dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF MUH-IT INC. 
APPEAL OF VERMONT SERVICE CEKTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE21,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as 
a '"software developer" under the H-IB nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section IOI(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 110l(a)(l5)(H)(i)(b). The H-IB 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, Vermont Service Center, denied the petition. The Director concluded that the 
proffered position is not a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in finding that the proffered position is not a specialty occupation. 
Cpon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 C.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.P.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: 
Matter of MUH-JT Inc. 
(1) 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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Proffered Position 
In response to the Director's request for additional evidence (RFE), the Petitioner described the 
Beneficiary's day-to-day responsibilities as follows: 
I. Develop and direct software systems testing and validation procedures, 
programming, and documentation 15%; 
2. Modify existing software to correct errors in the existing hardware to improve 
system performance 15%; 
3. Coordinate with systems analyst, engineers and programmers to design system 
software and obtain information on project limitations and capabilities, 
performance requirements and interfaces I 0%; 
4. Analyze user needs and software requirements 15%; 
5. Develop designs with a specific timeframe 15%; 
6. Design, develop and modify software systems using mathematical models to 
predict and measure the outcome of the applications I 5%; 
7. Store, retrieve and manipulate data for analysis of system capabilities and 
requirements and coordinate software system installation I 0%; 
8. Monitor equipment functioning to ensure specifications are met 5% 
2 
Matter of MUH-IT Inc. 
On the labor condition application (LCA) submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Software Developers, 
Applications" corresponding to the Standard Occupational Classification code 15-1132.
1 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualities as a specialty occupation. 
Specifically, the record (I) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 2 
1. The Petitioner Does Not Require a Bachelor's Degree in a Specific Specialty 
The Petitioner provided inconsistent statements regarding requirements for the proffered position 
and has not established that the duties of the proffered position require the attainment of at least a 
bachelor's degree in a specific specialty, or its equivalent. 
Specifically, the Petitioner initially stated that the proffered position requires a bachelor's degree in 
"[ s ]cience, computer science, computer engineering, electronics, engineering, physical sciences or 
equivalent." In general, provided the specialties are closely related, e.g., chemistry and 
biochemistry, a minimum of a bachelor's or higher degree in more than one specialty is recognized 
as satisfying the "degree in the specific specialty (or its equivalent)" requirement of section 
214(i)(l)(B) of the Act. In such a case, the required "body of highly specialized knowledge" would 
essentially be the same. Since there must be a close correlation between the required "body of 
highly specialized knowledge" and the position, however, a minimum entry requirement of a degree 
in two disparate fields, such as philosophy and engineering, would not meet the statutory 
requirement that the degree be "in the specific specialty (or its equivalent)," unless the Petitioner 
establishes how each field is directly related to the duties and responsibilities of the particular 
1 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _ Guidance_Revised _11_2009.pdf. A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements ofthe Petitioner's job opportunity. !d. 
2 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 
(b)(6)
Matter of MUH-IT Inc. 
position such that the required "body of highly specialized knowledge" is essentially an 
amalgamation of these different specialties. Section 2l4(i)( 1 )(B) of the Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular '"specialty," 
we do not so narrowly interpret these provisions to exclude positions from qualifying as specialty 
occupations if they permit, as a minimum entry requirement, degrees in more than one closely 
related specialty. See section 214(i)(l)(B) ofthe Act; 8 C.F.R. § 214.2(h)(4)(ii). This also includes 
even seemingly disparate specialties providing, again, the evidence of record establishes how each 
acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
position. 
Here, the Petitioner claimed that the duties of the proffered posttiOn can be performed by an 
individual with a bachelor 's degree in science, computer science, computer engineering, electronics, 
engineering, physical sciences or equivalent. The issue here is that it is not readily apparent that all 
of these fields of study are closely related; or that, any science degree is directly related to the duties 
and responsibilities of the particular position proffered in this matter. 
Here and as indicated above, the Petitioner, who bears the burden of proof in this proceeding, has not 
established either (1) that science, computer science, computer engineering, electronics, engineering, 
and physical sciences are closely related or (2) that any science field, such as chemistry, for 
example, would be directly related to the duties and responsibilities of the proffered position. 
Absent this evidence, it cannot be found that the particular position proffered in this matter has a 
normal minimum entry requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent , under the Petitioner 's own standards. As explained above, USCIS interprets the degree 
requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly 
related to the proposed position. Royal Siam Corp. v. Chertoff, 484 F.3d at 147. 
In response to the RFE, the Petitioner submitted a position evaluation from 
at which stated that the software developer position 
requires "specialized knowledge through advanced post-secondary educational programs or through 
progressively responsible work experience in the field of Computer Science or a close related 
field."3 Further, on appeal, the Petitioner now claims that it requires a "[b ]achelor's degree in 
3 We carefully evaluated assertions but, for the following reasons, determined his opinion s lent little 
probative value. First, does not reference, cite, or discus s any studies, surveys, industry publications , 
authoritative publications , or other source s of empirical information which he may have consulted to comp lete his 
evaluation . Second , does not discu ss the duti es of the proffered position in any substantive detail. 
To the contrary , he simply listed the tasks in bullet-point fashion without discu ssion. Third, the record does not indicate 
whether was aware that, as indicated by the Leve l I wage on the LCA, the Petitioner considered the 
proffered position to be an entry-level position for a beginning employee who has only a basic understanding of the 
occupation. 1 n other words, the Petitioner has not demon strated that possessed the requisite 
information to adequately assess the nature of the position . As such, we find that opinion letter lends 
little probative value . 
4 
Matter of MUH-IT Inc. 
computer science or a related field." This is a much narrower requirement than the Petitioner 
originally stated. However, the Petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition and must continue to be eligible for the benefit through adjudication. 
8 C.P.R. § 103.2(b)(l). A visa petition may not be approved at a future date after the Petitioner or 
Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N 
Dec. at 249. 
The Petitioner has not demonstrated that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 
2. The Petitioner Has Not Established the Nature and Scope of the Beneficiary's Employment 
We also find that the proffered position does not qualify as a specialty occupation, as the evidence of 
record is insufficient to establish the substantive nature of the position and its constituent duties. 
For instance, we observe that the job duties are copied verbatim from the O*NET Summary Report 
for the occupational category "Software Developers, Applications" corresponding to SOC code 15-
1132.4 This type of description may be appropriate when defining the range of duties that may be 
performed within an occupational category, but it does not adequately convey the substantive work that 
the Beneficiary will perform within the Petitioner's business operations and, thus, generally cannot be 
relied upon by a petitioner when discussing the duties attached to specific employment. In establishing 
a position as a specialty occupation, a petitioner must describe the specific duties and responsibilities to 
be performed by a beneficiary in the context of that petitioner's business operations, as well as 
demonstrate a legitimate need for an employee exists, and substantiate that it has H-lB caliber work for 
the Beneficiary for the period of employment requested in the petition. Simply submitting a generic job 
description that is not specific to the Beneficiary and the Petitioner's operations is insufficient to 
establish the substantive nature of the proffered position. 
On appeal, the Petitioner submits another document titled "Description of work to be performed." 
But the document also lists proposed duties in generalized and generic terms that do not sufficiently 
convey substantive information to establish the relative complexity, uniqueness and/or specialization 
of the profiered position. For example, the document states the Beneficiary will "collaborate with 
other programmers to design and implement product features," "quickly produce well-organized, 
optimized, and documented source code," and "create and document software tools required for 
product." The Petitioner's description is generalized and generic in that the Petitioner does not 
convey either 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 
abstract, speculative level of information regarding the proffered position and the duties is 
4 For more information, see O*NET Online Summary Report for "Software Developers, Applications," 
http://www.onetonline.org/link/summary/15-1132.00 (last visited June 20, 20 16). 
5 
~----------------------------------------------------------------------
(b)(6)
Matter of MUH-IT Inc. 
exemplified by the phrases "'contribute to technical design documentation," "contribute to qualify 
assurance and SDLC 
improvements ," and continuously learn and improve skills." 
We acknowledge that the Petitioner submits various other descriptions of the proffered position on 
appeal and asserts that the Beneficiary "will be focused on enhancing the online portal . . . 
specifically for the Petitioner's client, ' But the 
record contains discrepancies and misleading information that undermine its claims regarding the 
project. Specifically, the Petitioner has not established that it has a contractual relationship with 
For example, the Petitioner submitted a purchase order; however, the 
purchase order is between and Further, the 
description for the purchased item is described as "software support services" and "contracting 
services," but there is no indication that such services relate to the Petitioner. However, even ifthis 
purchase order is for the Petitioner, it is dated after filing of this petition. 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 ). Moreover, the delivery date is listed as April 2016, 
which does not cover the dates of intended employment for the Beneficiary, from October 2015 to 
September 2018. 
Further, the Petitioner provided inconsistent infmmation regarding its relationship with On 
appeal, the Petitioner initially states that it "has an existing statement of work with its client, 
In support, the Petitioner submits a software reseller agreement but it identifies 
as a reseller of the Petitioner's product. obligation includes "distribute and deliver 
products to customers," "marketing ," "pricing," "end-user license agreements and evaluation 
agreements ," and more. 
On appeal, the Petitioner later claims that its is being developed jointly with 
pursuant to a partnership agreement. The Petitioner states that "two parties . .. have collaborated to 
work together on this application due to lack of all expertise available with each of them." The 
record does not contain a partnership agreement, ·but the Petitioner submitted a master service 
agreement (MSA) between the two parties. The MSA indicates that the Petitioner will be added as 
one of vendors and that the Petitioner will "begin furnishing the services according to the 
specifications and requirements of this agreement and the work order." The Petitioner also 
submitted a work -order with which states "further to the request from 
(Statement of work attached from Requestor) additional enhancements to the product, [the 
Petitioner] will employ the services of [the Beneficiary] who will be working as a Software 
Developer." Notably, 
the statement of work ±rom was not attached to the work 
order. Further, the project is misspelled as ' instead of ' · Moreover, even if this 
work order was properly executed and valid, it was signed on August 15, 2015, after filing of this 
petition.5 Again, USCIS regulations affirmatively require a petitioner to establish eligibility for the 
5 The agency made clear . long ago that speculative employment is not pennitted in the H-1 B program. For example , a 
1998 proposed rule documented this position as follows: 
6 
(b)(6)
Matter of MUH-IT Inc. 
benefit it is seeking at the time the petition is filed. See 8 C.F .R. § 103 .2(b )(1 ). A petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to users 
requirements. See Matter oflzummi, 22 I&N Dec. 169, 176 (Assoc. Comm' r 1998). Further, the 
projected completion date is November 1, 20 1 7, which does not cover the duration of H -1 B 
employment requested in the petition. Therefore, both documents hold little probative weight m 
these proceedings. 
Further, the Petitioner's designation of this position as a Level I, entry-level positiOn further 
undermines the Petitioner's characterizations of the proffered position.6 For example, the Petitioner 
indicated in response to the RFE that the job duties are "so complex and specialized because they 
require a highly advanced body of knowledge" and the Beneficiary "will be responsible for 
developing 
and directing the systems testing, verification and validation procedures." 
However, in designating the proffered position at a Level I, entry-level wage rate, the Petitioner has 
indicated that the proffered position is a comparatively low, entry-level position relative to others 
within the occupation, in which the Beneficiary is only required to have a basic understanding of the 
occupation. The Petitioner 's designation of the proffered position as a Level I, entry-level position 
thus undermines the Petitioner's claims regarding the proffered position, such as directing 
system testing. No explanation for the variances was provided by the Petitioner. 
In addition, the record contains inconsistencies regarding the Petitioner's location. On appeal, we 
issued an RFE noting that we are unable to verify that the Petitioner is registered to do business at 
Historically, the Serv ice has not granted H-18 class ification on the basis of spec ulative, or 
undetermined , prospectiv e e mplo yment. The H-1 8 classi fication is not intend ed as a vehicle for an 
alien to engage in a job searc h within the United States , or for emplo yers to bring in tempor ary foreign 
worker s to meet possible workforce needs arising from potential busines s expansions or the 
expectat ion of potential new customer s or contract s. To determine whether an alien is properly 
clas sifiable as an H-18 nonimmig rant under the statute, the Service must first examine the duti es of the 
position to be occupied to ascertain whether the dutie s of the pos ition require the attainment of a 
specifi c bache lor' s degree . See section 2 14(i) of the Immigration and Nationalit y Act (the "Act"). The 
Service must then determine whether the alien has the a ppropriate degree for the occupation. In the 
case of speculativ e employment, the Service is unable to perform either part of this two-prong analysis 
and, theref ore, is unable to adjudicate properl y a request for H-1 B class ification . Moreover , there is no 
assurance that the alien will engage in a specialty occ upation upon arr ival in this country. 
Petitioning Requirements for the H Nonimmigrant Classificati on, 63 Fed. Reg. 30,4 19, 30,419-20 (propo sed June 4, 
1998) (to be codified at 8 C.F.R. pt. 2 14). While a petition er i s certa inly permitt ed to change its intent with regard to 
non-specul ative employme nt, e.g., a change in dutie s or job l ocation, it must n onethe less doc ument such a material 
change in intent throu gh an amended or new petition in accorda nce w ith 8 C. F. R. § 2 14.2(h)(2)( iXE). 
6 Neverthel ess, a Level I wage-de signation does not preclude a proffered position from classification as a specialty 
occupation , j ust as a Level IV wage-desig nation doe s not definitively establish such a classification. In cert ain 
occupations (e.g., doctors or lawyers), a Leve l I , entry-l eve l position would still require a minimum of a bache lor's 
degree in a specific spec ialty, or its equival ent, for entry. Simi larly, howev er, a Level I V wage-designation would not 
reflect that an occ upat ion qualifi es as a s pecialty occupation if that high er-leve l position does not have an entry 
requiremen t of at least a bachelor' s degree in a s pecific specialty , or its equi valent. That is, a position 's wage level 
designation may be a relevant factor but is not itself conclusive evidence that a proffered position meets the requirements 
of section 2 14(i)( I) of the Act. 
7 
(b)(6)
Matter ~f MUH-JT inc. 
the location specified in the Form I-129. In response, the Petitioner submits its lease that matches 
the addres s provided in the petition; however, it is noted that the leased space is only for 169 square 
feet. The Petitioner states in its organization chart that it has one employee, three consultants , and 
two other H-lB employees in addition to the Beneficiary. Although the Petitioner ' s office space 
does not appear to have space for all of these worker, the Petitioner did not explain where its 
employee and contractors would perform their duties. 
Further, all of the corporate documents the Petitioner has provided, including its tax returns, 
quarterly statements, agreements, and business certificates, list the Petitioner's address in 
New Jersey . An Internet search further indicates that this address in New Jersey is a 
private residence . Although the Petitioner has submitted a lease for a suite at an address in 
and provided photos of some office furniture and equipment, the Petitioner 
has not sufficiently established that the Beneficiary will be employed in-house at the address 
specified in the petition. 
"[I]t is incumbent upon the petttloner to resolve the inconsistencies by independent objective 
evidence." Matter ofHo , 19l&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the petitioner submits competent objectiv e evidence 
pointing to where the truth lies. I d. at 591-92. "Doubt cast on any aspect of the petitioner's proof 
may, of course , lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition." !d. at 591. 
Because of the discrepancies discussed above, we cannot determin e the nature and scope of the 
Beneficiary ' s employment. The record lacks evidence sufficiently concrete and informati ve to 
demonstrate: (1) the actual work that the Beneficiary would perform ; (2) the complexity, uniqueness 
and/or specialization of the task s; and/or (3) the correlation between that work and a need for a 
particular level education of highly specialized knowledge in a specific specialty. "[I]t is incumbent 
upon the petitioner to resolve the inconsistencies by independent objective evidence." Matter of Ho, 
19 I&N Dec. 5 82, 591 (BIA 1988). Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the Petitioner submits competent objective evidence pointing to where the truth lies. 
!d. at 591-92. 
The inability 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.P.R. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature ofthat 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.P.R. § 214.2(h)(4)(iii)(A), it cannot 
be found that the proffered position qualifies as a specialty occupation. 
8 
Matter of MUH-IT Inc. 
II. CONCLUSION 
The burden is on the Petitioner to show 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. 7 
ORDER: The appeal is dismissed. 
Cite as Matter of MUH-IT Inc., ID# 16401 (AAO June 21, 2016) 
7 Since the identified bases for denial are dispositive of the Petitioner's appeal, we will not address any of the additional 
grounds of ineligibility we observe in the record of proceeding. 
9