dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 15, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer software company, seeks to temporary employ the Beneficiary as a 
"software developer, applications'' under the H-1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(1-l)(i)(b), 8 U.S.C. 
§ 1101(a)(l5)(H)(i)(b). The H-1 B 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 1-129, Petition for a Nonimmigrant 
Worker, concluding that the record did not establish that: (1) the proffered position qualities as a 
specialty occupation: and (2) the Petitioner will engage the Beneficiary in an employer-employee 
relationship. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in the 
decision. Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
We will first determine whether the record of proceedings establishes that the proffered position 
qualifies as a 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 olD- Inc. 
The regulation at 8 C.F.R. ~ 214.2(h)(4)(ii) largely restates this statutory definition. but adds a 
non-exhaustive list of fields of endeavor. In addition. the regulations provide that the offered 
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 
(../) The nature of the specific duties [isJ 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. Cherto(f; 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"): De{ensor v. Meissner. 201 F.3d 384. 387 (5th Cir. 2000). 
B. Proffered Position 
The Petitioner initially stated that the Beneficiary will be responsible for the following job duties as 
a software developer. applications: 
1 
• Analyze, design, develop, implement integrate and maintain client server web 
related applications including internet, intranet and internal business applications. 
• Design new systems or enhancements to existing systems. 
• Analyze user requirements, procedures and problems to automate processing and 
to improve existing systems. 
• Write code to meet user specifications 
• Design Database and develop optimization of queries. creating tables. views. 
stored procedures and functions: 
• Convert data to SQL server 
1 
The Petitioner mistakenly and repeatedly references the Beneficiary in the masculine pronoun case in its letter of 
support. on appeal. and its response to our combined request for evidence (RFE) and notice of intent to dismiss 
(NOID). The record provides no explanation for this inconsistency. Thus. we must question the accuracy of the letters 
and whether the information provided is correctly attributed to this particular Beneficiary and the position. 
2 
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Matler of D- Inc. 
• Develop new applications as per requirement and enhancement to existing or 
legacy applications; 
• Use productivity tools to develop and modify applications software to meet user 
needs ; 
• Analyze data requirements, develop and document data dictionary, and develop 
data models. 
• Assist in data transfers or sharing of files etc. 
The Petitioner did not amend the duties in response to the Director's RFE: however , it did within the 
appeal stating the following: 
Duties Percent of 
time 
Analyze , research, design and write specifications for the f electronic 5% health records (EHR)] project. 
Analyze user requirements to automate processing and 1mprove 
existing systems using systems using Oracle. Java , UNIX , SQL 10% Server, Java , HTML. DHTML, Business Objects and other related 
technologies. 
Design new applications and develop application prototypes for the 10% EHR project. 
Write detailed descriptions of user needs , promote efficient user 
utilization of system, cooperate with and provide technical support to 5% 
project teams. 
Develop. enhance and maintain proficiency 111 technical and 
analytical tools , perform studies to aid development of new systems , 
plan and prepare technical reports and instruction manual. Perform 70% 
analysis , conversiOn coding, code walkthrough, and integration 
testing. 
Within the initial proceedings , and the appeal brief, the Petitioner stated that the Beneficiary will 
work on an in-house project titled ' · which is also referred to as 
A review of U.S. Citizenship and Immigration Services records indicates that in August 2017, 
immigration oHicers performed a site inspection and interviewed otlicials from the petitioning 
organi zation, in part. regarding the Beneficiary. During the interview, the Petitioner's representative 
infonned the officers that only three chiropractor offices were using the platform, the project 
named in the petition, and that the petitioning organization was still evaluating its viability. The 
Petitioner further stated that the Beneficiary will not be working on the project listed in the petition, 
but instead , she will work on two other projects and 
Subsequent to the site inspection, we issued a combined RFE and NOID, to which the Petitioner 
responded with additional information and evidence. In response to our combined RFE and NOlO, 
the Petitioner asserts that the Beneficiary will be assigned to the project. Speci1ically, 
.
Maller of D- Inc. 
the Petitioner states that the Beneficiary will "work in the maintenance and support of the 
project (approximately 5% of the time), and remaining time she will work in the 
https://www (35% of time) and www. (60% of time)."' The 
Petitioner also asserts that the Beneficiary's duties will remain unchanged. 
C. Analysis 
For the reasons set out below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. 2 
1. Inconsistencies in the Record 
First, we find that there are inconsistencies in the petition and supporting documents, which lead us 
to question the Petitioner's claim with regard to the services the Beneficiary will perform, as well as 
the actual nature and requirements of the proffered position. Inconsistent information in a petition 
raises concerns about the veracity of the Petitioner 's assertions. 3 
For example, the Petitioner initially claimed that the Beneficiary would work on the 
project. However, during a site inspection, the Petitioner stated that the Beneficiary would not be 
assigned to the project. Thereafter, in response to the combined RFE and NOlO, the 
Petitioner asserts that the Beneficiary will work on the project, as well as on the 
and projects. The Petitioner did not provide an explanation for 
these inconsistencies. 
In addition, on appeaL the Petitioner states "[ o ]nee the I I project is completed and started 
selling, the duties and responsibilities of the beneficiary will change." However, in response to our 
NOlO, the Petitioner asserts that the Beneficiary's duties in the proffered position will rem am 
unchanged. The Petitioner did not provide an explanation for these inconsistent statements. 
Moreover, the Petitioner has provided inconsistent information regarding the minimum requirements 
for the proffered position. The table below summarizes the variances in the educational 
requirements. 
2 
The Petitioner submitted documentation in support of 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. 
:; The Petitioner must resolve these inconsistencies with independent objective evidence pointing to where the truth lies. 
Afatter o{ Ho. 19 I&N Dec. 582, 591-92 {BIA 1988). Unresolved material inconsistencies may lead us to reevaluate the 
reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. !d. 
4 
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Matter olD- Inc. 
Record of Proceedings Acceptable Fields of Study 
Petitioner's initial support letter Bachelor's degree in computer science or a closely related 
field (page 2) 
Petitioner's RFE response Bachelor's degree in computer science or electrical and 
electronics engineering (page 1) 
Petitioner's letter on appeal Bachelor's degree m a computer-related field. or its 
equivalent (page 5) 
The Petitioner did not provide an explanation for the variances in the requirements. 
2. Job Description 
Furthermore, a crucial aspect of this matter is whether the Petitioner has sufficiently described the 
duties of the proffered position such that we may discern the nature of the position and whether the 
position actually requires the theoretical and practical application of a body of highly specialized 
knowledge attained through at least a baccalaureate degree in a specific discipline. Upon review. we 
find that the Petitioner has not done so. 
For example, the Petitioner described the proposed duties in terms of generic functions that did not 
convey sut1icient substantive information to establish the relative complexity. uniqueness or 
specialization of the proffered position or its duties. The abstract level of information provided 
about the protiered position and its constituent duties is exemplified by the Petitioner's assertion that 
the Beneficiary will ''[a]nalyze, research, design and write specifications for the project." 
However, the statement does not provide sutlicient insight into the Beneficiary" s actual duties, nor 
does it include further details regarding the specific tasks that the Beneficiary will perform. 
In addition, the Petitioner claimed in pertinent part that the Beneficiary will ''l a ]nalyze user 
requirements to automate processing and improve existing systems using systems using Oracle, Java. 
UNIX, SQL Server, Java, HTML, DHTML, Business Objects and other related technologies.'· 
Notably. the Petitioner did not demonstrate how the performance of this duty, as described in the 
record, would require the attainment of a bachelor's or higher degree in a specific specialty. or its 
equivalent. 
The Petitioner also claimed the Beneficiary will ··r d]esign new applications and develop application 
prototypes for the project" and "f wlrite detailed descriptions of user needs. promote efficient 
user utilization of system, cooperate with and provide technical support to project teams.'' The 
Petitioner's statements do not convey sufficient pertinent details as to the actual work involved in 
these tasks. The Petitioner did not convey how a baccalaureate level of education (or higher) in a 
specific specialty. or its equivalent, would be required to perform these tasks. Thus, the overall 
responsibilities for the proffered position contained general functions without providing sufficient 
information regarding the particular work and the associated educational requirements into which the 
duties would manifest themselves in their day-to-day performance within the Petitioner's business 
operations. 
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Maller olD- Inc. 
Moreover, we must review the actual duties the Beneficiary will be expected to perfmm to ascet1ain 
whether those duties require at least a baccalaureate degree in a specific specialty, or its equivalent, 
as required for classification as a specialty occupation . To accomplish that task in this matter, we 
must analyze the actual duties in conjunction with the specific project(s) to which the Beneficiary 
will be assigned. To allow otherwise, results in generic descriptions of duties that, while they may 
appear (in some instances) to comprise the duties of a specialty occupation. are not related to any 
actual services the Beneficiary is expected to provide. 
As discussed , the Petitioner states that the Beneficiary will spend 60% of her time on the 
project, 35% of her time on the project, and 5% of her 
time on the project. Although the Petitioner provides documentation regarding the 
projects, there is a Jack of information regarding the Beneficiary's specific role in each project. That 
is, the Petitioner has not specifically explained the duties and role of the proffered position in the 
context of any of these projects. 
Furthermore, in response to our combined RFE and NOID, the Petitioner states that the Beneficiary 
will work on two projects it did not present in the proceedings before the Director. A petitioner must 
show that all eligibility requirements were satisfied as of the date it filed the petition.""' As such. 
eligibility for the benefit sought must be assessed and weighed based on the facts as they existed at 
the time the petition was tiled and not based on what were merely speculative facts not then in 
existence. The agency made clear long ago that speculative employment is not permitted in the 
H-I 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 fi·om 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 ascet1ain 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. 
4 
See 8C.F.R. ~ 103.2(b)(l): Michelin Tire Corp., 17 I&N Dec. at 249 (detennining that a visa petition may not be 
approved at a future date after one of the partie s becomes eligible under a new set offacts). 
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Matter qf D- Inc. 
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 permitted to 
petition for H-1 B classification on the basis of facts not in existence at the time the instant petition 
was tiled, it must nonetheless tile a new petition to have these facts considered in any eligibility 
determination requested, as the agency may not consider them in this proceeding pursuant to the law 
and legal precedent cited, supra. 
The record lacks evidence that the and projects existed on the 
date the Petitioner filed this petition. Consequently, it has not demonstrated its ability or intent to 
transfer the Beneficiary to either of these projects upon any operational changes in the project. 
As a result, the Petitioner has not shown that the projects for the Beneficiary to perform the same 
duties as those in the project existed when it tiled this petition. 
Here, the Petitioner has not provided sufficient details regarding the nature and scope of the 
Beneficiary's employment or substantive evidence regarding the actual work that the Beneficiary 
would perform. Without 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 or specialization of 
the tasks; or (3) the correlation between that work and a need for a particular level of knowledge in a 
specific specialty. 
As the Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, this precludes a finding that the proffered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature ofthat work that determines (1) the normal 
minimum educational requirement for the particular position, which is the focus of criterion I ;5 
(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. 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). it has not 
demonstrated that the protlered position qualities as a specialty occupation. 
5 
In response to the RFE. the Petitioner provided an opinion letter from associate professor at The 
Within the opinion letter from he repeatedly presents the 
position he was analyzing as a computer programmer analyst. with duties commensurate with a computer programmer. 
However, the Petitioner classified the position as a junior system engineer with duties that are distinct from those of a 
computer programmer. Consequently, this evidence is insufficient to establish the Petitioner's claim that the proffered 
position qualifies as a specialty occupation. 
Matter of D- Inc. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
Finally, we will brief1y address the issue of whether or not the Petitioner qualifies as a United States 
employer. As detailed above. the record of proceedings lacks sufficient documentation evidencing 
what exactly the Beneficiary would do for the period of time requested. Given this specific lack of 
evidence, the Petitioner has not established who has or will have actual control over the 
Beneficiary's work or duties, or the condition and scope of the Beneficiary's services. In other 
words, the Petitioner has not established whether it has made a bona fide offer of employment to the 
Beneficiary based on the evidence of record or that the Petitioner. or any other company which it 
may represent, will have and maintain an employer-employee relationship with the Beneficiary for 
the duration ofthe requested employment period. See 8 C.F.R. ~ 214.2(h)(4)(ii) (defining the term 
''United States employer" and requiring the Petitioner to engage the Beneficiary to work such that it 
will have and maintain an employer-employee relationship with respect to the sponsored H-1 B 
nonimmigrant worker). As previously discussed, there is insufficient evidence detailing specific 
projects to be performed by the Beneficiary, or for which company the Beneficiary will ultimately 
perform these services. Therefore, the Director's decision is affirmed. and the appeal is dismissed 
for this additional reason. 
III. CONCLUSION 
For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Matter olD- Inc., ID# 586165 (AAO Dec. 15. 20 17)