dismissed H-1B Case: Environmental Testing

U.S. Citizenship 
and Immigration 
Services 
In Re: 5866629 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 22, 2020 
The Petitioner, an environmental testing laboratory and services provider, seeks to temporarily employ 
the Beneficiary as a "programmer analyst" under the H-IB 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-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 of the California Service Center denied the petition , concluding that the evidence of 
record does not establish that the proffered position qualifies as a specialty occupation . 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. Upon 
de novo review, we will dismiss the appeal. 1 
I. 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: 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
(]) 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 construe 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"). 
II. PROFFERED POSITION 
In the H-lB petition, the Petitioner stated that the Beneficiary will serve as a "programmer analyst" to 
work onsite "to evaluate, design, build and integrate applications and strategic technologies for 
in-house use to manipulate client data and present it for consumption by clients." In a letter submitted 
in support of the petition, the Petitioner provided the following job duties for the position: 
1. Use knowledge of programming techniques to design, develop and modify software 
systems (15%) 
a. Review the system(s) details to look for potential gaps and issues that may not 
be compatible with the software 
b. Develop the software system using programming languages such as JavaScript 
and HTML to design screens and reports of the Laboratory Information 
Management Systems (LIMS) 
2. Develop and design software system testing and validation procedures, programming, 
and documentation (15%) 
a. Use knowledge of software to anticipate changes to the LIMS application and 
develop unit testing and integration testing for client specifications and follow 
standards to meet all the QA/QC mandated by different Governmental Agencies 
including: EPA, TCEQ, LADEQ and Industrial Customers designed for testing 
[the Petitioner is] accredited for. 
b. Based on user application, design test scenarios using Microsoft Excel and 
manual testing scenarios 
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c. Develop plans to execute the test scenarios, thoroughly validating the software 
and bug fixes with required documentation using standard tools such as Excel 
to record and Chrome debugging tool 
3. Use knowledge of programming techniques, software and system architecture to 
improve work flow to assess and develop specifications for tailoring software programs 
to determine feasibility, cost and time requirements, compatibility with existing 
systems and computer capabilities (10%) 
a. Analyze software and the LIMS systems together to identify the monetary 
constraints, when it comes to growth, using Microsoft Excel 
b. Produce suggestions/possibilities for decisions, based on the analysis, based on 
facts from Microsoft Project 
c. Evaluate user requirements for different applications such as those used for 
instrumental and business management systems 
4. Confer with systems analysts, chemists, QC Manager, programmers and others to make 
design changes to the system and to obtain information on projects limitations and 
capabilities, performance requirements and interfaces ( 10%) 
a. Participate in daily meetings to sync up with the team and follow the project 
plan or change request plan 
b. Ensure that work is being done towards the objectives in an efficient manner, 
by syncing up with the managers through Microsoft Project 
5. Store, retrieve, and manipulate data for analysis of system capabilities and requirements 
(5%) 
a. Use the database language such as SQL to [i]nsert, update and delete the data 
for the analysis of the LIMS system functionality and requirements 
6. Work with technologists and technicians to determine system performance standards 
(10%) 
a. Review the work of other developers in team to ensure it is performed properly 
with required output 
b. Propose enhancements or different ways to tackle issues/concerns to make work 
easy for the team 
7. Create training regimes, plans and outlines for users and modify as necessary and draft 
reports detailing the LIMS software implementation (10%) 
a. Learn user base and, with the software knowledge, create training material, in 
Microsoft Word 
b. Outline software as necessary to assist users in understanding the software and 
to ease in use; using Microsoft Visio 
8. Coordinate software system installation and monitor equipment functioning to ensure 
specifications are met ( 10%) 
a. Confirm software system installation setup and user needs and specifications 
are met 
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b. Ensure proper functionality of the system without any bugs, errors and issues 
c. Perform analysis on this support to gain efficiencies, using Microsoft Excel 
9. Ensure LIMS system and software are properly upgraded and performing optimally, 
present proposals for development milestones and make recommendations regarding 
allocation of resources and system modifications (10%) 
a. Monitor the system and software to ensure that no gaps or leaks are occurring 
b. During monitoring, if nay enhancements are seen, make appropriate 
recommendations to superiors 
10. Keep abreast of current developments in the industry and methodologies (5%) 
a. Learn about the upcoming technologies by reading about them in relevant 
publications 
b. Monitor for release of new technologies and complete relevant 
training/certification 
The Petitioner also provided another version of the duties under the heading of "Specialty Occupation" 
and resubmitted these duties in response to the Director's request for evidence (RFE). 2 
The Petitioner requires a "bachelor's degree, or equivalent, in Electrical and Computer Engineering, 
CIS, Computer Science and Engineering, Computer Applications, Information Technology, Computer 
Science or a related field" for the proffered position. 
III. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation because the record contains inconsistencies that 
undermine the Petitioner's claims regarding the proffered position and lacks sufficient evidence of the 
services that the Beneficiary will perform. 3 
When determining whether a position is a specialty occupation, we look at the nature of the business 
offering the employment and the description of the specific duties of the position as it relates to the 
particular employer. To ascertain the salient aspects of the proposed employment, we look to the Form 
I-129, Petition for a Nonimmigrant Worker, and the documents filed in support of the petition. A 
crucial aspect of this matter is whether the Petitioner has sufficiently and consistently described the 
duties of the proffered position such that we may discern the nature of the position and whether the 
position actually requires the theoretical and practical application of a body of highly specialized 
knowledge attained through at least a baccalaureate degree in a specific discipline. 
The record contains discrepancies that contradict the Petitioner's claims regarding the proffered 
position. For example, the Petitioner stated that the Beneficiary will be employed in-house at its office 
2 For the sake of brevity, we will not quote this version of the duties; however, we have closely reviewed and considered 
them. 
3 The Petitioner submitted documentation to support the H- IB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
4 
in I I Texas. In its support letter, the Petitioner emphasized that its I I Texas 
location is "the sole work site" for the Beneficiary, and indicated on the LCA and on the petition that 
thel I Texas location is the only place of employment for the Beneficiary. However, with 
its RFE response, the Petitioner submitted a document titled "Position Description" for a programmer 
analyst position that indicated the location of the work as 1 • I LA." Furthermore, the position 
description indicated that the position is a foll-time position, which is inconsistent with the Petitioner's 
assertion that the proffered position is a part-time position. The record lacks an explanation for these 
inconsistencies, and they raise questions as to whether the information provided by the Petitioner 
regarding the proffered position is correct. The Petitioner must resolve these inconsistencies with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and 
sufficiency of other evidence submitted in support of the requested immigration benefit. Id. 
Further, the record does not sufficiently demonstrate the services that the Beneficiary would perform. 
The Petitioner stated that its "core business involves environmental, industrial hygiene, indoor air 
quality and microbiology lab testing services," but it is "also involved in tailoring software as it relates 
to the applications in chemical and biochemical laboratory analysis." The Petitioner stated that the 
programmer analyst for LIMS is "responsible for end-[to-]end management ofLIMS applications with 
a need to involve in integration with external open source like DMS [Data Management System] and 
ELN [Electronic Laboratory Notebook]." However, the record does not contain sufficient evidence 
regarding LIMS or substantiate services required for the proffered position. 
The Petitioner submitted several documents to demonstrate the availability of work on in-house 
projects. Such documents include contracts with various clients and purchase orders. 4 However, the 
information contained in these contracts and purchase orders does ~ot ade:~ate)v e:tab)jr the services 
to be provided by the Beneficiary. For example, the contract wit [ states that the 
Petitioner shall "[p]ick up samples from [the company] ... [p]rovide sample bottles[,] [p]erform 
requested analytical tests on samples[,] [r]eport results to the Company's Contract Manager ... [, and] 
[p]rovide timely submission of invoices." However, it is unclear what the Beneficiary's specific role 
would be for the requested services. We also note that the Petitioner submitted only pages 1, 4, 5, and 
3 7 of this contract. Therefore, we cannot determine whether the pages that were not submitted provide 
information relevant to the Beneficiary's role in the project. The record, as is, does not sufficiently 
demonstrate that these documents relate to the proffered position. Without additional documents, 
these contracts and purchase orders have little probative weight towards establishing the actual work 
to be performed by the Beneficiary. 
In the record, the Petitioner emphasizes its contract with the U.S. Environmental Protection Agency 
(EPA), which the Petitioner states that programmer analysts support. We first note that the Petitioner 
submitted only the first 18 pages of the 46-page document and the Petitioner does not state the reason 
for not submitting the foll document. We also note that the information contained in the pages 
submitted is limited in scope and does not adequately establish the services to be provided. For 
example, the document contains Standard Form 26, Award/Contract (provides identifying information 
for the parties, table of contents, and parties' signatures), pricing information for various tests, and 
4 The document by._l ______ ....__I s::.:ct:::.:atc.=..:,es that it is "not an order" and appears to be a request for a quote. The 
document fu11her states that I l "reserve[s] the right to accept or reject all or any part of [the Petitioner's] 
quotation." 
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information on the limitation of government's obligation. But, the submitted pages do not provide 
any insight into what services the Petitioner would provide and the Beneficiary's role for the work 
resulting from the EPA contract. Furthermore, the contract document references "task orders" and 
states that the "Contractor agrees to perform work on each task order .... " However, the record does 
not contain a task order by the EPA and the Petitioner does not explain the reason for not submitting 
it. 
The Petitioner also submitted a 13-page document titled "Project Requirement Document." The 
Petitioner stated that it was "extracted from EPA Statement of Work (SOW) document which is more 
than 3000 pages" and provided a weblink for us to access the foll document. 5 The information 
contained in the excerpt is limited in scope and does not adequately establish the services to be 
provided by the Beneficiary such as duties or educational requirements for the position. Further, in 
the project plan section, it states "[t ]he objective of project is to define the approach used by the project 
team to deliver LIMS project successfully," but it does not identify the type technical resources needed 
for the project. Notably, this section contains "screenshots of estimated project plan" which contains 
a table that lists, inter alia, tasks, duration, start dates and more. However, the content of the table 
appears to have been altered and is mostly illegible. Furthermore, this excerpt states that project 
proposal, product or service descriptions, business cases, and current system documentation were used 
in creating the requirement document. However, the record does not contain the referenced 
documents. Therefore, we are unable to determine the scope of the EPA project and the services 
needed to be performed by the Beneficiary for it. 
In its RFE response letter, the Petitioner draws our attention to a document titled "Position 
Description" for the programmer analyst. As noted above, the information contained in the position 
description document submitted with the RFE response is inconsistent with the Petitioner's assertions 
regarding the proffered position and raises questions regarding the accuracy of the document and 
whether the information provided is correctly attributed to this particular Beneficiary and position. 
The Petitioner also submitted a document titled "Customer Contact List" and stated that it has "a 
variety of industry clients to whom it provides laboratory environmental analysis services." However, 
the customer contact list does not establish legally binding contracts by these customers and therefore 
does not demonstrate commitment on behalf of the companies to use the Petitioner's services. The 
"Customer Contact List" document has little probative weight towards establishing the actual work to 
be performed by the Beneficiary. 
Aside from the issues noted above, the record does not contain a sufficiently detailed description of 
the Beneficiary's duties to establish that the position 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, or its equivalent. The duties such as "[u]se knowledge of programming 
techniques to design, develop and modify software systems," "[ d]evelop and design software system 
testing and validation procedures, programming, and documentation," "[ s ]tore, retrieve, and 
manipulate data for analysis of system capabilities and requirements," and"[ e ]nsure LIMS system and 
software are properly upgraded and performing optimally" do not illuminate the substantive 
5 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 of Skirball Cultural Ctr., 25 l&N Dec. 799, 806 (AAO 2012). 
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application of knowledge involved or any particular educational requirement associated with such 
duties. The duties as described do not communicate (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. 
Moreover, the Petitioner states that the Beneficiary will be interacting with various individuals within 
its organization. For example, the Petitioner states that the Beneficiary will "[c]onfer with systems 
analysts, chemists, QC Manager, programmers and others to make design changes" and "[r]eview the 
work of other developers in team .... " However, the Petitioner did not submit an organizational 
chart. Therefore, the organizational set-up, the Beneficiary's position within the Petitioner's overall 
organizational hierarchy, and the extent of his duties cannot be determined. With the broadly 
described duties and the lack of evidence regarding work specific to a particular project, the record 
lacks sufficient information to understand the nature of the actual proffered position and to determine 
that the duties require the theoretical and practical application of a body of highly specialized 
knowledge attained by a bachelor's degree, or higher, in a specific discipline. 
The record contains insufficient and inconsistent evidence regarding the proffered position; therefore, we 
are unable to determine the substantive nature of the services the Beneficiary would perform. 
Consequently, we are unable to evaluate whether the proffered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature of the Beneficiary's services that determine 
( 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 not established that the proffered position is a specialty occupation. 
ORDER: The appeal is dismissed. 
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