remanded H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF GSS- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 13,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer company, seeks to temporarily employ the Beneficiary as a "programmer 
analyst" under the H-1 B nonimmigrant classification for specialty occupations. See Immigration and 
Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(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. In general, the period of authorized admission 
for an H-lB nonimmigrant is limited to six years. Section 214(g)(4) of the Act. 8 U.S.C. 
§ 1184(g)( 4 ). However, certain individuals are eligible for H -1 B status beyond the six-year 
limitation. 1 
The Director of the California Service Center denied the Form I-129, Petition for a Nonimmigrant 
Worker, concluding that: (1) the Beneficiary had been in H-IB status since September 28, 2006; 
(2) the request in the present petition would extend the Beneficiary's status beyond the statutory 
six-year limit in H-1B status; and (3) a Form I-140, Immigrant Petition for Alien Worker, filed on 
the Beneficiary's behalf~ which may exempt her from the six-year limit, was denied? 
1 For example, section 104(c) of the American Competitiveness in the Twenty-First Century Act of 2000, authorized 
H-1 B status beyond the six-year maximum for a foreign national who is a beneficiary of an immigrant visa petition but 
cannot obtain immigrant status because of per country limitations. See Pub. L. No. 106-313, § 104(c), 114 Stat. 1251, 
1253 (2000). This was codified at 8 C.F.R. § 214.2(h)(l3)(iii)(E)(2017), which states in part: 
Per-country I imitation exemption from section 214(g)( 4) of the Act. An alien who currently maintains 
or previously held H-1 B status, who is the beneficiary of an approved immigrant visa petition for 
classification under section 203(b)(1), (2), or (3) of the Act, and who is eligible to be granted that 
immigrant status but for application of the per country limitation, is eligible for H~ I B status beyond 
the 6-year limitation under section 214(g)( 4) of the Act. The petitioner must demonstrate such visa 
unavailability as of the date the H~ I B petition is filed with USC IS. 
2 
A review of the record reveals the following events: (I) the petition was initially denied; (2) the petitioning entity 
simultaneously filed a motion on the denial with the service center director and an appeal with the Administrative 
Appeals Office; (3) the service center director reopened the case sua sponte and approved the petition: (4) based on the 
petition's approval, we dismissed that appeal as moot; and (5) thereafter, the Petitioner withdrew the petition. 
Matter of GSS- Inc 
On appeal, the Petitioner submits another Form 1-140 approved on behalf of the Beneficiary and 
demonstrates that an immigrant visa was not available as of the date it tiled this H-1 B visa petition. 
Therefore, we conclude that the Beneficiary is eligible for H-1 B status beyond the six-year 
limitation, and the Petitioner has overcome the basis of the Director's denial. We will withdraw the 
Director's decision regarding this issue. 
However, although not addressed in the Director's decision, the record as presently constituted does 
not establish that the proffered position qualifies as a specialty occupation or that the Petitioner will 
have an employer-employee relationship with the Beneficiary. Accordingly, we will remand the 
matter to the Director to review this issue and to request any additional evidence as necessary. 
I. SPECIALTY OCCUPATION 
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. 
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Matter of GSS- Inc 
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.fJ; 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). 
We note that, as recognized by the court in Defensor , 201 F.3d at 387-88 , where the work is to be 
performed for entities other than the petitioner , evidence of the client companies' job requirements is 
critical. The court held that the former Immigration and Naturalization Service had reasonabl y 
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. !d. 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. Proffered Position 
The Petitioner indicated the Beneficiary will be working through (vendor) 
on a project at (end-client). According to the Independent Contract Agreement 
(Agreement) between the Petitioner and 
the vendor , the Petitioner will provide consulting services to 
the vendor and to the vendor's clients according to specifications the vendor and its clients 
determine. 
Although the Petitioner did not provide the proffered position ' s functions, it submitted a letter from 
the vendor that listed the following job duties: 
• Project management support for Marketing , Digital, Social capabilities projects (not 
all projects will require a separate PM for Marketing). 
• Successfully manage the roll out and implementation of capabilities projects across 
the impacted areas of Marketing. 
• Leverage overall project management guidelines, standards, and templates from COO 
PMO 
• Support the monitoring of performance and post project success. 
• Liaise and coordinate with other Project managers or vendors (e.g. technology PM or 
other LOB, PM 's) 
• Business Project Managers document the timeline, activiti es and milestones of the 
project in a project plan; ensure activities are tracked and met for marketing 
impacts /implementation (roll-out across marketing inclusive of training activities , 
pre/post performance monitoring); document risks/issues. 
• Identify dependencies and integrate as needed vendor and technology milestones into 
overall project plan ; and schedule and document outcomes from status and 
stakeholder review meetings. 
• Document the timeline , activities and milestones of the project in the project plan , 
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Matter of GSS- Inc 
• Ensure activities are defined, tracked and met for marketing impacts/implementation 
(end to end) 
• Document risks/issues and identify dependencies and integrate as needed vendor and 
technology milestones into project plan. 
• Communicate via various mediums project updates, financial forecasts, escalations 
and outcomes from meetings to project members, key stakeholders and sponsors. 
• Ensure adherence to all required policies and procedures, program meeting schedule 
and contact management, and document management. 
Regarding the position's education requirements, the Petitioner did not specifically state that it 
requires a bachelor's degree in a specific specialty. Instead, it alluded that it required a bachelor's 
degree through a reference to the definition of a specialty occupation at 8 C.F.R. § 214.2(h)( 4)(ii), in 
addition to mentioning the 2010-2011 edition of the U.S. Department of Labor's Occupational 
Outlook Handbook (Handbook) chapter for "Computer Systems Analysts." 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we find that the Petitioner 
has not established that it has specialty occupation work available for the Beneficiary. That is, the 
Petitioner has not established that, at the time of filing, it has secured definite, non-speculative, H-1 B 
caliber work for the Beneficiary for the entire validity period requested. 
Specifically, the Petitioner has not shown that specialty occupation work will exist for the 
Beneficiary during the requested employment period. While the Petitioner claimed that the 
Beneficiary will work for the end-client for the duration of employment, there are no contracts, 
letters, or other documentation directly from the end-client confirming the existence of a contract for 
the Beneficiary's services and describing the work she will perform. As noted above, where the 
work is to be performed for entities other than the Petitioner, evidence of the client companies' job 
requirements is critical. See Defimsor, 201 F.3d at 387-88. The record is missing this critical 
evidence. 
Even if we presume the Beneficiary would work at the end-client's location, the record of 
proceedings does not establish that the end-client's project would continue through June 2019 --and 
it is the only project the Petitioner claimed that the Beneficiary would work on. The Agreement 
between the Petitioner and the vendor stated that the Agreement will begin on June 14, 2016, and 
will end as agreed to in Attachment B. Attachment B consisted of a Work Order in which the 
performance period began on July 5, 2016, and ended on July 4, 2017. Thus, without more, the 
record does not demonstrate that the Petitioner will have specialty occupation work available tor the 
validity of the requested employment period. 
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. Our regulations affirmatively require a petitioner 
to establish eligibility tor the benefit it is seeking at the time the petition is filed. See 8 C.F.R. 
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Matter of GSS- Inc 
§ 103 .2(b )(1 ). A visa petition may not be approved based on speculation of future eligibility or after 
the Petitioner or the Beneficiary becomes eligible under a new set of facts. See Matter qf Michelin 
Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
Therefore, the Petitioner has not sufficiently established that specialty occupation work is available 
for the Beneficiary at the time of filing, and thus has not established the substantive nature of the 
proffered position. This precludes a determination 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 one; (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 two; (3) the level of complexity or uniqueness of the proffered position, which is 
the focus of the second alternate prong of criterion two; (4) the factual justification for a petitioner 
normally requiring a degree or its equivalent, when that is an issue under criterion three; and (5) the 
degree of specialization and complexity of the specific duties. which is the focus of criterion four. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
Further, the petition cannot be approved because the Petitioner has not demonstrated that it qualifies 
as a United States employer. As discussed, the record of proceedings lacks sufficient documentation 
evidencing what exactly the Beneficiary would do for the period of time requested or where exactly 
and for whom the Beneficiary would be providing services. Given this specific lack of evidence, the 
Petitioner has not corroborated who has or will have actual control over the Beneficiary's work or 
duties, or the condition and scope of the Beneficiary's services. In other words, the Petitioner has 
not established whether it has made a bona fide offer of employment to the Beneficiary based on the 
evidence of record or that the Petitioner, or any other company which it may represent, will have and 
maintain the requisite employer-employee relationship with the Beneficiary for the duration of the 
requested employment period. See 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States 
employer" and requiring the Petitioner to engage the Beneficiary to work such that it will have and 
maintain an employer-employee relationship with respect to the sponsored H -1 B nonimmigrant 
worker). Again and as previously discussed, there is insufficient evidence detailing where the 
Beneficiary will work, the specific projects to be performed by the Beneficiary, or for which 
company the Beneficiary will ultimately perform these services. Therefore, the petition cannot be 
approved for this additional reason. 
III. CONCLUSION 
Based on the foregoing, although we withdraw the Director's decision, the record as presently 
constituted does not establish eligibility for the benefit sought. Accordingly, we will remand the 
matter to the Director for further consideration and entry of a new decision. 
c 
Matter of GSS- Inc 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter ofGSS- Inc, 10# 607209 (AAO Dec. 13, 2017)