dismissed H-1B Case: Information Technology

--------
U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
MATTER OF H-A- LLC DATE: FEB. 27, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an IT consulting firm, seeks to temporarily employ the Beneficiary as a "software 
engineer- mobile applications and tools" under the H-1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-1B program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
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 denying the petition. 
Upon de novo review, we will dismiss the appeal. 
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
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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 protiered position 
must meet one of the following criteria to qualify as a specialty occupation: 
Matter of H-A- LLC 
(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). We have 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. Cherto.ff; 
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). 
II. PROFFERED POSITION 
In the H -1 B petition, the Petitioner stated that the Beneficiary will serve as a "software engineer -
mobile applications and tools." In the instant matter, the Petitioner submitted a position description 
for the proffered position and listed the job duties for the position as follows: 
The engineer will help design and develop mobile applications - on Android and 
other platforms - as well we Java tools required to support [the Petitioner's] 
software engineering and services offerings. 
Software Engineer Job Duties: 
• Work with business team members to understand the requirements for mobile 
applications. 
• Work with technical team members to understand the requirements for 
engineering tools and software. 
• Analyze the requirements to firmly understand long term and short term 
technology architecture[.] 
• Design of mobile applications and software to address short term and long term 
requirements[.] 
• Development of the said mobile applications and tools. 
• Work with quality assurance and test teams to fix all identified issues and bugs. 
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Matter of H-A- LLC 
• Provide software engineering support to ensure end users have a smooth 
experience in using the mobile applications and tools. 
The Petitioner stated that the minimum entry requirement for the protlered position is a master's 
degree in information systems or computer science with emphasis on usability and software 
fundamentals including data structures, XML technologies, software design, and project 
management. 
III. ANALYSIS 
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 (1) does not describe 
the position's duties with sufficient detail; and (2) does not establish that the job duties require an 
educational background, or its equivalent, commensurate with a specialty occupation. 1 
The record of proceedings lacks sufficient information regarding the proffered position. For H-1 B 
approval, the Petitioner must demonstrate a legitimate need for an employee exists and to 
substantiate that it has H-1 B caliber work for the Beneficiary for the period of employment 
requested in the petition. It is incumbent upon the Petitioner to demonstrate it has sufticient work to 
require the services of a person with at least a bachelor's degree in a specific specialty, or its 
equivalent, to perform duties at a level that requires the theoretical and practical application of at 
least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for 
the period specified in the petition. 
The Petitioner did not provide sufficient, credible evidence to establish in-house employment for the 
Beneficiary for the validity of the requested H-lB employment period. Specifically, the Petitioner 
did not submit a job description to adequately convey the substantive work to be performed by the 
Beneficiary. The proffered position has been described in terms of generalized and generic 
functions that do not convey sufficient substantive information to establish the relative complexity, 
uniqueness, or specialization of the proffered position or its duties. For example, the Petitioner 
stated that the Beneficiary will "( w ]ork with business team members to understand the requirements 
for mobile applications," "[ w ]ork with technical team members to understand the requirements for 
engineering tools and software," "[ w]ork with quality assurance and test teams to fix all identified 
issues and bugs," and "[p ]rovide software engineering support to -~nsure end users have a smooth 
experience in using the mobile applications and tools." The responsibilities for the proffered 
position contain generalized functions without providing sufficient information regarding the 
particular work and associated educational requirements. 
1 The Petitioner submitted documentation to support the H-I B 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. 
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(b)(6)
Matter of H-A- LLC 
Furthermore, in the RFE, the Director requested a more detailed job description, but the Petitioner 
provided the same general duties and a position description including general qualifications and 
skills. "Failure to submit requested evidence which precludes a material line of inquiry shall be 
grounds for denying the [petition]." 8 C.F.R. § 103.2(b)(l4). 
In addition, we note that the record of proceedings lacks documentation regarding the Petitioner's 
business activities and the actual work that the Beneficiary will perform to sufficiently substantiate 
the claim that the Petitioner has H-1 B caliber work for the Beneficiary for the period of employment 
requested in the petition. The Petitioner submitted print-outs of its website and explained on appeal 
that the Beneficiary will be working in-house on a project directly for the Petitioner. The Petitioner 
further explained that its website does not discuss the said in-house project as it is in' 
and the Petitioner wants to maintain the advantage of secrecy for its proprietary product. The 
Petitioner goes on state that it expects to have the funding for its project by the end of 2017. 
On appeal, the Petitioner also stated that its in-house project will require a team of 
resources, including at least six software developers and four product and marketing managers. 
However, the Petitioner currently has four unidentified employees and did not submit a business 
plan or other documentation demonstrating outlining its plan to hire resources for its in-house 
project. More importantly, the Petitioner has not identified who the Beneficiary would work with 
when referencing "business team members ... technical team members ... quality assurance and 
test teams ... [and] end users," as referenced in the description of job duties for the proffered 
position. 
Upon review, none of the documentation explains how a "software engineer - mobile applications 
and tools" would assist on this project, or specifically name the Beneficiary as personnel to assist 
with this project. In addition, the project summary is vague and does not clearly explain how it will 
take 3 years to complete. The Petitioner also did not submit any contracts or corroborating evidence 
that this project has been contracted and that there are sufficient funds to continue for the entire 
duration of the project. Thus, the Petitioner did not provide documents to substantiate its ongoing 
project for the H-1 B validity period2 . The Petitioner must support its assertions with relevant, 
probative, and credible evidence. Matter ofChawathe, 25 J&N Dec. 369, 376 (AAO 201 0). 
2 The agency made clear long ago that speculative employment is not per~itted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B 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 new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B 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 
r 
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Matter of H-A- LLC 
Consequently, we are precluded from finding that the proffered position satisfies any criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines: (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 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. 
As the Petitioner has not established that it satisfies 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 and the appeal must be dismissed on this basis alone. We will nevertheless perform a 
complete specialty occupation analysis under each of the four, alternative criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) for the occupation of"Computer Occupations, All Other," the occupation title 
certified on the labor condition application (LCA). 3 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.
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and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). 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). 
3 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B 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 experience and qualifications who are performing the same services. See 
Matter ofSimeio Solutions, LLC, 26 l&N Dec. 542, 545-46 (AAO 20 15). 
4 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the lntemet site 
http://www.bls.gov/ooh/. We do not, however, 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. To satisfy the first criterion, however, 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 . 
. 5 
Matter of H-A- LLC 
As noted above, the Petitioner designated the proffered position under the occupational category 
"Computer Occupations, All Other" corresponding to the Standard Occupational Classification code 
15-1199 at a level II wage. 5 We reviewed the information in the Handbook regarding the 
occupational category "Computer Occupations, All Other" and note that this occupation is one for 
which the Handbook does not provide detailed data. More specifically, the Handbook does not 
provide the typical duties and responsibilities for this category. Moreover, the Handbook does not 
provide any information regarding the academic or professional requirements for these positions. 
The Handbook states the following about these occupations: 
Data for Occupations Not Covered in Detail 
Although employment for hundreds of occupations is covered in detail in the 
Occupational Outlook Handbook, this page presents summary data on additional 
occupations for which employment projections are prepared but detailed 
occupational information is not developed. For each occupation, the Occupational 
Information Network (O*NET) code, the occupational definition, 2014 
employment, the May 2015 median annual wage, the projected employment change 
and growth rate from 2014 to 2024, and education and training categories are 
presented. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., Data 
for Occupations Not Covered in Detail, http://www.bls.gov/ooh/About/Data-for-Occupations-Not­
Covered-in-Detail.htm (last visited Feb. 1, 20 17). 
Thus, the narrative of the Handbook reports that there are some occupations for which only summary 
data is prepared but detailed occupational profiles are not developed. It appears that for at least 
some of the occupations, little meaningful information could be developed. 
When the Handbook does not support the proposition that a proffered position is one that meets the 
statutory and regulatory provisions of a specialty occupation, it is incumbent upon the Petitioner to 
provide persuasive evidence that the proffered position more likely than not satisfies this or one of the 
5 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B 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 experience and qualifications who are performing the same services. See 
Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). 
The "Prevailing Wage Determination Policy Guidance" issued by the DOL provides a description of the wage levels. A 
Level II wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have attained, 
either through education or experience, a good understanding of the occupation, but who will only perform moderately 
complex tasks that require limited judgment. 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_ll_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 of the Petitioner's job opportunity. !d. 
Matter of H-A--LLC 
other three criteria, notwithstanding the absence of the Handbook's support on the issue. In such case, it 
is the Petitioner's responsibility to provide probative evidence (e.g., documentation from other 
objective, authoritative sources) that supports a finding that the particular position in question qualifies 
as a specialty occupation. Whenever more than one authoritative source exists, an adjudicator will 
consider and weigh all of the evidence presented to determine whether the pat1icular position qualifies 
as a specialty occupation. 
Here, the Petitioner provided a list of duties for the proffered position and stated that a master's 
degree in information systems or computer science - with an emphasis on usability and software 
fundamentals including data structures, XML technologies, software design, and project 
management is required. However, the Petitioner did not provide sufficient documentation from an 
authoritative source that supports its assertion that this particular position qualifies as a specialty 
occupation. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two, alternative prongs: "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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
l. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors often considered 
include: whether the Handbook reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry attest that such firms "routinely employ and 
recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative source) reports an industry-wide requirement 
for at least a bachelor's degree in a specific specialty or its equivalent. Thus, we incorporate by 
reference the previous discussion on the matter. In the instant matter, the Petitioner stated that a 
master's degree in information systems or computer science - with an emphasis on usability and 
Matter of H-A- LLC 
software fundamentals including data structures, XML technologies, software design, and project 
management is required. In the position description, under "skills and qualifications," the Petitioner 
further stated that "the ability to program in Android, Java, MySQL, Eclipse and other technologies" 
is also a requirement. However, the Petitioner did not submit any letters or affidavits from similar 
firms or individuals in the Petitioner's industry attesting that such firms "routinely employ and 
recruit only degreed individuals." 
The Petitioner does not submit probative evidence that demonstrates the degree requirement is 
common to the industry in parallel positions among similar organizations. Therefore, the Petitioner 
has not satisfied the criterion ofthe first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
The Petitioner described the proffered position in relatively generalized and abstract terms that do 
not relate substantial details about either the position or its constituent duties. For example, the 
Petitioner stated that the Beneficiary will "help design and develop mobile applications," "[a ]nalyze 
the requirements to firmly understand long term and short term technology architecture," "[ d]esign 
mobile applications and software to address short term and long term requirements," "[ d]evelop the 
said mobile applications and tools," and "[p ]rovide software engineering support to ensure end users 
have a smooth experience in using the mobile applications and tools" without providing specific 
tasks associated with designing, developing, and supporting. Nor did the Petitioner provide details 
regarding the types of mobile applications or software the Beneficiary would use or develop and the 
steps he would take in performing the listed duties. The Petitioner also did not explain the 
Beneficiary's specific role in working with the "business team members ... technical team members 
... quality assurance and test teams ... [and] end users" and what duties are involved in assisting 
these other positions. 
Considering the totality of all of the Petitioner's duty descriptions, we find that the evidence of 
record does not establish the depth, complexity, or level of specialization, or substantive aspects of 
the matters upon which the Petitioner claims that the Beneficiary will engage. Such generalized 
information does not in itself establish a correlation between any dimension of the proffered position 
and a need for a particular level of education, or educational equivalency, in a body of highly 
specialized knowledge in a specific specialty. Therefore, it is not evident that the proposed duties as 
described in the record of proceedings, and the position that they comprise, merit recognition of the 
proffered position as a specialty occupation. The duties as described give very little insight to actual 
tasks that the Beneficiary would perform on a day-to-day basis. 
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Matter of H-A- LLC 
Although the Petitioner claims that the Beneficiary is well qualified for the position, and references 
his qualifications, the test to establish a position as a specialty occupation is not the education or 
experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The Petitioner did not sufficiently develop relative 
complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. 
Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F .R. § 214.2(h)( 4 )(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. The 
Petitioner did not submit any evidence of previous or current employees in the same position as the 
Beneficiary's proffered position. Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(3). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
The Petitioner asse~s that the job duties of the proffered position are specialized and complex. As 
noted above, the Petitioner designated the proffered position as a Level II position on the LCA, 
indicating t~at it is a position for an employee who has a good understanding of the occupation but 
who will orily perform moderately complex tasks that require limited judgment. See U.S. Dep't of 
Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http:/ /www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 2009 .pdf Therefore, 
it does not appear that the position is one with specialized and complex duties, as such a higher-level 
position would be classified as a Level III or Level IV position, requiring a significantly higher 
prevailing wage. 
While we understand that the Beneficiary must have technical knowledge in order to perform the 
duties of the proffered position, the Petitioner has not sufficiently explained how these duties require 
the theoretical and practical application of a body of highly specialized knowledge, and the 
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. Upon review of the totality of the record, the 
record does not include probative evidence that the duties require more than technical proficiency in 
the software engineering field. 
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Matter of H-A- LLC 
The Petitioner has not demonstrated that its proffered position is one with duties sufficiently 
specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
As discussed above, the Petitioner has not demonstrated that the proffered position qualifies as a 
specialty occupation. The burden is on the Petitioner to show eligibility for the immigration benefit 
sought. Section 291 ofthe Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
~ 
Cite as Matter of H-A- LLC, ID# 242023 (AAO Feb. 27, 2017) 
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