dismissed H-1B Case: Technology Solutions

U.S. Citizenship 
and Immigration 
Services 
In Re: 7748833 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 6, 2020 
The Petitioner, a technology solutions provider, seeks to employ the Beneficiary as a "salesforce 
developer" 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 evidence of 
record does not establish that the proffered position qualifies as a specialty occupation. On appeal , 
the Petitioner asserts that the Director erred in the decision. 
The Petitioner must establish eligibility by a preponderance of the evidence. Matter of Chawathe, 
25 I&N Dec. 369, 375-76 (AAO 2010). 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. 
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). 
The Petitioner stated on the Form I-129, Petition for a Nonimmigrant Worker, and on the certified labor 
condition application (LCA), that the Beneficiary would work as a salesforce developer for an end-client 
1 The Petitioner submitted documentation to support 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 
in I I Texas, Ohio, for the petition's entire employment period, March 2019 to February 2022.2 
The Petitioner indicated that the Beneficiary will work at the end-client location. 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 end-client 
that indicated the Petitioner will "provide professional services to [the end-client] and its Affiliates as the 
parties may agree upon from time to time." The MSA also stated that the Petitioner and the end-client 
may enter into a written statement of work before the Petitioner provides any services to the end-client or 
affiliates. The MSA stated that the end-client "makes no representation as to the amount of business [the 
Petitioner] can expect under this Agreement." Further, as noted, the parties may agree on services "from 
time to time." Thus, this MSA does not commit the end-client to any contract with the Petitioner for any 
particular services during any period or at any location. Further, the MSA contains no terms indicating 
that it would exclusively seek to engage only the Petitioner for such services. 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 submitted a letter from the end-client confirming that the Beneficiary "has been working 
on a contract role as a Salesforce Developer." The end-client provided a list of duties to be performed by 
the Beneficiary. However, several of the duties are written in the past tense which makes it hard to 
determine if the Beneficiary will perform these same duties throughout the entire project. For example, 
the job description included terms such as: "designed;" "configured;" "developed" "involved" "created" 
and, "worked." Further, the end-client does not provide any information on the specific project the 
Beneficiary will assist with as a salesforce developer. For example, the end-client did not explain the 
scope and mission of the project, the team members on the project, how the responsibilities are delegated 
to the team members; the timeline of the project; or the complexity and milestones of the project. 
Further, the end-client stated that the duties require at least a bachelor's degree in computers, engineering, 
information systems or business administration or the equivalent in a field closely and directly related to 
the nature of the work. However, 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 administration, without farther 
specification, does not establish the position as a specialty occupation. See Matter of Michael Hertz 
Assocs., 19 I&N Dec. 558,560 (Comm'r 1988). To prove that a job requires the theoretical and 
practical application of a body of highly specialized knowledge as required by section 214(i)(l) of the 
Act, a petitioner must establish that the position requires the attainment of a bachelor's or higher degree 
in a specialized field of study or its equivalent. As stated above, we interpret the degree requirement 
at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the 
2 A petitioner submits the LCA to the U.S. Department of Labor (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 2 l 2(n)(l) of the Act; 
20 C.F.R. § 655.73 l(a). 
3 
proposed position. We have consistently stated that, although a general-purpose bachelor's degree, 
such as a degree in business administration, may be a legitimate prerequisite for a particular position, 
requiring such a degree, without more, will not justify a conclusion that a particular position qualifies 
for classification as a specialty occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st 
Cir. 2007). 3 
We note that in general, a minimum of a bachelor's or higher degree in more than one specialty is 
recognized as satisfying the "degree in the specific specialty ( or its equivalent)" requirement of section 
214(i)(l) of the Act provided the specialties are closely related, e.g., chemistry and biochemistry. In 
such a case, the required "body of highly specialized knowledge" would essentially be the 
same. However, a minimum entry requirement of degrees in disparate fields, such as computers and 
business administration, would not meet the statutory requirement that the degree be "in the specific 
specialty," unless the Petitioner establishes how each field is directly related to the duties and 
responsibilities of the particular position. As explained above, the statutory and regulatory definition 
of a specialty occupation requires a degree in a specific specialty that is directly related to the proposed 
position. 
In response to the Director's request for evidence (RFE), the Petitioner submitted a work order (WO) 
signed by the Petitioner and the end-client. The WO stated that the Beneficiary will work as a salesforce 
developer for the end-client from January 22, 2019 until December 31, 2020. The WO also contained the 
same job duties listed in the end-client letter. The WO provided very limited information regarding the 
Beneficiary's work with the end-client. The Petitioner did not submit corroborating evidence regarding 
the end-client's project such as the phase of the project, the budget allotted for this project, the team 
supporting the project, and whether there is sufficient need for the duties of a salesforce developer for the 
entire requested employment period. 
In addition, the record does not sufficiently establish the project's duration. The work agreement between 
the Petitioner and the end-client stated the end date of the project as December 31, 2020. However, the 
end-client letter indicated that the Beneficiary will be placed on a long-term project until December 2021 
with the "possibility of further extensions as necessary." 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 February 2022, and will require the services of the Beneficiary as a 
salesforce developer for that entire period. 4 
3 Specifically, the judge explained in Royal Siam, 484 F.3d at 147, that: 
The courts and the agency consistently have stated that, although a general-purpose bachelor's degree. 
such as a business administration degree, may be a legitimate prerequisite for a particular position, 
requiring such a degree. without more, will not justify the granting of a petition for an H-lB specialty 
occupation visa. See, e.g., Tapis Int'! v. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti. 36 F. 
Supp. 2d at 1164-66; cf Matter of Michael Hertz Assocs., 19 I & &N Dec. 558,560 ([Comm'r] 1988) 
(providing frequently cited analysis in connection with a conceptually similar provision). This is as it 
should be: elsewise, an employer could ensure the granting of a specialty occupation visa petition by the 
simple expedient of creating a generic (and essentially artificial) degree requirement. 
4 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
4 
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 
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. 
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-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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