dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6964 796 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 22, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations . See Immigration and Nationality Act (the Act) section 
10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b) . The H-lB program allows a U.S. employer to 
temporarily employ a qualified foreign worker in a position that requires both: (a) the theoretical and 
practical application of a body of highly specialized knowledge; and (b) the attainment of a bachelor ' s 
or higher degree in the specific specialty ( or its equivalent) as a minimum prerequisite for entry into 
the position. 
The Director of the California Service Center denied the petition, concluding that the Petitioner did 
not sufficiently establish that the proffered position qualifies as a specialty occupation. 
The Petitioner bears the burden of proof to demonstrate eligibility 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 Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015) . 
Upon de nova 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 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 proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
( 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 construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). 
II. PROFERRED POSITION 
The Petitioner is an information technology and software development provider with offices located in 
the United States, Canada, India, the Philippines, and the United Arab Emirates. The Petitioner 
submitted a certified labor condition application (LCA) 1 for the Beneficiary's employment at its office 
location in California, and designated the "Computer Network Architects" occupational category 
corresponding to the Standard Occupational Classification (SOC) code 15-1143, with a level II wage. 2 
The Petitioner is offering the Beneficiary a position as a "systems engineer" and provided several 
descriptions of the duties of the position, to include a listing of the position's major job functions and 
the relative work time devoted to each job function, as follows: 3 
• Systems and Storage Support (25% ), with duties such as "design and 
architect the Systems and Storage layout," and "performs system administration 
on Unix/Linux serves, as well as EMC Storage." 
1 A petitioner submits the LCA to U.S. Department of Labor (DOL) to demonstrate that it will pay an H-IB worker the 
higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid 
by the employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 
C.F.R. § 655.73 l(a). 
2 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. U.S. Dep't of Labor, Emp't & 
Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009); 
http:/ /flcdatacenter.com/download/NPWHCGuidance _Revised_ 1 l _ 2009 .pdf 
3 We acknowledge that the Petitioner submitted additional information for the job duties, which, for the sake of brevity, 
have not been included herein. However, this material has been closely reviewed and considered, as with all evidence in 
the record. 
2 
• Solution Architecture (50%), with duties such as "blue pnntmg System 
Architecture strategies," and "recommend specific tool strategies, and solutions 
for Datacenter Migration, Cloud Migration, and DR solutions Consulting." 
• Virtualization or Cloud Implementation (25%), with duties such as 
"implement Unix Platform virtualization," and "implement Pre-Engineered 
systems like ODA (Oracle Database Appliance), Solaris T-5 services, etc. 
III. ANALYSIS 
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, 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). 4 
A crucial aspect of this matter is whether the Petitioner has sufficiently described the duties of the 
proffered position such that we may discern the nature of the position and whether the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a baccalaureate degree in a specific discipline. When determining whether a position 
is a specialty occupation, we look at the nature of the business offering the employment and the 
description of the specific duties of the position as it relates to the performance of those duties within 
the context of that particular employer's business operations. 
The Petitioner initially indicated in the petition and the LCA that the Beneficiary would be employed 
solely at the Petitioner's office as a system engineer but did not farther identify or discuss the specific 
projects that he would be assigned to. The Director issued a request for evidence (RFE), and asked 
the Petitioner to provide additional evidence about its business operations, to include an explanation 
of how the Beneficiary's specific job duties relate to the Petitioner's products and services; relevant 
business plans, contracts, work orders, and similar agreements with the end-clients who would be the 
ultimate recipients of the products or services provided by the Beneficiary; and, organization charts 
that would delineate the Petitioner's divisional organization and staffing hierarchy. In its RFE 
response, the Petitioner describes its business model, as follows: 
[The Petitioner] is a global software solutions and consultation provider that develops 
customized technology strategy and application development. ... This business model 
requires that the Petitioner consult with each client to understand their specific needs 
and create a customized solution to meet the client's requirements. Once the Petitioner 
creates a solution, they enter into agreements and work orders with the client that 
outlines the scope of each project and assigns their employees to work each project as 
they see fit. These projects typically require the work of various team members who 
specialize in different states - from analysis to development to deployment to continued 
maintenance/support for years after the roll-out - and requires collaboration from 
various [Petitioner] employees at different [Petitioner] offices. As such, the work 
4 The Petitioner submitted documentation to suppmt the H-lB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
3 
orders are not personnel-specific, and the Petitioner has the discretion to assign 
employees to work on projects as they deem appropriate to meet deadlines and budgets. 
With this in mind, the Beneficiary has been assigned to the Petitioner's development 
center in [California] to work on the numerous concurrent maintenance, development 
and support projects that the Petitioner has undertaken for their clients. He is not 
assigned to work on any client worksite .... The Petitioner is not a staffing company 
and they do not provide staff augmentation services to their clients, but rather, they 
provide development, support and customization services to their clients. 
The Petitioner also submitted "copies of three statements of work [SOWs] that involve Systems 
Engineer roles," indicating that the Petitioner "is wholly responsible for the staffing of these projects." 
The SOW s reflect agreements between the Petitioner and various end-clients for the provision of help­
desk, system monitoring and maintenance duties, collectively referred to in one SOW as "On-Demand 
support services," to be delivered by the Petitioner "for up to 50 hours combined for all services." The 
SOW specified that the Petitioner will use its proprietary internet-based system which allows end­
client staff to "creat[ e] requests for support," and required that the Petitioner would provide services 
through the use of"onshore" and "offshore" staff The nature of the positions utilized by the Petitioner 
to deliver these services were not described in the SOW. 
Another submitted SOW called for the Petitioner's provision of "infrastructure managed services and 
helpdesk services," and included such service deliverables as "build and manage project plan," 
"document contract points and escalation procedures," "establish and test connectivity," and 
"coordinate and execute completion of support transition of all sustainment activities." The document 
notes that the Petitioner will provide "Tier 3 specialists," described as "skilled product specialists and 
engineers," who will work "with a qualified vendor to identify and propose a permanent fix [for 
problem resolutions]." The third SOW also involves the Petitioner's provision of "managed 
infrastructure support services" through "a team of resources from the [Petitioner's] offices onshore 
and offshore," without specifying the organizational structure of the work teams. 
Collectively considering this material, it appears that the Petitioner is engaged in the provision of 
helpdesk and infrastructure management services. The Petitioner states that it has provided 'just [a] 
small sample size of the overall current projects that the Petitioner's teams are currently servicing." 
However, on a fundamental level, the Petitioner has not provided adequate evidence to establish the 
scope and magnitude of the proffered position's role and responsibilities within the Petitioner's 
managed infrastructure support services projects and helpdesk-related initiatives that the Beneficiary 
will be assigned to during the course of his proposed H-1 B employment. 5 The Petitioner asserts in its 
response to the Director's RFE and on appeal that the Beneficiary will be: 
5 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 in this matter, we review the duties in conjunction with the specific project(s) to which the 
Beneficiary will be assigned. To allow otherwise, results in generic descriptions of duties that, while they may appear (in 
some instances) to comprise the duties of a specialty occupation, are not related to any actual services the Beneficiary is 
expected to provide. 
4 
Responsible for the architectural design, development, and deployment of the 
enterprise's overall IT Infrastructure solution which includes Servers, Storage, 
Virtualization, Datacenter Migration, Cloud Technologies, Automation, Security, 
Backup and Disaster recovery. 
As discussed, the Director requested evidence in her RFE, to include an explanation of how the 
Beneficiary's specific job duties relate to the Petitioner's products and services, as well as organization 
charts and other material that would delineate the Petitioner's divisional organization and staffing 
hierarchy. However, the Petitioner did not sufficiently address this aspect. 6 While the Petitioner 
describes the use of its inter-office collaborative work teams within its service contracts, it did not 
provide organization charts, or otherwise document or describe the staffing structure of the software 
and systems development team(s) engaged in its project and service contract work. 
The Petitioner also provided narrative about the job duties of the position, but the evidence does not 
show the operational structure within the Petitioner's business operations in a manner that would 
establish the Beneficiary's substantive role therein. It is the Petitioner's burden to prove by a 
preponderance of evidence that it is qualified for the benefit sought. Matter of Chawathe, 25 I&N 
Dec. at 376. In evaluating the evidence, eligibility is to be determined not by the quantity of evidence 
alone but by its quality. Id. Here, the Petitioner asserts that the Beneficiary will be responsible for 
"the architectural design, development, and deployment of the enterprise's overall IT Infrastructure 
solution" but it has not sufficiently established that the Beneficiary in his "systems engineer" role will 
be charged with the performance of such duties within the Petitioner's organizational cohort. 
The Petitioner also asserts that it "is not a staffing company and [does] not provide staff augmentation 
services to their clients," and that its "work orders [ with end-clients] are not personnel-specific." 
However, on appeal it submits contractual documentation that suggests that it is engaged in the 
provision of staff augmentation services for its end-clients. For example, it provides its service 
agreement with B-, which indicates, among other things, that the services to be provided to B- will be 
in accordance with "any written or oral instructions given by [B-] from time-to-time," and will be 
described in a SOW. The template Sow attached to the agreement calls for the specific identification 
of the personnel to be assigned to B-, the department that they will be assigned to, and the "desired 
conversion salary" that such personnel are to be paid if they are converted to direct employment with 
B-. The template SOW also indicates that the Petitioner personnel will "follow [B-'s] requirements 
and recommendations." The Petitioner must resolve this inconsistency and ambiguity in the record 
regarding the nature of its business operations with independent, objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Additionally, the Petitioner has also provided insufficient and inconsistent evidence regarding its 
requirements for the position. It initially did not specify its position requirements, but instead 
referenced the Beneficiary's academic credentials as "sufficient to complete" the duties of the position. 
6 "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)(14). 
5 
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 nonimmigrant visa petition was filed. 7 
In response to the Director's RFE and on appeal, the Petitioner indicates that the position required a 
bachelor's degree in computer science, or another closely related field but did not specify that the 
position required any prior work experience. It contemporaneously submitted copies of job 
announcements for other companies which is describes as job postings for "similar positions." 
Notably, all but one of the advertised positions require substantial levels of work experience in addition 
to a bachelor's degree in various information technology fields, as follows: 
• Unix Systems Engineer: Requires 6+ years of relevant experience. 
• Systems Engineer IV: Requires 1 O+ years hands-on experience with 
installation, configuration, troubleshooting software, hardware, networking and 
accessory equipment. 
• Systems Engineer: Requires 5+ years of programming experience in JAVA, 
JSP, Spring, JSON, SOAP/REST; 4+ years of programing experience in 
Python, Maven, go lang; 4+ years of experience in test automation for billing 
and order management systems; 3+ years of experience in Oracle, SQL, My 
SQL, Marla DB; 2+ years of experience in GIT, Jenkins, Tomcat; 3+ years of 
experience in Linux, Unix, MF Systems; 4+ years of experience in 
troubleshooting issues through SDLC process; 6+ years of experience in test 
automation using Selenium, SOAP, Python; 2+ years of experience in RP A. 
• Solutions Delivery Lead - SugarCRM: Requires 7+ years of relevant, 
progressive CRM experience of which at least 2 years needs to be in a lead 
capacity managing teams and/or as a solution architect influencing application 
architectures. 
The Petitioner does not further explain or reconcile how these posted positions are similar to the 
proffered position, other than to note that they each require a minimum of a bachelor's degree. Here, 
the Petitioner has not consistently articulated the nature of the position, e.g. whether it is a position 
with technical project lead responsibilities as suggested by the requirements and job duties outlined in 
the submitted job announcements, or one which encompasses a lesser information technology role. 8 
While it stipulates that it requires a degree in computer science without any work experience for the 
proffered position, it contemporaneously submits copies of job vacancy announcements asserting that 
they are "similar" to the proffered position that require differing, substantial levels of work experience 
to perform the duties therein. 9 
7 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]."). 
8 We also renew our concerns regarding the lack of evidence sufficient to show the operational strncture within the 
Petitioner's business operations in a manner that would establish the Beneficiary's substantive role therein. Matter of Ho, 
Dec. at 591-92. 
9 Moreover, the inconsistencies in the submitted job vacancy announcements relative to the Petitioner's Level TT wage 
designated in the LCA and its other statements in the record also raise significant questions as to whether the LCA 
6 
In summary, we conclude that these inconsistencies farther erode the Petitioner's ability to 
demonstrate the substantive nature of the proffered position. Unresolved material inconsistencies may 
lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the 
requested immigration benefit. 10 As the record contains material inconsistencies relative to the 
Petitioner's business operations and minimum requirements for entry into the proffered position, the 
documentation submitted in this regard to establish eligibility for the classification sought lacks 
probative value and overall credibility. 11 
The Petitioner also submitted an opinion letter authored by Dr. K-. In his letter, Dr. K- (1) describes 
the credentials that he asserts qualify him to opine upon the nature of the proffered position; (2) 
describes and quotes the duties proposed for the Beneficiary; and (3) reiterates the Petitioner's stated 
position requirements of at least a bachelor's degree in computer science, or a closely related field. 
We carefully evaluated Dr. K-' s assertions in support of the instant petition but find them insufficient. 
Dr. K- references his review of documents provided in support of the position and the Petitioner's 
website and promotional materials, as well as his interview with the Petitioner's "management" during 
which he obtained familiarity "with their nature of specialty operations, proffered job requirements 
and hiring practices, and inquired about the nature and complexity of their work." 12 
While Dr. K- discusses the Petitioner's business operations as presented in the petition then quotes 
and analyzes the duties of the proffered position presented in the Petitioner's RFE response, he does 
not discuss the scope and complexity of the specific projects to which the Beneficiary will be assigned, 
and his relative role therein. 13 Additionally, Dr. K- indicates that he has "researched various 
requirements for [] similar positions and job duties" to the proffered position. However, he does not 
address or reconcile the variances between the minimum requirements for the position that he 
stipulates relative to the job announcements contemporaneously presented by the Petitioner as being 
"similar" to the proffered position. 14 
Further, Dr. K- provides narrative regarding the curricula taught in computer science and other 
degrees, and references periodicals published by organizations, such as the Association for Computing 
Machinery's Special Interest Group for Information Technology Education. However, he did not 
provide copies of the specific material that he references as part of his analysis. He opines that the 
corresponds to and supports the H-1 B petition, as required, which further impacts our understanding of the substantive 
nature of the position. See Prevailing Wage Determination Policy Guidance, supra. See 20 C.F.R. § 655.705(b). See also 
Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). 
10 Matter of Ho, Dec. at 591-92. 
11 Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M-, 20 l&N Dec. 77, 79-80 (Comm'r 
1989)). 
12 Notably, Dr. K- quotes verbatim the Petitioner's assertion presented in its response to the RFE that the Beneficiary will 
be "[r]esponsible for the architectural design, development, and deployment of the enterprise's overall TT Infrastructure 
solution .... ," asserting that he obtained this information during the course of his interview with the Petitioner's 
management, not from the material submitted in support of the petition. 
13 Here it appears that Dr. K- reviewed the Petitioner's job descriptions outside of the context of the information technology 
projects and initiatives to which the Beneficiary will be assigned. Such a review results in the analysis of generic 
descriptions of duties that, while they may appear (in some instances) to comprise the duties of a specialty occupation, are 
not related to any actual services the Beneficiary is expected to provide. 
14 Matter of Ho, Dec. at 591-92. 
7 
"core concepts of mathematics, programming and computer science and/or electronics engineering, 
would provide a strong foundation of knowledge for undertaking the types of duties required of the 
Systems Engineer at [ the Petitioner]." Here, Dr. K- confuses the ability of a degreed person to qualify 
for - and be competent in - performing the duties of the proffered position with a degree requirement 
in order to perform the duties. While Dr. K- may draw inferences that certain mathematical or 
information technology related courses may be beneficial in performing various duties of the position, 
he has not established through his 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 could perform the duties of the proffered position is not the same as stating that a degree in a 
specific specialty is required to perform those duties. As such, Dr. K-'s analysis misconstrues the 
statutory and regulatory requirements of a specialty occupation. 
For the reasons discussed, we find that the Dr. K-'s opinion letter lends little probative value to the matter 
here. Matter of Caron Int'!, 19 I&N Dec. 791, 795 (Comm'r 1988) (The service is not required to accept 
or may give less weight to an advisory opinion when it is "not in accord with other information or is in 
any way questionable."). For the sake of brevity, we will not address other deficiencies within his 
analyses of the proffered position. 
Upon review of the totality of the record, we determine it is insufficient to establish the substantive 
nature of the in-house work to be performed by the Beneficiary, which therefore precludes a 
conclusion 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 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. 15 The Petitioner has not presented evidence or argument sufficient 
to establish that, more likely than not, the proffered position is a specialty occupation. 
IV. CONCLUSION 
In visa petition proceedings, it is a petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
15 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 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
8