dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-G- INC 
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-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-lB 
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 protlered 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) of the 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: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
Matter of C-G- Inc 
(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. 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."' 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 application 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[.] 
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 C-G- Inc 
• Turn the application to improve the performance[.] 
• Provide support the software and application solutions[.] 
• Respond to production incidents and take appropriate actions such as filing bugs 
and suggestions. 
III. ANAL YSJS 
We determine that the Petitioner has not demonstrated that the proffered 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 Proceedin~s 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 I-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 
Application Document Computer Analyst 
"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 . 
3 
Matter ofC-G- Inc 
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. 3) 
(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 26, (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 four tasks to over fifteen 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 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 (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 aspects 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 C-G- Inc 
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. C./. Matter (~f 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 14 7. 
C. Insufficient Evidence for the Job Project 
For H-1 B 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 assigned to work on the project under 
the Petitioner's "direct supervision and control." According to the Petitioner, " 1s a 
combination of services, exemplary support wrapped around 
proprietary, patented (patent pending) products to provide a seamless exhilarating experience with 
service level guarantees." The Petitioner did not provide sufficient evidence to establish that it has a 
current contract with the owner of the application, to work on and 
utilize this application. 
The Petitioner also submitted a document entitled, ' . 
. " Although the business plan provided a description of the 
project, it did not provide a detailed statement of the Beneficiary's responsibilities on this 
project, or the requirements for performing the duties of the position. Further, in the Director's 
decision, she noted several excerpts from the business plan were identical to excerpts found 
on other websites. Although the Director noted these discrepancies, the Petitioner did not address 
these concerns on appeal, and did not provide evidence to overcome these concerns. 
On appeal, the Petitioner submits a letter from the President of confirming that the Petitioner 
"has been working on project by designating its employees to complete the 
job function." The letter also indicated that "as this project is ongoing I have requested [the 
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Matter of C-G- Inc 
Petitioner] to provide us qualified candidates from time to time." Further, the letter states that 
"put in a request of 5 qualified Programmers to work on the project." The letter did not 
state that the Beneficiary will work on this specific project, and in what capacity. It is also not clear 
in the letter as to whether has already received the five programmers or if it still needs 
additional programmers on the project. In addition, the letter indicated the use of the Petitioner's 
employees was from "time to time" and did not provide sufficient evidence that the company has 
work for the Beneficiary for the entire requested period of employment. 
The Petitioner also submits a consulting agreement between the Petitioner and 
the following concerns arose from the information in the agreement: 
Consulting Agreement Other Evidence 
but 
The agreement became effective on October 1, However, the Form I-129 stated that in 2011 
2005. Petitioner was established; nearly six years after 
the agreement became effective. 
The agreement was signed in October 2016. However, the letter submitted on 
appeal stated that the project began in March 
2015, or 19 months before the parties signed the 
agreement. 
Furthermore, the consulting agreement states that the Petitioner "agreed to perform for Company the 
services listed in the Scope of Service section in Exhibit A." Upon review of Exhibit A, the 
Beneficiary was not specifically named, and the scope of the project consists of four broadly-defined 
duties which do not sufficiently explain what the Beneficiary would actually be doing on this 
project. Further , the duties do not appear to be the level of duties that would require a bachelor ' s 
degree in a specific specialty, or the equivalent. For example, the Petitioner does not explain why 
"tracking requests for changes"; "prioritizing activities with Company resources''; or "estimate[ing] 
time required for completion of task" would require a bachelor's degree in a specific specialty. 
Moreover, the documentation does not indicate that the Beneficiary will perform the duties of a 
software developer on the project. 
The Petitioner submitted also several contracts with different companies , but without an explanation 
as to their relevance to this petition and none of them name the Beneficiary. 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 
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 busine ss expansions or the 
expectation of potential new customers or contracts . . . . In the case of speculative employment, the 
Matter ofC-G- Inc 
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 1 (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 1(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. 
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 ofC-G- Inc, ID# 459351 (AAO June 26, 2017) 
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). 
5 
As the petition cannot be approved for the reasons discussed above, we will not address the additional deficiencies that 
we observe in the record.