dismissed H-1B Case: Computer Science

MATTER OF A-C-&D- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 24, 2017 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer technology consulting company, seeks to temporarily employ the 
Beneficiary as a "senior associate, application development" under the H-lB 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 of the Vermont Service Center denied the petition, concluding that the Petitioner did 
not demonstrate the existence of a specialty occupation at the time of the petition's tiling. 
On appeal, the Petitioner submits additional evidence and contends that the petition should be 
approved. 
Upon de novo review, we will dismiss the appeal. 1 
I. 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. 
1 
We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter of A-C-&D- LLC 
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 protlered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted 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. 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 
The Petitioner stated in its support letter that the Beneficiary will serve as a "senior associate, 
application development" and alternatively references the proffered positon as a "senior developer" 
and a "senior software engineer." On the labor condition application (LCAi submitted in support of 
the H-1B petition it designated the proffered position under the occupational category "Software 
Developers, Applications" corresponding to the Standard Occupational Classification code 15-
1132.3 In its support letter, the Petitioner described the proffered position as follows (note: errors m 
the original text have not been changed):4 
2 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B worker the higher of either 
the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the 
employer to other employees with similar experience and qualifications who are performing the same services. See 
Matter o.fSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
3 The Petitioner classified the proffered position at a Level II wage. We will consider this selection in our analysis of the 
position. The "Prevailing Wage Determination' Policy Guidance" issued by the DOL provides a description of the wage 
levels. DOL's wage-level guidance specifies that a Level II designation is reserved for positions involving only 
moderately complex tasks requiring limited judgment. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf A prevailing wage determination starts 
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Matter of A-C-&D- LLC 
At the present time we wish to employ the services of the Beneficiary in the position 
of Senior Associate, Application Development in order to complement our team and 
fuel our aggressive growth plan. [The Beneficiary] will gather requirements, design 
and implement specialized solutions for enterprise-level clients to help them achieve 
business process automations and web marketing. He will manage and build remote 
teams to achieve business goals and the company's growth plan. Specifically, he will 
perform the following duties: 
• Provide overall programing expertise to design, develop and implement 
solutions for challenging problems by using technologies like Java, C#.NET, 
Ruby on Rails etc. 
• Engage in all phases of the software development lifecycle including design, 
implementation, deployment, development, testing and maintenance. Train 
junior and temporary staff members to handle tier 1 support request and 
identifying customers' pain points. 
• Ability to train customers and staff to use web application effectively and 
provide tier 2 support. 
• Participate in product design and planning and provide conceptual and 
functional design of the products. 
• Provide system-level analysis and design reviews to other members and 
teams. 
• Communicate effectively with departmental staff and team. Provide 
responsive excellent customer support to customers facing applications related 
issues as needed, striving to leave positive impression always. 
• Perform technology and product research and evaluation to support software 
development needs. 
• Perform other related duties and participate in special projects as assigned. 
The Petitioner also stated the following in its support letter: 
Senior Software Engineers are in charge of most of the technical aspects of an 
organization's projects. They are often considered to be architects of sorts given the 
vast scope of work they do on a regular basis. Their primary function is being able to 
scale projects efficiently while maximizing performance and minimizing costs. They 
can also oversee development teams and coordinate strategies to make sure the 
technologies are interconnected and product lines are working smoothly. 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
4 
The Petitioner provided additional details regarding the duties of the position in response to the Director's request for 
evidence (RFE) and on appeal. We reviewed the record in its entirety. 
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Matter of A-C-&D- LLC 
While Senior Software Engineers supervise programmers and designers among other 
professionals to finish a project on time, they also have to respond to the IT managers 
in a given organization[.] 
According to the Petitioner, the proffered position requires a bachelor's degree in computer science 
or a related field, or the equivalent. 
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 does not: (1) describe the position's duties with sufficient detail; (2) 
establish that the Petitioner had secured definite, non-speculate work for the Beneficiary to perform 
prior to the filing of the petition; and (3) establish that the job duties require an educational 
background, or its equivalent, commensurate with a specialty occupation. 5 
We will first address the Director's finding that the Petitioner did not demonstrate that it had secured 
definite, non-speculative work for the Beneficiary before it tiled this petition. 
The Petitioner filed the H-1B petition on April 5, 2016. Though the Petitioner indicated on the Form 
1-129, Petition for a Nonimmigrant Worker and in the LCA that the Beneficiary would work in­
house, it did not identify any particular product, program, project upon which he would work in its 
initial submission. 
When it replied to the Director's RFE, the Petitioner identified four in-house projects upon which the 
Beneficiary would work involving the following companies: (1) A-; (2) H-C-; (3) D-C-; and ( 4) 0-
L-H-. The Petitioner submitted the following evidence regarding each of these projects: 
I , T'f:o;~ct , ,>: j!'";\'1' ',\c">',i i'"_>"'fij ':c'"< :,0'' 'c~;'fn';,,'' ,''"', Evidence Submitted, ,,, ' ,'' lc~,n,i, , , )JI ',,, ,, l,i ,,,,,,,, ,,,,,,,,, ,,,,':',';;',,,, '" ',,,, ' 
A- 1. Master Services Agreement (MSA) dated March 15, 2016. 
2. Statement of Work (SOW) dated November 9, 2016. 
H-C- 1. MSA dated December 30, 2013. 
2. SOW dated November 19,2016. 
D-C- 1. MSA dated January 26, 2012. 
2. Retainer agreement dated August 12, 2016. 
3. Invoices issued pursuant to the retainer agreement dated October and November 
2016. 
G-L-H- SOW dated September 8, 2016. 
5 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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Matter of A-C-&D- LLC 
The Petitioner also submitted documentation regarding already-completed work it had performed for 
three additional clients: (1) I-T-M-; (2) J-M-M-; and (3) C-B-, and stated that "[t]he Beneficiary's 
services will likely be required on these ongoing contracts." The Petitioner submitted the following 
evidence regarding these projects: 
' '' p >i . t J; .. 
.. 
·.· ',:;:.:' ,,';:; '', .. ~~:~,,t,;,; :: '.~. : ' ·. · . Evidence Submitted ,,,.:,, ro .e.c I·. 
I-T-M- Invoice dated March 2016 for work performed in February and March 2016. 
J-M-M- Invoice dated June 2016 for work performed in May 2016. 
C-B- Invoice dated September 2016 for work performed in August 2016. . 
In determining that the Petitioner did not demonstrate that it had secured work for the Beneficiary to 
perform before it filed the petition, the Director noted that the SOWs were all executed subsequent 
to the filing of the H-1B petition. 
On appeal, the Petitioner contends that we should look to the MSAs, which were executed prior to 
filing the petition, as evidence that it had secured a specialty occupation position prior to filing. The 
Petitioner contends that the SOWs were linked directly to the MSAs, and that the existence of the 
MSAs constitutes evidence that it had maintained ongoing relationships with these companies prior 
to the filing of the petition. The Petitioner also submits additional evidence of its relationships with 
these companies on appeal. For example, the Petitioner submits SOWs it executed with A-, H-C-, 
C-B-, I-T-M-, and J-M-M- prior to filing. It also submits invoices sent to H-C- and D-C- before the 
petition was filed, as well as invoices sent to A- and G-L-H- after the petition was filed. 
Upon review of the entire record of proceedings, we agree with the Director that the Petitioner did 
not establish that it had secured work for the Beneficiary to perform before it filed the H-lB petition. 
We will first address the Petitioner's assertions regarding the MSAs, which we do not find 
persuasive. As indicated, two of the three submitted MSAs were executed prior to the filing of the 
petition, and the Petitioner contends that these MSAs alone constitute evidence that it secured work 
for the Beneficiary to perform prior to the filing of the petition, regardless of when the 
accompanying SOWs were executed. We disagree. 
As noted by the Director, the MSAs in the record do not create a binding obligation on either party 
of the agreement. As noted by the Director, each MSA states that the Petitioner's clients "may, from 
time to time, contract to [the Petitioner], and [the Petitioner] may perform, certain professional, 
consulting or other services ... for the Client pursuant to one or more [SOWs] executed between the 
parties, on terms and subject to the conditions set forth in this Agreement and the applicable SOW" 
(emphasis added). 
The MSAs' usage of the word "may" indicates that execution of the MSA does not guarantee that a 
SOW will also be executed. It is only when a SOW is executed pursuant to the MSA that an 
obligation to perform work on a specific project is created. In addition, the terms of a specific 
project are not finalized until a SOW which sets forth the parameters of the project is executed. An 
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Matter of A-C-&D- LLC 
MSA alone does not establish evidence of work to be performed by the Beneficiary, or by anyone 
else. The MSAs, therefore, do not demonstrate that the Petitioner had secured non-speculative work 
for the Beneficiary when it filed this petition. Given that the SOWs governing the four projects upon 
which the Beneficiary would work (the projects for A-, H-C-, 0-C-, and G-L-H-) were all executed 
after this petition was filed, they do not establish the existence of a specialty occupation prior to the 
filing of the petition. Further, the SOWs do not specifically name the Beneficiary and do not 
sufficiently establish that the Beneficiary would work on these projects. 
The Petitioner also asserts in the RFE response that the Beneficiary would "likely" also work on the 
ongoing projects for I-T -M-, 1-M-M-, and C-B-. However, the dates of the invoices regarding these 
projects indicate they have been completed, a proposition which is supported by the Petitioner's 
assertions on appeal, and the record is otherwise insufficient to establish that these projects remain 
ongomg. 
Nor are the SOWs submitted on appeal that the Petitioner executed with A-, H-C-, C-B-, 1-T-M-, and 
J-M-M- prior to the filing of the petition persuasive, as the Petitioner has never indicated that the 
Beneficiary would work on any of these projects. The Petitioner, therefore, has not demonstrated 
that, when it filed the petition, it had secured non-speculative work for the Beneficiary to perform. 
Consequently, we find that the Petitioner has not established non-speculative work for the Beneficiary 
at the time of the petition's filing for the entire period requested. U.S. Citizenship and Immigration 
Services regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.F .R. § 103 .2(b )(1 ). 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 Matter of Michelin Tire Corp., 17 l&N Dec. 248 (Reg'l 
Comm'r 1978).6 
6 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: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B 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 B 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 
Matter of A-C-&D- LLC 
Next, we find that the duties provided for the Beneficiary are vague and do not convey the actual day­
to-day tasks to be performed and the knowledge required to perform them. The duties described in the 
Petitioner's support letter did not relate to any particular project. Further, the MSAs and SOWs do not 
adequately describe the duties that the Beneficiary would perform such that we can ascertain 
whether they would actually require a bachelor's degree in a specific specialty, or the equivalent. 
The SOWs' statement that a "senior developer" will be involved on the projects is not sufficient. 
In addition, we find that the Petitioner's Level II wage designation raises questions regarding the 
reliability of its job description. As indicated above, in designating a Level II wage the Petitioner 
attested that the Beneficiary would perform moderately complex tasks requiring limited judgment. 
However, several of the Beneficiary's statements indicate that the proffered position would require 
more than "limited judgement." For example, the Petitioner states that the Beneficiary would 
"manage and build remote teams," "train junior and temporary stafi members," "supervise 
programmers and designers among other professionals," and "oversee development teams." Also, 
the Petitioner's claim that the duties of the proffered position are "highly technical and complex" 
appears to conflict with its attestation in the LCA that the duties are only "moderately" complex. 
Finally, inclusion of the word "senior" in the position's title indicates that the Beneficiary would 
perform duties that exceed moderately complex tasks requiring limited judgment. 7 The 
Beneficiary's resume indicates that he is currently working for the Petitioner as a "lead developer" 
who has taken responsibility for the "[s]etup and management of company operations in India," and 
is "[l]eading all developers in the company branch in India," which raises additional questions 
regarding the wage-level of the proffered position. The Petitioner has not resolved these 
inconsistencies with independent, objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988).8 In any event, these discrepancies call into question the 
reliability of the Petitioner's job description, which in turn lead us to question what the Beneficiary 
would actually be doing. 
Absent a meaningful job description, the record lacks evidence sufficiently concrete and informative 
to demonstrate that the proffered position requires a specialty occupation's level of knowledge in a 
specific specialty. The tasks as described do not communicate (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 education of highly specialized 
knowledge in a specific specialty. 
In other words, 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 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
7 
In fact, the wage-level guidance cited above states that the word "senior" in an indicator that at minimum a Level III 
wage should be considered. 
8 
In any event, they call into question whether the LCA corresponds to and supports the H-1 B petition pursuant to 
20 C.F.R. § 655.705(b). However, because the proffered position is not a specialty occupation we will not discuss this 
matter further except to note that the Petitioner should be prepared to address it in.any future H-1 B proceedings. 
Matter of A-C-&D- LLC 
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. Accordingly, even if the Petitioner 
had established that it secured work for the Beneficiary to perform prior to the tiling of the petition, we 
would nonetheless find the current record insufficient to establish that it constituted a specialty 
occupation position. 
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 for classification as a 
specialty occupation. 
IV. CONCLUSION 
The Petitioner has not established that the proffered position is a specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-C-&D- LLC, ID# 475407 (AAO Aug. 24, 2017) 
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