dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 17141438 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 4, 2021 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonirnrnigrant 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 California Service Center Director denied the petition, concluding that the Petitioner did not 
establish that the proffered position is a specialty occupation. In these proceedings , it is the Petitioner's 
burden to establish eligibility for the requested benefit by a preponderance of the evidence. 2 
Upon de novo review, we will dismiss the appeal. 3 
I. LEGAL FRAMEWORK 
According to the filing requirements for applications and petitions found at 8 C.F.R. § 103.2(b)(l) , 
... [ a ]n applicant or petitioner must establish that he or she is eligible for the requested 
benefit at the time of filing the benefit request and must continue to be eligible through 
adjudication. Each benefit request must be properly completed and filed with all initial 
evidence required by applicable regulations and other USCIS instructions . Any 
evidence submitted in connection with a benefit request is incorporated into and 
considered part of the request. 
The regulations require that before filing a Form 1-129, Petition for a N onimrnigrant Worker , a 
petitioner obtain a certified labor condition application (LCA) from the Department of Labor (DOL) 
in the occupational specialty in which the H-lB worker will be employed. 4 Additionally, a petitioner 
submits the LCA to the DOL to demonstrate that it will pay an H-lB worker the higher of either the 
1 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(l5)(H)(i)(b). 
2 See section 291 of the Act; Matter ofChawathe , 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
4 See 8 C.F.R. § 214.2(h)(4)(i)(B). 
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. 5 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-lB nonirnrnigrant as a foreign national "who is 
corning temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), 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)(l) 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. 6 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(J) states that an H-IB 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 is 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. 7 
Further, as recognized by the court inDefensor v. Meissner, 201 F.3d 384, 87-88 (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. 
5 See section 212(n)(l) of the Act, 8 U.S.C. § l 182(n)(l )(A); 20 C.F.R. § 655. 731 (a). 
6 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 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam COip. 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"). 
7 See 8 C.F.R. § 214.2(h)(4)(iii)(A). 
2 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 The Director may request additional evidence 
in the course of making this determination. 9 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not established the services 
the Beneficiary will perform, which precludes a determination of whether the proffered position 
qualifies as a specialty occupation under sections 10l(a)(l5)(H)(i)(b), 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 10 
A. Substantive Nature 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, we are unable to determine the substantive nature of the work that the Beneficiary will 
perform, which precludes a finding that the proffered position satisfies any criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
The Petitioner provides a 28-bullet point list to describe the Beneficiary's proposed duties. The 
bullet-point list is jargon-laden and primarily describes the position as using various software 
programs, technological tools, and frameworks. The description does not include a comprehensible 
description of the proposed duties and evidence of the Beneficiary's role within the end-client and 
Petitioner's business operations. The record also does not include an organizational chart or 
information regarding the Beneficiary's position within the Petitioner or end-client's project teams. 
The lack of detailed information regarding the position raises questions regarding the nature of the 
position and level of responsibility of this position within the company. In other words, the Petitioner 
does not provide adequate information to delineate how the jargon-laden job description translates to 
comprehensible duties and responsibilities and how such work will be conducted within the context 
of the end-client's project(s) and the Petitioner's overall business operations. 
We must review the actual duties the Beneficiary will be expected to perform to ascertain whether 
those duties require at least a baccalaureate degree in a specific specialty, or its equivalent, as required 
for classification as a specialty occupation. To accomplish that task, we must understand and analyze 
the actual duties in conjunction with the specific project(s) to which the Beneficiary will be assigned. 
To allow otherwise, results in broad descriptions of lists of commonly used software masquerading as 
the duties the Beneficiary will perform. Here, the Petitioner has not provided sufficient details 
regarding the nature and scope of the Beneficiary's employment or any substantive evidence regarding 
the actual work that the Beneficiary would perform. 
8 See 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
9 See 8 C.F.R. § 103.2(b)(8). 
10 The Petitioner submitted documentation in the underlying record to support the H-lB petition, including evidence 
regarding the proffered position and its business operations. Although we may not discuss eve1y document submitted, we 
have reviewed and considered each one. 
3 
The Petitioner provides such a broad description that the position could encompass any number of 
technology occupations. We have reviewed the Petitioner's comparison of tasks listed in the DOL 
Occupational Information Network's (O*NET) Summary Report for 15-1132.00 - Software 
Developers, Applications, 11 to the list of the Beneficiary's claimed tasks, which is submitted on appeal. 
The Petitioner, for example, compares the O*NET task "[ m ]odify existing software to correct errors, 
allow it to adapt to new hardware, or to improve its performance" to 3 of its 28 bullet-points as follows: 
• Design and develop XML, based webservices using JAX-WS, particularly SOAP 
services 
• Configure beans during application startup using enable jms annotation and using 
MQQueue Connection Factor and Default Jms Listner Container Factory 
• Build IBM MQ messages and use Spring JMS template to send messages to the 
queue 
The Petitioner does not elaborate on what is involved in using the various technologies, what it means 
to configure beans, or why using a software template requires the theoretical and practical application 
of highly specialized knowledge and attainment of at least a bachelor's degree in a specific specialty 
or its equivalent. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term 
"specialty occupation). The remaining tasks are similarly vague and do not include sufficient 
substantive detail to ascertain the application of knowledge needed to perform the position, or the 
occupation and wage level required. Nor can an adequate comparison to the O*NET tasks listed for 
the "Software Developer, Applications" occupation be made. Without explanations and elaborations 
revealing the nature of the duties, the list is simply a recitation of software technology that does not 
provide an understandable sample of the duties or the knowledge required to perform them. 
Without a more meaningful job description, the record lacks evidence sufficiently probative and 
informative evidence to demonstrate that the proffered position requires a specialty occupation's level 
of knowledge in a specific specialty. The record does not adequately communicate ( 1) the actual work 
that the Beneficiary would perform; (2) the complexity, uniqueness, or specialization of the tasks; and 
(3) the correlation between that work and a need for a particular level of education and knowledge. 12 
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 is a position that also satisfies at least one of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). Further, we cannot determine whether the certified LCA corresponds to 
and supports the position generally described in the petition. 
11 The Petitioner designated this occupation as the occupation most closely cmresponding to the duties of the position. See 
O*NET OnLine Archives (Nov. 17, 2020), https://www.onetonline.org/Archive_ONET-SOC 2010 Taxonomy 09 
2020/link/summary/15-1132.00. 
12 There are technology occupations that may be performed with a general degree (either at the bachelor or associate's 
level) and certifications or undefined experience in a particular program, framework, or third-party software. There are 
also technology occupations that may require special skills, specific certifications, advanced knowledge, or that incorporate 
the duties of more than one occupation. Here, the Petitioner and the end-client have not provided sufficient information 
to establish the nature of the proffered position and the minimum requirements needed to perform the duties of the position. 
The Petitioner has not provided relevant corroborating evidence sufficient to support its testimonial claims. The record 
does not establish the substantive nature of the proffered position's duties at the end-client or demonstrate that performing 
such duties would require the theoretical and practical application of highly specialized knowledge and attainment of at 
least a bachelor's degree in a specific specialty or its equivalent. 
4 
B. Minimum Requirements 
The Petitioner initially claims that it typically requires "a minimum education of a Bachelor's Degree 
in a[ n] TT [ r ]elated specialty field for the Software Developer position, including Computer Science, 
Information Technology, Electronics Engineering or closely related specialty field." 13 In response to 
the Director's request for evidence (RFE), the Petitioner's HR manager noted that the project to which 
the Beneficiary would be assigned requires "a bachelor's degree in an TT related field" and that "[t]he 
educational background and work experience are an important prerequisite for the position and for the 
successful performance of the above-mentioned job duties." The Petitioner does not elaborate on the 
specific TT field required or the amount or type of experience necessary to perform the work for the 
position. We also note that although the end-client indicates that the Beneficiary has been working at 
its location since February 2017, and provides the same 28-bullet point task list as provided by the 
Petitioner, the end-client does not include its requirements to perform the tasks listed. 
We understand that the fields initially listed by the Petitioner are related fields and would prepare an 
individual to perform the duties of the position. However, the test to establish a position as a specialty 
occupation is not the skill set or education of a proposed beneficiary, but whether the position itself 
qualifies as a specialty occupation. Thus, whether or not the Beneficiary in this case is prepared to 
perform the position is irrelevant to the issue of whether the proffered position qualifies as a specialty 
occupation, i.e., whether the duties of the proffered position require the theoretical and practical 
application of a body of highly specialized knowledge and the attainment of a bachelor's degree or 
higher in a specific specialty, or its equivalent. Section 2 l 4(i)(l) of the Act; 8 C.F.R. § 2 l 4.2(h)( 4)(ii). 
Additionally, the record does not clarify whether the experience component of the Petitioner's 
requirements is two years or more. The Petitioner's reference to undefined experience as an important 
prerequisite for the position without describing the type or length of required experience creates 
ambiguity in the record regarding the actual requirements to perform the position by the Petitioner's 
own standards. The record here does not provide sufficient, consistent evidence demonstrating that a 
particular educational requirement is associated with the general duties listed. The duties could 
encompass a number of technology occupations, all requiring different levels of education, experience, 
and training. 
Further, we reviewed the four Forms 9089, Application for Permanent Employment Certifications, 
submitted by the Petitioner to demonstrate the minimum requirements for parallel positions from 
organizations similar to the Petitioner within the same industry. 14 However, the minimum 
requirements for the four positions identified as software developers, applications, varied significantly. 
13 The Petitioner provides a chart listing four of its employees and their degrees and underlying documentation submitted 
with their petitions for H-IB classification. First, we note that the underlying documentation indicates these individuals 
are employed as senior IT software developers, which differs from the position proffered here. Second, the duties do not 
appear to correspond to the duties of the proffered position except in the most general way. Lastly, three of these 
individuals hold masters' degrees, not a bachelor's degree as the minimum requirement stated for the proffered position. 
It is not clear whether a master's degree was an initial requirement because the positions are senior positions. Thus, the 
record does not include probative evidence that these individuals were hired to perfo1m the same position as the position 
proffered here. Without additional information establishing these employees' position are parallel to the proposed position, 
the relevance of the chart and underlying documentation is not evident. 
14 The descriptions for the positions listed in the F mms 9089 applications also do not appear to correspond to the description 
of tasks the Petitioner provided for the proffered position. 
5 
Three of the four Forms 9089 required a minimum of a master's degree in computer science or related. 
The Petitioner indicates that a bachelor's degree is acceptable for its position. These same employers 
added that 6 months to 24 months of experience was also necessary. The Petitioner here refers to 
experience but does not specify the amount or nature of the experience. Within these three certification 
applications, one of the employers also accepted a suitable combination of education, training, and/or 
experience, but the employer does not specify a standard for assessing the suitability of the education, 
training, and/or experience and how that suitability is determined to be equivalent to a degree in a 
specific specialty. The fourth certification application also appears to accept different paths to enter 
the occupation, emphasizing that the minimum qualification is knowledge and experience in different 
programming languages and frameworks. The range of minimum requirements to perform what the 
Petitioner identifies as parallel positions confirms that there is not a particular standard to enter the 
occupation. And two of the employers appear to accept either an undefined combination of education, 
training, experience or knowledge and skills of programming and frameworks that would more likely 
be obtained through certifications/experience, not a bachelor's level of study in computer science. 
Finally, the Forms 9089 applications are for positions existing in 2017 and 2018 and thus do not appear 
relevant to the type of minimum qualifications that would be required of even a similar position today. 
Although we recognize that the Beneficiary will require some technological knowledge to perform the 
described tasks, the record does not include probative evidence 15 that this knowledge is gained through 
bachelor's-level study in a specific discipline rather than through certifications in third-party 
technology or experience in the industry. Without a detailed and more precise description as well as 
some context of the particular work the Beneficiary will perform at the end-client facility, the record 
does not establish that the proposed duties are the duties of a specialty occupation which requires a 
bachelor's degree in a specific specialty, or its equivalent. 
C. Opinion 
The Petitioner proffers the opinion o~ lofl I university to establish that the 
duties of the proffered position are the duties of the "Software Developers, Applications" occupation 
and that the position is a specialty occupation. We have reviewed the opinion and the Petitioner's 
assertions regarding the opinion. 
The opinion letter repeats the Petitioner's description of the duties of the position and the outli~ 
duties in the DOL's Occupational Outlook Handbook for the occupation of software developers. LJ 
~--~boncludes, without analysis, that the proffered position should be classified as a software 
developer occupation. Moreover,! !opines that a software developer position "requires 
highly specialized and advanced knowledge of trade-specific tools and technologies that can only be 
gained through at least a Bachelor's-level degree or equivalent prior work experience in Computer 
Science, Information Technology, Electronics Engineering or a related area." He does not define or 
otherwise provide a standard for what constitutes equivalent experience. I I refers to the 
JAVA, Junit, and SQL tools as examples of technology skills that require course work and training in 
computer science, information technology, electronics engineering to acquire fluency in order to use 
the technology.I lappears unaware that JAVA and other programming languages and tools 
are now commonly taught in high schools, boot camps, and through online certification classes and 
15 We will discuss the deficiencies in the submitted position evaluation below. 
6 
associate-level degrees. I ldoes not discuss why these other methods could not lead to a 
sufficiently similar knowledge-set. For example, through several years of experience building the 
necessary skills and knowledge to perform in the position such as those mentioned as alternate 
methods in the Forms 9089 applications. The professor here does not account for obvious alternative 
explanations. 16 A lack of sufficient consideration of alternatives is a basis that can adversely affect 
the evidentiary weight of an opinion. 17 We are not required to and do not accept cursory or primarily 
conclusory statements as demonstrating eligibility. 18 
Moreover,! I opines that a bachelor's degree in computer science, information technology, 
electronics engineering, or a related area provides the student with specialized knowledge that directly 
prepares the [raduate to perform the tasks of the position. This conclusory statement, however, 
demonstrates ts confusion between the ability of a person with a computer science, 
information technology or electronics engineering degree to perform the duties of the proffered 
position and a degree requirement that is necessary in order to perform the duties. Whil~ I 
may draw inferences that computer science or information technology courses may be beneficial in 
performing certain duties of the position, we disagree with any inference that such a degree is required 
in order to perform the duties of the proffered position. Put simply, stating that a person with a 
bachelor's degree in computer science, information technology, or related technology fields could 
perform the duties of the proffered position is not the same as stating that such a degree is required to 
perform those duties. As suchJ Is conclusory statement misconstrues the statutory and 
regulatory requirements of a specialty occupation. 
Further, I I claims that the duties described are not the duties of a lower-level employee 
performing the tasks of a technologist or IT support employee. He asserts that a software developer 
collaborates with other technical teams and subject matter experts to establish the technical vision, 
usability, and performance needs. I !however, does not farther develop his claim by 
providing an analysis of the particular pos1t10n m question here and describing what duties elevate this 
position to one that requires an advanced degree. Rather he again relies on conclusory statements and 
not a specific analysis of the position and duties. 
While we have reviewed the opinion letter presented, it has little probative value as it does not include 
sufficient specific analysis of the duties of the particular position nor does it sufficiently relate those 
duties to the stated educational qualifications required to perform them. The professor's summary 
statements are unsupported by explanations, references to the record, or citations to probative studies, 
surveys, industry publications, or other sources of empirical information. 19 The opinion does not assist 
in establishing the proffered position is a software developer occupation and that the duties, as 
generically described, comprise the duties of a specialty occupation requiring a bachelor's degree in a 
specific specialty, or its equivalent. 
16 See Claar v. Burlington N.R.R., 29 F.3d 499,502 (9th Cir. 1994). 
17 See Ambrosini v. Labarraque, IOI F.3d 129, 140 (D.C. Cir. 1996). 
18 See Innova Sols., Inc. v. Baran, 338 F. Supp. 3d 1009, 1023 (N.D. Cal. 2018); see also 1756, Inc. v. Att'.v Gen, 
745 F. Supp. 9, 17 (D.D.C. 1990) (finding USCIS acted properly in not crediting petitioner's conclusory assertions). 
19 We also note that[ I discusses the labor market in the State of Delaware as pertinent to what is typical to that 
state's job market. Although the Petitioner is headquartered in Delaware, the Beneficiary will work in the State of Florida 
for an end-client. The professor's lack of awareness of the Beneficiary's employment in Florida raises questions regarding 
his knowledge of the Beneficiaiy's actual duties for an end-client in another state. 
7 
III. CONCLUSION 
Upon review of the totality of the evidence submitted, the Petitioner has not provided sufficient 
substantive detail regarding the duties the Beneficiary will perform or established the minimum degree 
requirements of the occupation. Therefore, we are unable to determine the substantive nature of the work 
and whether the Beneficiary will be employed in a position that satisfies at least one of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A) and is an occupation that meets the statutory and regulatory definitions of 
a specialty occupation as defined by section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), 8 C.F.R. 
§ 214.2(h)(4)(ii), and (iii)(A). In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. 20 The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
20 See Section 291 of the Act, 8 U.S.C. § 1361. 
8