dismissed H-1B Case: Computer Science

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 
developer" 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-1B 
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) 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 ofthe 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 ofC-G-lnc 
(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). 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-1B petition, the Petitioner stated that the Beneficiary will serve as an in-house "software 
developer." 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[.] 
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. ANALYSIS 
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? 
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 Developer 
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 Computer Analyst 
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 
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 ofC-G- Inc 
Employment Offer Letter Software Developer 
(March 11, 2016) 
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 (November (1) Business Analyst Bachelor's degree or its 
29, 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 ~he 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. 
The Petitioner has provided inconsistent information on material aspects of the profTered 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. (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-1B 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: 
Response to RFE­
Project #1 
Same project information 
as submitted with initial 
petition 
Appeal- Project #2 
Support of 
Center 
(Petitioner will work with 
) 
As noted above, the Petitioner initially stated that the Beneficiary will work on a project for the 
, but on appeal the Petitioner submits an entirely new project. 
The Petitioner makes no mention of the documentation submitted previously 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 of 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 C-G- Inc 
a deficient petition conform to USCIS requirements. See Matter oflzummi, 22 I&N Dec. 169, 176 
(Assoc. Comm'r 1998). 
Moreover, the Petitioner did not provide sufficient evidence to establish that it is indeed performing 
either project, or provide a contract or work order for these projects. For instance, the Petitioner 
submitted a timeline for the eBilling application that spans from August 2015 through December 
2020. However, the Petitioner submitted a letter, regarding funding for an product. It is not 
clear if the project is the same as the project. The letter stated that the "board of 
directors are already released funding for 1st and 2nd phase and we are in 3rd state of software 
development. ... " Thus, the project is already in the third phase and there is insufficient evidence to 
determine whether that project will continue for another three years. 
In addition, on appeal, the Petitioner submits a consulting agreement between the Petitioner and 
The agreement became effective on December 1, 2016, 
nearly seven months after the Petitioner filed the instant H-1 B petition. According to the eBilling 
application project timeline submitted by the Petitioner, the project commenced in 2015 but the 
consulting agreement between the Petitioner and the client company was not signed until 2016. 
Further, since the agreement became effective after the H-1 B petition was filed, the Petitioner did 
not establish that it had work for the Beneficiary at the time of tiling. The Petitioner must establish 
that all eligibility requirements for the immigration benefit have been satisfied from the time of the 
filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
Notably, the consulting agreement states that the Petitioner "agrees to perform for Company the 
services listed in the Scope of Services section in Exhibit A." However, the Exhibit A was not 
attached with the consulting agreement and, thus, we cannot determine the specific scope of the 
services. 
On appeal, the Petitioner submits a letter from the CEO of . The letter confirms that the 
Beneficiary is working at the Petitioner's office in support of the " " The letter 
further states that the Beneficiary is "capable of managing multiple/large long term projects for [the 
Petitioner] that support the long term evolution of the team and implementation of the 
product." Furthermore, on appeal, the Petitioner submits a new project plan for a placement 
management system software solution. The documentation discusses as a "cloud based 
solution." This project plan is not the same as the eBilling project plan initially submitted. It is not 
clear why the Petitioner provided information on appeal regarding an entirely new project. 
The Petitioner indicated 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 developer for that entire period. The Petitioner provided 
insufficient evidence to substantiate its ongoing project for the requested H -1 B validity period. 3 
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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: 
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, dated March 22, 2016. 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. 4 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-G- Inc, ID# 519850 (AAO June 26, 20 17) 
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 
expectation of potential new customers or contracts. . . . In the case of speculative employment, the 
Service is unable to ... adjudicate properly a request for H-I 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. 30,4 I 9, 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.