dismissed H-1B Case: Information Technology

MATTER OF D-C-S-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 3, 2016 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting firm, seeks to temporarily employ the Beneficiary 
as a software developer under the H-lB 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)(l5)(H)(i)(b). 
The H-lB 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 
Petitioner did not establish that a work assignment existed at the time of filing. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence of record was sufficient to establish its claim by a preponderance of the 
evidence. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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: 
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(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A) . 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 
The H-lB petition states that the Petitioner is a two-employee company established in 2009. The 
Petitioner indicates that the Beneficiary will work at its location in Kentucky, and the labor 
condition application (LCA) was certified for employment in that location. When it filed the H-1B 
petition, the Petitioner stated that the Beneficiary would perform the following duties as a software 
developer: 
• Design software to make good technical decisions that impact positively on 
adjacent systems or provide useful features. · 
• Review current system/application and present ideas for system improvements , 
including cost proposals. 
• Produce detailed specifications and writing the program codes[.] 
• Testing the product in controlled, real situations before going live[.] 
• Maintain the systems once they are up and running[.] 
• Install new/enhanced software systems, train staff on how to use software and 
provide ongoing support. 
• Generate ideas to improve system design or 
streamline product delivery, thereby 
enhancing customer satisfaction, sales and profits[.] 
• Interact with other developers within and across teams and document best 
practices and review code. 
• Develop reports to meet business needs. 
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( 
The Petitioner also stated, "[m]inimum requirements for this professional position are at least a 
Bachelor's degree in Computer Science, Engineering, Information Systems, or its equivalent and 
relevant work experience." It further states, "[a]ll of our 'Software Developers' are required to have 
at least the minimum of a Bachelor's degree in the specific field of endeavor." 
In response to the Director's request for evidence (RFE), the Petitioner stated that the Beneficiary 
"has been interviewed for several software development projects and has been approved for project 
assignment to [the Petitioner's] client, The Petitioner also stated that 
the Beneficiary will "provide services remotely" from its office in Kentucky as listed in the LCA. 
In addition, the Petitioner provided a revised list of the duties for the project with 
as follows: f · 
• Design, develop and maintain multi-tiered applications using legacy 'and advanced 
technologies. 
• Extensive one to one interaction with business analysts to identify needs and 
requirements, then translate the functional requirement into reporting 
requirements[.] 
• Involve in full Software Development Life Cycle (SDLC) from scoping, analysis, 
design, implementation, and quality assurance to delivery and support. 
• Provide support and maintenance of the application once developed. 
Ill. 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 does not establish that the petition was filed for non-speculative work for the 
Beneficiary that existed at the time of filing. Further, the record (1) does not describe the position's 
duties with sufficient detail; and (2) does not establish that the job duties require an educational 
background, or its equivalent, commensurate with a specialty occupation. 
For example, the Petitioner submitted contracts that postdate filing of this petition. As noted above, 
in response to the RFE, the Petitioner stated for the first time that the Beneficiary will be placed on a 
project working with The Petitioner provided a professional services 
agreement, effective on September 10, 2015, which sets out general terms pursuant to which the 
Petitioner might provide professional services to The Petitioner also 
provided a work order, ratified on September 10, 2015, showing that agreed 
to use the Beneficiary's services beginning on October 15, 2015. However, both the consulting . 
agreement and associated work order postdate the filing of the visa petition; thus, they are not 
evidence that the Petitioner had secured non-speculative work for the Beneficiary to perform at the 
time it filed the petition. The Petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition and must continue to be eligible for the benefit through adjudication. 
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Matter of D-C-S- , LLC 
8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future date 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). 
On appeal, the Petitioner states that it submitted several contracts and service agreements "as 
evidence of sufficient software development work for the Beneficiary from the date of filing the 
petition through the duration of the requested H-1 B validity period , September 15, 2018." Upon 
review of the contracts and agreements submitted with the RFE and on appeal, we note that most 
contracts also postdate filing of this petition. Further, some contracts, such as the master service 
agreement with are not signed by the client; therefore, we are unable to 
determine if the contracts are valid. Moreover, the contracts do not indicate that the Beneficiary 
would be assigned to the project. For example, agreement does not name an individual 
assigned to the project, but indicates that the Petitioner will provide a "technical project manager," 
which differs from the proffered position as a "software developer." 
The Petitioner also states that at the time of filing, it "has had ongoing software development since 
long before this petition was filed." Specifically, the Petitioner asserts that the Beneficiary would 
have been assigned to the ' project for at the time of filing the 
petition. In support, the Petitioner submitted a consulting agreement between the Petitioner and 
The agreement commenced on May 10, 2013, and states that will "receive 
consulting services from [the Petitioner] from time to time." Hqwever, the agreement does not 
define the length of the contract and it is not clear if the agreement is still valid. Notably, the record 
also contains a work order for another employee, not the Beneficiary, in Kentucky for 
for one year beginning on May 23, 2013. By the terms of that work order, the work 
was completed almost a year prior to the filing of the instant visa petition. Further, the Petitioner did 
not provide a work order for the Beneficiary to work on this project and did not submit any 
information on the work duties that would be performed by the Beneficiary if he was placed on this 
project. 
We find that the Petitioner has not established that the petition was filed for non-speculative work 
for the Beneficiary, for the entire period requested, that existed at the time of filing the 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. 103.2(b)(l). 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. at 249.1 · 
1 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative , or 
undetermined, prospective 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 
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Matter of D-C-S-, LLC 
However, even if we assume that the Petitioner had shfficiently established that the Beneficiary will 
be working on a project with we find that the Petitioner did not submit a job 
description to adequately convey the substantive work to be performed by the Beneficiary. 
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 letter submitted by indicates that the 
Beneficiary will "design, develop and maintain multi-tiered applications using legacy and advanced 
technologies"; "involve in full Software Development Life Cycle (SDLC) from scoping, analysis, 
design, implementation, and quality assurance to delivery and support"; and, "provide support and 
maintenance of the application once developed." The job description is generalized and generic in 
that the Petitioner does not convey the substantive nature of the work that the Beneficiary would 
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 would manifest themselves in their 
day-to-day performance. 
Further, the record contains inconsistent information regarding the requirements for the proffered 
position. As noted, the Petitioner indicated in its support letter that it requires a Bachelor's degree in 
computer science, engineering, information systems, or its equivalent and relevant work experience 
for the proffered position. However, states in its letter that "[the Petitioner] 
requires, at a minimum a Bachelor of Science degree (or its equivalent) in Electronics, Computer 
Sciences, Engineering, any of the natural or physical sciences or related field, and working 
experience of at -least 10 years or more with relevant experience." 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty (or its equivalent)" requirement of section 214(i)(l )(B) of the Act. ·In such a 
case, the required "body of highly specialized knowledge" would essentially be the same. Since 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties o-f 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 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), 
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Matter of D-C-S-, LLC 
there must be a close correlation between the required "body of highly specialized knowledge" and 
the position, however, a minimum entry requirement of a degree in two disparate fields, such as 
philosophy and engineering, would not meet the statutory requirement that the degree be "in the 
specific specialty (or its equivalent)," unless the Petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required body of 
highly specialized knowledge is essentially an amalgamation of these different specialties. Section 
214(i)(l)(B) ofthe Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," 
we do not so narrowly interpret these provisions to exclude positions from qualifying as specialty 
occupations if they permit, as a minimum entry requirement, degrees in more than one closely 
related specialty. See section 214(i)(l )(B) of the Act; 8 C.F.R. § 214.2(h)( 4)(ii). As just stated, this 
also includes even seemingly disparate specialties provided the evidence of record establishes how 
each acceptable, specific field of study is directly related to the duties and responsibilities of the 
particular position. 
Here, the record indicates that the proffered position can be performed by an individual with a 
degree in electronics, computer science, engineering, any of the natural or physical sciences or a 
related field. The issue here is the Petitioner has not submitted evidence establishing that these 
fields of study are closely related to each other (e.g., how a degree in natural sciences is related to a 
degree in computer science), or that these fields are all directly related to the duties and 
responsibilities of the particular position proffered in this matter. Absent this evidence, it cannot be 
found that the particular position proffered in this matter has a normal minimum entry requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent. 
Further, also indicated that the proffered position requires "working 
experience of at least 10 years or more with relevant experience." However, the Petitioner 
designated the proffered position as a Level I position on the LCA. In designating the proffered 
position at a Level I, entry-level wage rate, the Petitioner indicated that the proffered position is a 
comparatively low, entry-level position relative to others within the occupation, in which the 
Beneficiary is only required to have a basic understanding of the occupation and perform routine 
tasks that require limited, if any, exercise of judgment.2 The Petitioner's designation of the proffered 
position as a Level I, entry-level position further undermines the reliability of the letter submitted by 
2 The "Prevailing Wage Determination Policy Guidance" issued by the 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 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_ll_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. ld 
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Matter of D-C-S-, LLC 
since the letter states that the proffered position requires at least 1 0 years or 
more with relevant experience in addition to a bachelor's degree in various specialties. 
We find that there are inconsistencies in the record that undermine the Petitioner's claims regarding 
the proffered position. Further, the Petitioner has not sufficiently established the substantive nature 
of the work to be performed by the Beneficiary, which therefore precludes a finding that the 
proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) , because it is the 
substantive nature of that work that determines (1) the normal minimum educational requirement for 
entry into the particular position, which is the focus of criterion 1; (2) industry positions which are 
parallel to the 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 for classification as a 
specialty occupation.3 
IV. CONCLUSION 
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. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-:-C-S-, LLC, ID# 17940 (AAO Aug. 3, 2016) 
3 Since the identified basis for denial is dispositive of the Petitioner 's appeal , we will not address other grounds of 
ineligibility we observe in the record of proceedin gs.