dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 16,2017 
APPEAL OF VERMONT SERVICE CENTER DECISION · 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software and hardware solutions company, seeks to temporarily employ the 
Beneficiary as a "software developer, applications" under the H-1B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 1 
8 U.S.C. § 1101(a)(15)(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 Petitioner did 
not establish, as required, the existence of a specialty occupation position. 
On appeal, the Petitioner submits additional evidence and contends that the petition should be 
approved. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "st>_ecialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowJedge, 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: 
Matter of V- 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). 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. Chertoff, 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 
The Petitioner stated in the H -1 B petition that the Beneficiary will serve as a "software developer, 
applications." In its support letter and then again in response to the Director's request for additional 
evidence (RFE), the Petitioner stated that the Beneficiary would perform the following duties (note: 
errors in the original text have not been changed): 
• Draft the Software Requirement Document for the Centralized fee billing system. 
• Interact with IT and business managers to achieve data definitions suited to their 
needs. 
• Work on both mainframes and distributed systems to develop and more centralized 
and transparent billing system. 
• Coordinate with the ODM and ETL integration to in cooperate the business rules and 
source definitions. 
• Design the process flows and data models. 
• Develop workflows and mappings to extract data, transform and to load into different 
heterogeneous sources. 
• Design and develop Business Intelligence solutions in staging, populating Operational 
Data Store (ODS), Enterprise Data Warehouse (EDW), Data Marts/Decision Support 
Systems using Informatica Power Center 9.x/8.x/7.x/6.x ETL tool. 
According to the Petitioner, these duties require a bachelor's degree m computer science, 
information systems, or a related field. 
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Matter of V- Inc 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out qelow, we determine that the 
Petitioner has not demonstrated the existence of a specialty occupation position. 1 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.2 The Petitioner has not credibly demonstrated the substantive nature of the 
Beneficiary's employment. 
When it filed the H-1 B petition, the Petitioner provided conflicting information as to where the 
Beneficiary would perform her duties. Though the Petitioner stated in the labor condition 
application (LCA) that the Beneficiary would work in its office, it stated on the Form 1-129, Petition 
for a Nonimmigrant Worker, that the Beneficiary would "work at an off-site location for all or part 
of the period for which H-1B classification is sought." The Petitioner, therefore, made conflicting 
statements regarding the location of the Beneficiary 's work within the H-lB petition. Though the 
Petitioner stated in its RFE response that it made an error on the Form I -129, and that the 
Beneficiary would not work offsite; we find the Petitioner did not sufficiently resolve this 
discrepancy because the record contains other evidence that undermines the Petitioner's claim of in­
house employment for the Beneficiary. 
For example, the Petitioner stated in its support letter that the Beneficiary would "perform[] work in 
the purchase order," and submitted several purchase orders and affiliated staffing agreements calling 
for the Petitioner to assign personnel to various end-clients. For example, the agreement the 
Petitioner executed with requests that "locate a client who requires 
temporary staffing of a specific project." The Petitioner would then provide an individual to "staff' 
that "specific project" for client. In similar fashion, the agreement the Petitioner 
executed with the discusses the manner in which "the 
[Petitioner's] Consultant [will be] assigned to Customer." Given the Petitioner's claim that 
the Beneficiary would work on the projects described in this documentation, it does not seem likely 
that the Beneficiary would work exclusi ~ely in-house, as claimed.3 
The Petitioner 's claim that the Beneficiary would work in-house is further undermined by its statement 
in the RFE response that the Beneficiary "can be moved by [the Petitioner] to work at a different 
location." In addition, on appeal, the Petitioner submits a statement of work (SOW) for a project that 
the Beneficiary would work on. The SOW contains a section discussing how to obtain approval for an 
' 1 Although some aspects of the regulatory criteria may overlap , we will address each of the criteria individually . 
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 
Discrepancies within these documents further undermine the credibility of the Petitioner 's claims. For example, the 
purchase order issued pursuant to the vendor agreement executed between the Petitioner and the specifically 
references "its ending date as mentioned on this purchase order. " However, the purchase order contains no such "ending 
date ." 
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Matter of V- Inc 
apartment near the end-client's worksite. It is unclear why the Beneficiary would need an apartment at a 
remote work location if she would be working exclusively in-house for the Petitioner. The Petitioner 
must resolve inconsistencies in the record with independent, objective evidence pointing to where the 
truth lies. Matter ofHo, 19 I&N Dec. 582,591-92 (BIA 1988). 
Setting these inconsistencies aside, we find that the Petitioner has not made clear what the 
Beneficiary would actually be doing if this H-1B petition were approved. Without such information, 
we cannot determine whether the Beneficiary's duties constitute a specialty occupation position. 
The Petitioner has presented the Beneficiary's proposed duties in generalized terms with no 
explanation as to how they would performed within the context of the Petitioner's business 
operations or on any of its projects. For example, the Petitioner claims that the Beneficiary would 
draft a "software requirement document" for the "centralized fee billing system." However, the 
Petitioner does not explain what it means by the "centralized fee billing system," or whether this 
"billing system" belongs to the Petitioner, one of its clients, or to a more distant end-client. The duty 
to "interact with"' unspecified "IT and business managers" is also vague and does not provide a 
sufficient basis upon which to determine whether performance of this duty requires a bachelor's 
degree in a specific specialty, or the equivalent. Nor does the duty to design process flows and data 
models provide any meaningful insight into what the Beneficiary would actually be doing on a day­
to-day basis. 
On appeal, the Petitioner submits information regarding the two projects upon which it now claims 
the Beneficiary would work. However, this evidence does little to address the deficiency, as the 
Petitioner does not explain the Beneficiary's role on these projects. For example, the SOWs do not 
name the Beneficiary as a resource even though one of the SOWs contains a column titled "Name of 
subcontractor" and specifically mentions "software developer[s]." The Petitioner does not explain 
why the Beneficiary is not one of these named software developers. Nor is it apparent how the 
duties initially provided by the Petitioner - particularly the duties regarding billing systems - align 
with either of the projects described on appeal. 
Further, the Petitioner uses the male-gendered terms "he" and "his" throughout the record. 
However, the Beneficiary is a woman. While not dispositive, this discrepancy reinforces the vague 
and general nature of the Petitioner's statements regarding the Beneficiary and her duties. In other 
words, the Petitioner's statements regarding the proffered position are so general that they could 
apply to nearly ~ny position located within this occupational category - or even to positions located 
within similar occupational categories. The Petitioner's apparent lack of awareness that the 
Beneficiary is a woman compounds this general sense of the petition.4 
Next, inconsistencies in the Petitioner's statements lead us to question the overall reliability of the 
stated job description. For example, though the Petitioner describes the Beneficiary as a "software 
4 The Petitioner's apparent lack of awareness that the Beneficiary is a woman also leads us to question whether she has 
been working in-house pursuant to her optional practical training, as claimed. 
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Matter of V- Inc 
developer, applications," it describes its "development team" as consisting only of "analysts and 
programmers." However, "software developers," "analysts," and "programmers" are not 
interchangeable terms. They are distinct occupations with differing duties and educational 
requirements. If the Beneficiary would actually be working as an analyst or a programmer, then it 
would render many of the Petitioner's statements regarding the proffered position moot and would 
raise questions as to whether the LCA actually corresponds to and supports this H-1B petition. 
Further, in response to the RFE, the Petitioner stated that the Beneficiary would work on "multiple 
project[s]." However, on appeal the Petitioner only identifies two projects- one of which did not 
even exist at the time of filing. 
Finally, the Petitioner's claims on appeal indicate that this pet1t10n was filed for speculative 
employment. As noted, the Petitioner now claims that the Beneficiary would only work on two 
specific projects. However, one of those projects did not exist at the time this H-1B petition was 
filed, and the agency made clear long ago that speculative employment is not permitted in the H-1B 
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-1B 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. 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 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 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. 
L 
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). 
For all of these reasons, we find that the evidence of record does not establish the substantive nature 
of the proffered position and its constituent duties. We consequently cannot find that the proffered 
position satisfies any criterion a 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 the particular position, 
which is the focus of criterion 1; (2) industry positions which are parallel to the proffered position and 
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Matter of V- Inc 
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. 
I 
IV. CONCLUSION 
We find that the Petitioner has not established the existence of a specialty occupation position. 5 
ORDER: The appeal is dismissed. 
Cite as Matter ofV- Inc, ID# 371965 (AAO June 16, 2017) 
5 Because this issue preclud~s approval of the petition we will not address any of the additional issues we have observed 
in our de novo review of this matter. · 
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