dismissed H-1B Case: Information Technology

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MATTER OF 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : APR. 10, 2017 
PETITION : FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner , an information technology services company, seeks to temporarily employ the 
Beneficiary as a "computer programmer " under the H-t B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(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 speciali zed knowledge and (b) the attainment of a bachelor ' s or higher degree in the 
specific specialty (or its equivalent) as a minimum prerequisitefor entry into the position. 
The Director of the Vermont Service Center denied the petition , concluding that the Petitioner had 
not established that it has specialty occupation work available for the Beneficiar y. 
On appeal, the Petitioner submits a brief and states that it will submit an additional brief and 
evidence within 30 days. To date we pave not received an additional brief or other evidence to 
support the appeal. The record is considered complete. 
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) , 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 i.n 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: 
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(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). 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. Cherto.[(; 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). 
II. PROFFERED POSITION 
On the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner described itself as a 13-
employee "software development, outsourcing and consulting firm" located in Texas. The 
Petitioner seeks to employ the Beneficiary as a computer programmer for a three year period until 
September 2019. 1 Although the Petitioner specified that the Beneficiary will work off-site, the 
Petitioner listed the Beneficiary's sole place of employment as its Texas address. 
The labor condition application (LCA) submitted in support of the Form I-129 states that the 
proffered position corresponds to the Standard Occupational Classification (SOC) code and 
occupation title 15-1131, "Computer Programmers," from the Occupational Information Network 
(O*NET). The LCA confirms the Beneficiary's sole place of employment as the Petitioner's 
office. 
In its support letter, the Petitioner explained that the Beneficiary will be assigned to its in-house 
project creating a 
(Project H). The Petitioner described the duties of the protiered position as follows: 
• Gather information, determine alternatives, create requirements, functional/technical 
processes. 
1 The Petitioner requested a start date in September 2016. The beginning of the 2017 fiscal year, and hence the earliest 
possible start date of employment, would be in October 2016. 
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• Deliver high quality, efficient solutions through innovative approaches to dynamic 
business deadlines in a complex and dynamic environment. 
• Ability to multi-task development, support and on-going maintenance projects and 
meet re-engineering opportunities. 
• Interact with internal business customers and other members of the team on 
integration and project management. 
• Drive implementation and improvement projects. Knowledge in business analysis 
and year-end tax reporting. 
• New configuration to support new lines of business and changes to existing ones. 
• Provide Break-fix support in a 
live production environmentincluding functional and 
technical initiative issues. 
• Regularly interact with internal customers, vendors and technical team on support and 
business. 
• Assess new enhancements and project requests with stakeholders to understand and 
prioritize requests. 
• Lead cross-functional projects including project schedule development, requirements 
elicitation, executing test plans, system implementation and post go-live hyper care 
support. 
In an addendum to the Beneficiary's employment contract, the Petitioner listed the duties of the 
proffered position as follows: 
• A competent technocrat having 1 0+ years of experience in SAP (EWM/MM/WM) 
Implementation & Technical Support, Sales & Marketing & Research. 
• Exposure in modern concepts of end-to-end program planning and implementation 
from scope management, to activity sequencing, effort & cost estimation, risk 
analysis for quality management in adherence. 
• Competent in configuration having configured end-to-end implementations in EWM, 
MM and WM and RF Handheld, HUM, Bar-coding (10, 20-PDF417 & Quick 
Response) & Label printing. 
• Strong knowledge . of ABAP Objects, Performance analysis , ALE, IDoc and 
Debugging skills. 
• Prepare Functional Specifications for RICEF (Reports, Interfaces, Conversations, 
Enhancements and Forms) objects. 
• Acquired experience in executing the SAP projects for implementation; support 
projects & rollout. 
• Possess strong knowledge in business mapping and customization activities with 
integration with other modules. 
• Engage in the execution of large SAP implementation projects with worlds leading 
organizations. 
• Strong Knowledge in configuring and customizing for HUM & SCM-EWM, MM­
PUR (Accounts Payable/Procure to Pay (P2P) Processes, MM-IM, MM-IN, LE-WM, 
LE-MOB. 
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• Review and Test System Upgrades: Install SAP supplied updates (OSS notes, 
LCP's); Install new releases of SAP; Install new releases of SAP; Install new releases 
ofbolt-ons (EPC, SRM, Documentum, ADFS) 
• Keep manager or team lead informed of significant cross-team , cross-functional 
issues and/or significant technical challenges as appropriate. Proactively work to 
solve these issues while including the key functional and/or business stakeholders. 
• Documentation of technical design specifications. 
• Documentation and execution of comprehensive unit, integration , and system test 
scripts. 
• Facilitate capturing issues identified in testing and ensure their resolution prior to 
implementation. 
• Regularly report status and raise issues/risks as appropriate. Anticipate and adjust for 
. problems and roadblocks while eliminating roadblocks within control. 
• Develop strong working relationships with 
individuals at all levels of company , 
operations, and IT applications and infrastructure teams. 
• Optimizing existing application design to give value add to the customer. Ticket 
count analysis & Identifying problem areas. 
• Design, develop and maintain scripts for automation and maintenance of DB 
Environments. 
• Participate actively in upgrade and testing activities of DB Environments. 
In response to the Director ' s request for evidence (RFE), the Petitioner summarized the proffered 
position as being "involved in the full application development life cycle: analyzing user needs and 
requirements, designing, implementing , testing, and debugging our in-house products including 
[Project H]." The Petitioner then listed the proffered duties as follows: 
Analyze user needs and requirements- 15% 
• Design, develop and maintain scripts for automation and maintenance ofDB analysis 
& Identifying problem areas. 
• Optimizing existing application design to give value add to the customer. Ticket 
count and IT applications and infrastructure teams. 
• Perform capacity analysis, feasibility analysis and other needs assessments. 
Design and develop applications - 50% 
• Design and implement a storage infrastructure /architecture to ensure 
that the solution 
meet disaster recovery, handle large amounts of disparate data to deliver optimum 
performance, etc. 
• Design and develop back-end database interfaces to web and mobile applications. 
• Deploy ABAP Object;, Performance analysis , ALE, !Doc and Debugging. 
• Design and build relational databases to meet business requirements, data availability, 
and data integrity. 
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• Regularly report status 
• Regularly report status and raise issues/risks as appropriate. Anticipate and adjust for 
identified in testing and ensure their resolution prior to implementation. 
• Develop database objects and structures for data storage, retrieval and reporting to 
meet our application specifications. 
Testing and debugging- 15% 
• Perform on-going optimization of the systems to ensure adequate capacity, 
availability and scalability. 
• Ensure that the database is satisfying business requirements. 
Deploying and Supporting- 20% 
• Deploy 
database on the Web and application server. 
• Manage data storage with an existing data warehouse system. 
• Review and Test System Upgrades: Install SAP supplied updates (OSS notes, 
LCP's), Accounts Payable/Procure to Pay (P2P) Processes, MM-IM, MM-IN, LE­
WM,LE-MOB. 
• Manage database allocation by installing, configuring and maintaining Enterprise 
Storage subsystems. 
• Analyze performance of enterprise storage system and make recommendations for 
improvement and technical plans for future initiatives, growth and resource needs. 
• Configure end-to-end implementations in EWM, MM, scope management, to activity 
sequencing, effort & cost estimation, risk analysis for quality. 
• Install new releases, configure and customize HUM & SCM-EWM, MM-PUR. 
According to the Petitioner, the proffered position requires at least a "Bachelor's degree (or 
equivalent) in a relevant field." 
III. ANALYSIS 
Upon review of the entire record, we find that the Petitioner has not established that it has specialty 
occupation work available for the Beneficiary. That is, the Petitioner has not 
established that, at the 
time of filing, it has secured definite, non-speculative, H-1 B caliber work for the Beneficiary for the 
entire validity period requested. 
In this matter, the Petitioner asserts that the Beneficiary will only work at the Petitioner's 
office on in-house project(s). However, on question 5, part 5 of the Form I-129, the Petitioner 
specifically answered "yes" to the question of whether the Beneficiary will work "off-site at another 
company or organization's location." While the Petitioner explained that it would place the 
Beneficiary at other off-site locations only if "for any unforeseeable reason the current project is 
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terminated prematurely," the Petitioner stated this only i.n the context of its subcontractor/vendor 
agreements, not in the context ofits Form 1-129. 
Further, the Petitioner has not consistently identified which and how many internal projects the 
Beneficiary will work on. Initially the Petitioner stated that the Beneficiary will only work on 
Project H. No other projects were identified or implied. But in response to the Director's RFE, the 
Petitioner stated that the Beneficiary will be involved in projects "including" or "such as" Project H. 
The Petitioner then identified another project, its ' project 
which serves the energy industry, as the company's first software application "being developed in­
house by [the Petitioner's] in-house software development team." The Petitioner specified that the 
Beneficiary is "part of this in-house software development team." It is thus not evident whether the 
Beneficiary will work on Project H, the project, or both. 
The Petitioner submitted information about Project H's development, progress, timelines, team 
members, and funding. For instance, the Petitioner stated in its supporting "memorandum" that this 
project "kicked off in December 2015 with project time line till August 2019." In another document 
entitled the "project charter," the Petitioner consistently indicated that the product should be 
implemented, i.e., "go-live," by August 2019. Yet the timeline contained in the project's "statement 
of work" (version 1.0 created in December 20 I 5) indicates that the testing and go-live phases would 
be comp~ete in "August 2016-2017." The phase of longest duration, the accounting module, would 
be complete in "September 2017-2018." The Petitioner has not explained:- (1) whether these dates 
refer to August 2016 or August 2017, and September 2016 or September 2017; (2) why the go-live 
phase would be completed before the accounting module is finished; and (3) what work, if any, 
remains beyond September 2017 or 2018 through August 2019. 
The Petitioner's "memorandum'~ identifies Project. H's development team as cons1stmg of the 
following five employees: (1} project manager and solution architect; (2) 
software developer; (3) computer systems analyst; ( 4) 
computer programmer (offshore )L; and (5) computer programmer. On the 
other hand, the Petitioner's organizational chart and performance reviews depict all of these 
employees, except for as holding different positions. 
In particular, the organizational chart and performance reviews identify as the "IT lead" or 
"information technology manager 1." The Petitioner similarly stated m its RFE response that 
"employees are expected to provide [timesheets] 
to the Supervisor, at the end of each 
week." However, elsewhere in the record the Petitioner identified the Beneficiary's direct 
supervisor as \vho is the project's manager, and depicted as having no 
supervisory, managerial, or lead duties in his capacity as a software developer. 
2 
The Petitioner also stated that "[s]ome of team members are already involved in this project by helping us from India," 
indicating that more than one project member works offshore. 
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The Petitioner also has not demonstrated sufficient funding for its internal project. The Petitioner 
indicated that the project requires $400,000 for "production and testing of prototypes." In another 
document, the Petitioner indicated that the project would require total funding of approximately 
$500,000 to $800,000. But the Petitioner's request for a $350,000 business loan was denied, and the 
record does not contain evidence that the Petitioner is "in the process of acquiring SBA bank Joan 
for the development of this product" or otherwise has sufficient income to cover the cost of 
production. On appeal the Petitioner now asserts that it "did ,not need funds when the project is in 
requirement gathering , design phase [because an] existing team worked on these phases." This 
statement directly conflicts \Vith prior information that computer equipment alone would reqmre 
$30,000, plus another $35,000 specifically for "requirement gathering/as-is /to-be design." 
In denying the petition, the Director informed the Petitioner that a recent site visit conducted by U.S. 
Citizenship and Immigration Services officers revealed that the Petitioner 's office is only 
268 square feet in size. This appears insufficient to provide the Beneficiary and the other 
development team members with the necessar y space and equipment to perform the claimed project 
work. The Petitioner has not addressed this concern on appeal. This lack of information further 
calls into question whether the Petitioner will actually assign the Benetl.ciary to work on the claimed 
in-house project(s). 
Accordingly, for all of the above reasons, we find the record insuft1cient to demonstrate that the 
Petitioner has definite , non-speculative work available for the Beneficiary for the entire validity 
period requested. 3 
We also find the record insufficient to demonstrate that the Beneficiary will perform work of H-1 B 
caliber. That is, the Petitioner has not demonstrated that the proffered position qualifies as a 
3 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 emplo yment. The H-1 8 classification is not intended as a vehicle for an 
alien to engage in a job search within the United State s, or for employer s to bring in temporary foreign 
workers to meet possible workforce need s a rising from potential business e xpansions or the 
expectation of potential new customers or contracts. To determine whether an alien is prop erly 
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 \Vhether the duties of the position require the attainment of a 
specific bachelor's degree. See section 2 I4(i) of the Immigration and Nation ality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of specul ative employment, the Service is unable to perform either part of this two-prong analysis 
and , therefore , is unable to adjudicate prop erly a reque st for H-1 B classification . Moreo ver, there is no 
assurance that the alien will engage in a specia lty occupation upon arriv al in this countr y. 
Petitioning Requirement s for the H Nonimmigrant Class ification, 63 Fed. Reg. 30,419 , 30,4 I 9-20 (propo sed June 4, 
1998) (to be codified at 
8 C.F.R . pt. 214). 
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specialty occupation because the evidence of record does not establish the substantive nature of the 
proffered position. 4 
The record does not establish the substantive nature of the proffered position because the Petitioner 
has provided inconsistent, ambiguous descriptions of the Beneficiary's job duties. For example, the 
Petitioner's support letter described the proffered duties as primarily involving gathering business 
requirements, e.g., " [gathering] information , detennin[ing] alternatives, creat[ing] requirements , 
functional /technical processes," "interact[ing] with internal customers, vendors and technical team 
on support and business," and "[assessing] new enhancements and project requests with stakeholders 
to understand and prioritize requests." Yet in response to the RFE, the Petitioner added substantial 
web, application, and database design and development duties such as "[designing] and develop[ing] 
back-end database interfaces to web and mobile applications,""[ designing] and build[ing] relational 
databases," and "[deploying] database on the Web and application server." The Petitioner has not 
explained how the latter set of job duties is consistent with the former. 
The Petitioner also has not explained how the stated job duties are consistent with the "Computer 
Programmers" occupational classification selected on the LCA. Neither O*NET nor the 
Occupational Outlook Handbook, both of which we consider as authoritative sources on the duties of 
the wide variety of occupations that they address, indicates that computer programmers typically 
perform job duties involving gathering business requirements, and designing and developing 
software, web, and mobile applications and databases. 5 
Several of the stated job duties - partitularly the ones in the addendum to the Beneficiary ' s 
employment agreement - do not convey the actual duties, tasks,,or services to be perforn1ed. For 
example, the duties of "[a] competent technocrat having I 0+ years of experience in SAP 
(EWM/MMJWM) Implementation & Technical Support, Sales & Marketing & Research" and 
"[ c ]ompetent in configuration having configured end-to-end implementations in EWM, MM and 
WM and RF Handheld, HUM, Bar-coding (lD , 2D-PDF417 & Quick Response) & Label printing" 
appear to relate to the Beneficiary's abilities rather than further illuminating the substantive nature of 
the proffered position. 6 In fact, these and other job duties, including "[e]ngage in the execution of 
large SAP implementation projects with world[']s leading organizations ," do not appear relevant to 
the claimed in-house project(s) at hand. The Petitioner does not claim the Beneficiary will perform 
sales or marketing duties , or that the in-house project(s) will include bar-coding , label printing , or 
world-wide leading organizations. 
4 
We will withdraw the Director's comments that "the position ~f Computer Programmer is traditionally considered a 
specialty occupation,' ' The Director has not provided any persuasive reasoning nor cited to any authoritative sources to 
support such a conclusion. . 
5 For more information about the "Computer Programmers" occupational classification , see the O*NET Details Repo1t 
for "Computer Programmer s," https: //www .onetonline ,orgllink /details / 15-1131.00 (last visited Apr. I 0, 20 17); US 
Dep't of Labor, Bureau of Labor Statistics , Occupational Outlook Handbook, 2016-17 ed,, "Computer Programmer s,'' 
https://www .bls,gov/ooh/computer-and-information-technology /computer-programmer s.htm#tab-2 (Apr. I 0, 20 17), 
6 These job duties appear verbatim in the Beneficiary 's resume . 
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For all of the above reasons, we find that the Petitioner has not established the substantive nature of 
the work the Beneficiary will perform. This 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 1; (2) industry positions which are parallel to the profiered 
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), we cannot find that the proffered position qualifies for classification as a 
specialty occupation. 
Finally, we cannot find that proffered position qualifies as a specialty occupation by virtue of its 
minimum educational requirement. Here, the Petitioner stated that the proffered position requires at 
least a "Bachelor's degree (or equivalent) in a relevant field." The Petitioner has not specified what 
field or fields it considers "relevant" and which it would accept for entry into this particular position. 
As previously stated, 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, 484 F.3d at 147; Defensor, 201 F.3d at 387. Cf Matter o.lMichael Hertz 
Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). Accordingly, a petitioner must demonstrate that its 
proffered position requires a precise and specific course of study that relates directly and closely to 
the position in question. The Petitioner has not done so here. 
IV. CONCLUSION 
The Petitioner has not established that it has definite, non-speculative specialty occupation caliber 
work available for the Beneficiary for the entire validity period requested. 
ORDER: The appeal is dismissed .. 
Cite as Matter of , ID# 302705 (AAO Apr. 10, 2017) -----
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