dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 7563972 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 23, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"software developer/implementation consultant" 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. § 110l(a)(15)(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 of the California Service Center denied the petition, concluding that the proffered 
position does not qualify as a specialty occupation. The Director also concluded that the record does 
not establish the Petitioner would have an employer-employee relationship with the Beneficiary during 
the requested period , that the record lacks a certified labor condition application (LCA), 1 and that the 
Beneficiary is not qualified for the position. On appeal, the Petitioner asserts that the Director erred. 
Upon de nova review, we will dismiss the appeal. 2 
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. 
1 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-lB 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 duties , experience , and qualifications . Section 212(n)(l) of the Act ; 
20 C.F.R. § 655.73l(a) . 
2 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec . 369, 375- 76 
(AAO 2010) . 
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). 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
The Petitioner describes the proffered "software developer/implementation consultant" position's 
duties as follows: 
• Application development using Agile methodology. Perform detailed analysis of 
the business requirements and specifications provided by the users and analysts; 
• Create user interface in the form of electronic forms (WebDocs) used for entering 
and presenting data; 
• Code and test the validation logic implemented on the front-end in VB.NET; 
• Develop logic and set up mail templates for batch printing of the returns in the 
application; 
• Write medium to complex ad hoc queries to manipulate/retrieve data in SQL server 
databases; 
• Write and execute queries to update the configuration data in the [r]eference 
database that represents the static data of the application; 
• Implement business logic to calculate tax rates depending on the stored rate tables 
and the various conditions provided by users; 
• Debug and perform code walk through to understand the business layer of the 
application; 
• Coding and code review of the developed modules as per the design specifications 
using VB.NET in Visual Studio 2017 environment; 
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• Perform [ u ]nit testing before moving or migrating to test environment; 
• Closely interact with the users for clarification of requirements; 
• Participate in meetings to discuss the issues reported during the stages of 
development; and 
• Analyze enhancement requests reported by the user to provide possible solutions. 
According to the Petitioner, the position requires "a Bachelors degree or foreign equivalent m 
Computer Science, MIS, Software Engineering or related field." 
III. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the substantive nature of the work the Beneficiary would perform during the intended period of 
employment, which precludes the determination of whether the proffered position qualifies as a 
specialty occupation under 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A).3 
The Petitioner, located in Wisconsin, asserted the Beneficiary would work at the end-client location 
in Pennsylvania. However, the record does not contain sufficient evidence to establish the terms and 
conditions of the Beneficiary's assignment during the requested employment period. 
The record contains a subcontractor agreement (SA) between the Petitioner and the mid-vendor. The 
SA is a general agreement for the Petitioner to "provide personnel as requested by [the mid-vendor] 
to support projects with Agencies. [The mid-vendor] shall give [the Petitioner] personnel specific 
assignments upon mobilizing to the project." Although the SA does not identify the client(s) whose 
projects the workers would support, the individual workers to be assigned to such projects, and the 
specific duties of such workers, the record contains a document titled "Schedule: Project for [the 
end-client]" between the Petitioner and the mid-vendor. The schedule indicates that, beginning August 
20, 2018, for an "undetermined" duration, the Beneficiary would work as a "software 
developer/implementation specialist" at the end-client location, performing the following duties: 
"[d]esign and [d]evelopment of [s]ystem [c]omponents; [t]esting of [s]ystem [c]omponents; 
[ d]ocumentation; [ and o ]ther [ d]uties as [ a ]ssigned." The schedule does not elaborate on the system 
and its components; how the Beneficiary would design, develop, and test them; what the Beneficiary 
would document; and the scope of other duties that may be assigned during the "undetermined" 
duration of the assignment, raising questions regarding the substantive nature of the work for which 
the parties contracted the Beneficiary to perform during the requested period. 
The record also contains a master service agreement (MSA) between the mid-vendor and the 
end-client. 4 The MSA is a general agreement for the mid-vendor to "provide the [t]ax [p ]rocessing 
[s]ystems and related services to the [end-client] according to this Contract, [request for proposal 
(RFP)] and the Proposal ... in accordance with the [mid-vendor's] [i]mplementation [m]ethodology 
as described in [the mid-vendor's] Proposal and the Statement of Work [(SOW)]." The MSA does 
3 The Petitioner submitted documentation to suppmt the H-1 B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
4 The MSA is titled simply "Contract Between [the mid-vendor] and [the end-client]." We refer to it as an MSA to 
distinguish it from the other contractual documents discussed. 
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not further identify the workers to be assigned to the project, describe the duties of such workers in 
order to "provide the [t]ax [p]rocessing [s]ystems and related services," or specify the duration of the 
project. 
The record also contains an SOW that states it "describes the scope and services to be provided by 
[the mid-vendor] to the [end-client]"; however, the SOW is undated and does not indicate that it 
corresponds to the MSA. In contrast, statements in the record from the end-client specifically 
acknowledges the MSA by its 10-digit contract number. 
The SOW contains a section titled "Vendor Personnel," describing the roles of the project director, 
project manager, application architect, technical/security manager, training manager, and conversion 
manager, and identifying the individuals assigned to those roles. However, the SOW does not describe 
the responsibilities of a "software developer/implementation consultant" or identify the Beneficiary­
or any other individual-assigned to such a role for the project. Additionally, although the SOW 
contains 18 pages generally describing nine different "phases" of the project, the "key project 
milestone" chart indicates that 21 months of the requested employment period would entail "post­
implementation support," unlike the preceding "rollout 3" period during which project workers would 
complete "personal income tax pass through entity processing, [and] property tax/rent rebate" 
milestones. 
The SOW indicates that, during the majority of the requested employment period, "a desk-side support 
team is [to be] deployed in user work areas affected by the rollout ... to answer any questions that 
arise during those initial weeks" following rollout. Then, "[a]s the need for desk-side support 
diminishes, project team members are no longer deployed on a regular basis to the business areas. At 
this stage, a system-specific help desk will continue to serve as the first point of contact for users who 
need assistance." Later, "project staff [will] work with [the end-client's] help desk staff to ensure they 
have the skills, knowledge, and procedures to take over. This may include training, use of a 'buddy 
system,' mentoring, and documentation development." The SOW does not elaborate on the nature of 
the "questions that arise" and the substantive nature of the tasks a given worker would perform in 
order to answer those questions. The SOW also does not clarify the assistance the "system-specific 
help desk" workers would provide, or the process of training and mentoring the end-client's help desk 
workers. Furthermore, the SOW indicates that, throughout the majority of the requested employment 
period, "[t]he location, duration, and amount of desk-side support are [to be] determined through 
discussions between [the end-client] and the [mid-vendor's] project team." 
Therefore, even if the SOW specifically identified the Beneficiary or the "software 
developer/implementation consultant" position title, which it does not, the SOW raises questions 
regarding the substantive nature of the work for which the parties contracted and, moreover, whether 
the mid-vendor and the end-client would "determine[] through discussions" whether to include any 
particular worker among the post-implementation support team throughout the majority of the 
requested employment period. 
On appeal, the Petitioner asserts that "the [B]eneficiary is not listed as a [mid-vendor personnel in the 
MSA because] the [B]eneficiary is not a [mid-vendor] employee." However, the issue is not simply 
that the SOW does not identify the Beneficiary as a worker assigned to the project; neither the MSA 
nor the SOW address the mid-vendor providing a "software developer/ implementation consultant" or 
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similar worker to the project, for any particular duration, to perform any particular duty, regardless of 
whether such a worker would be employed by the mid-vendor, the Petitioner, or some other entity. 
Furthermore, the SOW indicates that the mid-vendor and the end-client-not the Petitioner-would 
"determine[] through discussions" at some unspecified future date whether to include any particular 
worker. Therefore, the SOW raises questions regarding the actual work for which the parties 
contracted the Beneficiary to perform during the requested period. See 8 C .F.R. § 103 .2(b )( 1) 
(providing that a petitioner must establish that all eligibility requirements for the immigration benefit 
have been satisfied from the time of the filing and continuing through adjudication). 
The record also contains two one-page letters from the end-client. The initial letter states that the 
Beneficiary "has been at this assignment since December 3, 2018," although, like other documents in 
the record, it does not indicate the period during which the Beneficiary would remain at that 
assignment. The second letter, submitted in response to the Director's request for evidence (RFE), is 
essentially a verbatim copy of the first letter but, unlike the first, it states that the Beneficiary's 
assignment is "expected ... through at least August 2022." However, as noted above, the SOW 
indicates that the mid-vendor and the end-client-not the Petitioner-would determine whether to 
include any particular worker during the final 21-month period of the project. Both letters summarize 
the Beneficiary's duties in a list of six bullet points, consisting of generalized language that limits our 
ability to determine whether the position requires a bachelor's or higher degree in a specific specialty, 
or its equivalent. Descriptions such as "[g]ather information through presentations, design sessions, 
and live demonstrations," "[ c ]onducting JAD sessions with the clients for gathering requirements on 
business processes behind government tax, revenue, and registration programs across multiple lines 
of business," and "[w]riting scenarios of complex business processes to aid [s]cenario [t]esting and 
[u]nit/[i]ntegration testing of the applications while providing support to UAT team" do not elaborate 
on the actual tasks the Beneficiary would perform while conducting sessions, gathering requirements, 
writing scenarios, and providing support. They also do not elaborate on the nature of the presentations, 
design sessions, live demonstrations, business processes, scenarios, and testing. 
Additionally, neither letter addresses the tasks the Beneficiary would perform during the 21-month 
"post-implementation support" period of"answer[ing] any questions that arise." Furthermore, neither 
letter indicates that the end-client requires a particular academic level or specialty in order to perform 
the position's duties. 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for an 
entity other than the petitioner, evidence of the client company's 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 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. Here, the record does not adequately establish that the Beneficiary would provide 
services in a specialty occupation for the end-client for the employment period requested in the 
petition. 
We also note that the record contains two letters from the mid-vendor, providing inconsistent estimates 
of the duration of the Beneficiary's assignment. Although the first letter states that the mid-vendor 
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"anticipate[ s the Beneficiary] will remain on the project until December 2021," the second letter, 
submitted in response to the RFE, states that the mid-vendor "anticipate[ s the Beneficiary] will remain 
on the project until August 2022." As noted above, the SOW does not specifically identify the 
Beneficiary-or even the proffered position title-among the workers contracted for the project and, 
even if it did, the SOW indicates that the mid-vendor and the end-client would "determine[] through 
discussions" at some unspecified future date whether to include any particular worker among the post­
implementation support team throughout the majority of the requested employment period. Moreover, 
both letters state that the mid-vendor requires "at least a Bachelor's degree" to perform the duties 
described therein, without stating that the degree must be in a specific specialty. 
In summation, we conclude that the inconsistencies, ambiguities, and lack of documentation in the 
record raise questions regarding the actual substantive nature of the proffered position, which therefore 
precludes a conclusion that the proffered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), because the substantive nature of the work 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. 5 
IV. CONCLUSION 
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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
5 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. ~ 214.2(h)(4)(iii)(A). 
Additionally, because this issue is dispositive, we reserve our decision regarding the Director's separate conclusions that 
the Petitioner would not have an employer-employee relationship with the Beneficiary during the requested period, that 
the record lacks a certified LCA and that the Beneficiary is not qualified for the position. 
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