dismissed H-1B Case: Computer Science

MATTER OF N-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 31,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer company, seeks to temporarily employ the Beneficiary as a "QA analyst" 
under the H-1 B nonimmigrant classification for specialty occupations. See Immigration and Nationality 
Act (the Act) § IOI(a)(l5)(H)(i)(b), 8 U.S.C. § IIOI(a)(l5)(H)(i)(b). The H-IB 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, California Service Center, denied the· petition. The Director concluded that the 
evidence of record is insufficient to establish that the proffered position qualifies as a specialty 
occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director's 
conclusion is erroneous. 
Upon de novo review, the appeal will be dismissed. 
I. 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. 
Matter of N-, Inc. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(!)] 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 quality as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the m1mmum 
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. 
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 (\ 988) (holding that construction 
oflanguage 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 of W-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. 
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Matter of N-, Inc. 
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. Chertojf, 484 F.3d 139, 147 (lst 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-IB 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-IB 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, 20! 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, 20! 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, 20! 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 
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. Jd 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. The Proffered Position 
On the Form I-!29, Petition for a Nonimmigrant Worker, the Petitioner described itself as a 23-
employee "Technology Integration Services for applications and hardware" company. The 
Petitioner seeks to employ the Beneficiary as a "QA Analyst" from October 1, 2015, to July 19, 
2018. The Petitioner indicated that the Beneficiary will work oft~site in Michigan. 
The labor condition application (LCA) submitted to support the visa petition states that the proffered 
position corresponds to Standard Occupational Classification (SOC) code and occupation title 
15-1131, "Computer Programmers," from the Occupational Information Network (O*NET). The 
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(b)(6)
Malter of N-, Inc. 
LCA further states that the proffered position is a Level I, entry-level, position. The LCA lists the 
sole place of employment as the Michig an address. 
In its cover letter, the Petition er stated that the Beneficiary will work at the business premises of its 
"direct -client," located in Michigan. The Petitioner described the proffered 
position as follows (verbatim): · 
• Review functional and design specifica tions to ensure full understanding of 
individual deliverables. 
• Backen d databa se testing in Microsoft SQL environment including validating 
stored process , jobs and triggers. · 
• Identify test requirements from specifications , map test case requiremen
ts and 
design test coverage plan . 
• Develop, documen t and maintain functional test cases and other 
test artifacts like 
the test data, data validation, harness scripts and automated scripts. 
• Execute and evaluate manual or automated test cases and report test results. 
• Hold and facilitate test plan/case reviews with cross-functional team members. 
• Identify any potential quality issues per defin ed process and escalate potential 
quality issues immediately to management. 
• Ensure that validated d
eliverables meet functional and design specifications and 
requirements. 
• Isolate, replicat~, and report defects and verify defect fixes . 
In. response to the Director 's request for evidence (RFE), the Petitioner elaborated upon the duties of 
the proffered position , as well as the time spent on each duty , as follows (verbatim): 
Tasks Difficulty % Time 
Level to be 
Spent 
l. Help by validating that the sites and systems meet design 
specifications and requirement s using various testing tools. Develop, 4 30% 
document and maintain functional test cases and other test artifacts 
like the test data, data validation, harness scripts and automated 
scripts. 
2. Review functional and design specifications to ensure full 
understanding of individual deliverables. Identify test requirement s 4 30% 
from specifications , map test case requirements and design test 
coverage plan 
3. Execute and evaluate manual or automated test cases and report test 
results. Hold and facilitate test plan/case reviews with cross- 4 10% 
functional team members. 
4. Identify any potential quality issues per defined process and escalate 4 10% 
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(b)(6)
. Matter of N-, Inc. 
potential quality issue s immediately to manageme nt. 
5. Ensure that validat ed deliverables meet functio nal and design 
specificat ions and requir emen ts. 3 10% 
6. Isolate, replicate, and report defects and verify defect fixes. 
4 10% 
Notes on Difficulty Level 
1 Novice 
2 Some Exposure 
3 Familiarity with Computers 
4 Bachelor's 
5 Master's 
The Petitioner stated that the proffered position requires a bachelor's degree in comput er science or a 
related field , plus a minimum of three years of relevant QA technical experience, and three years of · 
"large enterprise ore-b usine ss systems experience. " 
In supp ort of the petition, the Petitio ner submitte d two "Ass igned Personnel Forms" which describe 
the "Service s to be performed " as "design and development of the automat ion." 1 The Petitioner also 
submitted two· Employment Agreemen ts with the Beneficiary whic h provide the following 
description of duties (verbatim): 2 
[The Beneficiary ] will be respon sible for in identif ying t he business flow of 
trades ,Involved in prepar ation of Test Strategy and Release planning and role of 
Serum master as part of agile track and worked closed with teams in multiple 
locations Responsible for the execution of Test cases Involved in Function ality, 
Integration , System , Regress ion Testing Created Web Service s test Framework and 
proce ss in place for all the SOAP based and RESTful web s ervices.Created FitNesse 
suites for dai ly Smoke tests Automat ed web services testing using the tool SOAP 
SOANRA utomated the test exec ution by integrating SOAP SONAR with Quality 
center . 
The Petiti oner also submitte d a letter from the end-cl ient stating that the Benefic iary will work at its 
busine ss premi ses in Michigan as a "QA Analyst for the project entitled The 
end-client letter lists job dutie s similar to those listed in the Petition er' s cover letter and RFE 
response. This Jetter states that the company has "neve r recruited for [the proffered] position for less 
1 The two Assigned Personnel Forms contain the same description of duties. 
2 
The Petitioner submitted an "ame nded" Employment Agreeme nt in response to the Director 's RFE which had noted 
severa l imperm issible provision s relating to the LCA in the original Employment Agreement. Both Employ ment 
Agreement s contain the same description of dutie s. · 
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Matter of N-, Inc. 
than a Bachelor's degree in the following fields Computer Science, Computer Applications, 
Information Technology, Mathematics; Business or a closely related field [sic]," along with at least 
two to three years of related experience. 
C. Analysis 
As a preliminary matter, the end-client's assertion that a bachelor's degree ·in "Business" is a 
sufficient minimum requirement for entry into the proffered position is inadequate to establish that 
the proposed position qualifies as a specialty occupation. 3 A petitioner must demonstrate that the 
proffered position requires a precise and specific course of study that relates directly and closely to 
the position in question. Since there must be a close correlation between the required specialized 
studies and the position, the requirement of a degree with a generalized title, such as "Business," 
does not establish the position as a specialty occupation. cy Matter of Michael Hertz Assocs., 19 
I&N Dec. 558, 560 (Comm'r 1988). 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)(l) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. As discussed supra, USCIS interprets the degree requirement at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed 
posttwn. Although a general-purpose business degree may be a legitimate prerequisite for a 
particular position, requiring such a degree, without more, will not justify a finding that a particular 
position qualities for classification as a specialty occupation. Royal Siam Corp. v. Chertoff, 484 
F.3d at 147.4 Without more, a degree requirement in "Business," alone, indicates that the proffered 
position is not in fact a specialty occupation. 
3 While the Petitioner's list of acceptable degrees does not contain a degree in business, the Petitioner has not explained 
why its requirements differ from the end-client's requirements. Regardless, to the extent that the Petitioner's 
descriptions differ from those provided by the end-client, we defer to the end-client's descriptions. See Defensor v. 
Meissner, 201 F.3d at 387-388 (the petitioner-provided job duties and alleged requirements to perform those duties are 
irrelevant to a specialty occupation determination). 
4 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
/d. 
The courts and the agency consistently have stated that, although a general-purpose bachelor's degree, 
such as a business· administration degree, may be a legitimate prerequisite for a particular position, 
requiring such a degree, without more, will not justify the granting of a petition for an H-1 B specialty 
occupation visa. See, e.g., Tapis tnt '1 v. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti, 36 F. 
Supp. 2d at 1164-66; cf Matter of Michael Hertz Assocs., 19 1&N Dec. 558, 560 ([Comm'r] 1988) 
(providing frequently cited analysis in connection with a conceptually similar provision). This is as it 
should be; elsewise, an employer could ensure the granting of a specialty occupation visa petition by 
the simple expedient of creating a generic (and essentially artificial) degree requirement. 
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(b)(6)
Matter of N-, Inc. 
Moreover, it also cannot be found that the proffered position qualifies a specialty occupation because 
the Petitioner has not credibly and sufficiently demonstrated the substantive nature of the proffered 
position .5 
The evidence of record contains generalized, broad descriptions of the work to be performed by the 
Beneficiary . For instance, the Assigned Personnel Forms signed by the Petitioner and the end-client 
simply describe the "Services to be performed" as "design and development of the automation." No 
further details about these job duties, such as what "automation" system(s) the Beneficiary will work 
on or with, were provided in the Assigned Personnel Forms. We note that the Petitioner submitted 
two different versions of this document, even though both forms were purportedly executed on the 
same day. One of the Assigned Personnel Forms lists the Beneficiary ' s start and end dates as 
October 1, 2015, to October 12, 2018, while the other one lists the dates of October 12, 2015, to 
October 11., 2018, even though the Petitioner is requesting a validity period ending on July 19, 
2018.6 Moreover, these forms list the position title as "Software Test Engineer" as opposed to the 
"QA Analyst" title indicated on the Form 1-129 and elsewhere. We thus question whether these 
documents constitute an accurate , legally binding contract between the Petitioner and the end-client 
for the Beneficiary 's services, as claimed.7 . 
"[l]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 inconsi stencie s will not suffice unless the petitioner submits competent objective evidence 
pointin.g to where the truth lies. !d. at 591-92. "Doubt cast on any aspect of the petitioner's proof 
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition." !d. at 591. 
The end-client letter contains substantially the same job duties as those found in the Petitioner's 
cover letter and RFE response. However, these job duties are described in broad and duplicative 
terms that are not specifically explained within the context of the ' project. In 
fact, neither the end-client letter, nor other evidence of record, provides a detailed explanation of the 
project, such as the nature , complexity, and length of this particular project. 
Similarly, the job duties found in the Petitioner's Employment Agreements with the Beneficiary are 
vague and not specifically explained within the context of the project. To 
illustrate, the Employment Agreements state that the Beneficiary "will be responsible for in [sic] 
5 The California Secretary of State website indicate s that the Petitioner's corporate status has been suspended. That is, 
the Petitione r's powers, rights and privileges, including the right to use its corporate name in California , were suspended . 
See attached print-outs. The Petitioner 's corporate status raises questions regarding whether the Petitioner 's offer of 
employment to the Beneficiary is bonafide. 
6 The Petitioner did not request the maximum three years , which would have ended on September 30, 2018. 
7 These documents a lso state that the Beneficiary's "Primary work Location is · Michigan." As will be 
discu ssed infra. the use of the word "Primarily" is problematic and denotes that the Beneficiary may also be ass igned to 
perfonn work other than at the stated premises. 
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(b)(6)
Matter of N-, Inc. 
identifying the business flow of trades" and "worked closed with teams in multiple locations."8 The 
Petitioner has not further explained what is meant by the term "business flow of trades," what 
"teams" or "multiple locations" will be involved, and how these job duties all relate to the ' 
project, which the Petitioner has indicated will only take place at the end-client's office in 
Michigan. The Employment Agreements also contain references to "SOAP based and RESTful web 
services" and "SOAP SONAR with Quality center," for example, but do not provide further 
explanations of what these services or systems are, and what "Quality center" is involved. 
Finally, we note the vague statements by the Petitioner and the end-client regarding the 
· Beneficiary's work duties and location. The Assigned Personnel Forms list the Beneficiary's 
"Primary work location" as the end-client's Michigan premises. However, the use of the word. 
"primary" denotes that the Beneficiary may also be assigned to perform work at other, unspecified 
locations, and that he may be assigned to perform job duties other than those disclosed in the 
petition. The Petitioner's Employment Agreements with the Beneficiary contain similar provisions 
indicating that the Beneficiary may be assigned to perform undisclosed work, such as that the 
Beneficiary's "duties shall be rendered at [Petitioner's] business premises or at such other places as 
the [Petitioner] may require" and that he "shall also perform such other duties in the ordinary course 
of business as performed by other persons in similar such positions, as well as such other reasonable 
duties as may be assigned from time to time by the [Petitioner]." Furthermore, the Petitioner states 
in its cover. letter that it has "enough resources and financial strength to continue paying the 
beneficiary even without specific project/s" and that "[i]f required, the petitioner can place the 
beneficiary in place of any one of those contractor positions."
9 
When considered as a whole, the 
evidence of record lacks a sufficient, detailed explanation of all the work the Beneficiary will be 
assigned to perform during the entire validity period requested, including the location(s) of such 
work and the specific job duties to be performed. 
For all of the above reasons, we find the evidence of record insufficient to demonstrate the 
substantive nature of the proffered position and its constituent duties. Consequently, we are 
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, 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 
8 
The Employment Agreements describe the majority of the proffered job duties in the past tense, which raises questions 
as to their applicability to this petition for new employment. 
9 
Speculative employment is not permitted in the H-1 B program. USCIS regulations require a petitioner to establish 
eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. § I 03.2(b)( I). 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 8 C.F.R. § I 03.2(b)( I); see also Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm 'r 
1978). 
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Matter of N-, Inc. 
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 evidence does not satisfy 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. The appeal will be 
dismissed and the petition denied for this reason. 
II. CONCLUSION 
The Petitioner has not established that the proffered position, more likely than not, qualifies as a 
specialty occupation. In visa petition proceedings, 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 ofOtiende, 26 
I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-, Inc., ID# 16821 (AAO May 31, 2016) 
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