dismissed H-1B Case: Computer Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 4, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer consulting company, seeks to temporarily employ the Beneficiary as a 
"programmer analyst'' under the H-1B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(l-l)(i)(b). 
The H-1 B 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, Vermont Service Center, denied the petition. The Director concluded that the 
evidence of record does not establish that the Petitioner will employ the Beneficiary in a specialty 
occupation position. 
The matter is now before us on appeal. In its appeal, the Petitioner states that the Director erred in 
concluding that the proffered position did not qualify as a specialty occupation and submits 
additional evidence. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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: 
(b)(6)
Matter of M- LLC 
(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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted 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 proposed 
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''); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-lB petition, the Petitioner stated that the Beneficiary will serve as a '·programmer analyst." 
The Petitioner provided the following job duties for the proffered position (verbatim): 
• Provide decision-support to Engineering and Product Management teams by 
performing descriptive and predictive analysis 
• Extract relevant insights from billions of rows of data to meaningfully improve 
user experience. 
• Translate unstructured, complex business problems into an abstract analytical or 
mathematical framework. 
• Develop deep analyses and use product sense to interpret the results and help 
drive key product decisions. 
• Effectively communicate the results with the product teams to apply the learnings 
for improving 
user experience. 
• Work with large data sets. work with distributed computing tools MapReduce. 
Pig, Hive or other NoSQL 
• Work with analytical tools supporting data analysis, reporting and visualization 
Tableau, D3 or other data viz tools 
• Define data requirements and gather/validate information, applying judgment and 
statistical tests 
• Synthesize quantitative results to derive implications and recommendations 
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Matter of M- LLC 
• Work with statistical software packages &/or machine learning tools (R, Matlab, 
SPSS. SAS. SciPy. Mahout. Torch) 
• Drive the collection of new data and the refinement of existing data sources 
• Work closely with product engineering team to identify and answer important 
product questions 
• Answer product questions by using appropriate statistical techniques on available 
data 
• Work with other IT staff members to ensure cross-training and provide back-up 
support 
According to the Petitioner, the position requires an individual with at least a bachelor's degree in 
engineering, computer science, computer applications. information technology, or related fields. 
In response to the Director's request for evidence (RFE), the Petitioner stated that the Beneficiary 
would perform the followingjob duties (verbatim): 
• Analyzing computer software applications using various software's and interface 
with the technical stafT in the complex programming needs and document 
modifications concerning the systems software;- 30% 
• Responsible for improvements in software computer utilization and determine 
necessity for modifications: - 1 0% 
• Reviewing software programs for compliance with company standards 
requirements and assisting in identifying deficiencies of computer runs and 
perform specialized programming assessments: -1 0% 
• Evaluating the software systems for wider applications and customize it for 
specific requirements: - 5% 
• Using analytical tools to analyze and implement new reports with GUI and 
analyze software requirement's to determine feasibility of design within time and 
cost constraints; - 15% 
• Identify deficiencies. troubleshooting problems and supporting user needs with 
professional knowledge for test planning, defect tracking and provide assistance 
to the team: - 1 0% 
• Analysis and Design of system which includes Preparation of Process Flow 
Diagrams, Entity Relationship Diagrams, File design, Program Specification and 
Design Document: - 1 0% 
• Interacting with other technical staff in researching and interpreting technical 
data;- 5% 
• Assisting as part of the team to resolve technical problems requiring good 
judgment and creativity in developing solutions. - 5% 
The Petitioner also submitted a labor condition application (LCA) in support of the instant 
H -1 B petition. The LCA designation for the proffered position corresponds to the occupational 
classification of .. Computer Systems Analysts"- SOC (ONET/OES) Code 15-1121. The Petitioner 
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(b)(6)
Matter of M- LLC 
indicated in the LCA that the Beneficiary will work at the Petitioner's 
not provide any additional work sites. 
III. ANALYSIS 
Texas location and did 
On appeal, the Petitioner asserts that the Director erred in concluding that the proffered position did 
not qualify as a specialty occupation. Upon review of the record in its totality and for the reasons set 
out below. we determine that the Petitioner has not demonstrated that the proffered position qualifies 
as a specialty occupation. Specifically, the record (1) does not describe the position's duties with 
sufficient detail; (2) does not establish that the job duties require an educational background. or its 
equivalent, commensurate with a specialty occupation; and (3) does not demonstrate that the 
Petitioner has non-speculative work for the Beneficiary.' 
For H -1 B approval, the Petitioner must demonstrate a legitimate need for an employee exists and to 
substantiate that it has H-lB caliber work for the Beneficiary for the period of employment 
requested in the petition. However, the Petitioner has not provided sufficient, credible evidence to 
establish in-house employment for the Beneficiary for the validity of the requested H-1 B 
employment period. The abstract level of information regarding the proffered position and the 
duties comprising it is exemplified by the phrases "[w]ork closely,'' ''[w]ork with other IT statT,'' 
"[ w ]ork with analytical tools,'' ''[ e ]ffectively communicate the results,'' and ''[ d]evelop deep 
analysis.'' 
In addition, the Petitioner's employment agreement with the Beneficiary states that he was hired ''to 
provide professional data processing services." The Petitioner has not further explained the nature 
of these "data processing services... The Petitioner also has not explained how "data processing 
services'' is consistent with the Beneficiary's other stated job duties. such as his duty of·'[a]naly zing 
computer software applications . 
. . and interface with the technical stafT in the complex 
programming needs and document modifications concerning the systems software .. , 
In its RFE response letter, the Petitioner stated that the Beneficiary will be working on .. the 
development of product" at the Petitioner's Texas location. The Petitioner 
explained that the product "for the past two years, has been developed by [the Petitioner's] 
engineers in [its] India Development Center," and that the Petitioner "is now ready to market this 
product in the United States and continue to develop it through [the Petitioner's] Texas oftice.'' The 
Petitioner also submitted evidence that its product has been developed and is actively being 
marketed in the United States. Such evidence includes screenshots of the product. 
marketing material, evidence of its recent exhibition during in the 
United States, and evidence of recognition of the Petitioner as a partner. 
1 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations . While we may not discuss every document submitted , we have reviewed and 
considered each one. 
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(b)(6)
Matter of M- LLC 
Considering that has already been developed in substantial part and is currently being 
marketed. the Petitioner has not sufficiently explained what development work remains to be 
performed by either the Petitioner or the Beneficiary. For example, while the Petitioner's states that 
it plans to begin ''transferring employees from [its] India development center to [its] Texas office:· 
the Petitioner has not further explained and documented who these employees from its India otlice 
are, and what work they will perform at the Petitioner's Texas development center.2 The Petitioner 
has not delineated what development functions will continue to be performed in India, and what 
functions will be transferred to Texas. The Petitioner's and ··Project 
Plan., both contain broad overviews of the remaining work to be performed from 2016 to 2018. but 
do not provide sufficiently detailed. relevant information such as the specific tasks to be performed. 
who will perform these tasks, and where they will be performed. 
Notably, the tables in the ''Project Plan'' listing the "Organizational Structure" and "Roles & 
Responsibilities'' for personnel involved in the project do not specifically mention either the 
Beneficiary or a programmer analyst position. Nor is it readily apparent that these tables refer to the 
Beneficiary or his purported job duties in the programmer analyst position. For example, the 
"Organizational Structure" table indicates that the Petitioner will employ ten "Technical 
Consultants" and eight "Developers,'' but does not identify these employees or their specific roles 
with respect to the project. Without further relevant information, we cannot determine whether the 
proffered position falls under one of the positions listed in this table. Similarly, the "Roles & 
Responsibilities" table indicates that the Petitioner will employ unidentified "Team Members'' who 
will "provide support to the project through completion of tasks on time and within budget.., Again. 
without further relevant information, this type of generalized description is insufficient to establish 
that the Beneficiary will be one of the project's '·Team Members.'' 3 
In addition, the record of proceeding does not contain sufficient documentary evidence such as 
master agreements or statements of work demonstrating that the Petitioner has procured any specific 
assignments for the Beneficiary to perform on the product. Therefore. the evidence of the 
record does not support the conclusion that the Petitioner has definite, non-speculative work tor the 
Beneficiary to perform in-house on its project. 
Rather, the evidence of record indicates that the Beneficiary will be assigned to one or more 
undetermined end-clients. For instance, the Petitioner's employment agreement with the Beneficiary 
specifically states that the Beneficiary "desires to obtain an employment position with [the 
Petitioner] to provide professional data processing services for [Petitioner·.~} Client or End User:· 
and that the Petitioner ''hires [the Beneficiary] to provide professional data processing services and 
[the Beneficiary] agrees to provide such services upon the terms and conditions set forth in this 
agreement" (emphasis added). Other language in the employment agreement also suggests that the 
2 The Petitioner does not claim that the Beneficiary is one of its employees it is seeking to transfer from India. 
3 According to the Petitioner's offer letter to the Beneficiary, the Beneficiary will report to 
identified elsewhere in the record as the Petitioner's human resources assistant. Neither 
resources 
assistant position is listed in the '"Project Plan" tables as one of the responsible parties for the 
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who is 
nor the human 
project. 
(b)(6)
Matter of M- LLC 
Beneficiary's employment is heavily dependent on the terms of an agreement reached with a ''Client 
or End User," contrary to the Petitioner's claim that the proffered duties will be performed in-house. 
For example, Article 8 of the employment agreement states that the Beneficiary's employment may 
be terminated '·[i]f the Client or End User at which Employee is providing services cancels its 
Agreement with (the Petitioner] for the Employee." Article 11 of the agreement further states that 
the Petitioner may withhold the Beneficiary's salary ''[i]fthe Client or End User at which Employee 
is providing services fails or refuses to pay an invoice for work provided by Employee ... 
Likewise, the Petitioner's offer letter to the Beneficiary states that, during the period of his 
employment. ·'[the Beneficiary] may be transferred to any other work center in the interest of the 
company or may be required to undertake temporary duties in places other than those in which you 
are ordinarily engaged to work.'' As such. the language of the offer letter and employment 
agreement indicates that the Beneficiary's employment will depend on project availability for the 
Petitioner's clients who have not been identified for the record. As we discussed above. the record 
of proceedings does not contain sufficient documentary evidence such as master agreements or work 
statements demonstrating that the Petitioner has secured work for the Beneficiary on the or 
any other project at the time the petition was filed. 
We also consider the insufficiency of the Petitioner's secured work space in Texas. The Petitioner's 
lease. which is for a one-year term from April 2015 to March 2016. is for office space for only two 
people. The Petitioner has not sufficiently explained and documented how its Texas premises would 
be sufficient to house its entire development team. As previously noted. the '·Project Plan" 
indicates that the Petitioner will employ, inter alia. ten "Technical Consultants" and eight 
"Developers'' in the United States. Although the Petitioner asserts on appeal that its lease has "the 
ability to expand whenever it is required,'' the Petitioner has not pointed to any provisions in the 
lease or submitted other documentation to support this assertion. ·'[G]oing on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings." Matter of Soffici. 22 I&N Dec. 158. 165 (Comm'r 1998) (citing lvfauer <~l 
Treasure Crafi ofCal., 14 I&N Dec. 190 (Reg'] Comm'r 1972)). 
A petition must be filed for non-speculative work tor the Beneficiary for the entire period requested 
that existed as of the time of the petition's tiling. users regulations affirmatively require a petitioner 
to establish eligibility for the benefit it is seeking at the time the petition is tiled. ,)'ee 8 C.F.R. 
l03.2(b)(l). Again, a visa petition may not be approved based on speculation of future eligibility or 
after the Petitioner or beneficiary becomes eligible under a new set of facts. See Maller <?(lvlichelin 
Tire Corp .. 17 I&N Dec. at 249. Here, the Petitioner has not submitted suflicient credible 
documentary evidence that it had specialty occupation work available for the Beneficiary. as of the 
time of tiling, for the duration of the requested time period. 4 
~ The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example. a 
1998 proposed rule documented this position as follows: 
(b)(6)
Matter of M- LLC 
Regarding the opinion letter from we find this evaluation insufficient to establish that 
the proffered position qualifies as a specialty occupation. In his letter, does not 
specifically discuss the proffered position or its associated duties, or the Beneficiary. Rather, he 
focuses his analysis on the project and what type of professionals an employer must hire in 
order to complete such a project. states that the Petitioner .. seeks to employ a highly 
trained team of IT professionals with specialized knowledge of computer systems, databases. and 
specifically of system design, planning, installation, configuration, customization. and 
support.'' However, there is no indication that he possesses any knowledge of the proffered position. 
Furthermore, does not indicate whether he visited the Petitioner's business, observed 
the Petitioner's employees, interviewed them about the nature of their work, or documented the 
knowledge that these workers apply on the job. His level of familiarity with the actual job duties as 
they would be performed in the context of the Petitioner's business has therefore not been 
substantiated. 5 
We may, in our discretion , use opinion statements submitted by the Petitioner as advisory. Maller o( 
Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm 'r 1988). However, where an opinion is not in 
accord with other information or is in any way questionable, we are not required to accept or may 
give less weight to that evidence. !d. 
Based upon a complete review of the record of proceeding, we find that the Petitioner has not 
established (1) the actual work that the Beneficiary will perform, (2) the complexity, uniqueness 
and/or specialization of the tasks, and/or (3) the correlation between that work and a need for a 
particular level education of highly specialized knowledge in a specific specialty. Consequently , 
these material omissions preclude a determination that the Petitioner's proffered position qualities as 
a specialty occupation under the pet1inent statutory and regulatory provisions. There is insufticient 
probative evidence substantiating the Petitioner ' s claims with regard to the duties, responsibilities 
and requirements of the proffered position. 
Accordingly, there is insufficient evidence establishing the substantive nature of the work to be 
performed by the Beneficiary. We are therefore precluded from 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 the particular position. 
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 . . .. Moreover, there is no assurance that the alien 
will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). 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 For all of these reasons , the opinion letter does not satisfy any of the criteria at 8 C.F.R. § 214 .2(h)( 4 )(iii)(A). 
Matter of M- LLC 
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. As the 
Petitioner has not established that it has satisfied any ofthe criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
it cannot be found that the proffered position qualities as a specialty occupation. 
Finally. we will withdraw the Director's comment that "USCIS acknowledges that the position of 
programmer analyst is normally regarded as a specialty occupation." The Director has not provided 
any reasoning nor cited to any authoritative sources to support this statement. 
IV. CONCLUSION 
The Petitioner has not sufficiently established that the proffered position qualifies as a specialty 
occupation. It is the Petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende. 26 I&N Dec. 127, 128 (BIA 2013). 
Here. that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of M- LLC, ID# 17298 (AAO May 4, 20 16) 
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