dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10134906 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-18) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG . 24, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-18 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-18 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 Vermont Service Center Director denied the petition, concluding that the concluding that the 
Petitioner did not establish that the proffered position is a specialty occupation. On appeal, the Petitioner 
asserts that the Director erred in denying the petition, and contends that the petition should be approved. 
The Petitioner bears the burden of proof to demonstrate el igibi I ity by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. SPECIAL TY OCCUPATION 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-18 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.1 Lastly, 
1 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii) . We construe the term "degree" to mean not just any 
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). 
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 
Upon review of the record in its totality and for the reasons set out below, we conclude first that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the Petitioner has not established the substantive nature of the work that the Beneficiary 
will perform, which precludes a finding that the proffered position satisfies any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A).2 
The Petitioner, established in 2015, is an information technology services firm which offers "training 
to college students and recent college graduates in enterprise-level, next-gen and niche technology 
through [] online programs, industry aligned coding - Bootcamp .... to provide job seekers with the 
skills and the competencies required to succeed in the workforce." The Petitioner wishes to employ 
the Beneficiary as a "content developer," and initially states "we require the services of the Beneficiary 
to provide subject matter expertise and scale out the sales and technical pre-sales efforts by enabling 
[the Petitioner] to drive and accelerate the pipeline velocity and customer deployment." The Petitioner 
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"). 
2 The Petitioner submitted documentation to support the H-1B petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
2 
submitted a labor condition application (LCA) for the "Software Developers, Applications" 
occupational category corresponding to the Standard Occupational Classification (SOC) code 15-
1132. The Petitioner's initially submitted an outline of the job duties of the proffered position, along 
with the percentage of time devoted to each duty, as follows (verbatim): 
1. Collaborate with marketing and design teams to plan and develop site content, style, 
and layout. (15%) 
2. Coordinate on cross-functional teams to determine content and training needs. 
(5%) 
3. Research placement of contents in the website to develop the business and act as a 
traffic manager for supplier online marketing operations. (10%) 
4. Develop front-end advertising using Ad words and other tools, implementation, and 
optimization. (10%) 
5. Write assignments as key member of the Brand and Communications team, 
including drafting and editing press releases, media alerts, biogs, speeches, Op-Eds, 
letters to the editor, human interest stories, key messages, talking points, and video 
scripts. (10%) 
6. Manage [the Petitioner's] annual report, including developing thematic concepts, 
gathering and coordinating the development of content and managing consultants 
and vendors supporting the project. (5%) 
7. Manage [the Petitioner's] Brand Support function to ensure the materials are 
consistent, convey [the Petitioner's] brand in a unified way, and comply with brand 
standards and style guides. (10%) 
8. Provide advice on graphic content, develop concepts for written materials that may 
be needed and consult with others to provide guidance on writing priorities. (5%) 
9. Work in collaboration with creative production group. (10%) 
10. Execute internal processes to create documentation and content. (5%) 
11. Develop print, electronic and web communication to support company goals and 
client needs. (5%) 
In response to the Director's request for evidence (RFE), the Petitioner presented further explanations 
about the job duties, and modified the list of job duties as follows,3 (in which we italicized new text 
and struck through deleted text for emphasis):4 
3 Notably, the time percentages attributed to the position's job duties add up to 90% of the Beneficiary's proposed work 
time in each job duty listing. The Petitioner has not explained what duties comprise the remaining 10% of the Beneficiary's 
work time. The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to where the 
truth lies. Matter of Ho, 19 l&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. 
4 We acknowledge that the Petitioner submitted additional information for the job duties, which, for the sake of brevity, 
have not been included herein. This material has been closely reviewed and considered, as with all evidence in the record. 
For instance, the Petitioner discusses the Beneficiary's previous coursework in order to correlate the need for the 
Beneficiary's education with the associated job duties of the position. However, we are required to follow long-standing 
legal standards and determine first, whether the proffered position qualifies for classification as a specialty occupation, 
and second, whether the Beneficiary was qualified for the position at the time the non immigrant visa petition was filed. Cf. 
Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988) ("The facts of a beneficiary's background only 
come at issue after it is found that the position in which the petitioner intends to employ him falls within [a specialty 
occupation]."). 
3 
1. Collaborate with marketing and design teams to plan and develop site content, style, 
and layout. (15%) 
2. Coordinate on cross-functional teams to determine content and training needs. 
(5%) 
3. Research placement of contents in the website to develop the business and act as a 
traffic manager for supplier online marl<eting operations. (10%) 
4. Develop front-end advertising using /\d vvords and other tools, implementation, and 
optimization. (10%) 
5. Write assignments as key member of the Brand and Communications team, 
including drafting and editing press releases, media alerts, biogs, speeches, Op Eds, 
letters to the editor, human interest stories, l<ey messages, talking points, and video 
scripts. (10%) 
6. Manage [the Petitioner's] annual report, including developing thematic concepts, 
gathering and coordinating the development of content and managing consultants 
and vendors supporting the project. (5%) 
7. Conduct Manage [the Petitioner's] Brand Support function to ensure the materials 
are consistent, convey [the Petitioner's] brand in a unified way, and comply with 
brand standards and style guides. (10%) 
8. Provide advice on graphic content, develop concepts for vvritten materials that may 
be needed and consult with others to provide guidance on writing priorities. (5%) 
9. Work in collaboration with creative production group. (10%) 
10. Execute internal processes to create documentation and content. (5%) 
11. Develop print, electronic and web communication to support company goals and 
client needs. (5%) 
1. Substantive Nature of the Proffered Position 
As a preliminary matter, the Petitioner copied job duties from an unrelated source on the internet and 
presented them verbatim as the initial job duties that the Beneficiary will perform within its business 
operations, which raises questions about the probative value of the evidence presented in the record. 5 The 
Director informed the Petitioner in her request for evidence (RFE), and in her denial of the petition, that 
many of the initial job duties presented in the petition were identical to tasks within an unrelated entity's 
internet job advertisement.6 She determined that position duties listed verbatim from another company's 
job announcement are inadequate to show the specific duties that the Beneficiary will perform within the 
context of the Petitioner's own business operations. The Petitioner did not address the Director's concerns 
in this regard in its response to the Director's RFE or on appeal. The Petitioner must resolve these 
ambiguities in the record with independent, objective evidence pointing to where the truth lies. Matter 
of Ho, 19 l&N Dec. at 591-92. Providing generic job duties for a proffered position from an unrelated 
5 In evaluating the evidence, eligibility is to be determined not by the quantity of evidence alone but by its quality. Matter 
of Chawathe, 25 l&N Dec. at 376. 
6 Specifically, the initial job duties numbered five through nine itemized above, are verbatim quotes of duties from a 
"content developer" job announcement posted in September 2014 by C-, a nonprofit organization. We have incorporated 
this job announcement into the record of proceeding, and have provided the Petitioner with a copy of this material with 
this notice. See https://www.devex.com/jobs/content-developer-37741, (last visited Aug. 17, 2020). 
4 
Internet source without clarification is generally insufficient to establish eligibility.7 The duties 
themselves provide the nature of the employment.8 While this type of description may be appropriate for 
discussing the general duties that may be performed within an occupational category, it does not 
adequately convey the substantive work that the Beneficiary wi 11 perform within the Petitioner's business 
operations. 9 
The Petitioner also provided conflicting information regarding the proffered position. Without 
probative, consistent documentation detailing the work the Beneficiary is expected to perform, as well 
as evidence establishing that the work requires a bachelor's degree in a specific discipline, we are 
unable to discern the substantive nature of the work to be performed by the Beneficiary. For instance, 
the duties that the Petitioner initially put forth suggest that the Beneficiary will spend a substantial 
amount of his time writing and overseeing the publication of promotional materials on behalf of the 
Petitioner, both on its own website and within other forums. The Petitioner initially states that the 
Beneficiary will "[c]ollaborate with marketing and design teams to plan and develop site content, style, 
and layout," and "[w]rite assignments as key member of the Brand and Communications team, 
including drafting and editing press releases, media alerts, biogs, speeches, Op-Eds, letters to the 
editor, human interest stories, key messages, talking points, and video scripts." However, the 
Petitioner omitted many of the tasks initially put forth (without clarification) in the job description 
listing presented in the RFE.10 
Here, the Petitioner provided alternative narrative about the position's job duties that substantially 
changed the nature of the tasks to be performed therein after filing the petition. As discussed, job duty 
# 5 initially stated that the Beneficiary would "[w]rite assignments as key member of the Brand and 
Communications team, including drafting and editing press releases, media alerts, biogs, speeches, 
Op-Eds, letters to the editor, human interest stories, key messages, talking points, and video scripts." 
Later, in response to the Director's RFE it changed this job duty to state that his responsibilities under 
this task would only involve writing "talking points, and video scripts." The Petitioner elaborated 
further on this job duty stating, among other things, that the Beneficiary "would ensure the 
[Petitioner's] requirements are aligned with the system design and brand." The Petitioner has not 
explained how this new responsibility involves "writing taking points, and video scripts." Moreover, 
validating the Petitioner's information technology system design and brand requirements does not 
appear to be synonymous with the previously stated work assignments of "drafting and editing press 
releases, media alerts, biogs, speeches, Op-Eds, letters to the editor, human interest stories, key 
messages" within this job duty. 
7 Cf. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990) (stating 
specifics are an important indication of the nature of a beneficiary's duties, otherwise meeting the requirements would 
simply be a matter of providing a job title or reiterating the regulations.) 
8 Id. 
9 DOL guidance states that for a wage level determination, it is important that the job description include "sufficient 
information to determine the complexity of the job duties, the level of judgment, the amount and level of supervision, and 
the level of understanding required to perform the job duties." U.S. Dep't of Labor, Emp't & Training Adm in., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009) (DOL guidance), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf. 
10 Matter of Ho, 19 l&N Dec. at 591-92. 
5 
The letter from the Beneficiary's supervisor provides similarly inconsistent detail about the nature of 
the Beneficiary's duties. The supervisor indicates that he is the Petitioner's content library manager, 
and that the Beneficiary will be engaged in "build[ing] [the Petitioner's] Instructional Design -
bolstering [the Petitioner's] online training programs and personalized user-experiences." He briefly 
outlined three information technology development projects in which the Beneficiary will be engaged 
for the "duration of the requested H-lB period." According to the supervisor, the Beneficiary's project 
work will include "creating technical content and revising on various topics in artificial intelligence," 
"[c]reat[ing] [p]rogramming codes for the Python Course," and producing "educational assets," such 
as "code examples and written tutorials that will serve as reference materials for the current version of 
the course." Notably, the Petitioner did not initially state that the Beneficiary will be engaged in 
developing course content for its trainees. Rather, it asserted that he would be involved in "provid[ing] 
subject matter expertise and scale out the sales and technical pre-sales efforts." The Petitioner has not 
adequately explained, for example, how creating programming code for its Python course promotes 
the Petitioner's initially stated position objectives to "scale out the organizations sales and technical 
pre-sales efforts." Id. Considering the record in its totality, we conclude that the petitioner materially 
changed the substantive nature of the proffered position after the petition was filed. 
In response to an RFE or thereafter, the Petitioner cannot offer a new position to the Beneficiary, or 
materially change aspects of the proffered position, including the duties of the proffered position. The 
Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 8 C.F.R. § 
103.2(b)(1). A petitioner may not make material changes to a petition in an effort to make a deficient 
petition conform to USCIS requirements. See Matter of lzummi, 22 l&N Dec. 169, 176 (Assoc. 
Comm'r 1998). 
Here, the Petitioner has provided conflicting information which changed important aspects of the 
proffered position. Without probative, consistent documentation detailing the work the Beneficiary is 
expected to perform, which we must review to determine that the work requires a bachelor's degree 
in a specific discipline, or its equivalent, we are unable to discern the substantive nature of the work 
to be performed by the Beneficiary. The foregoing raises questions regarding the petition's overall 
reliability in establishing the nature of the proffered position and in what capacity the Beneficiary would 
be employed. We determine the Petitioner's job descriptions do not sufficiently and consistently 
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 of knowledge in a specific specialty. For this reason, the petition may not be approved. 
2. Petitioner's Wage Level Designation on the Labor Condition Application 
In determining the nature of a proffered position, the critical element is not the title of the position, 
but the duties of the underlying position. As part of our analysis, we review the duties of the proffered 
position to assess the duties and determine whether the described duties correspond to the duties and 
tasks listed in the Department of Labor's (DOL) Occupational Information Network (O*NET) summary 
report for the occupation designated in the labor condition application (LCA).11 The Petitioner 
submitted an LCA for the "Software Developers, Applications" occupational category corresponding 
11 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA supports the H-lB petition filed on behalf of the 
Beneficiary. 
6 
to the Standard Occupational Classification (SOC) code 15-1132, with a level I wage.12 According to 
the O*NET summary report for "Software Developers, Applications," those employed within this 
occupation typically:13 
Develop, create, and modify general computer applications software or specialized 
utility programs. Analyze user needs and develop software solutions. Design software 
or customize software for client use with the aim of optimizing operational efficiency. 
May analyze and design databases within an application area, working individually or 
coordinating database development as part of a team. May supervise computer 
programmers. 
The Petitioner provided job duties for the proffered position which may comport, in part, with the 
tasks described in the "Software Developer, Applications" occupational category. However, the 
petition also contains considerable narrative that references job duties that are atypical for the 
occupation, such as: 
I Research placement of contents in the website to develop the business and act as a 
traffic manager for supplier online marketing operations. 
I Develop front-end advertising using Ad words and other tools, implementation, and 
optimization. 
I Write assignments as key member of the Brand and Communications team, 
including drafting and editing press releases, media alerts, biogs, speeches, Op-Eds, 
letters to the editor, human interest stories, key messages, talking points, and video 
scripts. 
I Manage [the Petitioner's] annual report, including developing thematic concepts, 
gathering and coordinating the development of content and managing consultants 
and vendors supporting the project. 
I Manage [the Petitioner's] Brand Support function to ensure the materials are 
consistent, convey [the Petitioner's] brand in a unified way, and comply with brand 
standards and style guides. 
I Provide advice on graphic content, develop concepts for written materials that may 
be needed and consult with others to provide guidance on writing priorities. 
I Develop print, electronic and web communication to support company goals and 
client needs. 
I Draft layouts for Course page offerings highlighting popular topics and designing 
text and images that will attract new learners as well as experienced developers. 
I Serve as a director for actors and actresses providing guidance on 
posture/presentation, scene flow, tone, and other auditory/visual elements of media 
under production. 
12 Prevailing Wage Determination Policy Guidance., supra .. 
13 The O*NET summary report for this occupational category may be viewed at 
https://www.onetonline.org/link/summary/15-1132.00. (Last visited Aug. 17, 2020.) 
7 
While the Petitioner submitted an LCA designating the "Software Developers, Applications" 
occupational category for the proffered position, the Petitioner has not sufficiently established that the 
position duties and responsibilities are consistent with the usual tasks of the occupation. The Director 
observed in her denial that many of the job duties put forth in the petition did not appear to be in 
keeping with the duties typically performed by software developers. As a result, the Director 
questioned whether the LCA corresponds with the petition, to include the propriety of the Level I wage 
rate designated on the LCA. For the reasons discussed, we agree. 
The Office of Foreign Labor Certification's Frequently Asked Questions and Answers provide 
guidance associated with skills that are atypical to an occupation stating: "Any required skills in 
addition to those listed in O*NET are considered atypical for the occupation .... will raise the wage 
level by one level either because it contains a combination of occupations or because it contains job 
requirements not normal to the occupation."14 Such a job requirement would require an increase in 
the wage level on the LCA. Here, the Petitioner has not done so, and has not sufficiently explained 
why the "Software Developers, Applications" occupational category at a level I wage is appropriate 
for the proffered position.15 We conclude that the Petitioner's misclassification of the prevailing wage 
level in this case results in a pay disparity in the Beneficiary's compensation of at least $21,071.16 
The purpose of the LCA wage requirement is "to protect U.S. workers' wages and eliminate any 
economic incentive or advantage in hiring temporary foreign workers."17 The Petitioner does not 
appear to have complied with that statutory intent when it failed to compensate the worker with 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.18 For this reason, the petition may not be approved.19 
111. CONCLUSION 
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. The Petitioner has not met that burden here. 
ORDER: The appeal is dismissed. 
14 Office of Foreign Labor Certification Frequently Asked Questions and Answers, Foreign Labor Certification (Aug. 21, 
2020), https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm. 
15 The Petitioner must also resolve these inconsistencies and ambiguities with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, Dec. at 591-92. 
16 See the Online Wage Library - FLC Wage Search Wizard, Foreign Labor Certification Data Center (Aug. 21, 2020), 
https ://www. fl cdatacenter. co m/OesQu i ckResu Its. aspx?code= 15-1132&area=e=::}'t. year= 19&sou rce= 1. 
17 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that 
the wage protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage 
in hiring temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] 
with [DOL]."). 
18 Section 212{n)(1) of the Act; 20 C.F.R. § 655.731(a); Venkatraman v. REI Sys., Inc., 417 F.3d 418, 422 & n.3 (4th Cir. 
2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal Vojtisek-Lom & Adm'r Wage & Hour Div. v. Clean 
Air Tech. lnt'I, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor Adm in. Rev. Bd. July 30, 2009). 
19 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal. 
8