dismissed H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re: 17016848 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 5, 2021 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonirnrnigrant classification 
for specialty occupations. 1 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 Vermont Service Center Director denied the petition, concluding that the Petitioner did not 
establish that the proffered position is a specialty occupation. In these proceedings , it is the Petitioner's 
burden to establish eligibility for the requested benefit by a preponderance of the evidence. 2 
Upon de novo review, we will dismiss the appeal. 3 
I. LEGAL FRAMEWORK 
According to the filing requirements for applications and petitions found at 8 C.F.R. § 103.2(b)(l) , 
... [ a ]n applicant or petitioner must establish that he or she is eligible for the requested 
benefit at the time of filing the benefit request and must continue to be eligible through 
adjudication. Each benefit request must be properly completed and filed with all initial 
evidence required by applicable regulations and other USCIS instructions . Any 
evidence submitted in connection with a benefit request is incorporated into and 
considered part of the request. 
The regulations require that before filing a Form 1-129, Petition for a N onimrnigrant Worker , a 
petitioner obtain a certified labor condition application (LCA) from the Department of Labor (DOL) 
in the occupational specialty in which the H-lB worker will be employed. 4 Additionally, a petitioner 
submits the LCA to the DOL to demonstrate that it will pay an H-lB worker the higher of either the 
1 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(l5)(H)(i)(b). 
2 See section 291 of the Act; Matter ofChawathe , 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
4 See 8 C.F.R. § 214.2(h)(4)(i)(B). 
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. 5 
Further, the regulation at 20 e.F.R. § 655. 705(b) requires that users ensure that an H-1 B petition is 
filed with a "DOL-certified LeA attached" that actually supports and corresponds with the petition. 
Therefore, in order for a petitioner to comply with 8 e.F.R. § 103.2(b)(l) and users to perform its 
regulatory duties under 20 e.F.R. § 655.705(b), a petitioner must file an amended or new petition, 
with fee, whenever a material change to the petition occurs, such as a change to the beneficiary's job 
location which also requires a new LeA to be filed with DOL. 
Section 101 ( a )(l 5)(H)(i)(b) of the Act defines an H-1 B nonirnrnigrant as a foreign national "who is 
corning temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.e. § 1184(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 e.F.R. § 214.2(h)(4)(ii) largely restates section 214(i)(l) of the Act but adds a 
non-exhaustive list of fields of endeavor. In addition, 8 e.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 6 Lastly, 
8 e.F.R. § 214.2(h)(4)(i)(A)(l) states that an H-lB classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 e.F.R. 
§ 214.2(h)( 4)(iii)(A). The services the Beneficiary will perform in the position determine: (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. 7 
5 See section 212(n)(l) of the Act, 8 U.S.C. § 1182(n)(l )(A); 20 C.F.R. § 655. 731 (a). 
6 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 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 COip. 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"). 
7 See 8 C.F.R. § 214.2(h)(4)(iii)(A). 
2 
Furthermore, as recognized by the court in Defensor v. Meissner, 201 F.3d 384, 87-88 (5th Cir 2000), 
where the work is to be performed for entities other than the petitioner, evidence of the client 
companies' job requirements is critical. 8 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. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 9 The Director may request additional evidence 
in the course of making this determination. 10 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not filed an LCA pursuant 
to section 212(n)(l) of the Act; 20 C.F.R. § 655.731(a), and has therefore not met the filing 
requirements at 8 C.F.R. § 103.2(b)(l). In addition, the Petitioner has not adequately established the 
services the Beneficiary will perform, which precludes a determination of whether the proffered 
position qualifies as a specialty occupation under sections 101 (a)(15)(H)(i)(b ), 214(i)(l) of the Act; 
8 C.F.R. § 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A).11 
A. LCA 
On the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner indicated that the Beneficiary 
would work offsite. In its accompanying itinerar for the Beneficiary the Petitioner noted that the 
Beneficiary would be laced with the end-client through contractual agreements with two 
mid-vendors L-....---------,_J and.__ ___ ____.,. The Petitioner identified the Beneficiary's 
work location as the end-client's facility, and identified the place of 
employment as.__ _____________ ___,, New Jersey on the certified LCA. In response 
8 Accordingly, where the beneficiary is providing services to clients, there will be questions about how to ascertain the 
duties and the requirements for the position and whose requirements are determinative or most relevant. See Defensor, 
201 F.3d at 387-88. On one end of the spectrum is a situation where a beneficiary would work from the petitioner's 
premises to provide services as part of the petitioner's team on a project managed by the petitioner. In this situation USCIS 
would generally consider the requirements as established by the petitioner to be controlling. On the other end of the 
spectrum is a situation where a beneficiary would be placed at a client's premises and would work as part of the client's 
staff. In this situation USCIS would generally consider the client's requirements to be determinative. However, in between 
these two spectrums are numerous facmal patterns that could change how USCIS weighs the probative value of the client 
and petitioner's requirements. USCIS makes the determination as to whose requirements are controlling or most relevant 
on a case-by-case basis, taking into consideration the totality of the relevant circumstances. In this matter, as will be 
discussed, the record is insufficient to establish the nature of the Beneficiary's proposed role within the Petitioner's 
business operations, and is inconsistent regarding the job location, proposed duties, and the end-client; thus it is not possible 
to determine the factual pattern relevant to the proposed position. 
9 See 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
10 See 8 C.F.R. § 103.2(b)(8). 
11 The Petitioner submitted documentation in the underlying record to support the H-1B petition, including evidence 
regarding the proffered position and its business operations. Although we may not discuss eve1y document submitted, we 
have reviewed and considered each one. 
3 
to the Director's request for evidence (RFE), the Petitioner submitted a position description and 
requirements for the Beneficiary's "deployment at the location of our end-clientJ I located in 
I I Ohio." This change in job location requires the Petitioner to file an amended or new petition, 
with fee, with the "DOL-certified LCA" for the new job location. The record as it stands does not 
include consistent evidence regarding the proposed job location or the end-client. 12 The certified LCA 
in the record does not support and correspond to the location of the Beneficiary's employment as stated 
in response to the Director's RFE. Accordingly, we cannot conclude that the certified LCA supports 
and corresponds to the revised job location. The appeal must be dismissed on this basis alone. 
Even if the Petitioner establishes that the job location has not changed the record does not sufficiently 
and consistently establish the duties the Beneficiary would perform. Thus, we cannot conclude that 
the Beneficiary will be employed in a specialty occupation. 
B. Substantive Nature 
The Petitioner designated the proffered position under the occupational category "Computer Systems 
Analysts" corresponding to the standard occupational classification (SOC) code 15-1121 on the LCA. 
To determine whether a particular job qualifies as a specialty occupation, we do not simply rely on a 
position's title. The specific duties of the proffered position, combined with the nature of the 
petitioning entity's business operations, are factors to be considered. We must examine the ultimate 
employment of the individual and determine whether the position qualifies as a specialty 
occupation. 13 
The Petitioner initially provided a list of broadly stated duties for the proffered position. For example, 
the Petitioner noted that the Beneficiary would "[ c ]onduct and facilitate Joint Application 
Development (JAD) sessions to develop and coordinate the requirements, specifications, design, and 
testing efforts," "[a]nalyze, [c]reate and update BRDs, creating AS IS and TO BE processes, perform 
GAP analysis and uses [sic] analytical skill to identify root cause and assist with problem 
management," and"[ r ]eview, analyze and evaluate Business Process for improvement or enhancement 
as needed." These responsibilities, as well as the next 12 on the bullet-point list, also appeared in the 
letters submitted by the initial two mid-vendors. The two mid-vendors added an additional five 
responsibilities. All the responsibilities listed provided a broad overview of responsibilities but lacked 
context in how the Beneficiary would perform duties in support of actual projects. The record did not 
include probative evidence of the actual project(s). The Petitioner did not offer an explanation or 
detail describing how or why the responsibilities should fall within the parameters of the "Computer 
Systems Analysts" occupation, rather than a different technology occupation. Nor did the Petitioner 
explain why the mid-vendors' lists included additional responsibilities and how those additional 
responsibilities, generic though they may be, impacted the Petitioner's description. 
The Petitioner also provided a chart of the Beneficiary's daily task activity. The Petitioner stated the 
Beneficiary would "[ w ]ork with business users to document current state process, pain points in the 
12 The Petitioner does not include evidence from the initially claimed mid-vendors and end-client subsequent to the initial 
filing and does not submit evidence from the new end-client. Additionally, the record does not include evidence further 
developing the proposed position within the context of any end-client project(s). Thus, the record does not include 
sufficient probative evidence establishing the Beneficiary's actual job or job location. 
13 See generally Defensor, 201 F.3d at 387-88. 
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process and then tum them into business requirements for an IT Service Management software 
package" and noted the Beneficiary would use strategic management concepts in performing this 
endeavor. The Petitioner added that the Beneficiary would also "[a]ssist in writing the RFP (Request 
for Proposal), analyze the results, work with the project manager through implementation, assist with 
any data related activities" and referenced proficiency attained in Microsoft word as a relevant detail 
for this duty. The Petitioner indicated further that the Beneficiary would be "[r]esponsible for 
following up on all action items & outstanding issues with assigned owners strong facilitative and 
coordination role" and listed skills learned in leadership as pertinent to the responsibility. Finally, the 
Petitioner claimed that the Beneficiary's responsibilities included: "Technical Analysis," "Integration, 
upgrade and Testing," "Perform Solution Requirements Analysis (SRA)," and "Writing SQL Quires 
[sic]." The Petitioner assigned the Beneficiary's time to the responsibilities as totaling 125%. Not 
only does the Petitioner provide an inaccurate estimate of the Beneficiary's time, the responsibilities 
listed and the little detail provided fail to convey an understanding of the duties the Beneficiary would 
perform. The Petitioner does not correlate the duties in the chart to the bullet-point list of duties. 
Moreover, the Petitioner does not explain why the use of strategic management concepts, proficiency 
in Microsoft word, and leadership skills, require a bachelor's degree in a specific specialty, or its 
equivalent. Further, without the context of the Beneficiary's assignment and detail regarding the 
Beneficiary's actual role within the Petitioner's business operations and most importantly within the 
end-client's specific project, we cannot ascertain the nature of the Beneficiary's duties, the 
requirements necessary to perform the duties, and whether the position is a "Computer Systems 
Analysts" occupation as designated on the LCA. 14 
The Petitioner, in response to the Director's RFE, as noted above, changed the location of the proposed 
employment as well as the end-client. The Petitioner did not provide a bullet-point list of duties as 
initially provided but repeated the breakdown of the Beneficiary's daily task activity correcting the 
percentages to total 100%. The Petitioner did not elaborate on the tasks or provide information and 
detail regarding the Beneficiary's proposed assignment. Thus, the information submitted in response 
to the RFE does not assist in establishing the substantive nature of the position. 
In addition to the inconsistencies in the descriptions provided by the Petitioner and the mid-vendors, 
along with the generic nature of the responsibilities and the lack of information regarding the 
Beneficiary's assignment, the Petitioner also does not provide a consistent description of the 
requirements to perform the duties of the position. Initially, the Petitioner claimed that the position 
required "at least a Bachelor's degree, or the equivalent in Computer & Science or Elcetronics [sic] & 
Telecommunication or any related field." The Petitioner also referred to principles the Beneficiary 
would utilize and knowledge of various technologies the Beneficiary would need. One of the initial 
mid-vendors also noted that several technologies would be used in performing the duties but neither 
mid-vendor nor either end-client referred to an academic requirement. In response to the Director's 
RFE, the Petitioner asserted that a bachelor's degree in computer science, information systems, or a 
related field is the minimum requirement. On appeal, the Petitioner asserts that the Director is 
mistaken when pointing out the Petitioner's initial requirements. However, the initial requirement is 
clearly much broader than the subsequent claims. The Petitioner must resolve this ambiguity in the 
14 There are a number of technology positions and such positions have different academic and experience requirements, as 
well as requiring different rates of pay. Without an understanding of the Beneficiary's specific duties within the context 
of the Petitioner's business operations and the Beneficiary's proposed assignment, we cannot ascertain the substantive 
nature of the position and conclude that the proposed position is a specialty occupation. 
5 
record with independent, objective evidence pointing to where the truth lies. 15 The lack of consistency 
between the initial, general job requirements and the subsequent more specific requirement strongly 
suggests that the Beneficiary's actual employment was unknown when the petition was filed. 
Without detail and context, the generally described duties could fall into a number of technology 
occupations. Further, without more information regarding the Beneficiary's role within a specific 
project and project team, we cannot ascertain the complexity, uniqueness, or specialization of the 
duties, the level of responsibility within that role or team, or whether the position is appropriately 
designated as a "Computer Systems Analysts" occupation. 
Although the Beneficiary may require some technological knowledge to perform the general tasks 
described, the record does not include probative evidence that this knowledge is gained through 
bachelor's-level study in a specific discipline rather than through certifications in third-party 
technology or experience in the industry. 16 Without a detailed and more precise description as well 
as some context of the particular work the Beneficiary will perform at the end-client facility, the record 
does not establish that the proposed duties are the duties of a specialty occupation and thus is a position 
which requires a bachelor's degree in a specific specialty, or its equivalent. 
C. Opinion 
The Petitioner proffers the opinion ofl I of I I University to establish that the 
position is a specialty occupation. We have reviewed the opinion and do not find it helpful in 
establishing the nature of the position. 
The opinion letter repeats the Pet,tjoner's jescription of the duties of the position submitted in 
response to the Director's RFE and.__ __ __.repeatedly concludes, without analysis, that the duties 
require a bachelor's degree in computer science, computer information systems, management 
information systems, or a related field. For exampleJ lopines that the skills required for 
presentation and public speaking, to integrate, upgrade, and test set-top boxes, to analyze the project's 
system requirements and capabilities, to participate in deployments, and to provide support during 
production outages are learned and refined through courses in computer science, computer information 
systems, management information systems, or closely related fields, including database management 
systems, computer languages, computer programming, software engineering, and computer networks. 
He does not discuss the myriad number of ways one can learn presentation and public skills other than 
through courses in the various fields referenced. He does not describe why integrating, upgrading, 
and testing set-top boxes requires a bachelor's degree in any field. He does not discuss why other 
methods of obtaining knowledge, through experience or certifications in particular software, for 
15 Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). 
16 We reviewed the job postings of three employers seeking a business or senior business systems analyst submitted by the 
Petitioner. First, the job duties of the advertised positions do not include sufficient information for a comparison to the 
generic position offered here. Second, the requirements for the advertised positions vary significantly. Two of the three 
advertised positions accept either an undefined amount of experience which the employer deems equivalent to a bachelor's 
degree in computer science or an undefined combination of education, training, experience. One accepts a bachelor's 
degree in accounting, finance, computer science, or an undefined combination of education, training, experience as the 
minimum requirement. The range of minimum requirements to perform the advertised positions confams that there is not 
a paiticular standard to enter the occupation. We note, for example, that the employers appear to focus on knowledge and 
skills of particular software and frameworks as the knowledge necessaiy to perfcnm the positions. 
6 
example, would not provide a similar knowledge-set. The professor here does not account for obvious 
alternative explanations. 17 A lack of sufficient consideration of alternatives is a basis that can 
adversely affect the evidentiary weight of an opinion. 18 We are not required to and do not accept cursory 
or primarily conclusory statements as demonstrating eligibility. 19 
Moreover, he does not offer analysis on any particular project that might include testing set-top boxes 
or on any proposed duty in connection with a particular project or projects. It is not clear that D 
Dis aware that the Beneficjarv will work at an end-client facility and if so which end-client facility 
that would be. OverallJ ~ s opinion is generic and is not described within the context of the 
actual duties the Beneficiary will be expected to perform at an end-client facility. While we have 
reviewed the opinion letter presented, it has little probative value as it does not include sufficient 
specific analysis of the duties of the particular position 20 nor does it sufficiently relate those duties to 
the stated educational qualifications required to perform them. The professor's summary statements 
are unsupported by explanations, references to specific assigned projects, or citations to probative 
studies, surveys, industry publications, or other sources of empirical information. The opinion does 
not assist in establishing that the duties, as generically and inconsistently described, comprise the 
duties of a specialty occupation requiring a bachelor's degree in a specific specialty, or its equivalent. 
III. CONCLUSION 
Upon review of the totality of the evidence submitted, the Petitioner has not provided sufficient 
substantive detail regarding the duties the Beneficiary will perform or the minimum degree requirements 
of the occupation. Therefore, we are unable to determine the substantive nature of the work and whether 
the Beneficiary will be employed in a position that satisfies at least one of the criteria at 8 C.F.R. 
§ 2 l 4.2(h)( 4)(iii)(A) and is an occupation that meets the statutory and regulatory definitions of a specialty 
occupation as defined by section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), 8 C.F.R. § 214.2(h)(4)(ii), and 
(iii)(A). Additionally, the LCA is not certified for a work location in Blu Ash, Ohio, one of the locations 
to which the Petitioner claims the Beneficiary will be assigned. Accordingly, the LCA does not 
correspond to and support the petition. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. 21 The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
17 See Claar v. Burlington N.R.R., 29 F.3d 499,502 (9th Cir. 1994). 
18 See Ambrosini v. Labarraque, IOI F.3d 129, 140 (D.C. Cir. 1996). 
19 See Innova Sols., Inc. v. Baran, 338 F. Supp. 3d 1009, 1023 (N.D. Cal. 2018); see also 1756, Inc. v. Att'.v Gen, 
745 F Sunn. 9, 17 (D.D.C. 1990) (finding USCIS acted properly in not crediting petitioner's conclusory assertions). 
201 ldoes not acknowledge the Petitioner's initial bullet-point list of duties and the initial claims made by the 
purported mid-vendors regarding the proposed duties and their inconsistencies with or similarities to the subsequent 
version of duties. 
21 See Section 291 of the Act, 8 U.S.C. § 1361. 
7