dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 23, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software product development and consultancy services provider, seeks to 
temporarily employ the Beneficiary as a "computer programmer analyst" under the H-18 
nonimmigrant classification for specialty occupations. See section 101 (a)(IS)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(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 
proffered position is not a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in finding that the proffered position is not a specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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.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: 
(b)(6)
Matter ofP-S-, Inc. 
(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.F.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. Cherto[f, 484 F .3d 139, 14 7 (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 
In the H-1 B petition, the Petitioner stated that the Beneficiary will serve as a "computer programmer 
analyst." The Petitioner indicated that the Beneficiary 
would perform her duties off-site, in 
California, for (end-client). The Petitioner further stated that the Beneficiary 
will be working on project and described the Beneficiary's responsibilities as 
follows: 
• Understanding and revtewmg the new requirements following the agile 
methodology. 
• Designing the test plan and the test strategy by interacting with the team. 
• Brainstorming and prioritizing the test scenarios tor automation testing. 
• Developing and maintaining a robust set of reusable test scripts by gathering 
requirement, analyzing user needs and determining feasibility, writing functional 
specification and program specification, technical design, coding reviews and 
drafting detailed unit test plans. 
• Participate in improving the automation approach and toolsets used within the QA 
department. 
• Creating and modifying the data required for testing and also will be responsible 
for test environment setup and configuration. 
• Performing debugging functions and maintaining logs for bugs raised and fixed 
during debug operations. 
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(b)(6)
Matter of P-S-, Inc. 
• Take part in team discussions, client calls and provide daily status report to client 
when needed. 
• Mentoring the team in learning the automation framework and using it in order to 
do testing. 
On the labor condition application (LCA) submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Computer Systems Analysts" 
corresponding to the Standard Occupational Classification code 15-1121.1 
According to the Petitioner, the position requires a bachelor's degree ' in computer science, 
engineering, or a closely related field. 
TIL 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 (1) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation? 
The record of proceedings does not contain sufficient information regarding the specific job duties to 
be performed by the Beneficiary. That is, while the Petitioner indicated that the Beneficiary would 
be working for the end-client as a computer programmer analyst on project throughout the 
duration of the petition, the Petitioner has not adequately corroborated that claim. 
Specifically, the Petitioner 
has not established that the petition was filed for non-speculative work for 
the Beneficiary, for the entire period requested, that existed at the time of filing. 
1 
The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). 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. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: ( 1) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive 
specific instructions on required tasks and expected results. 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_!!_ 2009.pdf A prevailing wage determination starts 
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. 
2 
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. 
3 
(b)(6)
Matter of P-S-, Inc. 
For example , the record contains a statement of work (SOW), which described the project as 
follows: 
[The end-client's] [a]ffiliate3 has multiple projects to be executed and needs to 
augment their development and quality engineering teams. The exact scope of work, 
team size, skill set and experien ce level of the resources will be decided by the points 
of contact for the [end-client] and the [Petitioner] from time to time. 
It appears that the SOW does not pertain solely to a specific project, but was instead intended for 
multiple , undefined projects for various "affi liates" of the end-client. While the Petitioner stated that 
the Beneficiary will be assigned to · project, the SOW only provided a general description 
that does not provide sufficient information regarding the project. Therefore, it appears that the 
Beneficiary' s assignment was not adequately defined at the time the petition was filed. 
Moreover, while the SOW lists the Beneficiary' s name under "SOW Worker," the Beneficiary's role 
is listed as "QA Engineer II," which differs from the proffered position as a computer programmer 
analyst. Since the SOW does not include duties for the Beneficiar y' s role, we are not able to 
determine if "QA Engineer II" is the same position as the proffered position. Further, the SOW lists 
the Beneficiary's status as "closed," and the 
end date is "2015-02-09. " We also note that the 
Petitioner requested validity dates of October 1, 2015, to August 6, 2018. However, the SOW was 
valid from January 1, 2015, to December 31, 2015. The SOW, therefore, does not cover the 
petition ' s duration, and it is not evidence that specialty-occupation work existed for the Beneficiary 
through August 2018. 
Further , we note that the consulting agreement executed between the Petitioner and the end-client 
stated that "[the end-client] may from time to time issue project assignments to [the Petitioner] that 
may be outlined in the format displayed in "project assignments ," and provided a sampl
e project 
assignment. However, the above-mentioned SOW does not conform to the sample project 
assignment specified in the consulting agreement, and it is not clear whether this SOW actually 
creates any binding obligation on the end-client to provide the work specified therein. In the 
alternative, it is not clear whether the consulting agreement is the most recent agreement executed 
between the Petitioner and the end-client. 
On appeal, the Petitioner asserts that "it is not possible to provide an [sic] SOW which includes 
'deta iled' duties and specifies the exact professional requirements of the selected employees." 
However, if the SOW does not des
cribe the proffered position and its minimum requirements, the 
burden is on the Petitioner to submit supp01ting documentation regarding the end client project that 
demonstrates that the proffered position is a specialty occupation. "[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 o.fTreasure Craft 
3 The amendment to the consulting agre ement defines "affiliate " as "companies in which (the end-cl ient] has an 
ownership interest greater than fifty percent (50%) and includes direct and indirect subsid iaries of [the end-client]." 
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Matter of P-S-, Inc. 
of Cal., 14 I&N Dec. 190 (Reg'! Comm'r 1972)). Further, when the SOW contains discrepancies such 
as the job title and validity period that do not correspond with the petition, the Petitioner needs to 
explain the discrepancy. "[I]t is incumbent upon the petitioner to resolve the inconsistencies by 
independent objective evidence." Matter of Ho, 19 l&N Dec. 582, 591 (BIA 1988). Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the Petitioner submits competent 
objective evidence pointing to where the truth lies. ld. at 591-92. 
As recognized by the court in Defensor, 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, 
201 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. ld at 384. 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. Here, the Petitioner did not submit 
sufficient documents to substantiate the Beneficiary's assignment to the end-client for the duration 
of the requested H-1 B employment period. 
Further, even if we assume that the Beneficiary will be working for the end-client, we find that the 
duties were described in relatively abstract and generalized terms The job descriptions lack sufficient 
detail and concrete explanation to establish the substantive nature of the work within the context of the 
end-client project, and the associated applications of specialized knowledge that their actual 
performance would require. For example, the Petitioner uses broad terms such as "understanding," 
"reviewing," "participate," and "prioritizing" without placing them into context. 
Moreover we observe some job duties indicate that the Beneficiary will have managerial-level 
responsibilities. More specifically, the Petitioner states on appeal that the Beneficiary would spend 25% 
of her time "leading the team." These duties appear inconsistent with the Levell (entry) wage level 
selected here. As noted, this wage rate indicates: (1) that the Beneficiary will be expected to perform 
routine tasks that require limited, if any, exercise of judgment; (2) that she will be closely supervised 
and her work closely monitored and reviewed for accuracy; and (3) that she will receive specific 
instructions on required tasks and expected results. The Petitioner's designation of the proffered 
position as a Level I, entry-level position is inconsistent with these and other stated duties, and it 
raises additional questions regarding the substantive nature of the proffered position.4 
4 
The issue here is that the Petitioner's designation of this position as a Level I, entry-level position undermines its claim 
that the position is relatively higher than other positions with;n the same occupation. Nevertheless, it is important to note 
that a Level I wage-designation does not preclude a proffered position !Tom classification as a specialty occupation. In 
certain occupations (doctors or lawyers, for example), an entry-level position would still require a minimum of a 
bachelor's degree in a specific specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation 
would not reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an 
entry requirement of at least a bachelor's degree in a specific specialty or its equivalent. That is, a position's wage level 
designation may be a consideration but is not a substitute for a determination of whether a proffered position meets the 
requirements of section 214(i)( I) of the Act. 
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Matter of P-S-. Inc. 
As the Petitioner has not submitted documentation confirming what work the Beneficiary would 
actually perform for the duration of the petition, we are unable to determine the substantive nature of 
the proffered position. A petition must be filed for non-speculative work for the Beneficiary, for the 
entire period requested, that existed as of the time of the petition's filing.5 We therefore find that the 
record of proceeding does not contain sufficient information regarding the substantive nature of the 
proffered position, and the evidentiary deficiencies discussed above raise additional questions. 
Therefore, we cannot determine that description of the proffered position communicates: (I) 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. 
The inability to establish the substantive nature of the work to be performed by the Beneficiary, 
which should be consistent from the time the petition was filed throughout the adjudication process, 
consequently 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 of that work that determines: (I) the normal 
minimum educational requirement for the particular position, which is the focus of criterion I ;6 
(2) industry positions which are parallel to the proffered position and thus appropriate for review for 
5 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 
individual 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 individual 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) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the individual 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 individual 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). 
6 Even if the proffered position were established as being that of a programmer analyst, a review of the U.S. Department 
of Labor's (DOL's) Occupational Outlook Handbook (Handbook) does not indicate that, simply by virtue of its 
occupational classification, such a position qualifies as a specialty occupation in that the Handbook does not state a 
normal minimum requirement of a U.S. bachelor's or higher degree in a specific specialty, or its equivalent, for entry 
into the occupation of programmer analyst. See U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook 
Handbook, 2016-17 ed., "Computer Systems Analysts," http://www.bls.gov/ooh/computer-and-information­
technology/print/computer-systems-analysts.htm (last visited June 22, 2016). As such, absent evidence that the position 
of programmer analyst satisfies one of the alternative criteria available under 8 C.F.R. § 214.2(h)(4)(iii)(A), the instant 
petition could not be approved for this additional reason. 
6 
Matter of P-S-, Inc. 
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, 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 as a specialty occupation. 
IV. CONCLUSION 
The Petitioner has not established demonstrated that the proffered position qualifies as a specialty 
occupation. The burden is on the Petitioner to show eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter of 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 P-S-, Inc., ID# 17098 (AAO June 23, 2016) 
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