dismissed H-1B Case: Information Technology

MATTER OF D-G- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 25,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as 
a "software programmer" 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, Vermont Service Center, denied the petition. The Director concluded that the 
evidence of record does not establish: ( 1) that the Petitioner has specialty occupation work available 
for the Beneficiary, and thus, that the proffered position qualifies as a specialty occupati'On; and (2) 
that the Petitioner meets the regulatory filing requirements. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
a brief, and asserts that the Director erred in her findings. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. 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 in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
Matter of D-G- Inc. 
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: 
(I) 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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the 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 v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Proffered Position 
In its support letter, the Petitioner submitted the following duties for the proffered position 
(verbatim): 
• Modify existing software 'to correct errors, to adapt it to new hardware, or to 
upgrade interfaces and improve performance; 
• Advise about or perform mai1,1tenance of software system as needed; 
• Analyze information to determine, recommend, and plan installation of a new· 
system or modification of an existing system; 
• Consult with engineering staff to evaluate interface between hardware and 
software, develop specifications and performance requirements, or resolve 
customer problems; 
• Involve in software programming and development of documentation; 
• Store, retrieve, and manipulate data for analysis of system capabilities and 
requirements; 
• Confer with data processing and/or project managers to obtain information on 
limitations or capabilities for data processing projects; 
2 
Matter of D-G- Inc. 
• Coordinate installation of software systems; 
• Prepare reports or correspondence concerning project specifications, activities, 
or status; 
• Utilize well-developed knowledge of software technologies such as C, C++, 
Core, Java, PLISQL, Windows, MC Access, Oracle DB, Quality Center, MS 
Visio, MS Project, MS SharePoint, and Cloud computing concepts to design, 
develop code (software program) and implement software applications; 
• Evaluate, maintain and support various online applications, including Server 
Systems and deploy internet based applications for use in connection with 
information systems; 
• Convert data from project specifications and statements of problems and 
procedures to create, modify, and test computer programs; 
• Analyze workflow charts and diagrams, apply knowledge of requirements 
analysis, design, test, and implement software applications, knowledge, 
transfer/user training activities, computer capabilities, subject matter, and 
symbolic logic; 
• Compile and write documentation regarding program development and 
subsequent revisions; 
• Deploy program codes into computer system and client communication 
concerning new program codes; 
• Observe and debug computer system to interpret software program operating 
codes; 
• Correct program errors using methods such as modifying program or altering 
sequence of program steps; and 
• Analyze, review, and rewrite programs to increase operating efficiency or to 
adapt programs to new requirements. 
In the same letter, the Petitioner summarized the responsibilities of the proffered position (and the 
percentages of time allotted to the responsibilities) as follows: analysis of software requirement and 
programming (30%); evaluation of interface feasibility between hardware and software (15%); 
software system design (using scientific analysis and mathematical models to predict and measure 
design consequences and future outcome) (35%); unit and integration testing (10%); and system 
installation (1 0% ). 
On appeal, the Petitioner reiterates the previously-stated job duties and provides additional duties for 
the Beneficiary, as follows: 
• Directing and managing project development from beginning to end 
• Defining project scope, goals and deliverables to support business goals 
• Responsible for overall project management and managed several high 
performance cross-functional teams and vendors with overall accountability 
• Planning and scheduling project timelines and milestones with budgetary 
guidelines 
3 
(b)(6)
Matter of D-G- Inc. 
• Developing full-scale project plans and associated document 
• Define project goals and expectations to team members clearly and timely 
• Effectively prioritizing and executing tasks 
• Coordinating training for new installations and unit expansions, 
• Conducting successful project handoffs to ongoing support and maintenance 
teams 
• Effectively resolving project issues and escalations 
• Developing best practices and tools for project execution, management, training 
and support 
The Petitioner provides another summary of the responsibilities of the proffered position (and the 
percentages of time allotted to the responsibilities) as follows: analysis of software requirement and 
programming (30%); evaluation of interface feasibility between hardware and software (15%); 
software system design (using scientific analysis and mathematical models to predict and measure 
design consequences and future outcome) (30% ); unit and integration testing (1 0% ); system 
installation (10%); and system maintenance (5%). 
According to the Petitioner, the proffered position requires at least a bachelor's degree in computer 
science, engineering, or a related field. 
C. Analysis 
For H-IB approval, the Petitioner must demonstrate a legitimate need for an employee exists and to 
substantiate that it has H -1 B caliber work for the Beneficiary for the 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 initially indicated that the Berleficiary will work in-house as a software 
programmer. Specifically, on the Form 1-129, Petition for a Nonimmigrant Worker, and the 
supporting Labor Condition Application (LCA), the Petitioner represented that the Beneficiary will 
only work from the Petitioner's business premises in New Jersey. However, upon review 
of the record of proceedings, we find that the Petitioner did not provide sufficient, credible evidence 
to establish in-house employment for the Beneficiary for the validity of the requested H-lB 
employment period. 
First, the Petitioner did not submit a job description to adequately convey the substantive work the 
Beneficiary will perform. As reflected in the descriptions of the position as quoted above, the 
proffered position has been described in terms of generalized and generic functions that do not 
convey sufficient substantive information to establish the relative complexity, uniqueness and/or 
specialization of the proffered position or its duties. For example, the Petitioner stated that the 
4 
Matter of D-G- Inc. 
Beneficiary will "modify ex1stmg software to correct errors, to adapt it to new hardware, or to 
upgrade interfaces and improve performance"; "advise about or perform maintenance of software 
system as needed"; "analyze information to determine, recommend, and plan installation of a new 
system or modification of an existing system"; "compile and write documentation regarding program 
development and subsequent revisions"; and "deploy program codes into computer system and client 
communication concerning new program codes." The Petitioner's description is generalized in that 
the Petitioner does not convey the substantive nature of the work that the Beneficiary will actually 
perform, or any particular body of highly specialized knowledge that would have to be theoretically 
and practically applied to perform it. The responsibilities for the proffered position contain 
generalized functions without providing sufficient information regarding the particular work, and 
associated educational requirements, into which the duties will manifest themselves in their day-to­
day performance. 
Second, the Petitioner's descriptions of the proffered duties are inconsistent. On appeal, the 
Petitioner changes the percentages of time the Beneficiary will spend on his responsibilities. For 
instance, the Petitioner states on appeal that the Beneficiary will spend 30% (instead of 35%) of his 
time on software system design duties, and adds the duties of "[s]ystem maintenance- 5%." More 
importantly, on appeal, the Petitioner adds an entirely new set of job duties to the proffered position. 
These new job duties, such as "[ d]irecting and managing project development from beginning to 
end," "defining project scope, goals and deliverables to support business goals," and "responsible for 
overall project management," are high-level duties directly related to project management; in fact, 
many of these new duties are also found verbatim in the Petitioner's description of the duties of its 
"project manager" position. The Petitioner has not explained why its job descriptions for the 
Beneficiary changes on appeal. 
Even if we were to consider the newly proffered project management duties, we find that they are 
not consistent with the Level I wage level selected on the LCA. That is, the Level I wage 
designation is indicative of a low, entry-level position relative to others within the occupational 
category, and hence one not likely wrth project-management or related higher-level duties.1 The 
Petitioner's inconsistent job descriptions, both in terms of the newly-added job duties and the 
1 The "Prevailing Wage Determination Policy Guidance" issued by the Department of Labor 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 Policy 
Guidance, Nonagric. ·Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance _Revised _11_ 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. A Level I wage should be considered for research fellows, workers 
in training, or internships. !d. 
Compare, for example, with the Level III (experienced) or Level IV (fully competent) wage levels, which are generally 
appropriate for positions involving supervisory or managerial duties. !d. 
5 
(b)(6)
Matter of D-G- Inc. 
inconsistent wage level designation, preclude us from discerning the substantive nature of the 
proffered position and its constituent duties. 
"[I]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. "Doubt cast on any aspect of the petitioner's proof 
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition." Id at 59 L 
The Petitioner also changes its statements regarding the project(s) to which the Beneficiary will be 
assigned. In a letter of support submitted with the petition, the Petitioner stated it will employ the 
Beneficiary for "multiple project initiatives." 1n response to the Director's request for evidence 
(RFE), the Petitioner stated that the Beneficiary will work as a software programmer for "different 
clients" including and However, on 
appeal, the Petitioner asserts that the Beneficiary will only work on projects for The 
Petitioner's appeal does not further mention the contracts with or and it is not 
apparent why the projects changed from the initial filing of the Form I-129 petition. 
As previously mentioned, the Petitioner claimed that the Beneficiary will be assigned to its clients 
and As evidence of its ongoing contracts with these clients, and thus the projects 
available to place the Beneficiary, the Petitioner submitted its master contract with entered 
into on May 28, 2014. This master contract does not list a specific need for a software programmer 
or the Beneficiary. Further, it states that a statement of work will outline the exact work to be 
performed by the Petitioner and its provided resources. However, the Petitioner did not submit any 
statements of work for this client demonstrating that the Beneficiary will, in fact, be assigned to 
"[G]oing on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings." Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter ofTreasure Craft o.fCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The Petitioner also submitted a statement of work with We observe that this contract 
was entered into on December 28, 2011. It is not evident whether the Petitioner is still working with 
this client nearly five years after entering into this contract. Nevertheless, even if the contract were 
still effective, the statement of work does not list the Beneficiary as an assigned resource nor does it 
state a specific need for a software programmer. Similar to the contract, the 
contract states that a work order outlining the exact work to be performed by the Petitioner will be 
provided, but the Petitioner did not submit an accompanying work order. Moreover, based on the 
submitted work order, the services to be provided by the Petitioner do not appear to encompass any 
software design or programming duties which comprise a large percentage of the Beneficiary's job 
duties. Instead, the statement of work describes the scope of the Petitioner-provided services as 
limited to the areas of "computer audit and discovery," "network monitoring and alerts," "patch 
management," "system administration and maintenance," and "help desk and emergency support" 
services. The Petitioner has not sufficiently explained what the Beneficiary's role will be, if any, 
with respect to this client. 
6 
(b)(6)
Matter of D-G- Inc. 
As evidence of its contracts with the Petitioner submitted a statement of work with 
in response to the RFE. This particular statement of work 
expired on June 30, 2016, prior to the end of the requested employment date. It also does not 
specifically list tile Beneficiary as an assigned resource. On appeal, the Petitioner supplements the 
record with two new statements of work with Again, however, the Beneficiary is not 
listed as working on either project. We also observe that one of the new statements of work was 
signed on March 15, 2016, almost a year after filing the initial H-1B petition. USCIS regulations 
affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the 
petition is filed. See 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. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). A 
petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 
1998). 
Not only are the Petitioner's statements of work with deficient in that they do not 
specifically list the Beneficiary or a software programmer as an assigned resource and do not cover 
the entire validity period requested, but they are also deficient in another fundamental aspect: all of 
these statements of work are for services to be provided to clients. That is, is 
not the ultimate client receiving the Petitioner's services, contrary to the Petitioner's ,claims. For 
example, one of the statements of work submitted on appeal states that "Services shall be provided 
by [the Petitioner] to, and for the benefit of Customer (also referred to as the 'Client')," 
elsewhere identified as The other statement of work submitted on appeal indicates that 
is the ultimate client receiving the Petitioner's services. Meanwhile, the Petitioner's 
appeal identifies the only client involved as and does not make any references to 
or any other clients. 
Furthermore, the statement of work for indicates that the Petitioner will perform onsite 
services. But the Petitioner indicted in its H-1 B petition and LCA that the Beneficiary will only 
work from the Petitioner's office premises. The Petitioner has not explained and documented where 
exactly the Beneficiary will work from while purportedly providing services to 
and any other clients of Again, it is incumbent upon the Petitioner to resolve 
inconsistencies in the record, and attempts to explain or reconcile such inconsistencies will not 
suffice absent competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N 
Dec. at 591-92. 
Without additional information and documentation establishing what projects have been secured, 
and accordingly, the specific duties the Beneficiary will perform on these projects and the 
knowledge required to perform these duties, we are unable to discern the substantive nature of the 
position and whether the position indeed qualifies as a specialty occupation. As recognized by the 
court in Defensor, 201 F.3d at 387-88, where the work is to be performed for entities other than the 
petitioner, evidence of the client companies' job requirements is critical. The court held that the 
former Immigration and Naturalization Service had reasonably interpreted the statute and regulations 
as requiring the petitioner to produce evidence that a proffered position qualifies as a specialty 
7 
Matter of D-G- Inc. 
occupation on the basis of the requirements imposed by the entities using the beneficiary's services. 
Id. Such evidence must be sufficiently detailed to demonstrate the type and educational level of 
highly specialized knowledge in a specific discipline that is necessary to perform that particular 
work. The record of proceedings does not contain such evidence here. 
As observed above, USCIS in this matter must review the actual duties the Beneficiary will be 
expected to perform to ascertain whether those duties require at least a baccalaureate degree in a 
specific specialty, or its equivalent, as required for classification as a specialty occupation. To 
accomplish that task in this matter, users 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. 
Overall, we find that the Petitioner did not provide sufficient documents to substantiate its claim that 
it has ongoing in-house projects for the Beneficiary for the entire H-1B validity period requested. 
Because the Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, we are therefore precluded from 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 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. 
II. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation.
2 
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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
2 The Director also denied the petition for not meeting the regulatory filing requirements with regard to the $2,000 fee 
imposed under Public Law 111-230. As the petition must be denied and the appeal dismissed for the reason discussed 
above, we will not address this issue at this time. 
Furthermore, as the ground discussed above is dispositive of the Petitioner's eligibility for the benefit sought in this 
matter, we will not address and will instead reserve our determination on the additional issues and deficiencies that we 
observe in the record of proceedings with regard to the approval of the H-1 B petition. 
8 
Matter of D-G- Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-G- Inc., ID# 44444 (AAO Oct. 25, 20 16) 
9