dismissed H-1B Case: Information Technology

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DATE : JUL 0 1 2015 
IN RE: Petitioner : 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizens hip and Immigra tion Services 
Admini stra ti ve Appeals Office 
20 Massac husetts Ave., N.W., MS 2090 
Washingt on, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT#: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act , 8 U.S.C. § 11 Ol(a)(IS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent deci sion of the Administrative Appeals Office (AAO) for your case . 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. Th e requirements for motions are located at 8 C.F.R. § 1 03.5. 
Motions must be filed on a Notice of Appeal or Motion (Form 1-2908) within 33 days of the date of this 
decision . The Form I-2908 web page (www.uscis .gov/i-290b) contains the latest infom1ation on fee, filing 
location , and other requirements . Please do not mail any motions directly to the AAO . 
Thank you, 
Ron Rosenberg 
Chief , Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. PROCEDURAL BACKGROUND 
In the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as an 
information technology business, with seven employees, established in In order to employ the 
beneficiary in what it designates as a programmer analyst position, the petitioner seeks to classify 
him as a nonimmigrant worker in a specialty occupation pursuant to section 101 ( a)(l5)(H)(i)(b) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The Director denied the petition, finding that the evidence of record did not establish that the 
proffered position qualifies as a specialty occupation. On appeal, the petitioner asserts that the 
Director's basis for denial was erroneous and contends that it satisfied all evidentiary requirements. 
The record of proceeding contains: (1) the Form I-129 and supporting documentation; (2) the 
Director's request for additional evidence (RFE); (3) the petitioner's response to the RFE; ( 4) the 
Director's letter denying the petition; and (5) the Notice of Appeal or Motion (Form I-290B) and 
supporting documentation. We reviewed the record in its entirety before issuing our decision. 1 
For reasons that will be discussed below, we agree with the Director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
II. SPECIALITY OCCUPATION 
The primary issue is whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation. 
A. Legal Framework 
For an H-lB petition to be granted, the petitioner must provide sufficient evidence to establish that it 
will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements of a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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(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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1 )] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the mm1mum 
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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
oflanguage which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
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regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not 
as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(1) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets 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 proffered 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"). Applying this standard, USCIS regularly approves H -1 B petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly been 
able to establish a minimum entry requirement in the United States of a baccalaureate or higher 
degree in a specific specialty, or its equivalent, directly related to the duties and responsibilities of 
the particular position; fairly represent the types of specialty occupations that Congress contemplated 
when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation , USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered . USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v . Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards , but whether the position actually 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 as the minimum for entry into 
the occupation, as required by the Act. 
B. The Petitioner and the Proffered Position 
As noted above, the petitioner describes itself an information technology business , established in 
2009 and employing seven people. In the letter submitted in support of the instant petition , the 
petitioner states: 
[The petitioner] provides technical project and consulting solutions, making 
companies more successful through custom software development, technology 
platform implementations and business process optimization . [The petitioner] 
focuses on information technology as well as other business related human 
resources for its clients. 
With respect to the proffered position , the petitioner states that the beneficiary will be employed as a 
programmer analyst, a position requiring a "minimum of a Bachelor's degree in Information 
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Technology or other related degree." The petitioner provides the following description of the duties 
of the programmer analyst: 
The Programmer Analyst duties include developing, documenting , testing, 
modifying and maintaining new and existing software applications ; apply 
standard techniques , procedures , and criteria to the development life cycle; bring 
applications and technology expertise to the specification and design development 
process; provide technical expertise on assigned applications , to include interfaces 
and interrelationships with other applications and systems; code, test and 
troubleshoot existing programs utilizing the appropriate hardware, database, and 
programming technology; analyze end user data and business needs to format 
final product and assure user-orientation ; test and develop programming 
modifications; utilize applications expertise to participate in the design process as 
needed, then write new program code based on defined specifications ; document 
programming problems and resolutions for future reference; maintain and modify 
programs ; make approved changes by amending flow charts, develop detailed 
programming logic, and coding changes; write and maintain programming 
documentation , as well as operations and user guides (as required); analyze 
performance of programs and take action to correct deficiencies based on 
consultations with end users, Business Analysts and senior development team 
members; provide input to prolong application life or recommend replacement; 
confer with senior development team members to gain understanding of needed 
changes or modifications of existing programs; assist in resolution of questions of 
program intent, data input, output requirements , and inclusion of internal checks 
and controls; and proactively provide subject matter expertise regarding assigned 
applications to other members of the technology and business teams to assure 
understanding of interrelationships and dependencies. 
The petitioner submitted a Labor Condition Application (LCA) in support of the instant H-1 B. The 
petitioner indicates that the proffered position corresponds to the occupational category "Computer 
Programmers"-SOC (ONET/OES Code) 15-1131, at a Level I (entry level) wage. 
The Director reviewed the submitted position information and issued an RFE, requesting additional 
information from the petitioner concerning the availability of in-house employment. In response to 
the Director's RFE, the petitioner further elaborated on the proffered position as follows: 
[The petitioner] has sufficient specialty occupation work that is immediately 
available upon [the beneficiary's] entry into the United States through the entire 
requested H -1 B period. 
[The beneficiary] will work [on] client-based projects while employed with us, 
which can range from the testing of software applications, interface analysis, 
analyze program modifications, corrects to deficiencies. When not working on a 
client matter, [the petitioner] has sufficient specialty occupation work for in-house 
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projects, including writing and maintaining programming documentation as well 
as operations and user guides. If asked to do work at a client site, the LCA will be 
posted and [the petitioner] will maintain control of all work performed by the 
beneficiary. 
We expect [the beneficiary] to work on the following projects immediately upon 
his employment: 
Redesign and reprogram our web presence; 
Integrate our web presence with our current applicant tracking system 
(Bullhorn) and add profile and social media integration; 
Develop mass text messaging integration and tracking within our current 
applicant tracking system (Bullhorn) and 
Develop time card approval and management system which integrates with 
back office software. 
C. Analysis 
We find that the evidence of record does not demonstrate that the proffered position is a programmer 
analyst/computer programmer position. We make this finding primarily based upon the lack of 
sufficient information and evidence regarding the duties of the proffered position. 2 
The initial duties provided by the petitioner were generic in nature and did not reflect how such 
duties would be performed within the context of the petitioner's business . The description of the 
beneficiary's duties lacks the specificity and detail necessary to support the petitioner's assertion that 
the position is a specialty occupation. The abstract level of information provided about the proffered 
position and its constituent duties is exemplified by the petitioner's assertion that the beneficiary 
duties include "developing, documenting, testing, modifying and maintaining new and existing 
software applications; apply standard techniques, procedures, and criteria to the development life 
cycle." The petitioner's statements - as so generally described - do not illuminate the substantive 
2 We note that even if we were able to conclude that the proffered positon would be that of a computer 
programmer, the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook (Handbook) 
does not support the assertion that the normal minimum entry requirement to become a computer programmer 
is the obtainment of a baccalaureate degree in a specific specialty, or its equivalent. Specifically, the 
Handbook states that some employers hire workers with an associate's degree, which does not establish that 
working as a computer programmer normally requires at least a bachelor's degree in a specific specialty or its 
equivalent for entry into the occupation. Therefore it would not be considered a specialty occupation, absent 
additional evidence from the petitioner that it met one of the criteria stated at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
We recognize the Handbook as an authoritative source on the duties and educational requirements of the wide 
variety of occupations that it addresses. The Handbook , which is available in printed form, may also be 
accessed on the Internet, at http://www.bls.gov/oco/. All of our references to the Handbook are to the 2014-
2015 edition available online. 
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application of knowledge involved or any particular educational attainment associated with such 
activities. In addition, the petitioner claims that the beneficiary will "provide technical expertise on 
assigned applications, to include interfaces and interrelationships with other applications and 
systems" and will "code, test and troubleshoot existing programs utilizing the appropriate hardware, 
database, and programming technology." The statements do not provide any particular details 
regarding the demands, level of responsibilities and requirements necessary (such as knowledge of 
any specific programming language or expertise in a specific application or system) for the 
performance of these duties. 
As detailed above, in response to the RFE, the petitioner asserted that while the beneficiary would be 
primarily working on "client-based projects," the petitioner has sufficient in-house work for the 
beneficiary such as: redesigning and reprograming the petitioner's web presence, integrating the 
petitioner's web presence with the petitioner's cunent applicant tracking system, Bullhorn, 3 and 
adding functionality to their use of Bullhorn by introducing text messaging and social media 
integration. On appeal, the petitioner provided additional information regarding its in-house 
projects, stating that these projects may utilize the following programing languages: Java, 
ColdFusion, PHP, Python, Perl, Javascript, HTML, and CSS. However, a specialty occupation 
position is one that requires the theoretical and practical application of a body of highly specialized 
knowledge, and the attainment of a bachelor or higher degree in the specific specialty as the 
minimum for entry into the occupation. There is no evidence that the knowledge of above­
mentioned programming languages requires the attainment of a bachelor or higher degree in a 
specific specialty or its equivalent. 
We note that, as recognized by the court in Defensor, supra, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. See 
Defensor v. Meissner, 201 F.3d at 387-388. The court held that the fmmer 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. Jd. at 384. 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. 
As noted above, the petitioner states that the beneficiary will work primarily on "client-based 
projects" during the requested H-1 B validity period. The petitioner asserts that such client projects 
will include the duties of a specialty occupation; however, the petitioner has not provided 
documentary evidence to establish the existence of client-based projects that the beneficiary will be 
engaged in. Further, the petitioner has not provided information from the purported end clients 
concerning the associated duties, timeframe for completion, or requirements to complete such 
projects. Going on record without supporting documentary evidence is not sufficient for purposes of 
3 It appears that the director mistakenly considered Bullhorn to be a system owned and developed by the 
petitioner. However , Bullhorn, as later explained by the petitioner on appeal , is a third -pa1ty software suite 
that the petitioner utilizes in its daily business. 
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meeting the burden ofproofin these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 
1998) (citing Matter o_fTreasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
In response to the Director's RFE, the petitioner submitted copies of work orders for some of its 
current employees, asserting that these work orders were samples of the type of projects on which 
the beneficiary may be engaged to work. However, the submission of these work orders is not 
material to this case in that the petitioner is not asserting that the beneficiary will work on any of the 
specific projects discussed or that the beneficiary will be contracted to the same clients mentioned in 
the work orders. 
Further, on appeal, the petitioner states: 
[The petitioner] does not have an end user contract for [the beneficiary], as [the 
beneficiary] is not yet an employee. [The petitioner] cannot enter into binding 
contracts for an individual who is not yet an employee. To require such a contract 
from an employer in order to sponsor an H-1B is overreaching and not in 
accordance with the regulations governing H 1 B petitioner. [The petitioner] has a 
signed offer of employment by [the beneficiary], but cannot employ him until his 
HlB is approved. As such, [the petitioner] logically can't offer his services to 
third parties. [The petitioner] has provided detailed job descriptions of what [the 
beneficiary] will engage in, whether for in house assignments or 3rd party projects. 
All assignments will involve the same duties, knowledge, and technical 
. 4 expertise. 
While the petitioner's assertions may reflect the petitioner's business practice, the petitioner must still 
establish, with specificity, the duties of proffered position, in order to demonstrate that the proffered 
position is in a specialty occupation. Because the record of proceeding in this case is devoid of 
sufficient information regarding the specific job duties to be performed by the beneficiary for 
"client-based projects" and "3rd party projects," the petitioner has not established the substantive 
nature of the work to be performed by the beneficiary, which therefore precludes a finding that the 
proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). We note that 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. 
4 
We note that the reference offer of employment does not discuss specific duties or placement. 
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Further, we find the record does not establish that the petitioner has available non-speculative work 
for the beneficiary in a specialty occupation. The Form I-129 states that the petitioner intends to 
employ the beneficiary as a programmer analyst from October 1, 2014 to August 24, 2017. 
As discussed above, the petitioner has asserted that they will deploy the beneficiary on "client-based 
projects" and will also have him work on in-house projects when needed. The petitioner has not 
provided sufficient evidence to support the assertion that it has specialty occupation work available 
to the beneficiary for the duration of the H -1 B validity period. 
On appeal, counsel for the petitioner writes: 
[The beneficiary] was hired to provide much needed assistance to internal 
computer projects at the company that his background, education and experience 
equip him to perform. [The petitioner] also will hire him as a consultant when 
contracts are secured requiring his services. [The petitioner] agrees to pay him the 
prevailing wage at all times and has sufficient in-house work to keep him 
employed when consulting contracts are secured that require the specific skills of 
[the beneficiary] for client projects. [The petitioner] is taking the risk that it will 
have 3 years work of employment. The Service should not deny an H1B based 
upon unknown risk that there is 3 years' worth of work. It can limit the H1B to a 
shorter term, but it cannot deny an employer the right to hire and provide in-house 
work to a highly skilled and much needed computer expert. 
However, while the petitioner states that it could utilize the beneficiary's skills and expertise on these 
projects, 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. Here, the petitioner did not provide sufficient evidence for on­
going projects that would require the theoretical and practical application of a body of highly 
specialized knowledge, and the attainment of a bachelor or higher degree in a specific specialty or its 
equivalent. 
USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.P.R. 103.2(b)(l) . A visa petition may not be 
approved based on speculation of future eligibility or after the petitioner or beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248. Thus, even 
if it were found that the proffered position is a specialty occupation as defined at 8 C.F .R. § 
214.2(h)( 4 )(iii)(A), the petitioner has not demonstrated that it has sufficient non-speculative work 
available in that position for the duration of the period requested. 5 
5 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For 
example, a 1998 proposed rule documented this position as follows: 
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Therefore, we find that the petitioner has not established that the petition was filed for non-speculative 
work for the beneficiary, for the entire period requested, that existed as of the time of the petition's 
fi1ing.6 
III. CONCLUSION AND ORDER 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter o[Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
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) of the 
Immigration and Nationality Act (the "Act") . The Service must then determine whether the 
alien has the appropriate degree for the occupation. In the case of speculative employment, 
the Service is unable to perform either part of this two-prong analysis and, therefore, is 
unable to adjudicate properly a request for H-1 B classi.fication. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419 , 30419- 30420 (June 4, 1998) . 
6 Since the identified basis for denial is dispositive of the petitioner's appeal , we will not address additional 
grounds of ineligibility we observe in the record of proceeding.