dismissed H-1B Case: Computer Science

MATTER OF M-S-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 26,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer company, seeks to temporarily employ the Beneficiary as a "software 
programmer" under the H -1 B nonimmigrant classification for specialty occupations. See Immigration 
and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 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 of the Vermont Service Center denied the petition, concluding that the evidence of 
record does not establish that the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying 
the petition. Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) ofthe Act, 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) 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: 
(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 
Matter of M-S-, LLC 
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. Cherto.ff, 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 
In the H-1 B petition, the Petitioner stated that the Beneficiary will serve as an in-house "software 
programmer." 1 Although the Petitioner provided several different job descriptions for the proffered 
position, the following job duties were provided with the initial petition: 
• Design, customize and implement appropriate solutions for planning, analytics 
and reporting systems. 
• Code, test and analyze software programs and applications using various tools and 
technologies identified by the project manager/architect. 
• Identify, evaluate, test, support and troubleshoot new and existing software 
applications. 
• Migrate applications from one environment to another environment. 
• Manage Release & change management & version control for migration. 
• Maintain the master data in a centralized repository. 
• Provide user training, and training for team members. 
• Prepare and maintain user documentation on business process and applications. 
• Use various tools and technologies that include but not limited Java!J2EE, 
Documentum, Oracle, Windows, Unix etc. 
• Configure, test and deliver the solution as per the requirement. 
• Perform the continuous system support throughout the project[.] 
• Design and develop programs and reports with suggestions to necessary software 
components required for the system setup[.] 
• Turn the application to improve the performance[.] 
• Provide support the software and application solutions[.] 
1 As discussed below, the Petitioner provided several different job descriptions, job titles, and educational requirements 
for the position. 
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Matter of M-S-, LLC 
• Respond to production incidents and take appropriate actions such as filing bugs 
and suggestions. 
III. ANALYSIS 
We determine that the Petitioner has not demonstrated that the profTered position qualifies as a 
specialty occupation? Specifically, the record provides significant variances in the description of 
the position, thereby precluding us from determining its substantive nature.3 
A. Variances in the Petitioner's Description 
The Petitioner has provided inconsistent information regarding the Beneficiary's job title, duties, and 
the minimum requirements for the proffered position. The table below summarizes the variances in 
the Petitioner's job titles and educational requirements. 
Record of Proceedings Job Title Job Requirements 
Appeal Brief Computer Programmer (1) Bachelor's degree in 
engineering or a related analytic 
or scientific discipline 
(2) Bachelor's degree in 
business, IT or the equivalent 
Form 1-129 Software Programmer 
Labor Condition Application Software Developer 
Letter of support (March 24, Programmer Analyst Bachelor's degree in science, 
2016) computer science, computer 
engineering, electronics, 
engineering, physical sciences or 
equivalent 
Computer Analyst 
Application Document 
"Specialty Occupation Work ( 1) Software Programmer Bachelor's degree in science, 
and Petitioner Right to computer science, computer 
Control" Document (2) Programmer Analyst engineering, electronics, 
engineering, physical sciences or 
equivalent 
2 We hereby withdraw the Director's statement that the position of software developer is traditionally considered a 
specialty occupation. The Director does not cite to any authoritative or objective source to support this statement. 
3 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 M-S-. LLC 
Employment Offer Letter Software Developer 
Response to Request for (1) Programmer (1) Bachelor's degree in 
Evidence engineering, computer science, 
(2) Computer Programmer statistics, mathematics, 
economics, commerce or 
business (pg. 4) 
(2) Bachelor's degree in 
engineering or a related analytics 
of scientific discipline (pg. 5) 
(3) Bachelor's degree in 
business, information technology 
or the equivalent (pg. 5) 
Letter of support (August 25, ( 1) Business Analyst Bachelor's degree or its 
2016) equivalent in the field of 
(2) Programmer business, computer science, 
application, IT, engineering 
The Petitioner also provided multiple job descriptions for the proffered position. The descriptions 
vary from just 4 tasks to over 15 tasks, and they are distinct. For example, in the initial submission, 
the Petitioner claims the Beneficiary will "provide user training, and training for team members" and 
"design, customize and implement appropriate solutions for planning, analytics and reporting 
systems." However, these tasks do not appear in subsequent descriptions. Further, the Petitioner has 
not provided an explanation of the demands, level of responsibilities, complexity, or requirements 
necessary for the performance of these duties (e.g., explain what specific systems and applications 
are involved, or any particular body of highly specialized knowledge that would have to be 
theoretically and practically applied to perform it). 
The record does not establish the substantive nature of the work to be performed by the Beneficiary, 
which therefore precludes a finding that the protiered 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 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. 
In sum, the Petitioner has provided inconsistent information on material ~spects of the proffered 
position (i.e., job title, academic requirements, and the duties of the position). The record lacks an 
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Matter of M-S-, LLC 
explanation for these variances. Thus, we must question the accuracy of the documents and whether 
the information provided is correctly attributed to this particular Beneficiary and position. 
B. Bachelor's Degree in Business 
In addition, the Petitioner repeatedly stated that a bachelor's degree in business is acceptable. 
However, the requirement of a bachelor's degree in business is inadequate to establish that a position 
qualifies as a specialty occupation. A petitioner must demonstrate that the proffered position 
requires a precise and specific course of study that relates directly to the position in question. Since 
there must be a close correlation between the required specialized studies and the position, the 
requirement of a degree with a generalized title, such as business, without further specification, does 
not establish the position as a specialty occupation. (f Matter of Michael Hertz Assocs., 19 I&N 
Dec. 558, 560 (Comm'r 1988). U.S. Citizenship and Immigration Services (USCIS) has consistently 
stated that, although a general-purpose bachelor's degree, such as a degree in business 
administration, may be a legitimate prerequisite for a particular position, requiring such a degree, 
without more, will not justify a finding that a particular position qualifies for classification as a 
specialty occupation. Royal Siam Corp., 484 F.3d at 147. 
C. Inconsistent Job Projects 
For H-lB approval, the Petitioner must demonstrate a legitimate need for an employee exists and 
substantiate that it has H-1 B caliber work for the Beneficiary for the period of employment 
requested in the petition. The Petitioner indicated that the Beneficiary will be working on certain 
projects and outlined the projects as follows: 
Initial Petition -
Project #1: 
project. 
(Project presentation 
states the presentation is 
for 
Response to RFE­
Project #1 
Same project information 
as submitted with initial 
petition 
Appeal- Project #2 
Enterprise information 
integration (Ell) 
(Petitioner will work with 
As noted above, the Petitioner initially stated that the Beneficiary will work on a project for 
but on appeal the Petitioner submits an entirely new project. It is not clear why the 
Petitioner provided information on appeal regarding a completely new project. On appeal, the 
Petitioner makes no mention of the project documentation previously submitted with the initial 
petition and in response to the Director's request for evidence (RFE). 
The Petitioner must establish that the position offered to the Beneficiary when the petition was filed 
merits classification for the benefit sought. See Matter a./Michelin Tire Corp., 17 I&N Dec. 248, 249 
(Reg'l Comm'r 1978). A petitioner may not make material changes to a petition in an effort to make 
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Matter of M-S-, LLC 
a deficient petition conform to USCIS requirements. See Matter (~f Izummi, 22 I&N Dec. 169, 176 
(Assoc. Comm'r 1998). 
Moreover, the Petitioner did not provide sufficient evidence to establish that it has a current contract 
with or to perform either of these projects. More specifically, the Petitioner 
submitted a presentation for _ and a document outlining the scope of the project for 
the application. In reviewing the project presentation, it states that "this 
investor presentation has been prepared to secure investment for " The 
Petitioner did not provide evidence to establish a connection with the company, 
, who appears to be the owner of this application, or evidence to establish that the 
Petitioner has a contract with that company to work and utilize this application. 
The Director also noted that public records indicated that completed 
the application approximately two years earlier. Thus, it is not clear as to the 
Beneficiary's duties on this project since the application is already developed. Although the 
Director indicated in the RFE several of these inconsistencies in the documentation, the Petitioner 
did not discuss these issues in response to the RFE or on appeal, nor did the Petitioner submit 
additional documentation to overcome these concerns. 
Further, on appeal, the Petitioner submits a contract for the new project, between itself and 
executed in August 2006, nearly 10 years prior to filing the instant petition. The 
purpose of the contract is indicated as an agreement to "establish a general framework for engaging 
in certain business, sales marketing or other activities that will utilize or draw upon their respective 
products, services, skills, expertise and experience." Under the section, "scope of relationship," it 
states that the "intent of this agreement is to set forth the general legal terms and conditions which 
are expected to govern each Schedule .... " The contract explains that the parties will prepare a 
schedule to include information such as the scope and fees for a particular project. The Petitioner 
did not submit a schedule to indicate a current specific project between itself and and a 
project that indicates the need of the Beneficiary as a software programmer. Without additional 
documentation establishing the specific duties the Beneficiary will perform on this project, and the 
required knowledge to perform these duties, we are unable to discern the substantive nature. 
As discussed above, the Petitioner referenced two separate projects but did not submit sufficient 
evidence such as contracts or corroborating evidence that these projects will continue until 
September 2019, and will require the services of a software programmer for that entire period. The 
Petitioner provided insufficient evidence to substantiate its ongoing project for the requested H-1 B 
validity period.4 
4 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 
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Matter of M-S-, LLC 
D. Job Location 
While the Petitioner repeatedly claims in the record (including its letters and the labor condition 
application) that the Beneficiary will be employed on-site, we observe that the employment 
agreement provides evidence that the Beneficiary may work off-site. The Petitioner submitted an 
employment agreement between itself and the Beneficiary. Under section l(b), geographical 
preference, the agreement states that the "employee working as a consultant should be flexible & 
open to relocate to any client location within Continental United States at Company's decision and 
request." Also, under section l(e) of the agreement , under in-between assignment period, it states 
"the employee acknowledges that he or she understands that as part of Employee ' s employment he 
or she may not be assigned to client project at all times." The Petitioner did not provide an 
explanation as the reason the employment agreement is not consistent with the information provided 
to USCIS as to the Beneficiary's work site location. 
Moreover, in response to the RFE, the Petitioner submitted a strategic business plan for the 
project. This business plan stated under the "management team" section that the 
"company executive staff and operations will be in California." This information 
appears to be inconsistent with the Petitioner's statement that the Beneficiary will work on this 
project in-house in New Jersey. 
IV. CONCLUSION 
For the reasons discussed above, the Petitioner has not established that it the proffered position 
qualifies as a specialty occupation. 5 
ORDER: The appeal is dismissed. 
Cite as Matter of M-S- LLC, ID# 33 7492 (AAO June 26, 20 17) 
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. . . . In the case of speculative employment , the 
Service 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 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
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As the petition cannot be approved for the reasons discussed above, we will not address the additional deficiencies that 
we observe in the record. 
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