dismissed H-1B Case: Computer Technology

MATTER OF NAMI-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 27,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer technology consulting firm, 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)(15)(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, Vermont Service Center, denied the petition. The Director concluded that the 
proffered position is not a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in finding that the proffered position is not a specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(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. 
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: 
Matter of NAMI-, Inc. 
(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 
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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.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 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). 
B. Proffered Position 
In the H-lB petition, the Petitioner stated that the Beneficiary will serve as an in-house software 
developer. The Petitioner described the Beneficiary's job duties, as follows: 
• Requirements gathering and functional design 
• Defect tracking and reporting 
• Preparations and execution of test cases and test scripts 
• Functional, Integration and Unit level testing 
I 
The Petitioner further indicated that the position requires a bachelor's degree or its equivalent in 
computer science or a related field such as engineering, computer information systems, or 
management information systems and relevant experience. 
On the labor condition application (LCA) submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Software Developers, 
Applications" corresponding to the Standard Occupational Classification code 15-1132.1 
1 
The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
2 
(b)(6)
Matter of NAMI-, Inc. 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record of proceedings contains discrepancies and misleading information that 
undermine the Petitioner's claims regarding the proffered position, and the ' Petitioner has not 
established the nature and scope ofthe Beneficiary's employment. 
For example, the Petitioner has not established that it has specialty occupation work available for the 
Beneficiary for the entire . validity period requested as of the time of filing. In response to the 
Director's request for additional evidence (RFE), the Petitioner stated the Beneficiary will be 
working on at least 
two projects: (1) an IT process management suite for (end­
client); and, (2) the Petitioner's software development project: For the IT process 
management suite project, the purported end-client letter states that it "selected [the Petitioner] a 
preferred software development partner" for its project, and the work will be performed at the 
Petitioner's premises over a period of 2 or 3 years. The Petitioner provided four proposals that serve 
as statements of work (SOW) under the master agreement (MSA). However, all proposals end either 
before or immediately after the petition's requested start date. Therefore, they do not cover the 
requested H-IB period in the petition. 
Additionally, there is no evidence that the Beneficiary would be assigned to this project. The MSA, 
SOWs, and the end client letter do not name the Beneficiary. Regarding the 
project, the Petitioner provided documentation that it has a patent pending, however the Petitioner 
has not submitted any evidence regarding the Beneficiary's role, if any, in this project. On appeal, 
the Petitioner asserts that since "[i]t is doing this project at its own premises and assigning resources 
based on needs there are no names on SOW." However, without confirmation of specific projects to 
which the Beneficiary would be assigned that covers the duration of the period of employment 
requested, we are not able to ascertain what the Beneficiary would do, where the Beneficiary would 
work, as well as how this would impact circumstances of her relationship with the Petitioner. 
"[G]oing on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings." Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter ofTreasure Craft ofCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive 
specific instructions on required tasks and expected results . U.S. Dep't of Labor , Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised _11_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements ofthe Petitioner's job opportunity. /d. 
3 
Matter of NAMI-, Inc. 
Further, while we acknowledge that the Petitioner may develop software in addition to its consulting 
work, there are discrepancies in the record between the documentation submitted and the Petitioner's 
claim that the Beneficiary would work in-house for the duration of the petition. For example, the 
Petitioner stated in its support letter that, "[i]n the event that the Beneficiary works offsite or remote, 
[the Petitioner] will maintain such supervision through daily and/or weekly calls, reporting back to 
the main office routinely, occasional site visits by the petitioner, etc.," which indicates that the 
Beneficiary may work at client sites. Moreover, the employment agreement between the Petitioner 
and the Beneficiary does not state that the Beneficiary would only work at the Petitioner's offices, 
but that the Beneficiary would work "at any other place as directed and determined solely by [the 
Petitioner] including any client or project site located anywhere in the United States." This 
agreement also states "[w]here the [Beneficiary] is working for a client of the [Petitioner], such 
timesheet shall be signed and approved by the client's designated representative and shall be 
submitted to the [Petitioner] no later than each Monday for the immediate preceding week." As it 
appears the Petitioner intends for the Beneficiary to work at client sites in addition to the Petitioner's 
office, we find that the Petitioner has not demonstrated that it would employ the Beneficiary on an 
in-house project for the duration of the petition. 
USCIS regulations affirmatively 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 Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l 
Comm'r 1978)_2 
Also, the Petitioner's requirements for the proffered position appear inconsistent with the wage level 
selected here. The Petitioner classified the proffered position as Level I in the LCA as an entry-level 
2 The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. For exarriple, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 8 classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 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 riew customers or contracts.
1 
To determine whether an alien is properly 
classifiable as an H-1 8 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) ofthe 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 8 classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). 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). 
4 
Matter of NAMI-, Inc. 
position, in which the Beneficiary is only required to have a basic understanding of the occupation. 
However, the Petitioner also stated that: 
[t]he duties to be performed by beneficiary are sophisticated, complex and highly 
technical which involve experience in, extensive testing which include Functional, 
Integration, Regression and Unit level testing and support of various projects of [the 
Petitioner] as a Software Developer. In order to achieve the project objectives, the 
beneficiary will utilize her work experience with various technologies which also 
include but are not limited to Oracle, UNIX and Windows. 
It therefore appears that'-'the position may require more experience than would usually be expected 
for an entry-level software developer.3 The Petitioner's designation of the proffered position as a 
Level I, entry-level position raises additional questions regarding the substantive nature of the 
proffered position.4 
Moreover, the job description lacks sufficient detail and concrete explanation to establish the 
substantive nature of the work within the context of the project, and the associated applications of 
specialized knowledge that their actual performance would require. For example, the Petitioner 
stated that the Beneficiary's duties include "requirements gathering and functional design," but there 
is no further explanation as to how the Beneficiary would accomplish this or what particular tasks 
the Beneficiary will perform on a day-to-day basis (e.g., what specific requirements gathering and 
design activities are involved), the complexity of such tasks, and the substantive application of 
knowledge involved. The general position description does not delineate the demands, level of 
responsibilities and requirements necessary for the performance of these duties. 5 
3 The Petitioner's designation of the proffered position as a Level I, entry-level position thus undermines the reliability of 
the requirements for the proffered position contained in the "detailed position description" that requires additional 
experience. No explanation for the variances was provided by the Petitioner. Further, the Petitioner has not submitted 
an LCA that corresponds to the position and that is certified for the proper wage level. The regulation at 20 C.F.R. § 
655.705(b) requires that USCIS ensure that an LCA actually supports the H-IB petition filed on behalf of the 
Beneficiary. 
4 
The issue here is that the Petitioner's designation of this position as a Level I, entry-level position undermines its claim 
that the position is relatively higher than other positions within the same occupation. Nevertheless, it is important to note 
that a Level I wage-designation does not preclude a proffered position from classification as a specialty occupation. In 
certain occupations (doctors or lawyers, for example), an entry-level position would still require a minimum of a 
bachelor's degree 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 requirement of at least a bachelor's degree in a specific specialty or its equivalent. That is, a position's wage level 
designation may ·be a consideration but is not a substitute for a determination of whether a proffered position meets the 
requirements of section 214(i)(l) ofthe Act. 
5 The Petitioner makes no reference to nor draws a nexus between its degree requirement of a bachelor's degree or its 
equivalent in computer science or a related field such as engineering, computer information systems, or management 
information systems and the generic duties of the proffered position. However, a petitioner must demonstrate that the 
proffered position requires a precise and specific course of study that relates directly to the position in question. 
5 
Matter of NAMI-, Inc. 
Because of the discrepancies discussed above, we cannot determine the nature and scope of the 
Beneficiary's employment. The record lacks evidence sufficiently concrete and informative to 
demonstrate: (1) the actual work that the Beneficiary would perform; (2) the complexity, uniqueness 
and/or specialization of the tasks; and/or (3) the correlation between that work and a need for a 
particular level education of highly specialized knowledge in a specific specialty. "[I]t is incumbent 
upon the petitioner to resolve the inconsistencies by independent objective evidence." Matter of Ho, 
19 I&N Dec. at 591. 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. 
The inability to establish the substantive nature of the work to be performed by the Beneficiary 
consequently 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 ofthat 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 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 se.cond 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 Petitioner 
has not established that it has satisfied 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. 
II. CONCLUSION 
The burden is on the Petitioner to show 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. 6 
ORDER: The appeal is dismissed. 
Cite as Matter ofNAMI-, Inc., ID# 17255 (AAO June 27, 2016) 
6 
Since the identified bases for denial are dispositive of the Petitioner's appeal, we will not address any ofthe additional 
grounds of ineligibility we observe in the record of proceedings. 
6