dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 7862334 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 13, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "database engineer" under the H-IB 
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 California Service Center Director denied the petition , concluding that the record did not establish 
that the proffered position qualifies as a specialty occupation and that the Beneficiary is qualified to 
perform the duties of the proffered position . 
The petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 1 
The Administrative Appeals Office (AAO) reviews the questions in this matter de nova. 2 Upon de 
nova review , we will dismiss the appeal. 
I. SPECIAL TY 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. 
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: 
1 Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
( 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). 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") 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, the Petitioner has not 
demonstrated that the proffored position qualifies as a specialty occupation. Specifically, the record does 
not establish that the job duties require an educational background, or its equivalent, commensurate with 
a specialty occupation. 
The Petitioner, an information technology (IT) consulting comP.any located irj !Texas, indicated 
that it would deploy the Beneficiary to an end-client location inl I Florida. 3 The Petitioner 
initially submitted a professional services agreement with the end-client, as well as a supplement to 
the agreement identifying the Beneficiary as a consultant assigned to the CRM List Engineering team 
to build and support a marketing platform and special features. The Petitioner designated the proffered 
position as a "Software Developers, Systems Software" occupation corresponding to the Standard 
Occupational Classification (SOC) code 15-1133 on the labor condition application (LCA). 4 
The Petitioner provides a lengthy narrative regarding the Beneficiary's proposed duties which is also 
included in an end-client letter. We have reviewed the description in full and although we recognize 
that the Beneficiary will perform technology duties, the description is insufficient to establish the 
3 The end-client, I I d/b/al l is a marketin~ company with a software and services platfonn 
and ro rietar database fotj~--------------~js. Public records show that it is a subsidiary of 
t------,,__ __ _J a company which provides risk management and asset protection software and services to the 
.__ __ __.industry and I insurance marketplace. 
4 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B 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 experience and qualifications who are performing the same services. Section 212(n)(l) 
of the Act; 20 C.F.R. § 655.731(a). 
2 
substantive nature of the position and to demonstrate that the certified LCA corresponds to and 
supports the petition. For example, the Petitioner asserts that the Beneficiary will perform data 
conversion from flat files into a normalized database structure. As part of this responsibility the 
Petitioner indicates that the List team receives flat files from third party vendors and direct clients, 
including some compressed formats and it proposes optimized data compression algorithms to the 
vendors/clients to optimize data extraction. The Petitioner lists the third party tools the Beneficiary 
will use in performing these duties and then claims that these duties relate to "[ d]esign and develop 
software systems, using scientific analysis and mathematical models to predict and measure outcomes 
and consequences of design," a task listed in the Department of Labor's (DOL) Occupational 
Information Network (O*NET) summary report for "Software Developers, Systems Software." The 
Petitioner does not describe or offer any meaningful analysis supporting its claim that the 
responsibilities it describes relate to this particular task. The duties the Petitioner describes do not 
include the detail necessary to ascertain the actual day-to-day tasks that will engage the Beneficiary 
and they do not offer the sort of information necessary to ascertain the Beneficiary's role and level of 
responsibility within the List team. That is, we cannot ascertain from the record that the Beneficiary 
will actually perform the duties of the occupation designated on the LCA at the wage level certified. 
Similarly, the Petitioner contends that the Beneficiary will design ETL packages dealing with different 
data sources and loading data into target data sources and will perform data transfers between systems. 
The Petitioner adds that this entails processing the received data by cleaning and loading the data into 
target data source tables, using third party server integration services packages, collecting data and 
inserting it into a server, as well as writing libraries for data mapping to make use of the date in 
different tables. We recognize that the Beneficiary will require some technological knowledge to 
perform these tasks. However, the record does not include probative evidence 5 that this knowledge is 
gained through bachelor's-level study in a specific discipline rather than through certifications in the 
third party technology. Moreover, the Petitioner claims that these tasks relate to the "[a]nalyze 
information to determine, recommend, and plan installation of a new system or modification to an 
existing system" and "[c]oordinate installation of software system," tasks listed in the O*NET's 
summary report for SOC 15-1133. Again, the Petitioner does not provide the context for the duties 
described in relation to installation or modification of the end-client's system(s). Although the record 
includes broad descriptions of what appears to be proposed program modules for different purposes, 
the resources listed for these projects do not include a database engineer. Neither do the email chains 
include sufficient information to demonstrate that the Beneficiary will perform more than support-type 
tasks. When viewed in its totality, the record does not provide a comprehensive description of the 
Beneficiary's actual role and level of responsibility within the project team. 
Likewise, the Beneficiary's task of creating stored procedures, triggers, functions, indexes, tables, 
views, and other T-SQL code for applications following SQL code standards does not provide the 
necessary information to ascertain whether the Beneficiary will be programming, designing systems 
applications, or performing other technological tasks. We have considered the Petitioner's assertion 
that the tasks described relate to "[ d]irect software programming and development of documentation" 
and "[d]evelop or direct software system testing or validation procedures" as set out in the O*NET's 
summary report for SOC code 15-1133. However, the tasks the Petitioner describes do not include 
5 We will discuss the deficiencies in the submitted position evaluation below. 
3 
the Beneficiary's direction of any programming or documentation development and do not include 
developing or directing testing or validation procedures. 
The remaining tasks, while including some information on what is expected of the Beneficiary, do not 
include the detail necessary to understand and ascertain the Beneficiary's role and level of 
responsibility at the end-client. The duties as described do not sufficiently demonstrate which SOC 
code corresponds most closely to them. The Petitioner provides such a broad description that the 
duties could encompass any number of technology occupations. The Petitioner must provide some 
analysis of why the duties fall within the parameters of the occupation it has designated on the certified 
LCA. Here, the Petitioner offers conclusions regarding tasks within the O*NET' s summary report but 
that upon review do not appear to pertain to the duties described. We are unable to conclude that the 
certified LCA corresponds to the position proffered in the petition. 
Moreover, the Petitioner's organizational chart submitted for the record identifies five software 
developers, a data warehouse developer, an SQL BI developer, an SQL server developer, an MS SQL 
developer, an ETL developer, a database administrator, and a database developer. The Beneficiary is 
not identified as a software developer, systems or otherwise, or as a database administrator or 
developer, but rather as a database engineer. It is not clear how many of the positions on the 
organizational chart are assigned to the end-client's facility or to the List team. Again, the description 
of the proposed duties is insufficient to establish that the Petitioner's database engineer position is a 
position that corresponds to SOC code 15-1133. The record does not include the necessary context to 
assess the proposed position within the Petitioner's business operations. 
We note here that the Petitioner asserts on appeal that the Director should provide technical 
explanations to support their reason for denial. Although the Director could have better articulated 
why the proffered position was insufficiently detailed to ascertain the substantive nature of the 
proposed position, it is the Petitioner who bears the burden in establishing eligibility for this visa 
classification. Section 291 of the Act, 8 U.S.C. § 1361. When as here the majority of the description 
references the use of third party tools, platforms, and technologies, it is reasonable to question whether 
familiarity with or certifications in the technology is all that is required to perform the tasks of the 
position. Moreover, we note that the Petitioner claims on appeal that it and the end-client described 
the day-to-day job responsibilities of the proffered position. We disagree. The Petitioner has provided 
a generic overview of duties without the context of the end-client's particular project(s), the stage of 
the different aspects of the project(s), and some indication of the time the Beneficiary will spend 
performing and completing particular tasks. Further, it did not provide sufficient information with 
regard to the order of importance or frequency of occurrence (e.g., regularly, periodically, or at 
irregular intervals) with which the Beneficiary will perform the duties. Thus, the record does not 
specify which tasks are major functions of the proffered position. 
Despite the foundational deficiency of the lack of a substantive description of the proposed position, 
we reviewed the submitted position evaluation in an effort to understand the duties of the position and 
why the position should be considered a specialty oc
1
upationj I l a faculty member 
in the College of Management and Technology at Universit= in I l Minnesota, 
provided position evaluations for the proffered position. I I repeated the Petitioner's 
description of duties, repeated portions of the DO L's Occupational Outlook Handbook's (Handbook) 
4 
chapter on software developers 6 and the O*NET's summary report for the occupation of "Software 
Developers, Systems Software," and noted he had reviewed the Petitioner's website, and information 
relating to their offered services. I lalso referred to several career and recruiting websites 
for their information on the duties of an application software developer, and an engineering institute 
on the education and certification possibilities for a systems engineer, and a wage website for the 
background and experience requirements for a systems engineer. These references do not provide 
sufficient information: to conclude that the duties of the proposed database engineer position is a 
systems software developer position; or, to establish the minimum requirements needed to perform 
the duties of the Petitioner's particular position. The relevance of these websites in establishing the 
proffered position is a specialty occupation has not been established. 
~----~I also refers to several of the duties of the particular position as core duties that fit within 
the topics covered in a computer science curriculum and then concludes that as such the position must 
be sufficiently specialized and complex as to require a bachelor's degree, or the equivalent, in a field 
such as computer science or another closely related field. HoweverL 1 ldoes not offer an 
analysis of the duties and a meaningful explanation of why the duties require a bachelor's degree in a 
specific specialty, rather than a general degree or experience and certifications in the third party 
technology that will be used to perform the duties. We do not disagree that an individual may take 
one, two, or several courses and gain sufficient knowledge to perform the duties of the proposed 
position, but neither the Petitioner nor I I have demonstrated how an established curriculum 
of courses leading to a baccalaureate or higher de.gree in a specific specialty, or its equivalent, is 
required to perform the duties of the proffered position. OveralL I ts evaluation while 
informative does not offer a cogent analysis of the duties of the Petitioner's particular position 
sufficient to demonstrate that the duties are specialized and complex or that they comprise the duties 
of a specialty occupation. 
Again, the duties described do not communicate (1) the actual work the Beneficiary would perform on a 
day-to-day basis; (2) the complexity, uniqueness and/or specialization of the tasks; or (3) the correlation 
between that work and a need for a particular level of education of highly specialized knowledge in a 
specific specialty. It is not possible to ascertain the nature and level of responsibility of the proposed 
position, including whether the duties as generally described correspond to the occupation designated on 
the LCA. Further, the record does not demonstrate that performing the duties described would require 
the theoretical and practical application of highly specialized knowledge and attainment of at least a 
bachelor's degree in a specific specialty or its equivalent. See section 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(ii) (defining the term "specialty occupation). 
The Petitioner has not established the substantive nature of the work to be performed by the Beneficiary, 
which therefore precludes a conclusion that the proffered position satisfies any criterion at 8 C.F .R. 
6 We observe that the Director incorrectly stated that the Handbook does not include a description for a software developer. 
We withdraw the Director's statement. The Handbook includes a chapter on software developers, including a brief 
statement regarding systems software developers. See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational 
Outlook Handbook, Software Developers, https://www.bls.gov/ooh/computer-and-information-technology/software­
developers.htm (last visited Mar. 13, 2020). However, as the Petitioner does not provide a description sufficient to 
establish that the duties of its proffered position fall within the parameters of the "Software Developers, Systems Software" 
occupation, we cannot conclude that the Director's misstatement and lack of analysis of the Handbook's chapter are 
relevant or material. 
5 
§ 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. 
Upon review of the totality of the evidence submitted, the Petitioner has not established that, more likely 
than not, the proffered position is a specialty occupation under any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). Moreover, the record does not establish that the Petitioner satisfied the statutory 
and regulatory definitions of specialty occupation. 
II. BENEFICIARY'S QUALIFICATIONS 
The Director also found that the Beneficiary would not be qualified to perform the duties of the proffered 
position if the job had been determined to be a specialty occupation. However, a beneficiary's credentials 
to perform a particular job are relevant only when the job is found to be a specialty occupation. As 
discussed in this decision, the description of the proffered position is insufficient to establish the 
substantive nature and level ofresponsibility of the position and thus we cannot conclude that the position 
requires a baccalaureate or higher degree in a specific specialty, or its equivalent. Therefore, we need not 
and will not address the Beneficiary's qualifications further. 
ORDER: The appeal is dismissed. 
6