remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
InRe : 8198457 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 26, 2020 
The Petitioner , an information technology company, seeks to temporarily employ the Beneficiary as an 
"associate test lead" 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 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]."). 
As presently constituted, the record does not demonstrate that the proffered position qualifies as a 
specialty occupation. See sections 101(a)(15)(H)(i)(b) , 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) , 
(iii)(A). The Petitioner has not submitted sufficient evidence to establish the substantive nature of the 
work which precludes a determination that the proffered position satisfies any criterion at 8 C.F.R. 
§ 2 l 4.2(h)( 4)(iii)(A). Although the record contains a master services agreement and two statements of 
work (SOWs) between the Petitioner and the end-client, the first SOW expires before the beginning 
of the Beneficiary's requested employment period. Similarly, the Petitioner specifically stated 
elsewhere in the record that, as of the petition filing, the end-client project "to which [ the Beneficiary] 
is assigned, is currently scheduled to last through July 2018, the end of the [end-client 's] fiscal year," 
with the possibility of a one-year extension. In tum, the second SOW is dated after the petition filing 
date. 1 A petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and 
must continue to be eligible for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A visa 
petition may not be approved at a future date after a 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). 
Accordingly, because the parties dated the second SOW after the petition filing date, it cannot establish 
eligibility. Id. 
Moreover, even if the parties had dated the SOWs as of the petition filing date for work to be performed 
during the requested period, neither SOW describes the end-client's requirements beyond a 
generalized "[ s ]taff augmentation - requirements for each resource will be defined by the 
[end-client's] project management." 2 Furthermore, although the second SOW-which cannot 
establish eligibility-identifies the Beneficiary among the "planned consultants" for the project, 
invoices in the record dated December 2017, and January and February 2018 identify the Beneficiary 
as an "offshore consulting" worker, providing between 112 and 168 hours each invoice period, raising 
questions regarding the work for which the parties contracted, as of the petition filing, for the 
Beneficiary to perform at the end-client location. 
Accordingly, the matter will be remanded to the Director to consider the specialty-occupation issue 
and enter a new decision. 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. 
1 Although the Petitioner's signatory did not date his signature, the end-client's signatory digitally signed the SOW with a 
date stamp in August 2018. 
2 As recognized by the court in Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000), where the work is to be 
performed for entities other than a petitioner, evidence of the client companies' 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. 
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