dismissed H-1B Case: Information Technology

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DATE: JUL 0 7 2015 
INRE: Petitioner: 
Beneficiary: 
PETITION RECEIPT# : 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigr atio n Servic e: 
Admini strative Appeals Oftic e (AAO) 
20 Massachusett s Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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. § 1101(a)(l5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision 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. The requirements for motions are located at 8 C.F.R. § I 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 1-2908 web page (www .uscis .go v/ i-290b) contains the late st information on fee , filing 
location , and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
Ron Rosen berg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
I. PROCEDURAL BACKGROUND 
On the Petition for a Nonimmigrant Worker (Form 1-129), the petitioner describes itself as a 30-
employee, IT services delivery firm, 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)(15)(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 petitioner did not establish that it would employ the 
beneficiary in a specialty occupation position for the requested H-lB validity period. On appeal, 
the petitioner asserts that the director's basis for denial of the petition was erroneous and contends 
that it satisfied all evidentiary requirements. 
The record of proceeding before us contains: (1) the Form 1-129 and supporting documentation; (2) 
the director's Request for Evidence (RFE); (3) the petitioner's response to the RFE; ( 4) the director's 
notice of decision; 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 the reasons that will be discussed below, we agree with the director's decision 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. SPECIALTY OCCUPATION 
The issue here is whether the petitioner has demonstrated by a preponderance of the evidence that it 
will employ the beneficiary in a specialty occupation position. 2 
A. 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: 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
2 The "preponderance of the evidence" standard requires that the evidence demonstrate that the applicant's 
claim is "probably true," where the determination of "truth" is made based on the factual circumstances of 
each individual case. Matter ojChawathe, 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter ofE-M-, 20 
I&N Dec. 77, 79-80 (Comm'r 1989)). 
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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 minimum 
requirement for entry into the pmticular 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 
of language 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 of W-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 regulatory definition. See Defensor v. Meissner, 201 
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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)(l) 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-1B 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. users 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 Proffered Position 
In a letter dated March 24, 2014, the petitioner stated that it seeks the beneficiary's services as a 
programmer analyst "with the responsibilities of an Oracle Applications Developer" as follows: 
• Work with different business unit teams to gather functional and operational 
requirements and prepare technical design and implementation specifications. 
• Analyze, design and develop comprehensive Oracle ERP application solutions 
servicing key business functions to ensure application execution and 
implementation plans are aligned with business/IT objectives and priorities[.] 
• Work directly with technical support analysts, business representatives and peers 
to identify Oracle ERP systems development needs , clarify requirements , and 
trouble-shoot fixes to determine the extent of required Oracle application 
changes. 
• Utilize creative and cost-effective approaches to deliver high quality application 
solutions. 
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• Support Oracle Applications and business operations from a customer 
perspective and report to various project managers and leads related to 
operational status and issues[.] 
• Help to test, support and deploy a release roadmap for the application solutions 
as needed[.] 
• Responsible for understanding and following standards and processes to support: 
Oracle Applications software development; defining business requirements; unit 
and system testing[.] 
• Gain knowledge of industry standards, best . practices, and technologies. Lead 
and drive solutions that follow industry best practices as well as meet the 
businesses overall objective. 
• Participate in team meetings to review the daily production issues with the 
operations support team and delegate them as needed and document the 
resolutions. 
• Document Systems and User Acceptance test cases, test plans, and test strategies 
to test the new deployments through different test cycles. 
• Work with different project teams to perform user acceptance testing and review 
the test results with technical teams to formally signoff on code migration to 
production. 
The petitioner also submitted a Labor Condition Application (LCA) in support of the instant 
H-1B petition. The LCA designation for the proffered position corresponds to the occupational 
classification of "Computer Programmers" - SOC (ONET/OES) Code 15-1131. The petitioner 
indicated in the LCA that the beneficiary will work at the petitioner's location and did not provide 
additional work sites. 
C. Analysis 
For H-1B approval, the petitioner must demonstrate a legitimate need for an employee exists and to 
substantiate that it has H-1B caliber work for the beneficiary for the period of employment 
requested in the petition. It is incumbent upon the petitioner to demonstrate it has sufficient 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. 
In this matter, the petitioner indicated that the beneficiary will be employed in-house as a 
programmer analyst. However, upon review of the record of proceeding , we find that the petitioner 
did not provide sufficient, credible evidence to establish in-house employment for the beneficiary 
for the validity of the requested H-1B employment period. Specifically, the petitioner did not 
submit a job description to adequately convey the substantive work to be performed by the 
beneficiary. While the petitioner indicated that the beneficiary will be working exclusively on in­
house projectsto "support various Oracle Database Systems and ERP implementations and upgrade 
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projects," the petitioner has not submitted sufficient, credible evidence corroborating these 
assertions. 
As reflected in the descriptions of the position as quoted above, 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 and/or specialization of the proffered 
position or its duties. For example, the petitioner indicates that the beneficiary will "analyze , design 
and develop comprehensive Oracle ERP application solutions servicing key business functions to 
ensure application execution and implementation plans are aligned with business/IT objectives and 
priorities." The petitioner's description is generalized and generic in that the petitioner does not 
convey the substantive nature of the work that the beneficiary would actually perform, any 
particular body of highly specialized knowledge that would have to be theoretically and practically 
applied to perform it, or the educational level of any such knowledge that may be necessary. The 
responsibilities for the proffered position contain generalized functions without providing sufficient 
information regarding the particular work, and associated educational requirements , into which the 
duties would manifest themselves in their day-to-day performance. The abstract, speculative level 
of information regarding the proffered position and the duties comprising it is exemplified by the 
phrases "gather functional and operational requirements," "deliver high quality application 
solutions," "support Oracle applications and business operations," and "responsible for 
understanding and following standards and processes to support." 
Without additional information describing the specific 
duties the petitioner requires the beneficiary 
to perform, as those duties relate to specific projects, USCIS is unable to discern the nature of the 
position and whether the position indeed qualifies as a specialty occupation . Without a meaningful 
job description within the context of non-speculative employment , the petitioner may not establish 
any of the alternate criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A). The duties as described by the 
petitioner do not establish that the work proposed for the beneficiary actually exists. 
Further, the petitioner has not established that it has non-speculative work for the beneficiary for the 
entire period requested that existed as of the time of the petition's filing.3 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.F.R. 103.2(b)(l) . 
In a document titled "Listing of Custom Software Projects" dated March 24, 2014, the petitioner 
provided a list of "SAP projects that are currently in progress where [it] could also utilize 
beneficiary's SAP Customization skills and expertise with different SAP toots and technologies." 
3 The speculative nature of the beneficiary's employment is further demonstrated by inconsistent information 
regarding the beneficiary's place of employment. For example, in the Form I-129, the petitioner initially 
indicated that the beneficiary will be employed at its address (page 4); but it also marked the boxes to 
indicate that the beneficiary will be assigned to work off-site (pages 4 and 19). Further, throughout the 
record, the petitioner asserts that it "works with clients to analyze business and functional requirements, 
design, develop, test and support application software from offsite and unanticipated client locations as and 
when requested by the clients." 
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The list contains columns named "Project Title," "Customer Name," "Start Date," and "Status." 
However, "Status" column does not provide an end-date, but only states "in-progress." Moreover, 
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. Since, this list was not corroborated with documentary 
evidence such as master agreements or statements of work, we are unable to determine the 
substantive nature of the positions required by these projects such as the scope of services to be 
provided or educational requirements to perform the services. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of So.fjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
In the RFE, the director requested additional information regarding the beneficiary's in-house 
employment. In response, the petitioner indicated that the beneficiary will "provide services to 
various projects as an Oracle Applications Developer," and "while employed at [the petitioner] , 
beneficiary is expected to perform the roles and responsibilities as required by the job." Further, in 
a letter dated August 4, 2014, the petitioner explained that since the beneficiary is not yet employed 
by the petitioner , "we hence do not have signed contracts or work orders for the services he will 
deliver upon arrival[;] however[,] we have repeat business and projected project work for additional 
technical developers and functional analysts to balance our projected work load in various software 
projects." In support, the petitioner submitted a revised list of projects with projected end dates. 
Notably, some projects such as or have projected end dates as 
03/2016 and 12/2016 respectively . However , the petitioner did not submit corroborating evidence 
to substantiate existence of these contracts. Again, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
of So.fjici, 22 I&N Dec. 165 (citing Matter of Treasure Craft of Caltfornia, 14 I&N Dec. 190). 
On appeal, the petitioner asserts that "it provided evidence of the nature of its business-that it does 
provide in house services" and "when this is combined with the substantial evidence in the record to 
establish that the Petitioner has work available, including the SOW with it is clear the 
totality of the evidence submitted confirms the need for the Beneficiary's services." 
We note that the petitioner submitted a Statement of Work (SOW) with 
. However, the project runs from November 1, 2013 until June 30, 2015, and is not for 
the entirety of the requested H-1B validity period . Further, the SOW states that it "is subject to the 
terms and conditions of the Agreement ," but such agreement was not provided. Moreover, even 
assuming arguendo that this SOW is valid, we find that it does not establish availability of specialty 
occupation work for the beneficiary. Specifically , the document states that the employees who 
work on the project shall have levels of training and experience in "SAP-SD, SAP-CRM, SAP­
ECC, ABAP and CRM development knowledge , CRM WebUT/BSP development/configuration, 
CRM Middleware expertise." 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 or its equivalent as the minimum for entry 
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into the occupation. There is no evidence that attainment of a bachelor or higher degree in a 
specific specialty or its equivalent is required to gain knowledge in the above-mentioned areas. 
Therefore, this SOW does not establish that a specialty occupation position is available for the 
beneficiary. 
On appeal, the petitioner also submitted a letter dated November 20, 2014 from 
states the following: 
This is to confirm that the petitioner is awarded with a contract to develop a CMS 
(Contract and Services Management System) system for our organization to improve 
our depot services to our client base. Petitioner expected to use several SAP and 
non-SAP programmers and functional analysts to develop the CMS solution from 
their offices located as NY. Petitioner 
anticipated to hire the consultant to customize and develop Oracle database objects, 
forms and interfaces between CMS solution using Oracle database system and 
related development tools and technologies. This is a multi-year program with 
longer scope and we expect to retain the services of the petitioner for the duration of 
the program through at least until December 31, 2017 with possible extensions , 
however , [sic] the projected completion date of the project may change, due to 
unforeseen circumstances which would affect the anticipated timelines. 
which 
Notably, this letter is signed by who also signed the previously submitted statement 
of work submitted by The letter contains verbatim job description from the petitioner's 
letter. However, this letter is electronically signed and there is no other corroborating documentary 
such as additional statement of work to authenticate the content of this letter. Therefore, we find 
that this letter does not sufficiently establish availability of specialty occupation work for the 
beneficiary. 
A petition must be filed for non-speculative work for the beneficiary for the entire period requested 
that existed as of the time of the petition's filing. 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.F.R. 
103.2(b)(l). Again, 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. Here, the petitioner did not submit sufficient credible documentary 
evidence that it had specialty occupation work available for the beneficiary for the duration of the 
requested time period. 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: 
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 
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Based upon a complete review of the record of proceeding, we find that the petitioner has not 
established (1) the actual work that the beneficiary would perform , (2) the complexity, uniqueness 
and/or specialization of the tasks, and/or (3) the correlation between that work and a need for a 
particular level education of highly specialized knowledge in a specific specialty. Consequently, 
these material omissions preclude a determination that the petitioner's proffered position qualifies as 
a specialty occupation under the pertinent statutory and regulatory provisions. There is a lack of 
probative evidence substantiating the petitioner's claims with regard to the duties, responsibilities 
and requirements of the proffered position. 
The failure to establish the substantive nature of the work to be performed by the beneficiary 
consequently precludes a 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. Accordingly , as the petitioner 
has not established that it has satisfied 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 . 
III. CONCLUSION AND ORDER 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met.6 
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 , ther efore, 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. 
63 Fed . Reg. 30419, 30419 - 30420 (June 4, 1998). 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). 
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 . 
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