dismissed H-1B Case: Information Technology

MATTER OF M-C- CORP. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 23,2016 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology company, seeks to temporarily employ the Beneticiary as 
a "business analyst" under the H-1 B nonimmigrant classitication for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(l5)(H)(i)(b). The H-1B program allows a U.S. employer to temporarily employ a 
qualitied foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized kn9wledge 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 
evidence of record does not establish that the Petitioner had specialty occupation work available for 
the Beneficiary when the petition was filed and for the entirety of the intended employment period. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in her findings. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 214(i)(J) of the Act, 8 U .S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
Matter of M-C- Corp. 
(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.P.R.§ 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at S C.P.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a speJ:ific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. Cherto.ff, 484 iF.3d 139, 147 (1st Cir. 2007) (describing "a degree 
r~quirement 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). 
II. PROFFERED POSITION 
The Petitioner stated that the Beneficiary will work on building a web centric platform to connect 
students to U.S. corporations for potential employment. The Petitioner listed the Beneficiary's 
day-to-day duties as follows: 
• Plan, build and launch a new Web application and portal for a statiup company 
founded by successful entrepreneurs[.] 
• Understand the business case, project goals, strategies, project charter, timelines 
and stake holders[.] 
• Plan, Discover, Define, Design, Develop, Deploy a static Website (in phase 1) 
followed by a Dynamic transaction oriented Website (in phase 2). The design, 
develop and build activities will be outsourced, while plan, define, document & 
deploy will be managed by the Business Analyst role. 
• Gather, document and analyze requirements from various stake holders and 
various sources of information. 
• Build Business (BRD) & Functional requirements documents (FRD) documents. 
Build the website work flow & web content. Using MS Visio, MS Words, MS 
Excel, and MS PPT. 
• Document the requirements and procedure in excellent manner. 
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Matter of M-C- Corp. 
• Participate in selection of an external agency to design, develop and deploy the 
website. Get the website designed, content validated and uploaded with the help 
of external agency. Conduct user acceptance test to approve the end product. 
• Work independently and possess good team/people skills. Will report into a 
Program Manager who will provide initial training/orientation, ongoing 
mentoring and coaching to accomplish the job. 
The Petitioner stated that its requirement for this position "is a minimum of a Bachelor's Degree in 
Computer Science or Engineering with MBA or its equivalent in education or work experience." 
III. 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 it would employ the Beneficiary in a specialty occupation. 
Specifically, the record does not (1) describe the position's duties with sufficient consistent detail; 
and (2) establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation. 1 
For H-1 B approval, the Petitioner must demonstrate a legitimate need for an employee exists and 
substantiate that it has H-1 B caliber work for the Beneficiary for the entire 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 would work on a specific in-house 
website project to facilitate international master's degree students' transition from campus to the 
corporate world. In response to the Director's request for evidence (RFE) the Petitioner explained 
that the Beneficiary "will develop an application that allow[ s] people to do specific tasks on the 
[P]etitioner's website," and "[t]herefore his job is that of a software developer." The Petitioner 
identified its planned scope and activity as discovering, designing, building, testing, deploying, and 
managing websites/portals and then marketing, selling, signing up, providing service, billing, and 
collecting money. The Petitioner further identified four different websites and the proposed stages 
for building the websites. The. Petitioner noted that its two founders do not draw a salary but 
perform work for the company and that it also employed outside vendors to design, develop, and test 
the websites. The Petitioner's organizational chart shows the two founders and the Petitioner's 
outside vendors. Additionally, the Petitioner submits invoices and other evidence to demonstrate 
that it has paid the outside vendors. 
1 
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. 
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Matter of M-C- Corp. 
On appeal, the Petitioner asserts that the business analyst's role will be spread over five years 
without a break and then repeats the duties of the position initially submitted. The Petitioner 
reiterates that although the position is titled "business analyst," the specific duties of the job are the 
duties of a software developer, applications, as that occupation is described in the U.S. Department 
of Labor's (DOL) Occupational Outlook Handbook (Handbook). On the labor condition application 
(LCAi submitted in support of the H-1 8 petition, the Petitioner designated the proffered position 
under the occupational category "Software Developers, Applications" corresponding to the Standard 
Occupational Classification code 15-1132.3 The Petitioner also submits three screens hots of a portal 
and 150 plus pages ofportal code it claims the Beneficiary developed. 4 
Also on appeal, the Petitioner references the Director's acknmvledgment in her decision that a 
business analyst position is traditionally considered a specialty occupation. However, we withdraw 
the Director's conclusory statement in this regard, as a business analyst position is not an occupation 
with standardized duties but rather may incorporate the duties of one or more occupations, which 
may or may not require a bachelor's degree in a specific specialty. We emphasize here that USCIS 
does not simply rely on a position's title. Rather 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 individual, and determine 
whether the position qualifies as a specialty occupation. See generally Defensor v. A1eis:mer, 201 F. 
3d 384. 
Upon review of the description of the Petitioner's business analyst position and the nature of the 
Petitioner's startup business, we find that the duties are described in terms of generalized and generic 
functions. For example, the Petitioner states that its business analyst will "[p ]Ian build and launch a 
new Web application and portal," "[ u ]nderstand the business case, project goals, strategies, project 
charter, timelines and stake holders," and "Plan, Discover, Define, Design, Develop, Deploy a static 
Website (in phase 1) followed by a Dynamic transaction oriented Website (in phase 2)." We cannot 
2 The Petitioner is required to submit a certified LCA to USCIS 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. See Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
~ The Petitioner designated the proffered position under the occupational category "Software Developer, Applications" 
corresponding to the Standard Occupational Classification code 15-1 132, at a Level I wage (the lowest of four assignable 
wage levels). 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: ( 1) that the Beneficiary will be expected to 
perform routine tasks that require limited, if any, exercise of judgment; (2) that he will be closely supervised and his 
work closely monitored and reviewed for accuracy; and (3) that he will receive specific instructions on required tasks 
and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Poli(v Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC_Guidance_Revised_l1_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 of the Petitioner's job opportunity. /d. 
4 
The Beneficiary was in F -1 student status when the petition was tiled. 
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Matter of M-C- Corp. 
ascertain from this general description what specific tasks the Petitioner expects of the Beneficiary in 
this role. It is not clear from this description whether the Beneficiary will perform the duties of a 
computer programmer, a web developer, a software developer, applications, or will provide other 
duties regarding the website portals and applications. 5 These statements do not provide any insight 
into the Beneficiary's actual duties or the specific tasks the Beneficiary will perform. The Petitioner 
has not sufficiently established the nature and scope of the Beneficiary's duties. 
Additionally, creating and testing applications for a website which appears to be the Petitioner's 
primary goal when considering the nature of its business, is a duty that falls within the occupation of 
a web developer. Also as the Petitioner references the Beneficiary's past coding for one of the 
projects for its website, it appears that the Petitioner may also rely on the Beneficiary to spend a 
portion of his time performing the duties of a computer programmer. Again, however, as the 
Petitioner has not established any definite distinctions among the duties it describes. and has 
provided at best an overview of the duties of the proffered position, we cannot ascertain the actual 
duties the Petitioner expects the Beneficiary to perform. Moreover, the Petitioner does not identify 
the percentage of time the Beneficiary will spend on any of the even generally described duties. 
Thus, we cannot ascertain the primary focus of the Beneficiary's work. We note that anything 
beyond incidental duties, that is the Beneficiary's predictable, recurring, and substantive job 
responsibilities, must be specialty occupation duties or the proffered position as a whole cannot be 
approved as ~ specialty occupation. 
We also note that although the Petitioner claims that one of its two founders \viii be a program 
manager and will provide ongoing mentoring and coaching and that it will outsource portions of the 
design and development and build activities to an external company, the Petitioner has not 
sufficiently and consistently divided the duties among the Beneficiary, the external company, and 
the program manager so that we may analyze even the general parameters of the actual tasks and the 
Beneficiary's actual level of responsibility. For example, the Petitioner states that the design, 
development, and build activities of its projects \Vill be outsourced while its business analyst will 
manage the planning, definition, documentation, and deployment. However, the Petitioner later 
states that the business analyst will "[p ]articipate in selection of an external agency to design, 
develop and deploy the website." In the second statement it appears an external agency will deploy 
the website. 
Further, the Petitioner states that the Beneficiary will work independently but that he will also 
require mentoring and coaching by the program manager. We note here that if the Beneficiary will 
primarily work independently, such work would require a higher wage than the Level I wage 
5 For additional information on the occupation of "Web Developers," see U.S. Dep't of Labor, Bureau of Labor 
Statistics, Occupational Outlook Handbook, 2016-17 ed., "Web Developers," https://www.bls.gov/ooh/computer-and­
information-technology/web-developers.htm#tab-2 (last visited Dec. 14, 20 16). For additional information on the 
occupation of "Computer Programmers," see U.1S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook 
Handbook, 2016-17 ed., "Computer Programmers," https://www.bls.gov/ooh/computer-and-information­
technology/computer-programmers.htm#tab-2 (last visited Dec. 14, 20 16). 
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Matter of M-C- Corp. 
designated on the LCA submitted with the petition. 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 an occupation and that the tasks performed require 
limited, if any exercise of judgement, and that the individual performing the task will be closely 
supervised and the work closely monitored. The Petitioner's designation of the proffered position as 
a Level I, entry-level position thus undermines the Petitioner's claims regarding the duties of the 
proffered position, such as managing the planning, definition, documentation, and deployment of the 
website(s) and working independently. The Petitioner did not provide an explanation for these 
variances. Accordingly, it is not clear who is responsible for performing the duties of deploying the 
websites and whether the Beneficiary will work independently or will be closely supervised. "[l]t is 
incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence." 
Matter of Ho, 19 I&N Dec. 582, 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. 
Finally, we do not find that the general duties described correspond to the duties of a software 
developer, applications, as designated on the LCA submitted in support of the petition. We 
recognize the Handbook as an authoritative source on the duties and educational requirements of the 
wide variety of occupations that it addresses. 6 
In that regard, we reviewed the chapter of the Handbook entitled "Software Developers," but did not 
find that the duties of the proffered position correspond to this occupational classification. As noted 
above, the Petitioner's description of the proffered position does not inc\ude sufficient information 
regarding the day-to-day tasks of the position and do not delineate the actual work that the 
Beneficiary will perform. Nevertheless, we considered the Petitioner's claim that the Beneficiary 
will "[p ]lan, build and launch a new Web application and portal for a startup company" and "will 
develop an application that allow[s] people to do specific tasks on the [P]etitioner's website" and 
that these tasks fall within the parameters of the Handbook's report on the occupation of a software 
developer. The Petitioner points specifically to the Handbook's preamble for this occupation as 
support for its conclusion that the proffered position is a software developer position. The preamble 
states: 
Software developers are the creative minds behind computer programs. Some 
develop the applications that allow people to do specific tasks on a computer or 
another device. Others develop the underlying systems that run the devices or that 
control networks. 
6 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USCIS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. 
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Matter of M-C- Corp. 
See U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook. 2016-17 ed., 
"Software Developers," https://www.bls.gov/ooh/computer-and-information-technology/software­
developers.htm#tab-2 (last visited Dec. 14, 20 16). 
However, this open-ended, amorphous description does not include the necessary detailed 
information to establish what duties the Petitioner's business analyst will actually perform in relation 
to its business interests. A petitioner's unsupported statements are of very limited weight and 
normally will be insufficient to carry its burden of proof. See Matter ql Sqffici, 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter ql Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 
1972)); see also Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 201 0). The Petitioner must 
support its assertions with relevant, probative, and credible evidence. See Matter ol Chawathe, 25 
I&N Dec. at 376. Moreover, the Petitioner has not distinguished the generally described duties from 
the duties of a front-end web developer who also creates the site's layout and integrates graphics, 
applications, and other content, as well as writing web-design programs in a variety of computer 
languages. 7 See U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook. 
2016-17 ed., "Web Developers," https://www.bls.gov/ooh/computer-and-information­
technology/web-developers.htm#tab-2 (last visited Dec. 14, 20 16). As discussed above, the 
Petitioner has not adequately and consistently defined the Beneficiary's tasks, has not consistently 
identified the Beneficiary's level of responsibility, and has not provided sufficient information 
allocating specific programming, developing, managing, and deploying duties between the 
Beneficiary and external vendors. The Petitioner has not detailed the actual work to be performed 
rather than generally describing portions of an occupation. 
To reiterate, the Petitioner indicates on the charts outlining the phases of the proposed websites that 
an external vendor will design, develop, and test the websites while its business analyst will be 
limited to gathering and documenting requirements, communicating with stakeholders and testing 
user acceptance. Again, however, the Petitioner does not sufficiently elaborate on these duties. The 
Petitioner does not provide sufficient information specific to the claimed project(s) which clearly 
identifies the Beneficiary's role in the project or other evidence which identifies the Beneficiary's 
specific day-to-day duties as they relate to the project(s). The duties of the proffered position, to the 
extent that they are depicted in the record of proceeding, indicate that the Beneficiary may perform a 
few general tasks in common with the software developer, applications occupational group, but not 
that the Beneficiary's duties would constitute a software developer position. 
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According to the Handbook. "[e]ducational requirements for web developers vary with the setting they work in and the 
type of work they do. Requirements range from a high school diploma to a bachelor's degree. An associate's degree in 
web design or related field is the most common requirement." See U.S. Dep't of Labor, Bureau of Labor Statistics, 
Occupational Outlook Handbook, 2016-17 ed., "Web Developers," https://www.bls.gov/ooh/computer-and-information­
technology/web-developers.htm#tab-4 (last visited Dec. 14, 2016). Additionally, we note that the education for an 
entry-level computer programmer position varies may require only an associate's degree. See U.S. Dep't of Labor, 
Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., "Computer Programmers,'' 
https://www. b ls.gov/ooh/computer-and-information-techno logy/computer-prograrnmers.htm#tab-4 (last visited Dec. 14, 
2016). 
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Matter of M-C- Corp. 
Upon review, the Petitioner's statements do not convey pertinent details of the actual work involved 
in these tasks. The Petitioner does not explain the Beneficiary's specific role and how it expects his 
work to be conducted within the scope of the Petitioner's business operations. To the extent they are 
described, the proposed duties do not convey the substantive tnatters that would engage the 
Beneficiary on a day-to-day basis. Without a meaningful job description, the record lacks evidence 
sufficiently concrete and informative to demonstrate that the proffered position requires a bachelor's 
degree, or higher, in a specific specialty, or its equivalent. 
This lack of probative evidence therefore 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 entry into the particular position, 
which is the focus of criterion I; (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. 
The Petitioner did not provide sufficient information to demonstrate how the performance of the 
duties, as described in the record, would require the attainment of a bachelor's or higher degree in a 
specific specialty, or its equivalent. Such generalized descriptions do not establish a correlation 
between the proffered position and a need for a particular level of education, or educational 
equivalency, in a body of highly specialized knowledge in a specific specialty. 
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. The appeal will be dismissed and the petition denied for this reason. 
IV. 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 o.fOtiende, 26 I&N Dec. 127,128 (BIA 2013). Here, that burd.en 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fM-C- Corp., ID# 124376 (AAO Dec. 23, 2016) 
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