dismissed H-1B Case: Computer Science

MATTER OF N-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY31,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer company, seeks to temporarily employ the Beneficiary as a "software test 
engineer" under the H-lB nonimmigrant classification for specialty occupations. ·See Immigration and 
Nationality Act (the Act)§ lOI(a)(IS)(H)(i)(b), 8 U.S.C. § IIOI(a)(IS)(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 
evidence of record is insufficient to establish that the proffered position qualifies as a specialty 
occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director's 
conclusion is erroneous. 
Upon de novo review, the appeal will be dismissed. 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § l184(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. 
Matter of N-, Inc. 
The regulation at 8 C.F .R. § 214.2(h)( 4 )(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(I)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)( 4)(iii)(A), to qualifY as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the m1mmum 
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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
oflanguage which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
. 21 l&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F .R. § 214.2(h)( 4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, .and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
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Matter of N-, Jne, 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 CF.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCrS) consistently interprets the 
term "degree" in the criteria at 8 C.P.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 proffered 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"). Applying this standard, USCrS regularly approves H-1 B petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the individual, and determine whether the position qualities as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
We note that, as recognized by the court in Defensor, 201 F.3d at 387-88, 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. !d. 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. 
B. The Proffered Position 
On the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner described itself as a 23-
employee "Technology Integration Services for applications and hardware" company. The 
Petitioner seeks to employ the Beneficiary as a "software test engineer" from October I, 2015, to 
July 19, 2018. The Petitioner indicated that the Beneficiary will work off-site in Michigan. 
The labor condition application (LCA) submitted to support the visa petition states that the proffered 
position corresponds to Standard Occupational Classification (SOC) code and occupation title 
15-1131, "Computer Programmers," from the Occupational Information Network (O*NET). The 
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(b)(6)
Matter of N-, Inc. 
LCA furth er states that the proffered position is a Level I, entry-l evel , position. The LCA lists the 
sole place of emp loyme nt as the Michigan address. 
In its cover lette r, the Petitioner stated that the Beneficiary will work at the business premise s of its 
"direct-client ," locate d in Michigan . The Petitioner provided a descriptio n of the 
proffered position, and subsequently provided . the same descripti on in response to the Director's 
request for evidence (RFE) with new percentages of time , as follow s (verbat im): 
Tasks Difficul ty % Time 
Level to be 
Spent 
1. Go through the software requireme nts and get clarifications on one 's 
doubt s (learn using my video on Requir emen t Analys is). Become 5 25% 
familiar with the software under test and any other software related to 
it 
2. Understand the maste r test plan and/or the project plan. Create or 
assist in creating own test plan 4 10% 
3. Generate test cases based on the requirements and other documents. 
Procur e or create test data required for testing. Set up the required test 4 15% 
beds (hardware, software and network). Create or assist in creating 
assigned test auto mation 
4. Test softw are releases by exec uting assigned tests (manual and/or 
automated). 4 10% 
5. Report defects (usually in a defect databa se) to the stakeho lders. 
Create test logs . Report test results to the stakeholders . Reply to 4 20% 
returned bug reports (for example, when a bug report is returned as 
not reproducib le) 
6. Re-test reso lved defects, Update test cases based on the discovered 
defects. Update test automation based on the updated test cases 3 5% 
7. Provide inputs to the team in order to improve the test proce ss, Log 
own time in the project manag ement software or time tracking system 4 5% 
8. Report work progress and any problems faced to the Test Lead or 
Project Manager as requ ired . (If applicable) Support the team with 3 5% 
testing task s as requi red 
9. Keep him self/herself up-to-date on the overview of the development 
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(b)(6)
Matter of N-, Inc. 
technology , the popular testing tools (e.g. automated testing tools and 5 5% 
test management system s) and the overview of the business domain 
Notes on Difficuity Level 
1 Novice 
2 Some Exposure 
3 Famili arity with Com:R_uters 
4 Bachelor 's 
5 Master's 
The Petitioner stated that the proffered position requires a bachel or's degree in comput er science , 
electronics engineering, compute r information systems or a related field, plus a minimum of two to 
four years of relevant experience . 
In support of the petition, the Petitioner submitted two "Ass igned Personnel Forms" which describe 
the "Service s to be performed
" as "design 
and development of the automation." 1 The Petitioner also 
submitted two Employment Agreements with the Benefici ary which provide the following 
description of duties (verbatim): 2 
[The Beneficiary] will be responsible for in identifyin g t he business flow of 
trades,lnvolved in preparation of Test Strategy and Relea se planning and role of 
Serum master as part of agile track and worked closed with ·teams in multipl e 
locations Responsible for the execution of Test cases Involved in Functionalit y, 
Integration , System, Regression Testing Created Web Services test Framework and 
process in place for all the SOAP based and RESTful web services.C reated FitNesse 
suites for daily Smoke tests Automated web services testing using the tool SOAP 
SOANRAutomated the test exec ution by integrating SOAP SONAR with Quality 
cente r. 
In addition , the Petitioner submitted a letter from the claimed end-client stating that the Beneficiary 
will work at its business premi ses in Michigan as a "Software Test Engineer for the project entitled 
' The end-client letter lists job duties similar to those listed in the Petitioner's 
cover letter and RFE response. The same end-client letter stated that the company has "never 
recruited for [the proffered] position for less than a Bachelor's degree in the following fields 
Computer Science, Computer Applications , Inform ation Technology , Mathematics , Busine ss or a 
closely related field [sic]," along with at least two to three years ofrelated experience. 
1 
The two Assigned Personnel Forms contain the same descripti on of duties. 
2 The Petition er submitted an "amended" Employ ment Agreement in response to the Director 's RFE which had noted 
seve ral impermissible provi sions relati ng to. the LCA in th·e o riginal Empl oyment Agree ment. Both Employme nt 
Agreements contai n the same d.escription of duties. · 
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Matter of N-, Inc. 
C. Analysis 
As a preliminary matter, the end-client's assertion that a bachelor's degree in "Business" is a 
sufficient minimum requirement for entry into the proffered position is inadequate to establish that 
the proposed position qualifies as a specialty occupation. 3 A petitioner must demonstrate that the 
proffered position requires a precise and specific course of study that relates directly and closely 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," 
does not establish the position as a specialty occupation. Cf Matter of Michael Hertz Assocs., 19 
I&N Dec. 558, 560 (Comm'r 1988). 
To prove that a job requires the theoretical and practical application of a body of highly' specialized 
knowledge as required by section 214(i)(l) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. As discussed supra, USCIS interprets the degree requirement at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed 
pos1hon. Although a general-purpose business degree 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. v. Cherto/J, 484 
· F.3d at 147.4 Without more, a degree requirement in "Business," alone, indicates that the proffered 
position is not in fact a specialty occupation. 
Moreover, it also cannot be found that the proffered position qualities a specialty occupation because 
the Petitioner has not credibly and sufficiently demonstrated the substantive nature of the proffered 
position 5 
3 While the Petitioner's list of acceptable degrees does not contain a degree in business, the Petitioner has not explained 
why its requirements differ rrom the end-client's requirements. Regardless, to the extent that the Petitioner's 
descriptions differ rrom those provided by the end-client, we defer to the end-client's descriptions. See Defensor v. 
Meissner, 20 I F.3d at 387-88 (the petitioner-provided job duties and alleged requirements to perform those duties are 
irrelevant to a specialty occupation determination). 
4 
Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
!d. 
The courts and the agency consistently have stated that, although a general-purpose bachelor's degree, 
such as a business administration degree, may be a legitimate prerequisite for a particular Position, 
requiring such a degree, without more, will not justify the granting of a petition for an H-1 B specialty 
occupation visa. See, e.g., Tapis lnt '1 v. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti, 36 F. 
Supp. 2d at 1164-66; cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 ([Comm'r] 1988) 
(providing rrequently cited analysis in connection with a conceptually similar provision). This is as it 
should be: elsewise, an employer could ensure the granting of a specialty occupation visa petition by 
the simple expedient of creating a generic (and essentially artificial) degree requirement. 
5 The California Secretary of State website indicates that the Petitioner's corporate status has been suspended. That is, 
the Petitioner's powers, rights and privileges, including the right to use its corporate name in California, were suspended. 
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(b)(6)
. Matter ofN- , Inc. 
The evidence of record contains generalized, broad descriptions of the work to be performed by the 
Beneficiary . For instance, the Assigned Personnel Forms signed by the Petitioner and the end-client 
simply describe the «Services to be performed" as "design and development of the automation." No 
further details about these job duties, such as what "automation " system(s) the Beneficiary will work 
on or with, were provided in the Assigned Personnel Forms. We note that that the Petitioner 
submitted two different versions of this document, even though both forms were · purportedly 
executed on the same day. One of the Assigned Personnel Forms lists the Beneficiary's start and 
end dates as October 1, 2015, to October 12, 2018, while the other one lists the dates of October 12, 
2015, to October 11 , 2018, even though the Petitioner is requesting a validity period ending on July 
19, 2018.6 We thus question whether these documents constitute an accurate, legally binding 
contract between the Petitioner and the end-client for the Beneficiary's services, as claimed.7 
"[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective 
evidence." Matter of Ho, 19 I&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. !d. at 591-92. "Doub t cast on any aspect of the petitioner' s proof 
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition ." Id at 591. 
The end-client letter contains substantially the same job duties as those found in the Petitioner's 
cover letter and RFE response. However, these job duties are described in broad and duplicative 
terms that are not specifically explained within the context of the project. In 
fact, neither the end-client letter, nor other evidence of record, provides a detailed explanation of the 
project~ such as the nature, complexity, and length of this particular project. 
Notably, the majority of the proffered duties found in the Petitioner's Employment Agreements with 
the Beneficiary appear to have been copied directly from the Beneficiary's resume.8 More 
specifically, they mirror the Beneficiary ' s past and current work experience for the "High Income­
Trading Systems" project for a different end-client , which appears to be an investment company. 
We thus question the credibility of these Employment Agreements, i.e., whether they constitute an 
accurate, legally binding contract between the Petitioner and the Beneficiary. We must also question 
the credibility of the job descriptions found therein , and of the ·Petitioner overall. Again, it 
incumbent upon the Petitioner to resolve inconsistencies in the record, and doubt cast on any aspect 
of the Petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. !d. at 591-92. 
See attached print-outs. The Petitioner's corporat e status raises questions regarding whether the Petitioner's offer of 
employment to the Beneficiary is bonafid e. · 
6 The Petition er did not request the maximum three years, which would have ended on September 30, 20 18. 
7 These docum ents also state that the Beneficiary 's "Primary work Location is Michigan." As will be 
discussed infra, the use of the word "Primarily" is problem atic and denotes that the Beneficiary may also be assigned to 
perfonn work other than at the stated premises. 
8 The fact that the job duties found in the Employment Agreement s are described in· the past tense · indicates that, more 
likely than not, they were copied from the Beneficiary 's resume, and not the other way ar ound. 
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(b)(6)
Matter of N-, Inc. 
Assuming arguendo that these job duties were not copied from the Beneficiary's resume and/or are 
otherwise relevant to the proffered position, we still find them insufficient to convey the substantive 
nature of the work to be performed . These job duties are overly broad and not specifically explained 
within the context of the project. To illustrate, the Employment Agreements state 
that the Beneficiary "will be responsible for in [sic] identifying the business flow of trades" and 
"worked closed with teams in multiple locations." The Petitioner has not further explain what is 
meant by the term "business flow of trades," what "teams" or "multiple locations" will be involved, 
and how these job duties all relate to the project, which the Petitioner has 
indicated will only take place at the end-client's office in Michigan. The Employment Agreements also 
contain references to "SOAP based and RESTful web services" and "SOAP SONAR with Quality 
center," for example, but do not provide further explanation of what these services or systems are, 
· and what "Quality center" is involved. 
With regard to the first and ninth set of duties listed in the RFE response, the Petitioner indicated 
that these duties are a "Difficulty Level" 5; which ·requires a master's degree. However, the 
Petitioner has never claimed that the proffered position requires a master's degree. Nor has the 
Petitioner claimed that positions located within the "Computer Programmers" occupational 
classification normally require a master's degree . Rather, the Petitioner repeatedly states that a 
bachelor 's degree is the nonnal minimum requirement for this as well as other positions within the 
"Computer Programmers" occupational classification . We observe that the Petitioner designated the 
proffered position as a Level I (entry) position, which indicates that the proffered position is a 
comparatively low, entry-level position relative to others within the occupation. 9 The Petitioner's 
designation of this positio.n as a Level I, entry-level position further undermines the Petitioner's 
characterizations of the proffered position. 10 
9 A Levell wage rate is described as follows: 
Level I (entry) wage rates . are assigned to job offers for beginning level employees who have only a 
basic understanding of the occupation. These employees perform routine tasks that require limited, if 
any, exercise of judgment. · The tasks provide expe rience and familiarization with the employer 's 
method s, -practices, and program s. The employee s may perform higher level work for training and 
developmental purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored and reviewed for 
accuracy. Statements that the job offer is for a researc h fellow, a worker in training, or an internship 
are indicator s that a Level I wage should be considered. 
See U.S. Dep't of Labor, Emp't & Training Admin. , Prevailing Wage Determination Policy Guidance; Nonagric. 
Immigration Program s (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov /pdf/NPWHC_Guidanc e_Revised_ll_ 2009. pdf 
10 
The Petitioner 's designation of this position as a Levell , entry-level position undermines any claim that the position is 
particularly difficult, particularly as compared to other position s within the same occupation. Nevertheless , a Level I 
wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a Level IV 
wage-designation does not definitively establish such a classification. In certain occupation s(e.g ., doctors or lawyers), a 
Level I, entry-level position would still require a minimum of a bachelor 's degre e 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 requirem ent of at least a bachelor 's degree in a 
8 
Matter of N-, Inc. 
Finally, we note the vague statements by the Petitioner and the end-client regarding the 
Beneficiary's work duties and location. The Assigned Personnel Forms list the Beneficiary's 
"Primary work location" as the end-client's Michigan premises. However, the use of the word 
"primary" denotes that the Beneficiary may also be assigned to perform work at other, unspecified 
locations, and that he may be assigned to perform job duties other than those disclosed in the 
petition. The Petitioner's Employment Agreements with the Beneficiary contain similar provisions 
indicating that the Beneficiary may be assigned to perform undisclosed work, such as that the 
Beneficiary's "duties shall be rendered at [Petitioner's] business premises or at such other places as 
the [Petitioner] may require" and that he "shall also perform such other duties in the ordinary course 
of business as performed by other persons in similar such positions, as well as such other reasonable 
duties as may be assigned from time to time by the [Petitioner]." Furthermore, the Petitioner states 
in its cover letter that it has "enough resources and financial strength to continue paying the 
beneficiary even without specific project/s" and that "[i]f required, the petitioner can place the 
beneficiary in place of any one of those contractor positions." 11 When considered as a whole, the 
evidence of record lacks a sufficient, detailed explanation of all the work the Beneficiary will be 
assigned to perform during the entire validity period requested, including the location(s) of such 
work and the specific job duties to be performed. 
For all of the above reasons, we find the evidence of record insufficient to demonstrate the 
substantive nature of the proffered position and its constituent duties. Consequently, we are 
precluded from 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 (l) the normal 
minimum educational requirement for the particular position, which is the focus of criterion l; 
(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. 
Accordingly, as the evidence does not satisfy 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. The appeal will be 
dismissed and the petition denied for this reason. 
specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not itself 
conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
11 Speculative employment is not permitted in the H-1 B program. USCIS regulations require a petitioner to establish 
eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. § 103.2(b)(l). A visa petition may not 
be approved based on speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under a new 
set of facts. See 8 C.F.R. § I 03.2(b)(l ); see also Mauer of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'! Comm 'r 
1978). 
9 
Matter of N-, Inc. 
II. CONCLUSION 
The Petitioner has not established that the proffered position, more likely than not, qualifies as a 
specialty occupation. In visa petition proceedings, it is the Petitioner's burden to establish eligibility 
for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 
I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of N-, Inc., ID# 16794 (AAO May 31, 20 16) 
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