dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-B-S-, INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 4, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"QA 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, California Service Center, denied the petition. The Director concluded that the 
Petitioner had not demonstrated that the proffered position qualifies as a specialty occupation 
position. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the evidence 
submitted satisfies all evidentiary requirements. 
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 in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
Matter of C-B-S-, Inc 
(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). 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). 
II. PROFFERED POSITION 
In the H-IB petition, the Petitioner stated that the Beneficiary would serve as a "QA engineer." The 
Petitioner provided the following duty description for the position: 
• Design test plans, scenarios, scripts, or procedures. 
• Test system modifications to prepare for implementation. 
• Develop testing programs that address areas such as database impacts, software 
scenarios, regression testing, negative testing, error or bug retests, or usability. 
• Document software defects, using a bug tracking system, and report defects to 
software developers. 
• Identify, analyze, and document problems with program function, output, online 
screen, or content. 
• Monitor bug resolution efforts and track successes. 
• Plan test schedules or strategies in accordance with project scope or delivery dates. 
• Participate in product design reviews to provide input on functional requirements, 
product designs, schedules, or potential problems. 
• Review software document to ensure technical accuracy, compliance, or 
completeness. 
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(b)(6)
Matter of C-B-S-: Inc 
The Petitioner stated that these duties require a "minimum of a Bachelor's degree or foreign 
equivalency in the field of Computer Science Enginee~ing or Information Technology," and that the 
Petitioner requires that each of its employees who perfofm similar duties have such a degree. 
In response to the request for evidence (RFE), the Petitioner stated that the Beneficiary would have 
"full, unshared responsibility" for the following duties: 
1. Creation of test plan to cover the functionality of products and services- 30% 
2. Update and maintain bug tracking system- 10% 
3. Perform various types of tests such as sa'nity test, smoke test, black box level tests -
30% 
4. Perform mobile testing for mobile applications developed by the company for both 
and devices -0- 20% 
5. Provide status of test coverage to stake holders for various company products such 
as 
as well as services such as vul)1erability and penetration testing, 
secure code analysis services. - 1 0% 
On the labor condition application (LCA) submitted in support of the H-1B petition, the Petitioner 
designated the proffered posi~on under the occupational category "Computer Occupations, All 
Other" corresponding to the Standard Occupational Classification (SOC) code 15-1199. The 
Petitioner submitted the O*NET OnLine Summary report for "Software Quality Assurance 
Engineers and Testers." 1 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does not 
1 The Petitioner classified the proffered position at a Level I wage (the lowest offour assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the U.S. Department of Labor (DOL) provides a description of the wage levels. A Level I wage rate is generally 
appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the 
occupation. This wage rate indicates: (I) that the Beneficiary will be expected to perform routine tasks that require 
limited, if any, exercise of judgment; (2) that she will be closely supervised and her work closely monitored and 
reviewed for accuracy; and (3) that she 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 _II_ 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. 
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Matter of C-B-S-, Inc 
establish that the job duties require an educational background, or its equivalent, commensurate with a 
specialty occupation. 2 
We observe that the first duty-description, which the Petitioner provided with the H-1B petition, was 
copied verbatim from the O*NET Summary Report for the occupational category "Software Quality' 
Assurance Engineers and Testers." See O*NET Online Summary Report for "Software Quality 
Assurance Engineers and Testers" at http://www .onetonline.org/link/ summary 115-1199.0 1 (last 
visited Sept. 29, 2016). This type of description may be appropriate when defining the range of 
duties-that may be performed within an occupational category, but it does not adequately convey the 
substantive work that the Beneficiary will perform within the Petitioner's business operations and, 
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thus, generally cannot be relied upon by a petitioner when discussing the duties attached to specific 
employment. 
The job description provided in response to the RFE - a list of five duties - does not resolve this 
deficiency. For example, the list is so brief and lacking in detail that it does not provide a 
meaningful description of what the Beneficiary would actually be doing if the H -1 B petition were 
approved: It indicates that, in the proffered position, the Beneficiary would, by a variety of methods, 
check computer code and applications, including mobile applications, for quality. The duty 
descriptions do not contain sufficient detail to demonstrate the substantive nature of the duties of the 
proffered position as they would be performed in the context of the Petitioner's operations. While 
the list of three in-house projects upon which the Beneficiary would work is acknowledged, it does 
not close the gap because the Petitioner does not explain specifically what the Beneficiary would 
actually be doing on the projects. Nor does the record contain any significant information regarding 
the projects themselves. For example, we are unable to determine when the projects began or when 
they are expected to be completed. 
In establishing a position as a specialty occupation, a petitioner must describe the specific duties and 
responsibilities to be performed by a beneficiary in the context of that petitioner's business 
operations, as well as demonstrate a legitimate need for an employee exists, and substantiate that it 
has H-1B caliber work for the Beneficiary for the period of employment requested in the 
petition. Simply submitting a generic job description that is not specific to the Beneficiary and the 
Petitioner's operations is insufficient to establish the substantive nature of the proffered position. 
For this reason alone, we find that the Petitioner's job description inadequate to establish that the 
proffered position is a specialty occupation. 
The wage-level designated by the Petitioner on the LCA raises further questions regarding the 
accuracy and reliability of its description of the proffered position and its constituent duties. As 
noted, in designating the proffered position at a Level I wage rate, the Petitioner indicated that the 
proffered position is a comparatively low, entry-level position relative to others within the 
2 The Petitioner submitted documentation to support the H-1 8 petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
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Matter of C-B-S-, Inc 
occupation and that the Beneficiary will be expected to perform routine tasks that require limited, if 
any, exercise of judgment, that she will be closely supervised and her work closely monitored and 
reviewed for accuracy, and that she will receive specific instructions on required tasks and expected 
results. 
However, several of the Petitioner's assertions appear to directly conflict with that wage-level 
designation. For example, despite the Level I wage-level designation, the Petitioner stated that the 
Beneficiary would "have full, unshared responsibility of all duties listed," and referenced her "vast 
experience" and "detailed understanding" of the subject matter. In addition, the Petitioner indicates 
that its prior employment of the Beneficiary as a "junior" engineer renders her qualified to perform 
the duties of the proffered position. However, this apparent advancement from a "junior" 
engineering position into the proffered position, which does not appear to be a "junior" engineering 
position, raises additional questions as to whether the proffered position is in fact a Level I, entry­
level position as claimed, and in any event further calls into question the reliability of the 
Petitioner's job description.3 For this additional reason, we find the Petitioner's description of the 
job duties inadequate, and that the substantive nature of the duties of the proffered position have not 
been described with sufficient clarity and detail. 
Our finding that the Petitioner has not established the substantive nature of the duties of the 
proffered position extends beyond the inadequacy of the job descriptions it submitted. For example, 
the record does not clarify the role in which the Petitioner's "customers" would play during the 
course of the Beneficiary's H-lB employment. Specifically, according to the employment contract, 
the' Beneficiary would only receive payment for "[h]ours [] which are pre-approved by [the 
Petitioner's] Customer and signed for by an approved manager of the [Petitioner's] customer."4 In 
other words, payment of the Beneficiary's wage would be contingent upon pre-approval by a 
customer. However, despite that fact that such customers would play a significant role in the 
Beneficiary's employment- to the extent that they would determine for the Petitioner whether the 
Beneficiary would receive her salary - they have not been identified. 
Nor is it clear that the Beneficiary would work in-house at the Petitioner's own worksite, as claimed. 
For example, we note that in the document entitled "Additional Terms to Employment Agreement," 
the Beneficiary was requested to "[b ]e available either via phone or in person during reasonable 
business hours and [to] promptly inform us of his/her schedule." The Beneficiary agreed to be 
"available" between 9:00 and 10:00 A.M. and 4:00 and 5:00P.M. from Monday through Friday. If 
the Beneficiary would be working at the Petitioner's worksite as claimed, it is unclear why she 
3 It also raises questions as to whether the LCA corresponds to and supports the H-1 8 petition. However, because th~ 
H" I 8 petition is not otherwise approvable, we will not explore that issue at this time. 
4 This arrangement conflicts directly with the Petitioner's claims that the 8~neficiary would receive a guaranteed salary 
while in H-1 8 status. "[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective 
evidence." Matter of Ho, 19 1&N Dec. 582, 591 (81A 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. 
An inaccurate statement anywhere on the Form 1-129 or in the evidence submitted in connection with the petition 
mandates its denial. See 8 C.F.R. § 214.2(h)(IO)(ii); see also id. § 103.2(b)(l). 
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Matter of C-B-S-, Inc 
would only be "available" for two hours each day. This discrepancy suggests that, contrary to other 
information in the H-lB petition, the Petitioner may utilize the Beneficiary's services at some 
location other than its own. The substantive nature of any duties the Beneficiary would perform at 
such other location has not been established. For this additional reason, we find that the Petitioner 
has not established the substantive nature of the work to be performed. 5 
Finally, we note the speculative nature of the Petitioner's offer of employment. While the Petitioner 
requested a 35-month period of H-lB approval on behalf of the Beneficiary, certain evidence of 
record indicates that this is in fact a speculative offer of employment. For example, in response to 
the RFE, the Petitioner stated that "[t]he ongoing nature of work does not have any fixed duration," 
and the employment contract specifically notes the agreement's "[e]xpiration of one year after 
commencement." When coupled with the fact that payment of the Beneficiary's salary would be 
determined by the Petitioner's customers, and the lack of clarity with regard to where, and for 
whom, the Beneficiary would perform her duties, this lack of certainty indicates strongly that this is 
a speculative offer of employment. However, USCIS made clear long ago that speculative 
employment is not permitted in the H-lB program. For example, a 1998 proposed rule documented 
this position as follows: 
Historically, the Service has not granted H-lB classification on the basis of 
speculative, or undetermined, prospective employment. The H -1 B 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 B 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-
5 
The employment agreement raises additional issues which must be further explored if approval of this petition is ever 
contemplated. For example, the agreement states that the Beneficiary will not be paid for work performed that is not first 
pre-approved by one of the Petitioner's clients. However, it is the Petitioner, and not the Petitioner's client, that must 
engage the Beneficiary in an employer-employee relationship. The Beneficiary is to be paid in accordance with the 
terms and conditions of the H-1
1
B petition, regardless of whether a client of the Petitioner approves. The agreement's 
statement that no overtime compensation will be permitted unless pre-approved by the client raises additional questions 
as to whether the Petitioner would engage the Beneficiary in an employer-employee relationship. However, because the 
H-1 B petition is not otherwise approvable, we will not explore
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the issue further at this time. 
Moreover, the agreement's statement that the Beneficiary will receive no paid holidays, no vacation or sick days, no 
overtime compensation, and no healthcare benefits raises questions regarding the adequacy of the Beneficiary's 
compensation, particularly in light of the relatively low, entry-level wage she would receive (the proffered wage exceeds 
the minimum wage by only $41 per year). Again, because the H-1 B petition is not otherwise approvable we will not 
further explore this issue at this time, either. 
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Matter of C-B-S-, Inc 
prong analysis and, therefore, is unable to adjudicate properly a request for H-1 B 
classification. Moreover, there is no assurance that the alien will engage in a 
specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 
(proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). 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). That the offer of employment appears 
speculative raises further questions regarding the substantive nature of the work to be performed by 
the Beneficiary. 
That the Petitioner did not establish the substantive nature of the work to be performed by the 
Beneficiary precludes a finding that the proffered position is a specialty occupation under 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. 
IV. 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. 
The blirden 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. 
ORDER: The appeal is dismissed. 
Cite as Matter of C-B-S-, Inc, ID# 123207 (AAO Oct. 4, 2016) 
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