dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 27. 2017 
APPEAL OF VERMONT SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a consulting company that designs and develops customer applications. seeks to 
temporarily employ the Beneficiary as a '"programmer analyst" under the H-1 B nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(15)(H)(i)(b), 8 U.S.C. § ll0l(a)(l5)(H)(i)(b). The H-1 B 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 Vermont Service Center denied the petition. concluding that the Petitioner had 
not established that the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred m the 
decision. Upon de novo review. we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act. 8 U.S.C. § 1184(i)(l), detines 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: 
(/) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
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(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 have consistently interpreted 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''); Defensor' '· Meissner, 201 F.3d 384. 387 (5th Cir. 2000). 
If. PROFF ERE D POSITION 
In the H-1 B petition, the Petitioner stated that the Beneficiary will serve as a '"programmer analyst"' 
for its end-client located at in Michigan. 
1 The Petitioner provided a 
labor condition application (LCA) that includes its office location in Florida, and the 
end-client's location in Michigan. 2 
In response to the Director 's request for evidence, the Petitioner clarified that the Beneficiary will be 
working on the ' · project for the end-client. The Petitioner submitted a letter from the 
end-client, describing the duties of the proffered position as follows (verbatim): 
• Provide application software development services and technical support as 
defined in the project scope. 
• Will have complete ownership and responsibility of all deliverahles overcoming 
obstacles as needed 
• Conduct planning and analysis activities to plan projects and tasks 
• Analyze requirements, and translate business requirements into technical design 
solutions. 
• Develop program logic in existing applications 
1 
The Petitioner did not list the end-client's address in part 5 of the Form 1-129. Petition for a Nonimmigrant Worker. 
The Petitioner did not provide an explanation for omitting this information. · 
"The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B 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 experience and qualifications who are performing the same services. Sel! 
Ma/fer o(Simeio Solutions. LLC, 26 I&N Dec. 542 . 545-546 (AAO 2015 ). 
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Matter olM- LLC 
• Code, unit test, implement, prepare documentation, debug and maintain software 
applications 
• Maintain. test and integrate application components. 
• Write technical specifications and other forms of documentation 
• Suggest technical alternatives and improves/streamlines processes and systems 
• Complete project assignments and special projects commensurate with job 
expectations. 
According to the end-client, the proffered position reqmres a bachelor's degree m engmeenng, 
information technology, or science. 
On appeal, the Petitioner submits a project description from the end-client that includes a revised job 
description for the proffered position as follows: 
• Plans, develops, tests, and documents computer programs, applying knowledge of 
programming techniques and computer systems. 
• Evaluates user requests for new or modified program to determine feasibility, cost 
and time required, compatibility with current system, and computer capabilities. 
• Formulates plan outlining steps required to develop program. using structured 
analysts and design. 
• Prepares flowcharts and diagrams to illustrate sequence of steps program must 
follow and to describe logical operations involved. 
• Design. program and test application systems using standard application 
development tools and procedures. Development tasks to include using 
programming languages and tools such as: HTML. XML. VB.Net, C#.Net 
ASP.Net, JavaScript, Window XP or higher. Oracle SZL, MS Access. Excel, and 
Word. MS Project. Putty, Toad, MS SQL Server, Oracle llg or higher, MS 
Reporting Services. Working with any Imaging/Scanning Software and Libraries. 
Unix. Applications include Oracle's Customer Care & Billing, Maximo, 
MaxGIS, MAXWeb, Cognos, Kronos, UC4 Scheduling Software. WebLogic, 
WebSphere, GIS, Java, COBOL, SQL Developer. DBArtisan. 
• Maintains computer systems and programming guidelines by writing and 
updating policies and procedures. 
• Follow established quality methods and procedures. Ensures that products, 
applications, and systems are in compliance with established quality standards 
and meet customer requirements. Analyzes best-in-class processes, understands 
the interaction and relationship of business operations and operating systems and 
network processes. 
In addition, the Petitioner submits its own description of the Beneficiary's job duties for the 
proflered position on appeal. The Petitioner also states that the performance of the duties requires a 
·'bachelor's level education and training in an appropriate technical field (such as Computer Science, 
Information Technology or a related field.)" 
Matter olM- LLC 
III. ANALYSIS 
For the reasons set out below. we have determined that the Petitioner has not demonstrated that the 
proffered position qualities as a specialty occupation. 3 
A. Inconsistences in the Record 
Upon review of the record of proceedings. we find that there are inconsistencies and discrepancies in 
the petition and supporting documents, which lead us to question the Petitioner's claim with regard 
to the services the Beneficiary will perform. as well as the actual nature and requirements of the 
protiered position. When a petition includes discrepancies. those inconsistencies will raise concerns 
about the veracity of the Petitioner's assertions. 4 
1. Rate of Pay 
For example. the Petitioner has provided inconsistent information regarding the Beneficiary's rate of 
pay. In the Form l-129. the Petitioner stated that the Beneficiary would be compensated $64.000 per 
year. However, on the LCA, the Petitioner stated that the Beneficiary's wage rate is $54,000 per 
year. In addition, the employment agreement states that the Beneficiary's salary is $65.000 per year. 
The Petitioner did not provide an explanation for these variances in the Beneficiary's salary. 
2. Minimum Requirements 
Moreover, there are additional discrepancies in the record of proceedings with regard to the 
requirements for the proffered position. The Petitioner. along with the end-client. initially stated that 
the proffered position requires a bachelor's degree in engineering, information technology. or 
science. However. on appeaL the Petitioner states that the position requires a bachelor's degree in 
computer science. information technology. or a related field. The Petitioner did not provide an 
explanation for these inconsistencies. 
B. Bachelor's Degree in Disparate Fields 
Furthermore. the Petitioner's claim that a bachelor's degree in engineering, information technology. 
or science is a sufficient minimum requirement for entry into the proffered position is inadequate to 
establish that the proposed position qualifies as a specialty occupation. In generaL provided the 
specialties are closely related, e.g., sales and marketing, 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 
3 
The Petitioner submitted documentation in support of 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. 
4 
"[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence ... ivfatter o(Ho, 
19 l&N Dec. 582. 591 (BlA 1988). Any attempt to explain or reconcile such inconsistencies will not sutlice unless the 
Petitioner submits competent objective evidence pointing to where the truth lies. /d. at 591-92. 
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Malter ofM- LLC 
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 degrees in disparate fields. such as 
science 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 position such that the required "body of highly 
specialized knowledge" is essentially an amalgamation of these different specialties.
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Section 
214(i)(l)(B) of the Act (emphasis added). The Petitioner has not made this showing. On the basis 
of the proffered position's educational requirement alone, we cannot find that the proffered position 
qualifies as a specialty occupation. 
C. Job Description 
In addition , as recognized in Defensor , 201 F.3d at 387-88, it is necessary tor the end-client to 
provide sufficient information regarding the proposed job duties to be performed at its location(s) in 
order to properly ascertain the minimum educational requirements necessary to perform those duties. 
In other words, as the employees in that case would provide services to the end-client and not to the 
petitioning staffing company, the Petitioner-provided job duties and alleged requirements to perform 
those duties were irrelevant to a specialty occupation determination. See id. 
Here, the end-client does not sufficiently describe the duties of the proffered position. For instance , 
the end-client did not provide sufficient information with regard to the order of importance or 
frequency of occunence (e.g., regularly , periodically , or at irregular intervals) with which the 
Beneficiary will perform the functions and tasks . Thus. the record does not specify which tasks are 
major functions of the proffered position. 
In addition, the description of the Beneficiary's duties, as provided by the end-client. lack the 
specificity and detail necessary to support the Petitioner's contention that the position is a specialty 
occupation. The Petitioner states that the Beneficiary would be assigned to the project 
and submits scope documents specific to this project on appeal. However. the Petitioner has 
provided only general duties from the end-client that could apply to any software developer working 
on any project. The duties make no reference to the specifics of the Beneficiary's assigned project. 
This is particularly notable since the supporting documentation strongly indicates that the 
Beneficiary will be assigned as part of "'statT augmentation" at the end-client location. However, the 
5 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)( I )(8) of the Act; 8 C.F.R. 
~ 2 14.2(h)(4)(ii). This also includes even seemingly disparate specialties providing, again. the evidence of record 
establishes how each acceptable, specitic field of study is directly related to the duties and responsibilities of the 
particular position. 
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Maller()( M- LLC 
Petitioner does not provide a detailed duty description from the end-client as necessary to 
substantiate the actual duties and responsibilities of the position. 
Furthermore , although the Petitioner submits a length y duty description on appeal , they also make no 
reference to the Beneficiary 's proposed project. The Petitioner has not specifically 
explained the duties and role of the proffered position in the context of project.
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In 
addition, these expanded duties provide a confusing array of roles, indicating duties performed by 
the Beneficiary, as a programmer analyst , a software developer , and an ''incumbent.'' Given this 
variance in titles and roles , it is not clear that the stated duties are exclusive to the Beneficiary and it 
is difficult to determine which duties are applicable to the Beneficiary. 
The Petitioner has not provided sufficient details regarding the nature and scope of the Beneticim-y" s 
employment or substantive evidence regarding the actual work that the Beneficiary would perform. 
Without a meaningful job description, the record lacks evidence sufficiently concrete and 
informative to demonstrate that the proffered position requires a specialty occupation's level of 
knowledge in a specific specialty. The tasks as described do not communicate: (I) the actual work 
that the Beneficiary would perform; (2) the complexity, uniqueness or specialization of the tasks; or 
(3) the correlation between that work and a need for a particular level of knowledge in a specific 
specialty. 
As the Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary , this 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 (I) 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. 
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 qualities for classification as a 
specialty occupation. 
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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 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 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. 
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Matt er of M- LLC 
D. Speculative Employment 
Furthermore, we find that the record does not sufficiently establish availability of work for the 
Beneficiary at the time of filing and through this appeal. 7 The Petitioner must establish eligibility at 
the time of tiling the nonimmigrant visa petition and must continue to be eligible for the benefit 
through adjudication. 8 C.F.R. ~ 1 03.2(b )(1 ). 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. !d.; see also Malter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 
1978) . 
In support of the proffered position, the Petitioner submitted a statement of work (SOW) executed 
with the end-client in March 2015. The SOW. dated in March 2015 and applicable to the term 
October 1, 2015, through October 1, 2018, is relevant to the Petitioner's provision of ''Capacity 
Based Staffing Services" for the end-client. The SOW indicates that the Petitioner will ·'source 
people from local and international markets to cater to location-specific requirements of [the clientr 
and sets fmih various positions the Petitioner may fill for the client, ranging from Programmer 
Analysts 1 through 5. The Petitioner states that the Beneficiary's period of employment would be 
from October 1, 2015, to October 1, 2017. However , the SOW does not directly establish the 
Beneficiary's specific assignment to the client, but only represents a broad framework through which 
the Petitioner's resources can be assigned to the client. The SOW does not address the specifics of 
the Beneficiary's proposed assignment to the project or establish the need for a 
programmer analyst for the entire requested period of employment. 
On appeal, the Petitioner provides a project scope document and business plan specific to the 
project. Although the scope document generally references various positions that could 
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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 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, therefore, is unable to adjudicate properly a request for H-1 8 classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). 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. ~ 2 14.2(h)(2)(i)(E). 
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Matter ofM- LLC 
be filled as a part of the project, including a project manager, molecular pharmacist, development 
manager, senior software engineer, software engineer, database administrator, SQA technician, a 
quality assurance employee , and a programmer analyst, it does not definitively or contractually 
demonstrate the need for a programmer analyst for the entire period of the requested employment. 
Further , the business plan provided by the Petitioner also does not demonstrate the need 
for the Beneficiary's employment throughout the requested period. This document only states a 
need for three senior software engineers, two ''regular" software engineers. three software quality 
assurance technicians, four customer service representatives, and a development manager. but makes 
no reference to a programmer analyst. Likewise , a "staffing plan" in this document lists several 
positions, including business development employees, a molecular pharmacist, various types of 
software engineers, SQA technicians, and customer service employees, but does not cite the need for 
a programmer analyst. The submitted documents do not make reference to the Beneficiary 
specifically, nor do they indicate for how long a programmer analyst would be required for the 
project. The Petitioner does not articulate or identify which position within these 
documents represents the Beneficiary's proposed position. 
Therefore, based upon the record in its entirety, we find that the Petitioner has not demonstrated that, 
as of the time of filing , it has secured definite, non-speculative work for the Beneficiary for the 
entire validity period requested. 
IV. EMPLOYER-EMPLOYEE RELATIONSHIP 
Since the identified basis for denial is dispositive of the Petitioner's appeaL we need not address 
another ground of ineligibility. Nevertheless, we note that the Petitioner has not demonstrated that it 
qualifies as a United States employer. 
As detailed above, the record of proceedings lacks sutlicient documentation evidencing what exactly 
the Beneficiary would do for the period of time requested or where exactly and for whom the 
Beneficiary would be providing services. Given this specific lack of evidence. the Petitioner has not 
corroborated who has, or will have, actual control over the Beneficiary's work or duties, or the 
condition and scope of the Beneficiary 's services. In other words. the Petitioner has not established 
whether it has made a bona tide offer of employment to the Beneficiary based on the evidence of 
record or that the Petitioner , or any other company which it may represent, will have and maintain 
the requisite employer-employee relationship with the Beneficiary for the duration of the requested 
employment period. S'ee 8 C.F.R. § 214.2(h)(4)(ii) (defining the term ''United States employer'' and 
requiring the Petitioner to engage the Beneficiary to work such that it will have and maintain an 
employer-employee relationship with respect to the sponsored H-1 B nonimmigrant worker). This 
lack of evidence is especially important given that the record is replete with references to the 
Petitioner providing ''staff augmentation," ''resource development ,'' and "deploying resources ," 
while the SOW refers to its provision of "capacity based staffing services." The submitted 
documents do not clarify the specific nature of the Beneficiary's control at the client location; in 
fact, the documents indicate that the Beneficiary would provide weekly status reports to the 
Petitioner. 
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Again and as previously discussed, there is insufficient evidence detailing where the Beneficiary 
would work, the specific projects to be performed by the Beneficiary, for which companies the 
Beneficiary would ultimately perform these services. and how he would be supervised and otherwise 
controlled by the Petitioner. Accordingly. the record as presently constituted does not support a 
finding that the Petitioner would have and maintain an employer-employee relationship with the 
Beneficiary. as required. 
V. NON-PRECEDENT DECISIONS 
On appeal, the Petitioner references several of our non-precedent decisions in support of its claim 
that the proffered position is a specialty occupation. First the record of proceedings docs not 
contain sufficient information regarding the underlying facts of the non-precedent decisions and. 
therefore, no substantive determination could be made to determine what facts, if any. are analogous 
to those in this proceeding. Second. while 8 C.F.R. ~ 103.3(c) provides that our precedent decisions 
are binding on all U.S. Citizenship and Immigration Services employees in the administration of the 
Act, unpublished decisions are not similarly binding. 
VI. CONCLUSION 
The Petitioner has not established that the protTered position qualities as a specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter o{M- LLC, ID# 861997 (AAO Dec. 27. 20 17) 
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