remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-S-S-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non- Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 4, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting/development business, seeks to continue to 
employ the Beneficiary as a "Computer Programmer" and to classify her as a nonimmigrant worker 
in a specialty occupation. See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, Vermont Service Center, denied the petition. The 
matter is now before us on appeal. The matter will be remanded to the Director for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
I. ISSUES 
The issues before us are whether (1) the proffered position qualifies as a specialty occupation; and 
(2) the Beneficiary is qualified to serve in a specialty occupation position in accordance with the 
applicable statutory and regulatory provisions. 1 
II. BENEFICIARY QUALIFICATIONS 
The Director denied the petition, concluding that the Petitioner did not establish that the Beneficiary 
is qualified to perform the services in a specialty occupation. A beneficiary's credentials to perform 
a particular job, however, are relevant only when the job is found to qualify as a specialty 
occupation. U.S. Citizenship and Immigration Services (USCIS) is required to follow long-standing 
legal standards and determine first, whether the proffered position qualifies as a specialty 
occupation, and second, whether a beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assoc., 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]."). In 
the instant case, the record of proceeding does not establish that the proffered position qualifies as a 
1 We conduct appellate review on a de novo basis. Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015); see 
also 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the issues on notice or by rule."); Dar v. INS, 891 F.2d 997, 
I 002 n.9 (2d Cir. 1989). 
Matter of G-S-S-, Inc. 
specialty occupation. We are therefore remanding this matter to the Director to analyze first whether 
the proffered position qualifies as a specialty occupation. 
III. 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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualifY as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(I) 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 G-S-S-, Inc. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F .R. § 214.2(h)( 4 )(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F .R. § 214.2(h)( 4 )(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F .R. § 214.2(h)( 4 )(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F .R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. 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"). Applying this standard, USCIS regularly approves H-1B petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H -1 B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does 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. users must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
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. See Defensor v. Meissner, 201 F.3d at 387-88. The court held that the former Immigration 
and Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
3 
(b)(6)
Matter of G-S-S-, Inc. 
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. Analysis 
One consideration that is necessarily preliminary to, and logically even more foundational and 
fundamental than the issue of whether a proffered position qualifies as a specialty occupation, is 
whether the Petitioner has provided substantive information and supportive documentation sufficient 
to establish that, in fact, the Beneficiary would be performing services for the type of position for 
which the petition was filed (here, a computer programmer). The Petitioner indicated on the Form I-
129 that it is located in Kansas, and that the Beneficiary would be working as a computer 
programmer at The Petitioner indicated 
that the Beneficiary would not work off-site. We find that the evidence of record is devoid of 
substantial documentary evidence as to the location and specific duties of the proffered position. 
Given the lack of detail and corroborating evidence, it cannot be determined that the proffered 
position qualifies as a specialty occupation. 
The Petitioner did not submit a position description or provide m1mmum requirements for the 
proffered position, but merely provided a copy of the prior H-1B approval notice issued for the 
Beneficiary. Therefore, sufficient evidence has not been submitted to demonstrate that the proffered 
position is a specialty occupation. "(G]oing on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings ." In re So.ffici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 190 
(Reg'l Comm'r 1972)). Moreover, any prior approvals filed on behalf of the Beneficiary do not 
preclude users from denying an extension of the original visa based on a reassessment of eligibility 
for the benefit sought. See Tex. A&M Univ. v. Upchurch, 99 F. App'x. 556 (5th Cir. 2004). We 
further note that the Form I-129 and the LCA indicate that the Beneficiary will work at an address in 
New Jersey, whereas the Petitioner is located in Kansas. However, the Petitioner 
checked the box "No" to answer the question, "Will the beneficiary work off-site?" in Part 5. While 
the Petitioner now claims on appeal that the Beneficiary has been working for a specific client since 
July 21 , 2007, Petitioner did not provide any supporting documents regarding the work to be 
perfmmed by the Beneficiary in New Jersey, the Petitioner's contracts with that client, and the 
educational requirements of the New Jersey client. 
As recognized in Defensor v. Meissner, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location(s) in order to properly 
ascertain the minimum educational requirements necessary to perform those duties. See Defensor v. 
Meissner, 201 F.3d 384 (5th Cir. 2000). In other words, as the employees in that case would provide 
services to the end-client and not to the petitioning staffing company, the petitioner-provided job 
duties and alleged requirements to perform those duties were irrelevant to a specialty occupation 
4 
Matter of G-S-S-, Inc. 
determination. See id. Here, the record is insufficient to establish that, in fact, the Beneficiary 
would be performing services for the type of position for which the petition was filed. 
The Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, which therefore precludes a finding that the proffered position satisfies 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 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. 
Next, we find that the limited documentation in the record of proceedings does not establish that, at 
the time the petition was filed, the Petitioner had secured non-speculative work for the Beneficiary 
that corresponds with its claims regarding the work to be performed by her. 2 The record does not 
contain evidence such as invoices, purchase orders, work orders, statements of work, and contracts 
which outline in sufficient detail the nature and scope of the Beneficiary's intended employment with 
the Petitioner (or the claimed end-user) which would establish that the Beneficiary will be employed 
by the Petitioner in the capacity specified in the petition for the duration of the requested 
employment period. Thus, the Petitioner has not established that the petition was filed for non­
speculative work for the Beneficiary that existed as of the time of t~e petition's filing, for the entire 
period requested. 
2 The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 8 classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 8 nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) ofthe Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
5 
Matter of G-S-S-, Inc. 
Accordingly, upon review of the totality of the record, the Petitioner has not provided substantive 
information and supportive documentation sufficient to establish that, in fact, the Beneficiary would 
be performing services primarily as a computer programmer for the duration of the requested 
employment period. As the Petitioner in this matter has not provided documentary evidence 
substantiating the Beneficiary's actual work, we cannot conclude that the Petitioner established that 
it would employ the beneficiary in a specialty occupation. 
For these reasons, the petition as currently constituted cannot be approved and this matter must be 
remanded to the Director for issuance of a new decision. 
IV. CONCLUSION AND ORDER 
As discussed, the evidence of record does not demonstrate that the proffered position is a specialty 
occupation. Consequently, the matter will be remanded to the Director for further review and 
issuance of a new decision in accordance with the applicable statutory and regulatory provisions. 
The Director may request any additional evidence considered pertinent to the new determination. 
ORDER: The decision of the Director, Vermont Service Center is withdrawn. The matter is 
remanded to the Director, Vermont Service Center for further proceedings consistent 
with the foregoing opinion and for the entry of a new decision. 
Cite as Matter o,[G-S-S-, Inc., ID# 15300 (AAO Feb. 4, 2016)