dismissed H-1B Case: Computer Science

MATTER OF J-S-T- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 24, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer software consultancy service, seeks to temporarily employ the Beneficiary 
in a "software engineer" position under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section IOI(a)(IS)(H)(i)(b), 8 U.S.C. 
§ 110l(a)(15)(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, Vermont Service Center, denied the petition. The Director concluded that the 
evidence within the record of proceedings did not demonstrate that, by the time of the petition's 
filing, the Petitioner had secured sufficient specialty occupation work for the Beneficiary. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that, contrary to the 
Director's decision, the evidence of record establishes that it has sufficient specialty occupation 
work to engage the Beneficiary for the period for which it seeks her services. 
Upon de novo review, we will dismiss the appeal. 
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. 
(b)(6)
Matter of J-S- T- Inc. 
The regulation at 8 C.P.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.P.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. SPECIALTY OCCUPATION· 
A. The Proffered Position 
As we noted, the Petitioner assigned "software engineer" as the proffered position's job title, By the 
certified labor condition application (LCA) that it submitted to support the visa petition, the 
Petitioner asserted that the proffered position belonged within the Software Developers occupational 
category as designated by the Standard Occupational Classification (SOC) system.
1 
The Form I-129, Petition for a Nonimmigrant Worker, states that the Beneficiary would work at the 
Petitioner's New Jersey address, and the LCA is certified for employment at that address. 
1 Federal agencies - including the Department of Labor (DOL) - use the SOC system to classify workers into 840 
distinct occupational categories for the purpose of collecting, calculating, or disseminating data. The Occupational 
Infonnation Network (O*NET) and O*NET OnLine, its interactive application for exploring and searching occupations, 
as well as DOL's Occupational Outlook Handbook address occupations by their SOC codes and titles. 
2 
(b)(6)
Matter of J-S- T- Inc. 
In its letter of support filed with the Form I-129, the Petitioner stated that the proffered position 
requires, inter alia: · 
a. A college degree, at a minimum with five years of experience, or 
b. Have a minimum requisite computer skills. 
The Petitioner's submissions of September 2015 include a table describing the proffered position as 
follows: 
Job description Responsibilities 
The Lead (JAVA) Web Design and 
Application Developer implement technical 
utilizes specialized m~ solutions using Java, 
depth analysis and Eclipse, and Web 
experience to oversee the Development Tools 
writing/modifying of and Framework 
complex web 
development and 
services to the next level 
with a dynamic data 
driven website 
javelinconsultings.com. 
As Petitioned 
1) A college degree, at a 
minimum with five years 
of experience, or have a 
mtmmum 
computer skills 
requisite 
Weekly 
hour-break-down 
Fundamentally 
required for 
most, if not all 
job duties. 
(Electrical and 
[2)] Strong engmeenng computer 
and/or analytical skills engmeer 
3) A minimum of 3 
years' experience /Expert 
knowledge of Javascript, 
HTML, CSS, and cross­
browser development 
candidate) 
The ideal candidate Translates business 1) Skills m front end Variable 1 0 hrs 
should be able to create requirements into technologies 
detailed specifications or techilical design and 
designs, conduct quality ensures that 2) Knowledge of 
assurance rev1ews, development 
enhance peer application complies with 
programming workflows Enterprise Standards 
and act as a mentor to and adheres to 
users, teams and other development 
stakeholders within these guidelines 
programs 
3 
(b)(6)
Matter of J-S- T- Inc. 
Job description Responsibilities As Petitioned Weekly 
hour-break -down 
This position needs to 1) Translates 1) Utilize JAVA 30 Variable 20 hrs 
lead. application business standard extensions APis 
to write applets and 
applications that provide 
3 Dimensional interactive 
development, design and requirements into 
quality . testing from technical design and 
conception to prepares functional 
implementation design documents as content to users. 
This position IS 
competent to work at the 
highest technical level of 
all phases of application 
development activities 
B. Analysis 
per 
methodologies 
2) Ensures that all 
assigned deliverables 
are completed on 
time with 
impeccable quality 
Competent m Web 
development service 
integrations ~ 
'· animation, multimedia 
design, editing for 
audio/video and digital 
imaging 
3) Supports 2) Unit and integration 
production testing 
development and 
project go-live tasks 
1) Provides timely 1)To assist Variable 10 hrs 
support m customer/client[]s m 
troubleshooting developing software 
defects and engmeermg procedures 
providing resolutions and processes 
2) Actively 2) To test, troubleshoot (Candidate 
participates m team and prepare summary worked as a 
meetings and reports m software project manager) 
collaborates with engineering problems 
other team members 
to carry out project 
deliverables 
3) Performs other 3) Any additional or (Candidate was 
duties as assigned or supplemental expenence an IT Director) 
requested to the above 
As we shall now discuss, the appeal will be dismissed because the evidence of record does not 
substantiate that, if the petition were approved, the Beneficiary would engage in the scope of work 
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(b)(6)
Matter of J-S-T- Inc. 
which the Petitioner's duty descriptions ascribed to the proffered position. As the Petitioner has not 
established that the Beneficiary would perform the duties that the Petitioner presents as the basis of 
its specialty occupation claim, we will not speculate as to whether the Petitioner might be able to 
produce software developer work for her sometime during the requested approximately nine-month 
period of employment. · 
The Petitioner attested that the Beneficiary would perform the above 
described duties exclusively 
in-house, that is, only at the Petitioner's office in New Jersey. The Form J-129 specified an 
employment period of August 7, 2015 to March 4, 2016. However, the record of proceedings lacks 
evidence establishing the substantive nature of any in-house work that the Beneficiary would 
perform. More fundamentally, the evidence of record does not establish the extent of in-house work 
that had been secured for the Beneficiary by the time ofthe petition's filing. 
The Petitioner's president's letter in response to the Director's request for evidence (RFE) included 
the following comments about the in-house project upon which the Beneficiary would work: 
[A]s to in-house employment, we are in the process of developing a website portal 
with several web technologies that requires the skill-set of [the Beneficiary], and 
other such talented IT professionals. So I personally have knowledge of the needs of 
such skills-set of [the Beneficiary] and we want to place her as a lead web 
developer/software engineer. She will be involved in planning, designing, testing 
and implementation of it from the start. This marriage web portal shall be in several 
languages to make our clients more comfortable for online registration. For this 
assignment itself, we may require a few such talented professionals like [the 
Beneficiary]. 
The Petitioner has not supplemented its president's remarks with documentary evidence regarding 
the actual stage of the website-portal development process in which the Petitioner claimed to be 
engaged. Nor does the record of proceedings contain any documentary evidence demonstrating that 
the aforementioned website-portal project has reached a stage that requires the services of a 
software-developer working at a specialty-occupation level. Rather, the totality of the president's 
remarks begs the question of what work the Beneficiary would actually perform in-house if, as it 
appears, development of the in-house project may require more software developers who have not 
yet been hired. (In this regard, we note that the Form 1-129 stated that the Petitioner only had "1 
plus" employees in the United States.) "[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 Crafi ofCal., 14 I&N 
Dec. 190 (Reg'l Comm'r 1972)). 
The president's letter also stated that the Petitioner has plans to build an automobile-training 
application, and the record reflects that the Petitioner has had preliminary discussions with one 
potential client possibly interested in such a product. The president's letter also asserts that the 
Petitioner is seeking other clients for such an application. Also, according to the letter, the Petitioner 
5 
Matter of J-S- T- Inc. 
will require the Beneficiary's skill-sets "if the [automobile-training application] project materializes 
for her [in] in house employment as a lead web developer." The letter also stated that the 
Beneficiary "is expected to work closely with other software developers that we are hiring for this 
project." However, the record of proceedings does not indicate that the Petitioner had taken 
substantive steps towards the development of such an application. In this regard, we note also that 
the Petitioner did not document any steps it may have taken towards hiring other software 
developers whom it would require to complete its application-development team. 
The record's copy of email correspondence between the Petitioner and the aforementioned potential 
customer for an automobile training application - submitted as part of the RFE response - reflects 
that the potential client's representative initiated contact, and did so because he was "investigating 
the possibility" of having such an application developed with the functions that he described in the 
email. Nothing in the record of proceedings indicates that the email correspondence resulted in a 
contract for the Petitioner to develop the application. Further, as the email correspondence took 
place in September 2015, after the petition's filing in August of that year, it is not indicative of any 
work that had been secured for the Beneficiary by the time of the petition's filing. 
We need not address the copies of the agreement documents referencing the Petitioner and other 
business entities. Aside from the negligible weight of those documents because they do not bear 
signatures binding the other entities to any contractual commitments and do not reference the 
Beneficiary or the in-house project in which the Petitioner claims it will employ her, the Petitioner 
acknowledges on appeal that it submitted those documents to show its viability and ability to pay the 
Beneficiary - issues which are not before us on appeal or material to its proper disposition2 
USCIS 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. § I 03 .2(b )(I). A visa petition may not be 
approved based on speculation of future eligibility or after t~e Petitioner or Beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'! 
Comm'r 1978). A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to USCIS requirements. See Maller of lzummi, 22 I&N Dec. 169, 176 
(Assoc. Comm'r 1998). However, we find that the evidence of record before us indicates that the 
Petitioner filed the petition on the basis of an employment prospect that was speculative and 
indefinite, and, as such, an insufficient basis for establishing the proffered position as a specialty 
• 3 . 
occupatiOn. 
2 The agreements are either unsigned or signed by only one party. This aspect suggests that the documents were not fully 
executed and binding. 
3 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 
6 
Matter of J-S- T- Inc. 
That the Petitioner has promised to pay the proffered wage and constructs a chart of duties is not 
persuasive evidence of the existence of an in-house project that will continue throughout the period 
of requested employment that would require performance of the duties described by the Petitioner. 
The evidence of record does not show the existence of such a project. Although the Petitioner 
asserted that it is developing a marriage web portal, it has provided insufficient evidence to 
corroborate the existence of any such project. As the Petitioner provided insufficient evidence of the 
existence of in-house projects to which it could assign the Beneficiary, it has not established the 
substantive nature of the work, if any, that the Beneficiary would perform if the visa petition were 
approved. 
Although the deficiencies discussed above preclude approval of the petition, we also observe that the 
Petitioner has not expressly asserted that the proffered position is a specialty occupation position. 
The Petitioner has not stated that the proffered position requires a minimum of a bachelor's degree in 
a specific specialty, or its equivalent; nor has it identified a specific specialty in which the 
performance of the proffered position would require at least a bachelor's degree or the equivalent. 
In the brief, the Petitioner discusses the Beneficiary's qualifications for the proffered position and 
also discusses, at length, the Petitioner's ability to pay the Beneficiary the proffered wage. We 
observe that those issues form no part of the basis of the decision of denial. The denial was based on 
a finding that the Petitioner has not demonstrated that it has sufficient specialty occupation work to 
which it could assign the Beneficiary, at the Petitioner's own location, throughout the period of 
requested employment. 
As to evidence that the Petitioner has such specialty occupation work, the Petitioner states: 
"Specialty occupation work for a computers science master's degree holder for nine months has been 
demonstrated by 40-hour work week chart showing professional work at prevailing wages." 
That the Petitioner has promised to pay the proffered wage and constructs a chart of duties is not 
persuasive evidence of the existence of an in-house project that will continue throughout the period 
of requested employment that would require performance of the duties described by the Petitioner. 
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 dutie·s 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 theti. 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-I 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). 
7 
Matter of J-S-T- Inc. 
The evidence of record does not show the existence of such a project. Although the Petitioner 
asserted that it is developing a marriage web portal, it has provided insufficient evidence to 
corroborate the existence of any such project. As the Petitioner provided insufficient evidence of the 
existence of in-house projects to which it could assign the Beneficiary, it has not established the 
substantive nature of the work, if any, that the Beneficiary would perform if the visa petition were 
approved. 
In its letter of support submitted with the Form I-129, the Petitioner stated that the proffered position 
requires "a college degree, at a minimum with five years of experience," or "minimum requisite 
computer skills." It did not assert that, to satisfy the alternative requirements, a degree must be a 
minimum of a bachelor's degree, that the degree must be in any specific specialty, that the degree 
considered together with the five years of experience would be equivalent to a bachelor's degree in a 
specific specialty, or that the "minimum requisite computer skills" required by the proffered position 
would be equivalent to a minimum of a bachelor's degree in a specific specialty or its equivalent, 
either with or without consideration of education and experience. 
In the table in which the Petitioner stated the requirements of the proffered position, it again stated 
that the proffered position requires "A college degree, at a minimum with five years of experience, 
or have a minimum requisite computer skills." Again, this does not appear to express a requirement 
of a minimum of a bachelor's degree in a specific specialty or its equivalent. 
In any event, the appeal must be dismissed, as the evidence of record does not establish that the 
petition was filed for definite, non-speculative work requiring the theoretical and practical 
application of at least a bachelor's degree level of a body of highly specialized knowledge in a 
specific specialty, as required to establish a position as an H-lB specialty occupation in accordance 
with the governing statutory and regulatory framework. 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. 
III. CONCLUSION 
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 o{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-S- T- Inc., ID# 17062 (AAO May 24, 20 16) 
8