remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 7861340 
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. 13, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as an "IT consultant (SAP)" 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 California Service Center Director denied the petition, concluding that the record did not establish 
that the Beneficiary is qualified to perform the duties of the proffered position. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 1 
The Administrative Appeals Office (AAO) reviews the questions in this matter de novo,2 but a 
threshold matter and several inconsistencies and deficiencies must be resolved before we may address 
the merits of the Director 's decision and the Petitioner's appeal. Accordingly , the matter will be 
remanded to the Director for further review of the record and a new decision. 
I. ANALYSIS 
On the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner, 3 located id I Texas, 
indicated that the Beneficiary will work offsite. On the labor condition application (LCA) 4 submitted 
in support of the H-IB rtition , the Petitioner identified the Beneficiary 's work location as an address 
inl Pennsylvania. The Petitioner provided its subcontract agreement with0 
I which stated that I !(prime contractor) has an 
1 Section 291 of the Act; Matter of Chawathe , 25 I&N Dec. 369, 375 (AAO 20 I 0). 
2 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
3 Public records show that the Petitioner forfeited its existence in the State of Texas. ln any future proceedings the 
Petitioner must establish that it is an active company in good standing in the state in which it was incorporated and in any 
state that it claims to do business. We observe that public records show that the Petitioner has a New Jersey address which 
is also occupied by other companies with different versions of the Petitioner's business name. The current record, however , 
does not include probative evidence of the Petitioner 's continuing viability . 
4 The Petitioner is required to submit a certified LCA to demonstrat e that it will pay an H-lB 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 experience and qualifications who are performing the same services. Section 212(n)(l) 
of the Act; 20 C.F.R. § 655.73l(a) . 
agreement with~------~( claimed end-client) to provide staffing services. The agreement 
between the prime contractor and the end-client is not in the record. Instead the Petitioner submitted 
an April 11, 2019 letter from the managing partner of~-------~-~(vendor) who 
claimed that it had contracted for the services of the Beneficiary through his employer, the Petitioner, 
to work on a project withl ICcJaimed end-client) Thi Petitioner also 
submitted an Amil 22, 2019 letter, on the letterhead oti, indicating that 
I I had been providing software development and maintenance services to 
it and confirming that the Beneficiary is currently working at its facility. The record, however, does 
not include probative, consistent evidence establishing the contractual chain through which the 
Beneficiary will provide services to an end-client. 5 Without the full chain of contracts, the record is 
insufficient to establish that an end-client has the legal obligation to provide the position described in 
the petition. 
The two letters (from a vendor and the claimed end-client) create significant ambiguity in the record 
regarding the minimum requirements for the proposed position. Although the Petitioner, the vendor, 
and the claimed end-client provide the same description of duties 6 for the proposed position, the three 
entities all have different requirements to perform the duties of the position. 7 The Petitioner asserts 
that the minimum requirement to perform the position "is a Bachelor's degree or its equivalent in 
Computer Science, Computer Science Engineering or another closely related field such as CIS 
(Computer Information .S_ystems), MIS (Management Information .S_ystems) and some relevant 
experience." The Petitioner does not define the amount of or the nature of the experience it deems 
relevant. The vendor claims that the "position requires a minimum of Masters in Computer Science, 
Software Engineering, or other related field." The claimed end-client asserts that the position requires 
a "minimum of a Bachelor's degree in Computer Science, Computer Science Engineering or any other 
closely related field such as Industrial Management or Engineering." The claimed end-client does not 
explain how or why an industrial management or general engineering degree is a closely related field 
to the position or to a computer science degree. The inconsistent minimum requirements undermine 
a claim that the proffered position requires a specific degree. 
We also observe that the duties for the proffered position are not sufficiently detailed to correspond to 
a specific technology position. There are technology occupations that may be performed with a 
general degree ( either at the bachelor or associates level) and certifications or undefined experience in 
a particular program or third party software. There are also technology occupations that may require 
special skills, specific certifications, advanced knowledge, or that incorporate the duties of more than 
one occupation. Here, the duties suggest that the individual in the position must have familiarity with 
some programming languages and some SAP modules, however, the description is not sufficiently 
detailed to ascertain the nature and level of responsibility of the proposed position, including whether 
the duties as generally described correspond to the occupation designated on the LCA. The record 
does not establish the substantive nature of the proffered position or demonstrate that performing the 
duties described would require the theoretical and practical application of highly specialized 
5 It is not possible to ascertain from the record the correct name of the claimed end-client. 
6 We observe that the Petitioner and the claimed end-client use the same description of the proposed duties. The vendor 
uses the same description with the addition of one extra bullet-point. 
7 The subcontractor does not describe the duties of the proposed staffing position and does not specify the minimum 
requirement that it or its customer requires to perform the duties of the staffing position. 
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knowledge and the attainment of at least a bachelor's degree in a specific specialty or its equivalent. 
See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation). 
The record does not include sufficient evidence to establish that the proffered position requires a 
baccalaureate or higher degree in a specific specialty, or its equivalent; and a beneficiary's credentials 
to perform a particular job are relevant only when the job is found to be a specialty occupation. Thus, 
until the record includes sufficient evidence establishing the proposed position is a specialty 
occupation, the legal obligation of the claimed end-client to provide that specific work, and consistent 
information establishing the minimum requirements to perform the duties, an analysis of the 
Beneficiary's qualifications is premature. Although there are insufficiencies in the information 
regarding the Beneficiary's qualifications, it is not possible to conclude that the Beneficiary is not 
qualified to perform the non-H-lB caliber position described in the current record. 
II. CONCLUSION 
As the Petitioner was not previously accorded the opportunity to address the deficiencies and 
inconsistencies in the record discussed above, we will remand the record for farther review of these 
issues. The Director may request any additional evidence considered pertinent to the new 
determination. 
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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