dismissed H-1B Case: Computer Programming

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 1-T-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 27, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting company, seeks to temporarily employ the 
Beneficiary as a "computer programmer" under the H-1B 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-1B 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 there is specialty occupation work available at the 
Petitioner's location in the capacity described in the petition. 1 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in finding that the proffered position is not a specialty occupation. 
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. 
1 The second basis for denial was the Petitioner's failure to submit the required filing fee. Upon review of the record, it 
appears that the Petitioner did in fact pay the required filing fees. The Director's findings regarding this issue are therefore 
withdrawn. 
(b)(6)
Matter of J-T- , Inc. 
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: 
(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 Form I-129, Petition for a Nonimmigrant Worker, and the labor condition application (LCA), 
the Petitioner stated that the Beneficiary will be employed at its premises as a "~omputer 
programmer." 
The Petitioner stated in its support letter that the Beneficiary would perform the following duties 
(verbatim): 
• Design, development, implementation and maintenance of 
, data warehouse and Software Development. 
• Provide expertise in SQL, Tools and Utilities (FastExport, Fastload, 
Multiload, 
BTEQ 'and Queryman) 
• Work on various component groups such as Compress, Database, Dataset, 
Partition, Departition, FTP, Sort and Transform. 
• Planning, architecture, design, and optimization of data warehousing 
• Integration of various data sources with Multiple Relational Databases like 
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(b)(6)
· Matter of J- T-, Inc. 
• Create Macros for triggering the SQL's. 
• Design, develop and Unit test SQL views using SQL to load data from 
source to target. 
• Creating BTEQ, Fast export, MultiLoad, Fast load scripts. 
• Create test cases and perform unit testing for the SQL views. 
• Generate various Reports and Extracts for analysis purposes. 
• Use UNIX shell scripts for automating tasks for BTEQ and other utilities. 
• Develop Load strategy to populate work and final tables through Unix Jobs. 
• Prepare Job scheduling docs and Job Stream List Using Dollar U for code 
migration to test and production. 
• Using BTEQ and SQL Assistant (Query man) front-end tools to issue SQL 
commands matching the business requirements to RDBMS. 
• Use the knowledge and functional applications of RDBMS, Data Mapping, Data 
management 
and Data transportation 
• Testing and debugging of all relevant programs, reports scheduling of sessions for 
automation of loads & document Unit testing. 
• Preparing the necessary deployment documents required during the deployment 
• Developing Packages and Procedures accordance with Business Requirements 
and also to extract the data from different sources and load it into data warehouse 
• Maintaining daily 
batch cycle for different Data Loads and provide the support. 
• Review mapping documents provided by Business Team, implementing business 
logic embedded in mapping documents into SQLs and loading tables 
needed for Data Validation. 
/ 
The Petitioner stated the minimum requirement for this position is a bachelor's degree in engineering 
plus 2 years of experience. 
III. ANALYSIS 
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; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation? 
We find that the record of proceedin~s contains inconsistencies that undermine the Petitioner's 
claims regarding the proffered 
position. The Petitioner claims on appeal that the Beneficiary would 
2 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. 
3 The Petitioner has provided inconsistent information regarding the Beneficiary 's rate of pay. On the Form 1-129, the 
Petitioner stated that the Beneficiary would be paid $60,000 per year. However, on the LCA, the Petitioner stated that 
3 
(b)(6)
Matter of J- T-, Inc. 
"implement the software product at for the 
duration of the petition in the Petitioner's office space at We 
note that is also located in the same building as the Petitioner, although the Petitioner 
states that is located in a different suite number. Nevertheless, the Petitioner's 
statement that the Beneficiary would implement its product at implies that the 
Beneficiary would physically be located in space rather than the Petitioner's office. 
As no supporting evidence was submitted regarding the number of employees already 
employs in its office space, we cannot determine if the Beneficiary would have sufficient work space 
there, or how the Petitioner would oversee or supervise the Beneficiary's work with 
Further, we take administrative notice of the Petitioner's website where the Petitioner lists its 
location as in Texas,4 and not the address listed in the petition. 
Although the Petitioner claims on appeal that the "Petitioner's current office is large enough to 
provide a workspace for the Beneficiary," the Petitioner has not provided a copy of any lease, other 
evidence of its physical location, or information about where its "six" other employees are located, 
so we cannot verify whether or not the Petitioner has sufficient space for the Beneficiary to work at 
the address listed in the petition. 
Additionally, the Petitioner submitted a copy of its software license agreement with 
which indicates that the Petitioner has given a license to use the Petitioner's software 
for free, undermining its claim that it would have sufficient work for the Beneficiary. On appeal, the 
Petitioner explains that although the software was given to for free, must 
still "pay for any maintenance or upgrades to the system." However, the Petitioner has not 
submitted a copy of any contract or other document evidencing that will pay the 
Petitioner for maintenance or upgrades to the system. "[G]oing on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings." Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure 
Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Therefore, the Petitioner has not 
demonstrated that it has sufficient work for the Beneficiary to perform. 
The timeline that the Petitioner submits on appeal also states that the Beneficiary would primarily 
work on data dumping. It therefore appears that has already been developed and the 
Beneficiary would work only on maintenance or upgrades for in direct contradiction to 
the proffered duties of software design, development, and implementation. Moreover, the timeline is 
from November 2015 to November 2017, but the Petitioner requested that the Beneficiary work 
through September 2018, contradicting its claim that it has sufficient work for the Beneficiary 
covering the duration of the petition. The Petitioner did not explain the discrepancies. 
Without a purchase order or contract that outlines the terms and conditions of the Beneficiary's 
employment and information regarding specific projects to which the Beneficiary would be assigned 
the Beneficiary would be compensated $54,000 per year. No explanation for this inconsistency was provided . 
4 
See (last visited July 26, 20 16). · 
4 
Matter of J-T-, Inc. 
that covers the duration of the period of employment requested, we are not able to ascertain what the 
Beneficiary would do, where the Beneficiary would work, or how this would impact circumstances 
of his relationship with the Petitioner, A petition must be filed for non-speculative work for the 
Beneficiary, for the entire period requested, that existed as of the time of the petition's filing. The 
Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 8 C.F.R. § 
103 .2(b )(1 ). A visa petition may not be approved at a future date after the 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). 5 
Because of the discrepancies discussed above, we cannot determine the nature and scope of the 
Beneficiary's employment. The record lacks evidence suffiGiently concrete and informative to 
I 
demonstrate that the proffered position qualifies as a specialty occupation. Therefore, we cannot 
determine that the description of the proffered position communicates: (1) the actual work that the 
Beneficiary would 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 of highly specialized 
knowledge in a specific specialty. "[I]t is incumbent upon the petitioner to resolve the 
inconsistencies by independent objective evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. !d. at 591-92. 
The inability to establish the substantive nature of the work to be performed by the Beneficiary 
consequently 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 the particular position, which is the focus of criterion 1; 
5 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) of the 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 8 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). 
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Matter of J- T-, Inc. 
I 
(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. Accordingly, as the Petitioner 
has not established that it has satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it cannot 
be found that the proffered position qualifies as a specialty occupation. 
However, even if the Petitioner had credibly established the substantive nature of the proffered 
position, we find that there is insufficient evidence to establish that the proffered position qualifies as 
a specialty occupation. That is, the proffered position does no.t require the attainment of a 
baccalaureate or higher degree in a specific specialty, or its equivalent, as the minimum requirement 
for entry into the occupation. See section 214(i)(l) ofthe Act; 8 C.F.R. § 214.2(h)(4)(ii). 
While the Petitioner asserted that it requires at least a bachelor's degree in engineering plus two 
years of experience for the proffered position, on appeal it provides evidence of the credentials of 
four other computer programmers, one of whom has a U.S. bachelor's degree in biomedical science. 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty (or its equivalent)" requirement of section 214(i)(l)(B) of the Act. In such a 
case, the required "body of highly specialized knowledge" would essentially be the same. Since 
there must be a close correlation between the required "body of highly specialized knowledge" and 
the position, however, a minimum entry requirement of a degree in two disparate fields, such as 
philosophy and engineering, would not meet the statutory requirement that the degree be "in the 
specific specialty (or its equivalent)," unless the Petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required "body of 
highly specialized knowledge" is essentially an amalgamation of these different specialties. Section 
214(i)(l)(B) of the Act (emphasis added). The Petitioner does not explain how a degree in 
biomedical science is closely related to its stated minimum requirement of a bachelor's degree in 
engineering, nor the nexus between coursework taken towards a bachelor's degree in biomedical 
science and performing the proffered duties. 
The other three computer programmers have foreign degrees that have not been evaluated by a 
credential service, so we cannot determine if these degrees are equivalent to a U.S. bachelor's degree 
in engineering. Further, one of the foreign degrees does not state a major. 
Therefore, the Petitioner's assertion that the job duties of this particular position can only be 
performed by an individual with a bachelor's degree in engineering is not supported by the evidence. 
Again, going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165. 
Matter of J-T-, Inc. 
IV. CONCLUSION 
The burden is on the Petitioner to show 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 J- T-, Inc., ID# 17291 (AAO July 27, 20 16)