dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 7861486 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 9, 2020 
The Petitioner, a management consulting services provider, seeks to employ the Beneficiary 
temporarily as a "Java developer" under the H-1 B nonimmigrant classification for specialty 
occupations. 1 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 Form I-129, Petition for a Nonimmigrant 
Worker, concluding that the record did not establish that the proffered position qualified as a specialty 
occupation . On appeal, the Petitioner submits additional evidence and asserts that that the Director 
ignored evidence and denied the petition in error. Upon de nova review , we will dismiss the appeal. 
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. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) adds a non-exhaustive list of fields of endeavor. In 
addition, the regulations provide that the offered position must meet one of the following criteria to 
qualify as a specialty occupation: 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). 
(]) 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. 2 
We construe the term "degree" to mean not just any baccalaureate or higher degree, but one in a 
specific specialty that is directly related to the proposed position. 3 
B. Analysis 
The Petitioner, located in California, seeks to employ the Beneficiary offsite for I.__ ______ _. 
I !(end-client), which is also located in California. Upon review of the entire record, for the 
reasons set out below, we have determined that the Petitioner has not demonstrated that the proffered 
position qualifies as a specialty occupation. 
First we observe that within the appeal, the Petitioner presents several high-level and unspecific errors 
it attributes to the Director, but it does not offer sufficient discussion supporting is assertions. For 
instance, the Petitioner claims the denial contained "many erroneous ... and contradicting statements." 
The Petitioner subsequently discusses the Director's findings and expresses disagreement with them. 
However, simply because the Petitioner does not agree with the Director does not constitute an error 
or an erroneous statement. Rather, the Petitioner should identify each of the relevant erroneous 
statements, and present an argument or evidence that sufficiently demonstrates the error on the 
Director's part. At best, the Petitioner identifies one contradiction within the decision that we will 
discuss below. 
Additionally, the Petitioner claims the Director only considered and discussed two pieces of evidence 
it offered in its response to the request for evidence and that other evidence satisfied at least three of 
the regulatory criteria. But the Petitioner did not satisfy its burden of proof, as it failed to identify the 
evidence that was not discussed and explain how that ignored evidence demonstrated eligibility. What 
appears more likely is that the evidence the Director left out if her discussion was the material that 
was not relevant to the specific shortcoming she listed in the denial decision. Namely, the issue that 
the Petitioner did not establish that the end-client required a bachelor's degree in a specific specialty to 
2 8 C.F.R. § 214.2(h)(4)(iii)(A). 
3 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). 
2 
perform in the proffered position. Moreover, if the Director provides a reasoned consideration to the 
petition, and has made adequate findings, it will not be required to specifically address each claim the 
Petitioner makes, nor is it necessary for it to address every piece of evidence presented. 4 
The reason for filing an appeal is to provide an affected party with the means to remedy what it 
perceives to be an erroneous conclusion of law or statement of fact within a decision in a previous 
proceeding. 5 By presenting only a generalized statement without explaining the specific aspects of 
the denial they consider to be incorrect, the affected party fails to identify a sufficient basis for the 
appeal. 6 In order to review this appeal, it would therefore be necessary to search through the record 
and speculate on the manner in which the Petitioner's claims and evidence sufficiently address the 
H-1 B requirements. 7 The Petitioner therefore has not satisfied its burden of proof A petitioner's 
burden of proof comprises both the burden of production, as well as the burden of persuasion. 8 
Ultimately, the Petitioner's appeal does not demonstrate how the Director erred in denying the petition. 
This shortcoming alone is sufficient to dismiss the appeal. 
Next, the Petitioner contends that the Director misconstrued the regulations and imposed evidentiary 
requirements beyond those required by Congress, which resulted in errors that were arbitrary, 
capricious, and in violation of the Administrative Procedures Act (AP A). Although the Petitioner did 
not offer a detailed explanation of this allegation, it appears to reference the Director's statement that 
satisfying at least one of the regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) should be considered 
as necessary to qualify for H-1B approval, but not necessarily sufficient. The Director cited to the 
need to factor in the statutory definition of a specialty occupation within her H-1B eligibility analysis, 
as a petitioner must also meet that distinct mandatory requirement in addition to satisfying at least one 
criterion. On appeal, the Petitioner contends that this reading contravenes the plain language of the 
regulation and imposes evidentiary requirements beyond those required by Congress. 
First, statutory requirements are more authoritative than regulatory requirements. Within the order of 
authorities, statutes are oriented as the second most authoritative with administrative and executive 
materials ( e.g., regulations) listed in the sixth position. 9 As a result, we do not agree with the 
Petitioner's statement that we should apply the regulation without regard to the statute. 
Second, the basic hombook rule for H-1 B eligibility is that for entry into an occupation, a candidate 
must possess a body of highly specialized knowledge attained through a bachelor's or higher degree 
4 See Martinez v. INS, 970 F.2d 973, 976 (1st Cir.1992); aff'd Morales v. INS, 208 F.3d 323, 328 (1st Cir. 2000); see also 
Pakasi v. Holder, 577 F.3d 44, 48 (1st Cir. 2009); Kazemzadeh v. U.S. Atty. Gen., 577 F.3d 1341, 1351 (11th Cir. 2009). 
5 See 8 C.F.R. § 103.3(a)(l)(v). 
6 Matter of Valencia, 19 T&N Dec. 354, 354-55 (BIA 1986). 
7 Appellants have an obligation to spell out their arguments squarely and distinctly, or else forever hold their 
peace. Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.1988) (quoting Paterson-Leitch Co. v. Massachusetts 
Municipal Wholesale Elec. Co., 840 F.2d 985,990 (1st Cir.1988)). The mention ofan error in an appeal brief, absent any 
specific argument as to how the previous entity was in error, is insufficient to present the matter for adjudication on appeal. 
Zivojinovich v. Barner, 525 F.3d 1059, 1062 (11th Cir. 2008) (citing Davis v. Hill Engineering. Inc., 549F.2d314, 324 
(5th Cir.1977)). See also Minghai Tian v. Holder, 745 F.3d 822, 827 (7th Cir. 2014) (stating that "an argument consisting 
of more than a generalized assertion of error" is required to hold that an issue has not been waived in the briefing). 
8 Matter of Y-B-, 21 T&N Dec. 1136, 1142 n.3 (BIA 1998). 
9 See Rule l .4(a)-(t) of The Bluebook. 
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in the specific specialty. The process of demonstrating that a proffered position is sufficient to meet 
the requirements under the H-lB program includes more than satisfying one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). Contrary to the Petitioner's statement, even the regulation requires the filing 
party to demonstrate that a petition "involves a specialty occupation as defined in section 214(i)(l) of 
the Act." 10 That statutory definition states: "the term 'specialty occupation' means an occupation that 
requires ... [a] theoretical and practical application of a body of highly specialized knowledge, 
and ... 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." 
From this, we reason that the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) should be read logically as being 
necessary-but not necessarily sufficient-to meet the statutory and regulatory definition of a 
specialty occupation. To otherwise interpret the regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 
as stating the necessary, but not necessarily sufficient conditions as being adequate to qualify would 
result in some positions meeting a condition under the criteria, but not under the statutory definition. 11 
To avoid this erroneous 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 
definition of a specialty occupation. This results in a multi-part analysis to determine whether a 
particular position qualifies as a specialty occupation. 
Although the Petitioner briefly discusses the four regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 
within the appeal, this was not the basis for the Director's adverse decision, and we will only discuss 
those criteria and the associated evidence, if the Petitioner overcomes the adverse analysis within the 
Director's decision. Moving to the Director's analysis, she concluded that the Petitioner did not 
establish that the offered position qualifies as a specialty occupation. In her decision, the Director 
focused on the lack of probative material from, or including, the end-client that demonstrated the client 
required a bachelor's degree in a specific specialty to perform in the proffered position. 
The Petitioner's evidence relating to the end-client's position prerequisites consisted of a February 2013 
Professional Services & Consulting Agreement (PSA), an October 2018 Statement of Work (SOW), a 
letter from the end-client, and two of the end-client's job advertisements. On the petition and the U.S. 
Department of Labor's (DOL) ETA Form 9035 & 9035E, Labor Condition Application for 
Nonimmigrant Workers (LCA), the Petitioner indicated the proposed position's job title was a Java 
developer. 
The end-client letter identified the Beneficiary as a resource, but did not state the job title or the role she 
would occupy while working at their facilities. Instead, the end-client indicated that she would provide 
services in accordance with the PSA and SOW s between these two entities. The PSA did not include any 
roles in which the petitioning organization's personnel would engage on the relevant project. The SOW 
contained four roles: (1) senior production support lead (specialist); (2) support lead (senior developer); 
(3) support analyst/support engineer; and (4) technical architect. 
10 8 C.F.R. § 214.2(h)(4)(i)(B)(2); see also 8 C.F.R. § 214.2(h)(l)(ii)(B)(I). 
11 See Defensor, 201 F.3d at 387; PayJoy, Inc. v. Cuccinelli, No. 19-CV-03977-HSG, 2019 WL 3207839, at *3 (N.D. Cal. 
July 16, 2019); lnnova Sols., Inc. v. Baran, 338 F. Supp. 3d 1009, 1017 (N.D. Cal. 2018); Sagarwala v. Cissna, 387 F. 
Supp. 3d 56, 64 (D.D.C. 2019). 
4 
We note that none of these specified roles in the SOW match the job title the Petitioner designated on the 
LCA and the petition. As a result, even though the roles listed in the SOW reflected qualifications to 
perform in each role, it is unclear which, if any, of them relate to the position proffered in the petition. 
Based on the evidence in the record, we are unable to compare the duties the end-client would have the 
Beneficiary perform for them, to the functions listed in the SOW. This shortcoming exists because the 
Petitioner did not ensure the end-client letter included the duties and the position prerequisites the client 
required for the work the Beneficiary would perform. The Petitioner is apparently aware of such a 
requirement as it states as much within the appeal brief This raises questions as to whether the Petitioner 
has sufficiently demonstrated what role or position the Beneficiary would occupy while working at the 
end-client worksite. If the Petitioner fails to demonstrate what position the Beneficiary would occupy, 
then we cannot determine whether a qualifying position would actually exist and in tum, whether it is a 
specialty occupation. 
We observe one contradiction within the Director's decision relating to the job advertisements from 
the end-client. We agree that the Director should have discussed the end-client's job advertisements 
as they relate to the client's position prerequisites. As recognized by the court in Defensor, 201 F.3d 
at 387-88, where the work is to be performed for entities other than a petitioner, evidence of the client 
companies' job requirements is critical. The scenario in Defensor has repeatedly been recognized by 
Federal Courts as appropriate in determining which entity should provide the requirements of an H-lB 
position and the actual duties a beneficiary would perform. 12 As a central holding, the Defensor court 
determined that the former Immigration and Naturalization Service acted appropriately in interpreting the 
statute and the regulations as requiring petitioning companies to provide probative evidence that the 
outside entities actually utilizing the Beneficiary's services (i.e. end-clients) required candidates to 
possess a qualifying degree.13 
The Defensor court reasoned that the position requirements from the entity where the beneficiary would 
actually work-be it the required degree or the position's actual duties a candidate would perform­
should serve as the more relevant characteristics we should consider under our specialty occupation 
determination. The court further concluded that absurd outcomes could result from granting greater 
credence to the position requirements as represented by an outsourcing agency, rather than to those from 
its clients where a beneficiary would perform the work. 14 
Therefore, based upon our review of the record, we conclude that the Petitioner has not established 
the substantive nature of the work the Beneficiary will perform. This precludes a conclusion 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 one; (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 two; (3) the level of complexity or uniqueness of the proffered 
position, which is the focus of the second alternate prong of criterion two; (4) the factual justification 
12 See Altimetrik Corp. v. USCIS, No. 2: l 8-cv-11754, at *7 (E.D. Mich. Aug. 21, 2019); Valorem Consulting Grp. v. 
USCIS, No. 13-1209-CV-W-ODS, at *6 (W.D. Mo. Jan. 15, 2015); KPK Techs. v. Cuccinelli, No. 19-10342, 2019 WL 
4416689, at *l O (E.D. Mich. Sep. 16, 2019); Altimetrik Corp. v. Cissna, No. 18-10116, at *11 (E.D. Mich. Dec. 17, 2018); 
Sagwwala v. Cissna, 387 F. Supp. 3d 56, 69 n.5 (D.D.C. 2019). 
13 Defensor, 201 F.3d at 388. 
14 Id. 
5 
for a petitioner normally requiring a degree or its equivalent, when that is an issue under criterion 
three; and ( 5) the degree of specialization and complexity of the specific duties, which is the focus of 
criterion four. 
Based on the foregoing, we cannot conclude that the proffered position qualifies as a specialty 
occupation, and we will dismiss the appeal. 
II. LCA WAGE LEVEL 
Notwithstanding the foregoing, a review of the end-client's job advertisements leads us to conclude that 
they do not aid the Petitioner in demonstrating eligibility. The end-client's job advertisements were for a 
staff software engineer and a staff DevOps architect. First, the two positions in the job advertisements do 
not share the same job title, duties, or required qualifications. These differing elements weigh heavily 
against the Petitioner's claim that it "included job postings from [the end-client] for the same job as [the 
Beneficiary's] at the same location." Even if we presume that either of the end-client's advertisements 
were the same job as the one proffered in the petition, based on the client's position prerequisites, we 
would conclude that the LCA does not correspond with and support the petition. 
When comparing the wage level indicated on the LCA to the claims associated with the petition, U.S. 
Citizenship and Immigration Services (USCIS) does not purport to supplant DO L's responsibility with 
respect to wage determinations. There may be some overlap in considerations, but USCIS' 
responsibility at its stage of adjudication is to ensure that the content of the DOL-certified LCA 
"corresponds with" the content of the H-lB petition. 15 An employer "reaffirms its acceptance of all 
of the attestation obligations by submitting the LCA to [USCIS] in support of the Petition for 
Nonimmigrant Worker, Form 1-129, for an H-lB nonimmigrant." 16 
The qualifications the end-client imposed within the job advertisements (i.e., a bachelor's degree in 
addition to six years or more of experience) warrant an increase in the prevailing wage level at a higher 
rate than the Level I rate the Petitioner designated on the LCA. Step two of DO L's five-step process 
compares the experience described in the Occupational Information Network Job Zone to the Petitioner's 
requirements. 17 Software Developers are classified within Job Zone 4 with a Specialized Vocational 
Preparation (SVP) rating of "7.0 < 8.0."18 This SVP rating means that the occupation requires "over 2 
years up to and including 4 years" of specific vocational training. A bachelor's degree expends two years, 
permitting the Petitioner to require up to and including two years of experience as the position's 
15 See 20 C.F.R. § 655.705(b) ("DHS determines whether the petition is supported by an LCA which corresponds with the 
petition .... "). See also Matter of Simeio Solutions, 26 T&N Dec. 542, 546 n.6 (AAO 2015). Further, USCTS may consider 
DOL regulations when adjudicating H-1 B petitions. See Int 'l Internship Programs v. Napolitano, 853 F. Supp. 2d 86, 98 
(D.D.C. 2012), aff'd sub nom. lnt'l Internship Program v. Napolitano, 718 F.3d 986 (D.C. Cir. 2013). 
16 20 C.F.R. § 655.705. 
17 DOL, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009) (DOL guidance), available at http://flcdatacenter.com/download/NPWHC _Guidance_ 
Revised_ 11 _ 2009 .pdf 
18 Appendix E of the DOL guidance provides that SVP is the amount of time for an individual to achieve average 
perfonnance in a specific job-worker situation. The DOL guidance states: "This training may be acquired in a school, 
work, military, institutional, or vocational environment. Specific vocational training includes: vocational education, 
apprenticeship training, in-plant training, on-the-job training, and essential experience in other jobs." 
6 
prerequisite before it must increase the wage level. The end-client's requirements mandated at least a 
bachelor's degree and at least six years of work experience. This requirement is greater than the 
experience and SVP range, which requires a three increment wage level increase. 19 A three-increment 
wage level increase would mandate an annual wage increase from the lowest level at $86,320 to the 
highest level at $155,106. 20 
As such, it appears as though the Petitioner, through the end-client's prerequisites, required experience 
at DOL's designated fully competent level, while only compensating its foreign worker with the 
designated entry level wage. Prevailing wage rates are comprised of three tiers (the lowest paid 
one-third, the middle third, and the highest paid one-third). And, the Occupational Employment 
Survey assigns the wage levels within these tiers: 
• Level I is the average of the lowest paid one-third in an occupation, or approximately the 17th 
percentile; 
• Level II is approximately the 34th percentile; 
• Level III is approximately the 50th percentile, or the overall average wage for an occupational 
classification; and 
• Level IV is the average of the highest-paid two-thirds, or approximately the 67th percentile. 21 
Consequently, the Petitioner only proposed to compensate the Beneficiary within the 17th percentile 
grouping for the occupational classification in the "area of employment" or the actual wage paid to 
other employees with similar duties, experience, and qualifications, when it should compensate her at 
the grouping within the 67th percentile rate. 22 This would appear to undermine the purpose ofDOL's 
wage requirement "to protect U.S. workers' wages and eliminate any economic incentive or advantage 
in hiring temporary foreign workers." 23 This issue, standing alone, would sufficiently warrant this 
petition's denial. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
19 See the DOL guidance. 
20 See the DOL guidance. For the wage figures, see FLC Wage Results, Foreign Labor Certification Data Center Online 
Wage Library (Jan. 8, 2020), https://flcdatacenter.com/OesQuickResults.aspx?code= 15-
1132&area~year= 19&source= 1. 
21 See section 212(p)(4) of the Act that required DOL to issue H-IB nonimmigrant prevailing wages to be comprised of 
four tiers. 
22 Section 212(n)(l) of the Act; 20 C.F.R. § 655.731 (a); Venkatraman v. REI Sys., Inc., 417 F.3d 418,422 & n.3 (4th Cir. 
2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th Cir. 201 O); Michal Vojtisek-Lom & Adm 'r Wage & Hour Div. v. Clean 
Air Tech. Int"/, Inc., No. 07-97. 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
23 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1 B Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80, 110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that 
the wage protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage 
in hiring temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] 
with [DOL]."). 
7 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
8