remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 5038910 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 9, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(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 . 
The Director of the California Service Center denied the petition, concluding that the record does not 
establish that the Beneficiary is qualified for the proffered position. On appeal, the Petitioner asserts 
that the Director erred in the decision . 
While we conduct de nova review on appeal, we conclude that a remand is warranted in this case because 
the Director's decision is insufficient for review . Specifically, the Director is required to follow long­
standing legal standards and determine first, whether the proffered position qualifies for classification as 
a specialty occupation, and second, whether the Beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 
(Comm'r 1988) ("The facts of a beneficiary's background only come at issue after it is found that the 
position in which the petitioner intends to employ him falls within [a specialty occupation]."). 
Therefore, we will withdraw the Director's decision and remand the petition for further review of the 
record and a new decision. 
I. ANALYSIS 
As presently constituted, the record does not demonstrate that the proffered position qualifies as a 
specialty occupation or the Petitioner will have an employer-employee relationship with the 
Beneficiary. See 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 1 
1 We follow the preponderance of the evidence standard. Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010) . 
The Petitioner, which is located in North Carolina, states that it will deploy the Beneficiary to an end­
client's location in Tennessee pursuant to agreements executed by the Petitioner, S-P-G- (mid-vendor), 
and T-S-C- (end-client). The Director should review the record and determine/assess whether it 
contains sufficient evidence to establish the services the Beneficiary will perform for the end-client 
and whether they qualify as a specialty occupation. 
For example, in support of the claimed contractual relationship, the Petitioner submitted 'Technical 
Services Consulting Agreements" (TSCAs) it executed with the mid-vendor. The most recent TSCA 
states that the Petitioner agrees to provide "information technology and other similar technical services 
[] for a specific Client project based on such Client's needs, and [the Petitioner] wishes to use the 
services of [the mid-vendor] to broker its services to such Client on its project." The record contains 
two mid-vendor purchase orders that identify the end-client and indicate the project's end-dates as 
December 2017, and September 2019, respectively. Each purchase order identifies the Beneficiary 
and describes the services that he will provide to the Client as simply a "Linux Administrator." 
The record also contains a professional services agreement (PSA) executed between the mid-vendor 
and the end-client which states "[the end-client] agrees to place orders with [the mid-vendor] for the 
provision of services by temporary employees, which orders shall describe the type of work requested, 
specific duties to be performed, skills required, and any other requirements. The Petitioner has 
provided emails from the end-client in which it requests the Beneficiary's temporary assignment to 
projects, such as the email requesting the Beneficiary's services for 40 hours to "execut[e] the server 
builds," and another email which references a purchase order "for 40 hours for [the Beneficiary to perform 
services] for thel !project (018.0107.9017)." The record, however, does not contain any 
such "orders" from the end-client identifying the duties that the Beneficiary will perform, the 
requirements for the position, and the nature of its project that requires the Beneficiary's services, as 
referenced in the end-client PSA. The lack of this contractual documentation is important because, in 
this case, the existence of the proffered position appears dependent entirely upon the willingness of 
the end-client to provide it. If we cannot determine whether the proffered position as described will 
actually exist, then we cannot ascertain its substantive nature so as to determine whether it is a specialty 
occupation. 2 Here, the Petitioner did not document the contractual terms and conditions of the 
Beneficiary's employment as imposed by the end-client. See Defensor v. Meissner, 201 F.3d 384,387 
(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). 
Though relevant, the letter from the end-client is not sufficient to fill this gap, as it does not sufficiently 
describe the contractual relationships between the parties such that we can ascertain the nature and 
terms of those relationships and determine whether there is, in fact, a legal obligation on the part of 
the end-client to provide the position the Petitioner describes. We also conclude that the end-client 
letter has little probative value because the Petitioner has not established that the signatory of the end­
client letterJ I was authorized by the end-client to issue such a letter on its behalf 3 The 
letter is not written on the end-client's letterhead, and the signatory does not identify her specific 
2 The agency made clear long ago that speculative employment is not pennitted in the H-1 B program. See, e.g., 63 Fed. 
Reg. 30419, 30419 - 30420 (June 4, 1998). 
3 It is the Petitioner's burden to prove by a preponderance of evidence that it is qualified for the benefit sought. Matter of 
Chawathe, 25 I&N Dec. at 376. In evaluating the evidence, eligibility is to be determined not by the quantity of evidence 
alone but by its quality. Id. 
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position title, but instead notes "Human Resources Business Partner" after her signature and name, 
without farther explanation. Thus, the signatory did not describe her own qualifications to opine on 
behalf of the end-client regarding the Beneficiary's employment. Lastly, she also did not explain how 
she came to have knowledge of the terms and conditions of the Beneficiary's employment at the end­
client location. 
Further, the end-client's letter references a work order, and it indicates that the Beneficiary will be 
employed as a "Systems Administrator to assist [the end-client] in the Systems Administration- UNIX 
Team." The end-client letter also states "[w]e understand that [the Petitioner] will be requesting a 3 
year authorization for [the Beneficiary] so that he may complete his duties during under this work 
order and any extensions." While the end-client letter references the Beneficiary's position title, the 
team to which he will be assigned, and provides abbreviated job duties that are reiterated by the 
Petitioner and the mid-vendor, the record contains insufficient evidence detailing what the projects 
entail and to what specific aspect of the projects the Beneficiary will be assigned during his requested 
H-lB employment. 4 
In light of the above, the Director should consider whether the record establishes that, more likely than 
not, the Petitioner has secured work for the Beneficiary at the end-client location and if so, the terms, 
conditions, and scope of that work. 
If the Director concludes that the record demonstrates that the Beneficiary will perform services in a 
specialty occupation, then the Director should examine whether the Beneficiary is qualified to perform 
services in the specialty occupation. 
The Director should also examine whether the record contains sufficient evidence demonstrating that the 
Petitioner will have an employer-employee relationship with the Beneficiary as a "United States 
employer." The Petitioner asserts that it will maintain supervision and control over the Beneficiary 
during his assignment at the end-client's location. For example, the Petitioner states that it has the 
right to assign additional duties to the Beneficiary, that it will pay the Beneficiary's benefits, and that 
it will supervise the Beneficiary "through personal meetings, emails and phone calls as needed, 
approve his timesheets for every pay period, and conduct his yearly performance appraisal." Although 
the Petitioner submits an organizational chart depicting the Beneficiary and over twenty other 
employees as subordinate to the Petitioner's CEO, the Petitioner does not sufficiently explain how the 
Petitioner's CEO will gain and communicate the necessary information regarding the end-client's 
project, assign the daily work, or monitor the Beneficiary's performance from a remote location. We 
also observe that according to the end-client's PSA with the mid-vendor, it is the end-client, and not 
the Petitioner, who will "review and approve" the time records of the 'Temporary Personnel," (which 
4 We acknowledge that the Petitioner submitted additional information for the job duties, which, for the sake of brevity, 
have not been included herein. However, this material has been closely reviewed and considered, as with all evidence in 
the record. For instance, the Petitioner submitted affidavits rrom individuals claiming to be the Beneficiary's colleagues 
at the end-client location, who provide more expansive explanations about the Beneficiary's job duties. Notably, the 
Director requested that the Petitioner provide contractual documentation and supporting statements rrom the end-client 
that would substantiate the terms and conditions of the Beneficiary's assignment. The Petitioner did not provide the 
requested documentation from the end-client other than the end-client letter and emails discussed above, which we 
conclude are of little probative value. "Failure to submit requested evidence which precludes a material line of inquiry 
shall be grounds for denying the [petition]." 8 C.F.R. § 103.2(b)(14). 
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presumably includes the Beneficiary). In addition, the PSA indicates that the end-client (and not the 
Petitioner) will determine whether the temporary personnel will "satisfactorily perform the services 
ordered by [the end-client]." Thus, it appears that the Petitioner has not corroborated who has or will 
exercise control over the Beneficiary's work or duties, or the condition and scope of the Beneficiary's 
services. Again, the Director may wish to explore this matter farther. 
II. CONCLUSION 
We will remand the record for farther review of these issues. The Director may request any additional 
evidence considered pertinent to the new determination and any other issue. As such, we express no 
opinion regarding the ultimate resolution of this case on remand. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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