dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10546859 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 27, 2020 
The Petitioner, a business and information technology consulting company, seeks to temporarily employ 
the Beneficiary as a "technical consultant" under the H-lB nonimmigrant classification for specialty 
occupations.1 The H-lB 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 record did not 
establish that: (1) the position qualifies as a specialty occupation, (2) the Beneficiary would be 
performing services in a specialty occupation, and (3) the Petitioner would maintain an employer­
employee relationship with the Beneficiary. 
The Petitioner bears the burden of proof to demonstrate el ig ibi I ity by a preponderance of the evidence. 2 
We review the questions in this matter de novo.3 Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services .. . in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(I) of the Act, but adds a non­
exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position.4 Lastly, 
1 Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
2 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
4 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... "(emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position 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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Further, as recognized by the court in Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000), 
where the work is to be performed for entities other than the petitioner, evidence of the client 
companies' job requirements is critical. 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. Id. 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. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(1). 
II. ANALYSIS 
The Petitioner, which is located in I I Missouri, will deploy the Beneficiary to work as a 
"technical consultant" for an end-client in Michigan. The Petitioner initially stated that its minimum 
qualification for the proffered position is a bachelor's degree in computer science, information 
technology, or a closely related field, along with "relevant industry experience." The Petitioner has 
not explained what constitutes "relevant industry experience" or how much experience is required. 
section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 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"). 
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Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the services in a specialty occupation that the Beneficiary would perform during the requested period 
of employment due to material inconsistencies contained within the record and a lack of specificity in 
the duties to be performed. This precludes a determination of whether the proffered position qualifies 
as a specialty occupation under sections 101(a)(15)(H)(i)(b), 214(i)(1) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(1), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 5 
A crucial aspect of this matter is whether the duties of the proffered position are described in such a 
way that we may discern the actual, substantive nature of the position. With the initial petition filing, 
the Petitioner provided: a list of ten bulleted duties in a support letter; a list entitled "Detailed 
Description of Responsibilities of [the Beneficiary]," which contained percentages of time spent on 
each duty; an itinerary of services that contained a table of additional duties; and another table of job 
duties with sub-duties, knowledge requirements for those duties, and percentages of time spent on 
each duty. It is not apparent why the Petitioner articulated these duties in such a wide variety of 
separate lists and tables or whether one list carries more evidentiary value and accuracy in capturing 
the substantive nature of the position than another. 
For instance, the ten bulleted duties are very broad and general, which makes it unclear how some of 
those duties fit together with the other lists and tables of duties. Furthermore, we note that these duties 
have been recycled from other job advertisements posted by other companies and job sites, examples 
of which include cleared jobs.net, careers.hpe.com, and sovereigntec.com. 6 This information is 
relevant because it demonstrates that, in at least one iteration of its position duties, the Petitioner does 
not distinguish its proffered position from other information technology positions. 
The Director notified the Petitioner that its initial duty descriptions were insufficient to establish the 
position as a specialty occupation. In response to the Director's request for evidence (RFE), the 
Petitioner provided: another table of duties, which contained percentages of time that differed from 
the percentages articulated in the initial filing; a list of duties contained within a Statement of Work 
(SOW); and another letter containing the same list of ten bulleted duties initially provided. Adding 
further confusion, the Petitioner stated that in performance of the duties, the Beneficiary "will utilize 
Petitioner's confidential/proprietary technologies and intellectual property ... in order to implement 
these technologies into Petitioner's client systems. [The Petitioner's] clients are the actual end-users 
of the products and technologies developed by Beneficiary using Petitioner's proprietary 
technologies." 
Taking together the various lists and tables of duties submitted in the initial filing, along with the 
additional lists and tables from the RFE response, we cannot determine where the Petitioner's 
proprietary technologies fit into the proffered position. We do not know what the names of such 
technologies are, what the technologies do, nor do we have evidence of their actual proprietary nature, 
5 The Petitioner submitted documentation to support the H-1B 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. 
6 Please visit: https://clearedjobs.net/job/software-developer-sharepoint-collaboration-ts-sci-clearance-washington­
d istrict-of-col u mb ia-144055; https:/ /careers. hpe .com/job/Hewlett-Packard-Enterprise-Tokyo-Tokyo/114371386; and 
http://sovereigntec.com/careers/listing/jr-sql-etl-developer-database-developer/ (last visited Aug. 27, 2020). 
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as evidenced by a trademark, copyright, or patent. As described, the duties do not appear to contain 
work involving the Petitioner's in-house technologies and we cannot discern how these technologies 
are used to perform the duties of the position. 
Despite the various lists and tables, we have little information concerning how these duties operate 
within the context of the end-client's project. The contractual documentation between the Petitioner 
and the end-client contains some project-specific information, but for the reasons described below, it 
is not clear what the Beneficiary's role in the end-client work will be. As articulated, the duties could 
apply to almost any software development or programming project and do not contain sufficient 
project-specific information whereby we might determine the substantive nature of the position. 
Further questions concerning the substantive nature of the position arise when examining the duties 
both individually and collectively. As stated, the percentages of time spent on certain duties that were 
presented with the initial filing do not match the percentages of time provided in the RFE response. 
The Petitioner did not acknowledge or explain the change and as such, it is difficult to ascertain 
whether the position has remained the same or if there is a material change in the substance of the 
work the Beneficiary will perform. It is well established that a petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to USCIS requirements.7 
Because a 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 a visa petition may not 
be approved at a future date after a petitioner or beneficiary becomes eligible under a new set of facts. 9 
As such, eligibility for the benefit sought must be assessed and weighed based on the facts as they 
existed at the time the instant petition was filed. In order for a petitioner to comply with 8 C.F.R. 
§ 103.2(b)(1) and USCIS to perform its regulatory duties under 20 C.F.R. § 655.705(b), a petitioner 
must file an amended or new petition, along with a new LCA certified by DOL, in order to capture 
any material changes in terms or conditions of employment or the beneficiary's eligibility. 
The duties indicate significant usage of third-party tools and technologies. Many of these tools are 
used to automate processes or to facilitate shortcuts to time-consuming manual functions, which 
suggests that the proffered position requires knowledge of the tool more than the functions or processes 
underlying the tool. As third-party tools and technologies need not be learned in a bachelor's degree 
program in a specific specialty, we question whether knowledge sufficient to perform the proffered 
position's duties could be gained through certifications or trainings on the tools and technologies. The 
Petitioner states that advanced knowledge of these tools is required, however it has not explained how 
the duties require beyond normal or general knowledge. Simply labeling the knowledge required as 
"advanced" does not sufficiently explain why the knowledge actually is advanced. Moreover, coding 
and programming languages need not be learned in bachelor's degree programs, yet these duties 
appear to be a major function of the proffered position. Accordingly, we question the need for a 
bachelor's degree or higher in a specific specialty in order to carry out the duties of the position. 
On the labor condition application (LCA) submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category of "Software Developers, 
7 See Matter of lzummi, 22 l&N Dec. 169, 176 (Assoc. Comm'r 1998). 
8 8 C.F.R. § 103.2(b)(l). 
9 See Matter of Michelin Tire Corp., 17 l&N Dec. 248 (Reg'I Comm'r 1978). 
4 
Applications," corresponding to the Standard Occupational Classification code 15-1132.10 Absent a 
petitioner's request for a prevailing wage determination, DOL does not have the benefit of reviewing 
the position requirements to evaluate the SOC code under which a position should be classified. 
Therefore, we examined the information contained in the (DOL's Occupational Outlook Handbook 
(Handbook) regarding the duties and educational requirements of this occupational category.11 
However, we note a significant overlap between the duties of the position with those of another 
occupational category, that of "Computer Programmers."12 Among the proffered position's duties, 
we find descriptions relating to writing code in Java 8; following programming practices like TDD to 
achieve better quality code; increasing the quality of the code and testing coverage; incorporating 
various requirements into the current application; evaluating the performance of applications and 
defining future performance improvements; deploying code in the application environment; storing 
developed code; and managing code repositories. The following duties listed for the computer 
programmer occupational category appear to match squarely with the proffered position's duties 
described by the Petitioner, including: 
I Write programs in a variety of computer languages, such as C++ and Java 
I Update and expand existing programs 
I Test programs for errors and fix the faulty lines of computer code 
I Create and test code in an integrated development environment (IDE) 
I Use code libraries, which are collections of independent lines of code, to simplify 
the writing 
Moreover, the subchapter of the Handbook entitled "What Computer Programmers Do" states, in 
relevant part that "[P]rogrammers work closely with software developers, and in some businesses their 
duties overlap. When such overlap occurs, programmers can do work that is typical of developers, 
such as designing programs."13 
We acknowledge that if the proffered position has requirements described in a combination of 
occupations, the Petitioner should select the occupational category with the highest prevailing wage.14 
Of the two categories, the one with the higher prevailing wage is "software developers, applications," 
the occupational category selected by the Petitioner. Nevertheless, the above language in the 
Handbook expressly contemplates that computer programmers may perform the work of software 
10 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-lB worker the higher of either the prevailing 
wage for the occupational classification in the area of employment or the actual wage paid by the employer to other 
employees with similar duties, experience, and qualifications. Section 212(n)(1) of the Act; 
20 C.F.R. § 655.731(a). 
11 We do not maintain that the Handbook is the exclusive source of relevant information. That is, the occupational category 
designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered 
position, and we regularly review the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. Nevertheless, to satisfy the first criterion, the burden of proof remains on the Petitioner to 
submit sufficient evidence to support a finding that its particular position would normally have a minimum, specialty 
degree requirement, or its equivalent, for entry. 
12 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Programmers, 
https://www.bls.gov/ooh/computer-and-information-technology/computer-programmers.htm#tab-2 (last visited Aug. 27, 
2020). 
13 Id. 
14 20 C.F.R. § 655.705(b). 
5 
developers. This appears relevant as the Handbook also states that the "computer programmer" 
occupation may be entered into without a bachelor's degree in a specific specialty.15 
In addition to the Handbook, we examined the DOL's Occupational Information Network (O*NET) 
summary report for both occupational categories.16 The relevant O*NET Summary Report states that 
computer programmers carry out the following duties, among others: 
I Write, analyze, review, and rewrite programs, using workflow chart and diagram, 
and applying knowledge of computer capabilities, subject matter, and symbolic 
logic. 
I Correct errors by making appropriate changes and rechecking the program to ensure 
that the desired results are produced. 
I Perform or direct revision, repair, or expansion of existing programs to increase 
operating efficiency or adapt to new requirements. 
I Consult with managerial, engineering, and technical personnel to clarify program 
intent, identify problems, and suggest changes. 
I Conduct trial runs of programs and software applications to be sure they will 
produce the desired information and that the instructions are correct. 
I Consult with and assist computer operators or system analysts to define and resolve 
problems in running computer programs. 
I Write or contribute to instructions or manuals to guide end users. 
The above O*NET duties appear similar to the Petitioner's descriptions of many proffered position 
duties, which may be paraphrased as follows: study project documents; continuously discuss 
requirements with stakeholders; analyze requirements and prepare design estimates; design suitable 
solutions to a given problem; implement design flows; write and test code; troubleshoot the software 
application; identify and fix issues; and prepare documents based on infrastructure and requirements. 
In all circumstances, the Petitioner bears the burden of clearly defining its position such that we may 
discern its substantive nature. Given the foregoing similarities between the Petitioner's descriptions 
of its position and the occupational descriptions found in the Handbook and O*NET, we question how 
the proffered position differs from those positions falling within the computer programmer 
occupational category. 
Also relevant to this inquiry are the numerous job postings that the Petitioner submitted for our 
consideration under criterion three. In order to establish that the Petitioner normally requires a degree 
for the position, the Petitioner submitted job postings of its positions and contends that they represent 
15 The subchapter of the Handbook entitled "How to Become a Computer Programmer" states, in relevant part that "[m]ost 
computer programmers have a bachelor's degree in computer science or a related subject; however, some employers hire 
workers with an associate's degree .... " Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook 
Handbook, Computer Programmers, http://www.bls.gov/ooh/computer-and-information-technology/computer­
programmers.htm (last visited Aug. 27, 2020). The Handbook does not state that positions located within the computer 
programmer occupational category normally require a bachelor's degree in a specific field, or the equivalent, for entry. 
Instead, it states that the degree requirements for jobs in this occupation vary by employer, and that some employers will 
hire workers with an associate's degree. 
16 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/ 
help/online/svp. 
6 
positions that parallel the proffered position. When examining these postings, we observe a common 
phrase: that the Petitioner seeks "passionate coders" with application or development experience. 
This phrasing raises questions as to whether the Petitioner seeks a computer programmer with certain 
experience, rather than a software developer. It also raises questions as to whether the Petitioner 
distinguishes between the two positions within its business. 
Our concern with these job postings continues when we observe that the Petitioner requires a 
bachelor's degree along with three to five, five, six, and even eight to ten years of additional experience 
to qualify for the respective positions.17 Some of the postings indicate that the Petitioner allows 
experience to partially and wholly substitute for education, which appears to contradict the statement 
made by the Petitioner in its RFE. In response to the RFE, the Petitioner stated that the proffered 
position "could NOT be performed by an individual who does not possess" a bachelor's degree in the 
qualifying fields and "relevant industry experience." This statement appears to preclude that the 
proffered position could be performed by someone without a bachelor's degree in one of those two 
specific fields, meaning that the Petitioner would not accept experience in lieu of a degree in whole or 
in part. 
We also reviewed the job postings submitted for our consideration of an industry standard. While the 
Petitioner contends that these positions are parallel to the proffered position, nearly al I of the advertised 
positions require experience beyond a bachelor's degree. These postings appear to advertise different 
roles than the proffered position, as evidenced by requirements for a bachelor's degree along with a range 
of between one to seven years of additional experience.18 
As previously stated, the Petitioner requires a bachelor's degree in computer science or information 
technology along with "relevant industry experience," but has not explained what constitutes "relevant 
industry experience" or how much experience is required. If all of these are parallel positions as 
claimed, then the Petitioner has not resolved how payment of a Level 11 wage to the Beneficiary 
correlates to the experience the position requires. Such a wage would appear inadequate in many 
cases. If alternatively, the positions are not parallel, but rather represent different or more specialized 
positions than the proffered position, then the postings have no relevance in establishing the 
Petitioner's normal hiring practice or an industry standard for positions located within the occupational 
category. At minimum, these postings suggest that the LCA may be inconsistent with the Petitioner's 
claims and the evidence within the record, which further obfuscates the substantive nature of the 
position. 
Similar concerns about the LCA corresponding to the petition arise when we return to examine the 
initial generic job duties. If the recycled job duties that were found on sites such as clearedjobs.net, 
careers.hpe.com, and sovereigntec.com are representative of the proffered position's duties as the 
Petitioner contends, this suggests that the Petitioner as not clearly defined the minimum educational 
17 If the experience cannot be gained concurrently, then one particular posting indicates a requirement of 13-15 years of 
additional experience beyond a bachelor's degree. This is calculated by adding eight to ten years' experience required in 
one area, along with five years' experience required in another. 
18 Some employers also state that experience may be substituted for a degree in whole or in part. One employer does not 
state how much experience would be required, but another accepts candidates with only one to two years of experience. 
If these are parallel positions as the Petitioner claims, we also question whether the position could be considered a specialty 
occupation, given the experience requirements are clearly less than the equivalent of a bachelor's degree. 
7 
requirements for the proffered position. Though the Petitioner referenced the requirement of "relevant 
industry experience," the level of experience remains nebulous. If the required level of experience 
rises to the level required by the employers featured in these job postings, then we would question 
whether the LCA corresponds to and supports the petition. Specifically, the positions advertised on 
those sites state that in addition to a bachelor's degree, one employer requires two to five years of 
experience, while the two other employers require three years' experience. If these positions are not 
parallel to the proffered position, then the Petitioner's use of recycled and generic job duties 
undermines its credibility in this matter. 
We once more return to the duties of the proffered position to mention two additional irregularities 
that inhibit our understanding of the proffered position. First, though there are several activities, 
deliverables, and roles listed in the SOW, it is not clear which, if any, belong to the Beneficiary. None 
of the listed roles are "technical consultant" positions and we cannot determine how the proffered 
position fits into the end-client project as described in the SOW. Adding further confusion, it appears 
that multiple SOW roles contain elements of the proffered position. 
Second, one of the Petitioner's tables of duties includes a duty to follow Agile programming practices, 
which will comprise 15% of the Beneficiary's time in the proffered position. As Agile is a 
methodology employed to develop software, we would expect that if employing such a methodology, 
it would be employed throughout the entirety of the position's duties. In other words, a methodology 
cuts across all duties because it is a system or process for organizing workflow. The Petitioner does 
not explain, nor is it apparent, how carrying out the Agile methodology could accurately be broken 
down into 15% of the Beneficiary's workload. We analogize such a duty, to the extent that we 
understand it, to be akin to saying that 15% the Beneficiary's workload is devoted to managing time 
well. Managing one's time is an approach to work that cuts across all duties, and as such, it is 
meaningless when broken out into an individual duty unto itself. 
The Petitioner has not established the substantive nature of the work that the Beneficiary will perform 
due to material inconsistencies contained within the record and a lack of specificity in the duties to be 
performed. The failure to establish the substantive nature of the position precludes us from 
determining whether it satisfies any of the regulatory specialty-occupation criteria at 8 C.F.R. 
§ 214.2(h)( 4)(i i i)(A)(l)-( 4). 
111. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
The appeal will be dismissed for the above stated reason. In visa petition proceedings, It Is a 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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