dismissed H-1B Case: Information Technology

(b)(6)
DATE: JUN 1 2 2015 PETITION RECEIPT#: 
IN RE: Petitioner : 
Beneficiary : 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Serv ice: 
Admini strative Appeals Offic e 
20 Massac husetts Ave. , N.W ., MS 2090 
Washington, DC 20529- 2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION : Petition for a Nonimmigrant Worker Pursuant to Section I 0 I (a)( IS)(H)(i)(b) of the 
Immigration and Nationality Act , 8 U .S.C. § IIOI(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case , you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov /i-290b) contains the latest information on fee , filing 
location , and other requirem ents . Please do not mail any motions directly to the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENTDEC§JON 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. PROCEDURAL BACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as 
25-employee "IT Consulting & Software Development" company established in In order to 
employ the beneficiary in what it designates as a full-time "Programmer Analyst/.NET Developer" 
position at a salary of $65,000 per year, the petitioner seeks to classifY her as a nonimmigrant 
worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The petitioner seeks to employ the 
beneficiary from October 1, 2014 through August 1, 2017. 
The Director found the initial evidence insufficient to establish eligibility for the benefit sought, and 
issued a Request for Evidence (RFE). Thereafter, the petitioner responded to the Director's RFE. 
The Director denied the petition, finding that the evidence of record did not establish that the 
proffered position qualifies as a specialty occupation, and that the petitioner has sufficient work for 
the requested period of intended employment. The petitioner now files this appeal, asserting that the 
Director's decision was erroneous. 
We base our decision upon our review of the entire record of proceeding, which includes: (1) the 
Form I-129 and the supporting documentation filed with it; (2) the Director's request for additional 
evidence (RFE); (3) the petitioner's response to the RFE; (4) the Director's letter denying the 
petition; and (5) the Notice of Appeal or Motion (Form 290B) and submissions on appeal. We 
reviewed the record in its entirety before issuing our decision. 1 
As will be discussed below, we have determined that the Director did not err in her decision to deny 
the petition. For this reason, the appeal will be dismissed, and the petition will be denied. 
II. THE PROFFERED POSITION 
The Labor Condition Application (LCA) submitted to support the petition states that the proffered 
position is a "Programmer Analyst/.NET Developer" and that it corresponds to Standard 
Occupational Classification (SOC) code and title "15-1121, Computer Systems Analysts," from the 
Occupational Information Network (O*NET). The LCA further states that the proffered position is 
a Level I (entry) position. 
In a letter of support dated March 31, 2014, the petitioner described itself as a "global IT Solutions 
and services firm . . . providing best quality and cost effective IT solutions to fortune 1000 
companies, mid-range companies and upcoming companies via its onsite, offshore and in house 
service models." With respect to the proffered position, the petitioner stated that the beneficiary 
1 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
"will be working in-house from [the petitioner's] offices" to perform the following duties: 
• Analyze complex user requirements, procedures and problems to automate 
processing and to improve existing computer systems: 20%[;] 
• Analyze current operational and engineering procedures, identify problems, and 
learn specific input and output requirements: 15%[;] 
• Analyze business procedures and problems to redefine data and covert it 
programmable form for electronic processing: 10%[;] 
• Plan and prepare technical reports and instructional manuals: 15%[;] 
• Upgrade completed system and correct errors to maintain system after 
implementation: 15%[;] 
• Study existing information processing systems to evaluate effectiveness and 
develop new 
systems to improve production, speed, and work flow: 15%[; and] 
• Conduct studies pertaining to development of new information to meet current 
project needs: 10%[.] 
[Verbatim.] 
In response to the RFE, the petitioner submitted a letter, dated August 5, 2014, reiterating the same 
job duties as previously provided. The petitioner again asserted that the beneficiary "will be 
working on [the petitioner's] in-house project." In a separate letter dated August 11, 2015, the 
petitioner referred to a document entitled "Payment Processing and Financial Reconciliation System 
for Health Exchanges" as evidence of the "final software product" towards which the beneficiary 
will provide her services. 
The petitioner stated that the minimum requirement for entry into the occupation is "at least a 
Bachelor's degree in Computer Science or Information Systems or a closely related equivalent 
combination." 
III. SPECIALTY OCCUPATION 
To meet its burden of proof in establishing the proffered position as a specialty occupation, the 
petitioner must establish that the employment it is offering to the beneficiary meets the following 
statutory and regulatory requirements. 
A. Legal Framework 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(l) defines the 
term "specialty occupation" as one that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(b)(6)
Page 4 
NON-PRECEDENT DECISION 
(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 term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)(4)(ii) as: 
An occupation which requires [(1)] theoretical and practical application of a body of 
highly specialized knowledge in fields of human endeavor including, but not limited 
to, architecture, engineering, mathematics, physical sciences, social sciences, 
medicine and health, education, business specialties, accounting, law, theology, and 
the arts, and which requires [(2)] the attainment of a bachelor's degree or higher in a 
specific specialty, or its equivalent, as a minimum for entry into the occupation in the 
United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must 
meet one of the following criteria: 
(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 pos1t10ns 
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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To otherwise interpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition under 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must 
therefore be read as providing supplemental criteria that must be met in accordance with, and not as 
alternatives to, the statutory and regulatory definitions of specialty occupation. 
(b)(6)
NON-PRECEDENTDEC~ION 
Page 5 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets 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 proffered position. See 
Royal Siam Corp. v. Cherto_ff, 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"). Applying this standard, USCIS regularly approves H -1 B petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly 
been able to establish a minimum entry requirement in the United States of a baccalaureate or 
higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. 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 alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry 
into the occupation, as required by the Act. 
B. Analysis 
We first find that the record of proceeding in this case does not contain sufficient information 
regarding the specific job duties to be performed by the beneficiary. That is, while the petitioner 
indicated that the beneficiary will be working exclusively on its in-house project of developing a 
software product, the "Payment Processing and Financial Reconciliation System," the petitioner has 
not submitted sufficient, credible evidence corroborating these assertions. 
In this matter, the record of proceeding presents the duties comprising the proffered position in terms of 
abstract and generalized duties. For example, the petitioner asserts that the beneficiary will spend 20% 
of her time on "[analyzing] complex user requirements, procedures and problems to automate 
processing and to improve existing computer systems." There is no further explanation of what 
specific tasks the beneficiary will perform in furtherance of this overarching duty, whose "user 
requirements" and "existing computer systems" will be involved, or what bodies of knowledge are 
required to perform these duties. Moreover, the petitioner has not specifically explained the duties 
and role of the proffered position in the context of the "Payment Processing and Financial 
Reconciliation System" project. For example, there is no explanation of how the same duty 
involving analyzing user requirements relates to the purported in-house development of the 
"Payment Processing and Financial Reconciliation System" product. 
(b)(6)
NON-PRECEDENTDEC~ION 
Page 6 
As evidence that the beneficiary will be assigned to the "Payment Processing and Financial 
Reconciliation System" project, the petitioner submitted the document "Payment Processing and 
Financial Reconciliation System for Health Exchanges," dated April 1, 2013. However, the 
petitioner has not sufficiently explained how this document relates to the beneficiary and the 
proffered position, and hence, is credible evidence of her claimed assignment. This document does 
not specifically reference the beneficiary or the proffered position. Instead, it depicts the "team 
structure" as consisting of one program director, one project manager, one technical architect, one 
business architect, three technical designers, three report designers, two application designers, two 
database designers, two test analysts, one process designer, three integration analysts, and three 
business analysts. The "Programmer Analyst/.NET Developer" position, which is the title of the 
proffered position, is not specifically listed as part of the overall "team." 
Furthermore, the petitioner has not explained how the proffered job duties relate to the activities 
described in the "Payment Processing and Financial Reconciliation System for Health Exchanges" 
document. To illustrate, the "Effort Plan" and "High [L]evel Task Plan" subsections list the 
activities that constitute the "program components" and "major phases" of the overall program, each 
activity's scheduled start and completion dates, and the number of hours required to perform each 
duty. The petitioner has not specifically identified the role of the proffered duty within the "Effort 
Plan" and "High [L]evel Task Plan." 
The petitioner also submitted screen-shots of its website as further evidence of the beneficiary's 
assignment. Many of these screen-shots briefly describe healthcare-related products that are 
"proposed" or on which the petitioner "has been working on providing." However, the petitioner 
has not specifically explained and documented how these briefly described products in the screen­
shots relate to the "Payment Processing and Financial Reconciliation System." 
Despite the petitioner's claim that the "beneficiary is being hired specifically to contribute to the 
['Payment Processing and Financial Reconciliation System'] project" at the petitioner's business 
premises, the Employment Agreement between the beneficiary and the petitioner contemplates that 
the beneficiary's employment will necessarily include assignments to third-party clients/vendors. 
More specifically, clause 2, "Compensation; Reimbursement," states that the beneficiary's 
"compensation will be given as long as employee has been getting billable hours from 
client/vendors (emphasis added)." Clause 6, "Reimbursement of Expenses," specifies the amount of 
reimbursement owed to the petitioner if the beneficiary voluntarily leaves the company before 
completing twelve to eighteen months of service, as counted "from the first day of Employee's first 
assignment at a client (emphasis added)." The petitioner has not explained how (or if) the 
beneficiary would be compensated for in-house work not involving clients or vendors, or how the 
reimbursement of expenses would be counted if the beneficiary were not assigned to a client site. 
The specific language of the Employment Agreement, as highlighted above, undermines the 
petitioner's assertions regarding the beneficiary's exclusive in-house employment. Doubt cast on 
any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of 
(b)(6)
NON-PRECEDENTDEC~ION 
Page 7 
the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 
(BIA 1988). 
Based on all of the above reasons, including the lack of reliable, detailed information and 
documentation regarding the "Payment Processing and Financial Reconciliation System" project 
and the specific duties the beneficiary will perform on it, we find the evidence of record insufficient 
to establish that the beneficiary will be employed to exclusively perform in-house services on this 
project, as claimed. Thus, we find that the evidence of record is insufficient to establish the 
substantive nature of the work to be performed by the beneficiary. 
The failure to establish the substantive nature of the work to be performed by the beneficiary 
consequently 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 the particular position, which is the focus of criterion 
1; (2) industry positions which are parallel to the proffered position and thus appropriate for review 
for a common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. Accordingly, as the petitioner 
has not established that it has satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it cannot 
be found that the proffered position qualifies as a specialty occupation. 
We also agree with the Director that, even if the beneficiary would be working on the "Payment 
Processing and Financial Reconciliation System" project as claimed, the evidence of record is still 
insufficient to demonstrate that the petitioner has sufficient work for the beneficiary for the 
requested period of intended employment. In other words, the petitioner has not sufficiently 
established that it has definitive, non-speculative specialty-occupation work for the entire validity 
period requested. 2 
2 
The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. For 
example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 8 classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 classification is not intended as a vehicle 
for an alien to engage in a job search within the United States, or for employers to bring in 
temporary foreign workers to meet possible workforce needs arising from potential business 
expansions or the expectation of potential new customers or contracts. To determine whether 
an alien is properly classifiable as an H-1 8 nonimmigrant under the statute, the Service must 
first examine the duties of the position to be occupied to ascertain whether the duties of the 
position require the attainment of a specific bachelor's degree. See section 214(i) of the 
Immigration and Nationality Act (the "Act"). The Service must then determine whether the 
alien has the appropriate degree for the occupation. In the case of speculative employment, 
the Service is unable to perform either part of this two-prong analysis and, therefore, is 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
In this instance, the petitioner requested a validity period from October 1, 2014 to August 1, 2017. 
However, the "Payment Processing and Financial Reconciliation System" document reflects that the 
last activities for this project (including implementation and deployment) are scheduled to be 
completed by July 31, 2016. The petitioner has not explained what the beneficiary would be doing 
beyond July 31, 2016, when the project to which she is supposed to be exclusively assigned will 
conclude. 
A petition must be filed for non-speculative work for the beneficiary, for the entire period requested, 
that existed as of the time of the petition's filing. users 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. 
103 .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. 
C. Opinion Letter 
We will now briefly address why we accord little probative weight to Dr. opmwn 
regarding the proffered position. Dr. opinion is not based upon sufficient information 
about the programmer analyst/.net developer position proposed here. Dr. does not relate 
any personal observations of the petitioner's operations or the work that the beneficiary will 
perform, nor does he state that he has reviewed any projects or work products related to the 
proffered position. Dr. opinion does not relate his conclusions to specific, concrete 
aspects of this petitioner's business operations and its projects to demonstrate a sound factual basis 
for his conclusions about the duties of the proffered position and its educational requirements. 
Accordingly, we conclude that Dr. opinion letter is not probative evidence to establish 
the proffered position as a specialty occupation. We may, in our discretion, use as 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 I&N Dec. 791 (Comm'r 1988). 
unable to adjudicate properly a request for H-1 8 classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). While a petitioner is certainly permitted to change its 
intent with regard to non-speculative employment, e.g., a change in duties or job location, it must nonetheless 
document such a material change in intent through an amended or new petition in accordance with 8 C.F.R. 
§ 214.2(h)(2)(i)(E). 
The regulation at 8 C.F .R. § 214.2(h)(9)(i)(B) also contemplates that speculative employment is not 
permitted stating that a "petition may not be filed ... earlier than 6 months before the date of actual need for 
the beneficiary's services or training .... " 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
IV. CONCLUSION AND ORDER 
The petition will be denied and the appeal dismissed for the above stated reasons. 3 In visa petition 
proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
3 As the identified ground of ineligibility is dispositive of the appeal, we will not address any of the 
additional deficiencies we have identified on appeal.