dismissed H-1B Case: Information Technology

(b)(6)
DATE: JUL 0 1 2015 
INRE: Petitioner: 
Beneficiary: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service~ 
Administrative Appeals Office 
20 Massachusetts 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)(15)(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. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
on Rosenberg 
Chief, Administrative Appeals Office 
REV 3/2015 www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
I. FACTUAL AND PROCEDURAL BACKGROUND 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the Vermont Service 
Center. In the Form I-129 visa petition, the petitioner describes itself as an information technology 
consulting and services firm that was established in In order to employ the beneficiary in what 
it designates as a .NET consultant 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 reviewed the information and determined that the petitioner had not established 
eligibility for the benefit sought. The Director denied the petition, concluding that the petitioner did 
not establish that the proffered position qualifies as a specialty occupation in accordance with the 
applicable statutory and regulatory provisions. Thereafter, the petitioner filed an appeal. 
The record of proceeding contains: (1) the petitioner's Form I-129 and supporting documentation; 
(2) the Director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the­
Director's decision; and (5) the Notice of Appeal or Motion (Form I-290B) and supporting 
documentation. 1 We reviewed the record in its entirety before issuing our decision. 2 
For the reasons that will be discussed below, we find 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, and the petition will be denied. 
II. SPECIALTY OCCUPATION 
The primary issue is whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation position. 
A. Legal Framework 
For an H -lB petition to be granted, the petitioner must provide sufficient evidence to establish that it 
will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
1 It must be noted for the record that counsel for the petitioner mistakenly and repeatedly referenced the 
beneficiary in the brief in the feminine pronoun case. The record provides no explanation for this 
inconsistency. Thus, we must question the accuracy of the letter and whether the information provided is 
correctly attributed to this particular position and beneficiary. 
2 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements. 
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.P.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.P.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 particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.P.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 
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Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.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.P.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.P.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.P.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.P.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-lB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly been 
able to establish a minimum entry requirement in the United States of a baccalaureate or higher 
degree in a specific specialty or its equivalent directly related to the duties and responsibilities of the 
particular position, fairly represent the types of specialty occupations that Congress contemplated 
when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
In ascertaining the intent of a petitioner, USCIS looks to the Form I-129 and the documents filed in 
support of the petition. It is only in this manner that the agency can determine the exact position 
offered, the location of employment, the proffered wage, et cetera. Pursuant to 8 C.P.R. 
§ 214.2(h)(9)(i), the director has the responsibility to consider all of the evidence submitted by a 
petitioner and such other evidence that he or she may independently require to assist his or her 
adjudication. Further, the regulation at 8 C.P.R. § 214.2(h)(4)(iv) provides that "[a]n H-lB petition 
involving a specialty occupation shall be accompanied by [ d]ocumentation ... or any other required 
evidence sufficient to establish ... that the services the beneficiary is to perform are in a specialty 
occupation." 
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B. Proffered Position 
In the letter of support, the petitioner stated that the beneficiary will perform the following job duties 
in the proffered position: 
1) Plan, coordinate, requirements gather and quality control .NET software. 
2) Troubleshooting and web configuration. 
3) Report program status and metrics. 
4) Design robust, scalable, secure and globalized features. 
5) Make design trade-offs. 
6) Identify risks and mitigate them. 
7) Manage dependencies for feature area. 
8) Continuously adopt and integrate relevant new design technologies. 
9) Implement feature area with minimal technical dept. 
10) Create feature areas easy to deploy and maintain. 
11) Proactively drive refactoring and code reuse. 
12) Create bug-free feature areas. 
13) Unit test feature areas to achieve code coverage targets. 
14) Design test-driven feature areas to enable efficient regression testing. 
The petitioner also stated the following with regard to the educational credentials necessary 
to perform these duties: 
The performance of these duties requires a computer-related bachelor's degree. 
Thereafter, in response to the RFE, the petitioner provided a new job description. More specifically, 
the petitioner stated that the position encompasses the following duties: 
• Gather and analyze the details of the requirement from the client. 
• Document the status of each phase of the development. 
• Liaise with the clients and provide input towards customization. 
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• Plan and coordinate the testing phases including unit testing, regression testing, as 
well as integration testing. 
• Ensure deliverables are prepared to fulfill the project is completed within budget 
and timelines. 
• Provide guidance and mentoring to the members of the team. 
• Design and develop the application using Microsoft .NET Platform with MS SQL 
Server database. 
• Make decisions and resolve issues, if any. 
The petitioner also provided second job description, along with the approximate percentage of time 
the beneficiary would spend on the duties as follows: 
Gathering requirements and finding solutions: 20% - [The beneficiary] is 
expected to spend this phase towards gaining an understanding of any customization 
needs or upgrades that may be required. [The beneficiary's] activities would 
including studying the client's process with an understanding of the existing solution. 
This will involve client interaction, gathering of the requirements, understanding the 
scope of the project, coming up with appropriate solutions and implementing them on 
time and within budget. 
Develooine-. Codine- and Testine-: 35% of [the beneficiary's] time would be 
concentrated on developing, coding, and testing activities. Using his .Net and SQL 
technical skills, [the beneficiary] would be involved in coding as necessary towards 
customization and ensuring that any and all the bugs are fixed by working on user 
acceptance testing (UAT). This phase of work would be an on-going process as the 
product upgrades will need to be continued in order to keep up with the market and be 
at its most competitive. 
Implementation and Post-implementation Support: 30% of [the beneficiary's] 
time would be spent on implementation. This will include interacting closely with the 
client and engineering the implementation. It would also involve fixing bugs, if any 
and providing support after Go-Live. 
Pre-sales and associated activities: 15% of [the beneficiary's] time would be spent 
on these activities. These will include studying the market place for similar products 
in order to enhance our in-house solution. These studies will help [the petitioner] in 
providing the most competitive SAAS solution to potential clients. [The beneficiary] 
will be generating ideas and strategies towards the product launch as well as ensure 
readiness of each of the products. 
In the RFE response, the petitioner stated that the beneficiary would be "providing hands-on 
development and support for the in-house products listed in the RFE response document." In 
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addition, the petitioner claimed that the proffered position "requires a degree in Engineering and a 
minimum of four years as a .Net Consultant." 
C. Preliminary Findings 
As previously noted, the issue before us is whether the petitioner has provided sufficient evidence to 
establish that it would employ the beneficiary in a specialty occupation position. We will first make 
preliminary findings that are material to this decision's application of the H-1B statutory and 
regulatory framework to the proffered position as described in the record of proceeding. 
We note that the petitioner initially claimed that the proffered position requires "a computer-related 
bachelor's degree." The degree requirement set by the statutory and regulatory framework of the 
H-lB program is not just a bachelor's or higher degree, but such a degree in a specific specialty that 
is directly related to the proffered position. See Royal Siam Corp. v. Chertoff, 484 F.3d 14 7 
(describing "a degree requirement in a specific specialty" as "one that relates directly to the duties 
and responsibilities of a particular position"). Thus, the petitioner's assertion that a general-purpose 
degree or a degree in any field is acceptable is essentially an admission that the proffered position is 
not in fact a specialty occupation. 
Thereafter, in response to the Director's RFE, the petitioner stated that the proffered position requires 
an individual with "a degree in Engineering and a minimum of four years as a .Net Consultant." 
Notably, the petitioner did not specify the level of education required (e.g., associate's degree, 
vocational degree, baccalaureate, master's degree) for the position. Nevertheless, assuming for the 
sake of argument that the petitioner required a bachelor's degree in engineering and four years of 
experience as a .NET consultant, it must be noted that if the requirements to perform the duties and 
job responsibilities of a proffered position are a combination of a general bachelor's degree and 
experience such that the standards at both section 214(i)(1)(A) and (B) of the Act have been 
satisfied, then the proffered position may qualify as a specialty occupation. See Tapis Int'l v. INS, 94 
F. Supp. 2d 172 (D. Mass. 2000). We do not find, however, that any position can qualify as a 
specialty occupation based solely on the claimed requirements of a petitioner. Instead, USCIS must 
examine the actual employment requirements and, on the basis of that examination, determine 
whether the position qualifies as a specialty occupation. See generally Defensor v. Meissner, 201 F. 
3d 384. Furthermore, we do not find (1) that a specialty occupation is determined by the 
qualifications of the beneficiary being petitioned to perform it; or (2) that a position may qualify as a 
specialty occupation even when there is no specialty degree requirement, or its equivalent, for entry 
into a particular position in a given occupational category. 
First, USCIS cannot determine if a particular job is a specialty occupation based on the qualifications 
of the beneficiary. A beneficiary's credentials to perform a particular job are relevant only when the 
job is first found to qualify as a specialty occupation. users is required instead to follow long­
standing legal standards and determine first, whether the proffered position qualifies as a specialty 
occupation, and second, whether an alien beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assoc., 19 I&N Dec. at 560 ("The 
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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]."). 
Second, in promulgating the H-lB regulations, the former hnmigration and Naturalization Service 
(INS) made clear that the definition of the term "specialty occupation" could not be expanded "to 
include those occupations which did not require a bachelor's degree in the specific specialty." 56 
Fed. Reg. 61111, 61112 (Dec. 2, 1991). More specifically, in responding to comments that "the 
definition of specialty occupation was too severe and would exclude certain occupations from 
classification as specialty occupations," the former INS stated that "[t]he definition of specialty 
occupation contained in the statute contains this requirement [for a bachelor's degree in the specific 
specialty or its equivalent]" and, therefore, "may not be amended in the final rule." !d. 
In the instant case, the petitioner stated that the position requires "a degree in Engineering and a 
minimum of four years as a .Net Consultant." Upon review, however, the petitioner has not asserted 
and the record of proceeding does not support the conclusion that the claimed requirement of a 
general degree plus "a minimum of four years as a .Net Consultant" is equivalent to a bachelor's or 
higher degree in a specific specialty. 
D. Analysis 
The petitioner in this matter provided a list of the beneficiary's proposed duties.3 As observed 
above, USCIS in this matter 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, USCIS must analyze the actual duties in conjunction with the specific 
project(s) to which the beneficiary will be assigned. To allow otherwise, results in generic 
3 With regard to the duties, we note that the petitioner designated the proffered position on the Labor 
Condition Application (LCA) under the occupational category "Software Developers, Applications" as a 
Level II position. The "Prevailing Wage Determination Policy Guidance" issued by the U.S. Department of 
Labor (DOL) provides a description of the wage levels. A Level II wage rate is described by DOL as follows: 
Level II (qualified) wage rates are assigned to job offers for qualified employees who have 
attained, either through education or experience, a good understanding of the occupation. 
They perform moderately complex tasks that require limited judgment. An indicator that the 
job request warrants a wage determination at Level II would be a requirement for years of 
education and/or experience that are generally required as described in the O*NET Job 
Zones. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 2009 .pdf. 
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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. 
In that regard, we have reviewed the information in the record regarding the petitioner's information 
technology consulting and services business. Upon review of this information, we find that the 
record of proceeding lacks documentation regarding the actual work that the beneficiary will 
perform to sufficiently substantiate the claim that the petitioner has H-1B caliber work for the 
beneficiary for the period of employment requested in the petition. That is, the record does not 
include sufficient work product or other documentary evidence to confirm that the petitioner has 
ongoing projects to which the beneficiary will be assigned. The petitioner contends that the 
beneficiary will work on the projects, which are products the 
petitioner is developing in-house. However, the petitioner did not provide any documentation to 
support the claim that these projects will last for three years, such as a business plan with a detailed 
timeline, a budget, or general information on how long a new product development usually takes to 
complete. In addition, the petitioner did not provide any evidence of the job duties to be performed 
by the beneficiary if the projects fail or are completed prior to August 18, 2017. Thus, the record 
does not include sufficient work product or other documentary evidence to confirm that the 
petitioner has ongoing projects to which the beneficiary will be assigned. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 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)). 
The agency made clear long ago that speculative employment is not permitted m the H-1B 
program. For example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1B classification on the basis of 
speculative, or undetermined, prospective employment. The H-1B classification is not 
intended as a vehicle for an alien to engage in a job search within the United States, 
or for employers to bring in temporary foreign workers to meet possible workforce 
needs arising from potential business expansions or the expectation of potential new 
customers or contracts. To determine whether an alien is properly classifiable as an 
H-1B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the 
attainment of a specific bachelor's degree. See section 214(i) of the Immigration and 
Nationality Act (the "Act"). The Service must then determine whether the alien has 
the appropriate degree for the occupation. In the case of speculative employment, the 
Service is unable to perform either part of this two-prong analysis and, therefore, is 
unable to adjudicate properly a request for H-1B 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). 
· We acknowledge the petitioner's claim that the position of .NET consultant qualifies for H-1B 
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classification; however, an assertion without supporting evidence is insufficient for a petitioner to 
satisfy its burden of proof. The petitioner's failure to establish the substantive nature of the work to 
be performed by the beneficiary precludes a finding that the proffered position is a specialty 
occupation under 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. 
For the reasons discussed above, it cannot be found that the proffered position qualifies as a 
specialty occupation. The appeal will be dismissed and the petition denied for this reason. 
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.4 
ORDER: The appeal is dismissed. 
4 As the identified ground for denial is dispositive of the petitioner's continued eligibility, we need not address 
any additional issues in the record of proceeding.