dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10979823 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 25, 2020 
The Petitioner, an information technology consulting service and application development company, 
seeks to temporarily employ the Beneficiary as a "software engineer" under the H-1B nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 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 California Service Center denied the petition, concluding that the evidence of 
record does not establish that the proffered position qualifies as a specialty occupation. The matter is 
now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(I) of the Act, but adds a 
non-exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position.1 Lastly, 
1 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... "(emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position determine: (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 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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(1). 
11. THE PROFFERED POSITION 
The Petitioner describes itself as "a global information technology consulting firm and resource 
provider catering to data-driven companies spanning healthcare, finance, data analytics, education and 
other key industry segments." The Petitioner seeks to employ the Beneficiary as a "software 
engineer." On the labor condition application (LCA) 2 submitted in support of the H-1B petition, the 
Petitioner designated the proffered position under the occupational category "Software Developers, 
Applications" corresponding to the Standard Occupational Classification (SOC) code 15-1132, at a 
Level II wage. The Petitioner provided the following job duties (verbatim): 
I Design, develop, create and maintain different new software applications [the 
Petitioner] is developing, in all phases of the software development and 
maintenance cycle. 
section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe 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"). 
2 A petitioner submits the LCA to the U.S. Department of Labor to demonstrate that it will pay an H-1B 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 duties, experience, and qualifications. Section 212(n)(1) of the Act; 20 C.F.R. 
§ 655.731(a). 
2 
I Lifecycle development phases include research, conceptual planning, design, 
scheduling, coding, code reviews, troubleshooting and debugging, and status 
reporting; 
I Maintain a focus on customer requirements and project objectives while mitigating 
project and product risk; 
I Troubleshoot and debug software programs, isolating and correcting customer 
reported defects in IGC products; 
I Utilization of superior debugging and problem solving skills are required to devise 
fixes for release to customers in the form of patches and service packs, and for 
integration into future products[.] 
In response to the Director's request for evidence (RFE), the Petitioner expanded on these duties and 
provided the percentage of time the Beneficiary would spend on each task. For the sake of brevity, 
we will not quote the version submitted in response to the RFE; however, we have closely reviewed 
and considered the duties. 
In its support letter, the Petitioner stated that the job duties require "a minimum of a bachelor's degree" 
and that "[s]uch skills are only properly learned through years of formal training in rigorous bachelor's 
or master[']s programs." Furthermore, the Petitioner identified the following required skills for a 
software engineer: 
I Proficient understanding of web markup, including HTML5, C++, Linux and 
IQuery 
I Proficient understanding of client-side scripting and JavaScript frameworks, 
including good understanding of asynchronous request handling, partial page 
updates, and AJAX 
I Experience with Python, Ruby or Java is a plus 
I Strong client[-]side development capabilities 
I Experience with large-scale, concurrent applications 
I Strong problem[-]solving capabilities and exhibits strong Computer Science 
fundamentals 
Ill. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the substantive nature of the work the Beneficiary would perform during the intended period of 
employment, which precludes the determination of whether the proffered position qualifies as a 
specialty occupation. 3 
When determining whether a position is a specialty occupation, we look at the nature of the business 
offering the employment and the description of the specific duties of the position as it relates to the 
particular employer. To ascertain the salient aspects of the proposed employment, we look to the Form 
3 The Petitioner submitted documentation to support the H-lB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
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1-129, Petition for a Nonimmigrant Worker, and the documents filed in support of the petition. A 
crucial aspect of this matter is whether the Petitioner has sufficiently and consistently described the 
duties of the proffered position such that we may discern the nature of the position and whether the 
position actually requires the theoretical and practical application of a body of highly specialized 
knowledge attained through at least a baccalaureate degree in a specific discipline. 
The Petitioner indicated on the petition and on the LCA that the Beneficiary will work "in-house" as 
a "software engineer" "on a single site" at itsl !Arizona location for the requested period of 
employment, from October 2019 to September 2022. However, the language in the Petitioner's 
employment offer letter to the Beneficiary, which was signed by both the Petitioner and the 
Beneficiary in March 2019, creates ambiguity in the record regarding the Petitioner's claim that the 
proffered position is for in-house employment. For example, according to the offer letter, the 
Beneficiary "may be required to work at an off-site client location," and if she "work[s] at an off-site 
client location, [she] must take prior approval before accepting any client request that deviates from 
the job duties and work location as stated in the Statement of Work." The document directs the 
Beneficiary to comply with the client's timekeeping requirements if it has "internal requirement of 
recording [her] hours on a different system." The Petitioner does not explain why the "off-site client" 
language is included in the employment offer letter for the Beneficiary if she was being hired for a 
specific in-house project. The language of the offer letter suggests that the Beneficiary may be 
assigned to off-site locations during her employment period, which would conflict with the Petitioner's 
contention that the position is for "in-house" employment at a "single site" for the duration of the 
intended employment period. 
Further precluding our understanding of the position is the insufficient information about the project 
and the Beneficiary's role within the project team. In its RFE response letter, the Petitioner stated that 
it has "started an in-house project entitled I I that the Beneficiary will work on and submitted 
informational documents related to this project, as well as copies of agreements it has with various 
companies. Notably, the copy of the master subcontractor agreement, which appears to be entered 
into with I I is in poor quality and illegible, therefore it has little probative value in 
demonstrating that the agreement is particularly related to the project to which the Beneficiary is 
assigned and the nature of the project. 
The vendor agreement executed in 2019 between the Petitioner and 
I I adds further ambiguity to the nature of the proffered position~. _T_h_e_v_e_n_d_o_r -ag-r-ee_m_e_n~t 
reveals that the Petitioner will "refer suitable candidates tol I for hiring as employees (on 
Company I I roll) and [will] provide necessary documents and information tol I in 
this regard" and that the Petitioner "will nominate one person from their organization as the one-point 
contact, who will execute all recruitment requirement ofl !referred as 'Vendor Manager' in 
further details." The Petitioner will receive a "onetime fee of 8% of the Payroll or Annual Base Salary" 
for the individuals "who are identified by, recruited and hired through" the Petitioner. The vendor 
agreement includes a statement of work; however, the copy is in poor quality and illegible. The 
Petitioner does not explain the relevance of this vendor agreement to the proffered position, and 
therefore, it has little probative value in establishing the nature of the proffered position. 
The record also contains "Sub-Contractor Agreement" executed in 2018 between the Petitioner and 
~-------------___.• According to this document, the Petitioner is "in the 
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business of providing and/or leasing employees to work for its clients, including qualified and 
dependable computer professionals and providing services." The Petitioner will "provide professional 
computer consulting, programming and related services ... in accordance with any statement of work 
betweenl I and the [Petitioner]" and "furnish one or more employees who are qualified computer 
professionals" for the "designated clients of I t' The agreement further states that if the client 
"is not satisfied with the Services performed by Consulted and refuses to payl I for such services, 
[the Petitioner] shall not be entitled to payment from I ~or such servicls performed." The record 
does not contain a statement of work executed between the Petitioner and and the Petitioner 
does not explain how this sub-contractor agreement relates to the asserted "in-house" position to which 
the Beneficiary is assigned. Therefore, it has little probative value in establishing the nature of the 
proffered position. 4 
In its RFE response, the Petitioner stated thel I project "will be the first of its kind custom-built 
solution" to replace the old reporting systems with Microsoft.Net/SSRS solution that supports old 
reports, and submitted a document entitled 'I I PROJECT PLAN." While the document gives 
us a general idea regarding the project, it is not sufficient to demonstrate the nature of the position the 
Petitioner proffers to the Beneficiary. This document does not provide client-specific information 
regarding the project, and is not specific to the Beneficiary or to the proffered position. 
The record contains a two-page organizational chart. The first page is entitled "Organizational Chart 
of the [Petitioner]" and the second page depicts individuals under a "Project Manager." On the second 
page of the organizational chart, the Beneficiary is listed directly below the project manager. 
However, it is unclear how the individuals on the second page relate to the Petitioner's organization 
as the project manager listed on the top of the second page does not appear on the first page, which 
prevents us from determining his role within the Petitioner's organization, as well as the roles of the 
individuals listed under him. In the RFE response letter, the Petitioner listed the names of several 
individuals as "the current staff for the project" and identified one of the individuals as the 
"Beneficiary" who is a "software engineer;" however, we note that this individual is not the 
Beneficiary of the instant petition. Furthermore, the individual, A-J-, who is identified on the list as 
working on the project as a database architect is depicted as the "New Application Architect" on the 
first page of the organizational chart, rather than as part of the staffing for the project on the second 
page. Overall, the two-page organizational chart created more ambiguity regarding the Petitioner's 
operational structure. The Petitioner has not adequately evidenced the scope of the Beneficiary's 
responsibilities within the context of its business operations. 
Aside from the deficiencies noted above, the Petitioner provides ambiguous requirements for the 
proffered position. For example, in its support letter, the Petitioner stated that "[i]n order to be 
qualified to perform such duties, a minimum of a bachelor's degree is necessary" and that "[s]uch 
skills are only properly learned through years of formal training in rigorous bachelor's or master[']s 
programs." However, the Petitioner did not specify a degree in a specific field that would satisfy its 
requirement. As noted above, the Petitioner identified additional skills requirements for the proffered 
position such as "proficient understanding" of various software programs, but did not elaborate on 
4 The Petitioner also submitted "Mutual Confidentiality Agreement" executed in 2019 with.__ ____ __. However, 
this agreement does not explain the services to be provided by the Petitioner, nor does it include a statement of work. The 
Petitioner does not explain the relevance of this confidentiality agreement to the position it proffers to the Beneficiary. 
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whether such "proficient understanding" would be gained through experience, training, or formal 
education; nor did it explain whether such understanding should be equivalent to a bachelor's degree 
or higher in a specific specialty. The Petitioner also requires "experience with large-scale, concurrent 
applications." However, it does not quantify the length of experience it requires, nor does it elaborate 
on whether such experience should be equivalent to knowledge gained through a bachelor's degree or 
higher in a specific specialty. In the employment offer letter the Petitioner presented to the 
Beneficiary, it stated that the "ideal candidate needs to have a minimum education of bachelors in 
computer science or information technology," but made no statements regarding the knowledge and 
experience requirements it listed in the support letter. 
The Petitioner submitted an opinion letter authored byl I a Professor at University of 
I I In his letter, the professor (1) described the credentials that he asserts qualify him to 
opine upon the nature of the proffered position; (2) described aspects of the job duties proposed for 
the Beneficiary; and (3) stated that the "Software Engineer position is sufficiently complicated so as 
to require a Bachelor's degree in computer Science or a related field." We carefully evaluated the 
professor's assertions in support of the instant petition but find them insufficient. 
The professor repeats the position's duties in the Petitioner's support letter and lists 18 "knowledge areas" 
from the 2013 Curriculum Guidelines for Undergraduate Programs in Computer Science, published by 
the Association for Computing Machinery (ACM).5 These guidelines for potential curriculums are far 
too broad to establish that a particular position requires a body of highly specialized knowledge that 
is attained through study at a bachelor-level degree in a specific specialty, or its equivalent. The 
professor states "[i]n my opinion, any of the duties listed for the position could be matched to a 
corresponding knowledge area, suggesting a high degree of competence necessary to perform them" and 
that "if any of the job duties require competence in a major knowledge area, it stands to reason that the 
whole of the job's responsibilities could not be performed satisfactorily without Bachelor-level 
competence in Computer Science or a related technical field." The professor concludes further that 
because "there is significant overlap between the prescribed duties for the position, and the general 
knowledge areas covered in Bachelor-level Computer Science programs, ... any individual lacking a 
Bachelor's degree (or its equivalent) in these fields would not be able to perform these duties to the degree 
[the Petitioner] requires for the continuous execution of its business operations." The professor, however, 
does not offer a cogent analysis of why matching any of the duties of the particular position to the broadly 
described corresponding knowledge areas for a potential curriculum is the same as establishing that the 
duties require a bachelor's degree in a specific specialty, or its equivalent. Other than referring to the 
"wide adoption of the ACM's Curriculum Guidelines," he does not discuss their relevance in 
establishing that the particular position offered here requires a specific bachelor's degree. Moreover, 
he does not discuss other relevant research, studies, or authoritative publications he utilized as part of 
his review and foundation for his opinion. 
Furthermore, while the professor suggests that certain baccalaureate-level computer science related 
courses may be beneficial in performing various duties of the position, we disagree with his inference 
that such a degree is required in order to perform the duties of the proffered position. In other words, 
the professor's suggestion that a person with a bachelor's degree in computer science could perform 
the duties of the proffered position is not the same as stating that a bachelor's degree in a specific 
5 This document or pertinent excerpts were not provided for the record for our review. 
6 
specialty is required to perform those duties. As such, the professor's analysis misconstrues the 
statutory and regulatory requirements of a specialty occupation. 
Moreover, while the professor briefly discusses the proffered duties, he does not discuss them in relation 
to the specific project to which the Beneficiary will be assigned. The absence of any substantive 
discussion of the duties specific to the Petitioner's project raises doubts about his level of familiarity with 
the proffered position and also undermines his conclusion regarding the degree requirement of the 
position. 
In summary, and for each and all the reasons discussed above, we conclude that the opinion letter 
rendered byl lis not sufficient to establish the proffered position as a specialty occupation. 
The conclusion reached by I I lacks the requisite specificity and detail and is not supported by 
independent, objective evidence demonstrating the manner in which he reached such conclusion. 
There is an inadequate factual foundation established to support the opinion and the opinion is not in 
accord with other information in the record. Therefore, the letter froml ldoes not establish 
that the proffered position is a specialty occupation. 
We may, in our discretion, use advisory opinion statements submitted as expert testimony. However, 
where an opinion is not in accord with other information or is in any way questionable, we are not 
required to accept or may give less weight to that evidence. Matter of Caron International, 19 l&N 
Dec. 791 (Comm'r 1988). As a reasonable exercise of our discretion, we conclude that the advisory 
opinion letter as not probative in establishing the substantive nature of the proffered position. 
The Petitioner has not established the substantive nature of the Beneficiary's work. Consequently, this 
precludes a conclusion 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 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. 6 
The Petitioner has not established that the proffered position is a specialty occupation. 
ORDER: The appeal is dismissed. 
6 Because the Petitioner has not established the substantive nature of the work to be performed by the Beneficiary, it has 
not demonstrated that the proffered position meets the statutory definition of a specialty occupation. See Section 214(i)(I) 
of the Act. Therefore, further discussion of the assertions made on appeal regarding whether the Petitioner satisfies any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) is not necessary. 
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