumstances, evidence of the work the end-client would assign to the Beneficiary and the educational 
requirement it imposes for the performance of that work is indispensable. However, there is no 
discussion or documentation in the record that outlines the nature of the project upon which the 
Beneficiary will allegedly be assigned. While the Petitioner submitted a letter from the end-client's 
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Matter of Z-S- Inc 
senior director, confirming that the Beneficiary would work onsite at its offices through the 
Petitioner's agreement with the end-client on the development of the " 
1 Project," the end-client does not specify the details of the project including its educational 
requirements, duties, or the timeline for completion. 
Moreover, the Petitioner has not established that it has definite, non-speculative work for the 
Beneficiary for the entire validity period requested. Without documentary evidence from the 
end-client that covers the duration of the period of employment requested, we are not able to 
ascertain what the Beneficiary would do, where the Beneficiary would work, as well as how this 
would impact circumstances of his relationship with the Petitioner. Although the Petitioner provides 
a statement of work on its own letterhead, which indicates that the Beneficiary will work for the 
end-client for a three-year period beginning in October 2016, there is no documentary evidence from 
the end-client to corroborate this claim. Moreover, the letter from the vendor contradicts this, noting 
that the intended period of the Beneficiary's employment will expire in December of 201~. 
Although the letter indicates that this is a long term project subject to 12-month renewal terms, no 
documentary evidence establishing this was submitted. The Petitioner must resolve this discrepancy 
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). 
Further, in the offer letter and the employment agreement, the Petitioner indicates that the Beneficiary 
will perform his duties from client locations as applicable. It does' not state, as claimed on the SOW, 
that he will exclusively be employed at the end-client's location. for the requested three-year period. 
This statement, coupled with the vendor's letter indicating a project duration of less than three years, 
suggests that the Beneficiary may ultimately be assigned to a different client during the course of his 
employment. 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. For this additional reason, the 
Petitioner has not demonstrated the substantive nature of the duties the Beneficiary would perform. 
Moreover, we find that the letter from the vendor, the SOW, and the Petitioner's own letters 
describing the duties and requirements of the proffered position are entitled to little probative 
weight. First, the SOWs and letter from the vendor set out general terms pursuant to which the 
Petitioner will provide the Beneficiary's services to the end-client. However, both of these documents 
contain the exact same description of duties set forth in the Petitioner's letter of support, and do not 
articulate with specificity what the Beneficiary would be doing on the end-client's project. Aside from 
the fact that they were not issued directly by the end-client, these documents do not describe in detail 
the specific duties, demands, level of responsibilities and requirements necessary for the proffered 
position. Instead, they provide vague job descriptions that do not convey the specific tasks to be 
performed, the complexity of such tasks, and the substantive application of knowledge involved. 
This is particularly relevant, since the end-client references the project, but neither the end-client 
nor the other parties provide any information on this project or what specific tasks will be associated 
with the project. 
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Matter of Z-S- Inc 
For example, the Petitioner and the vendor state that the Beneficiary's duties include "coordinate 
with team to deploy the deliverables in estimated duration." However, no description ofthe 
project, its timeline for completion, or expected deliverables was provided. Moreover, the Petitioner 
claims that the Beneficiary will "help in migrating the On-prem SQL Server into A WS Cloud," 
"design & develop processes in Hadoop," and "create the batch Scripts to Trigger the Informatica 
Jobs." There is no further information of what specific tasks the Beneficiary will perform in 
furtherance of these overarching duties, what will be involved, or what bodies of knowledge are 
required to perform these duties. 
That the Petitioner did not establish the substantive nature of the work to be performed by the 
Beneficiary precludes a finding that the proffered position is a specialty occupation under 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) the factual justification for a petitioner normally requiring a degree or its equivalent, when that is an 
issue under criterion 3 ;3 and ( 5) the degree of specialization and complexity of the specific duties, which 
is the focus of criterion 4. 
IV. CONCLUSION 
The Petitioner has not established that it has secured work for the Beneficiary for the entire validity 
period requested, and that such work qualifies as a specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter ofZ-S- Inc,ID# 334478 (AAO June 13, 2017) 
3 We note the Petitioner's submission of paystubs, wage and tax statements, and foreign educational credentials for 
numerous other employees as evidence that it routinely requires a specialty degree for the proffered position. However, 
the Petitioner has not demonstrated that these individuals are or were employed as Sr. data warehouse engineers, nor has 
it provided any information regarding the requirements and duties of each of their positions. Notably, none of the 
individuals identified in the chart in the RFE response appear to have held the proffered position, as they hold titles such 
as "Salesforce Developer," "Salesforce Lead Developer," and "Salesforce Programmer Analyst." Moreover, there is no 
evidence that their foreign credentials have been evaluated and equated to a U.S. bachelor's degree in a specific 
specialty. 
While a petitioner may assert that a proffered position requires a degree in a specific specialty, that statement alone 
without corroborating evidence cannot establish the position as a specialty occupation. Here, the Petitioner has not 
established the referenced criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(3) based on its normal hiring practices.