dismissed H-1B Case: Information Technology

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 2, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
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The Petitioner, an information technology consulting and software services company, seeks to 
temporarily employ the Beneficiary as a "software engineer" under the H -1 B nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 101(a)(15)(H)(i)(b), 8 U.S.C. § IIOI(a)(l5)(H)(i)(b). The H-IB 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 Petitioner did 
not establish that the proffered position qualifies as a specialty occupation. 1 
On appeal, the Petitioner submits additional evidence and asserts that the Director's decision was in 
error. 
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 
1 The Director also found that the Petitioner did not provide information regarding "the total number of beneficiaries who 
have utilized the labor condition application accompanying the instant petition ." A review of the file, however , indicates 
that I) at the time of filing , no other beneficiaries had previously utilized the' labor condition application , and 2) the 
Petitioner had provided the information in response to the Director 's request for evidence (RFE) . Therefore , we will 
withdraw the Director 's finding regarding this issue. 
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Matter of 
(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) 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 have consistently interpreted 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 
In response to the RFE, the Petitioner indicated that the Beneficiary would "be assisting with the 
following" duties and provided the approximate percentage of time devoted to each duty (note: 
errors in original have not been changed): 
1. Analyze user needs and software requirements to determine feasibility of design 
within time and cost constraints. ( 10%) 
2. Conceptualizes, architects, designs, implements and supports integrated solutions 
for projects. Demonstrates specialist knowledge in one or more products, 
application or technology and uses,this knowledge to generate profitable revenue 
growth. (15%) 
3. Takes responsibility for the complete integrity of a solution. Interfaces with the 
client's IT managers and users on technical issues. (10%) 
4. Advises, analyzes, researches, designs, installs, and implements products or 
complex technology or application solutions for a unit or organization. (1 0%) 
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5. Design, develop and unit test software applications to meet standards. (5%) 
6. Application development using the latest technologies like JAVA, J2EE, .NET, 
SOA, HTML5, Oracle, SPRING framework (spring data and integration), Restful 
Web Services, Oracle SQL and PL/SQL. (15%) 
7. To perform routing code reviews and quality assurance on software; Involved in 
test and validation of the solution in lab environments (5%) 
8. Worked closely with the customer and business analysts in designing a new 
extension for the application. ( 5%) 
9. To manage maintenance operations for the clients including but not limited to: 
(10%) 
a. Trouble shooting connectivity and performance problems. 
b. Managing knowledge repository in SharePoint/Wiki 
c. Monitoring application and database replication and fail over. 
d. Performing backups and restores. 
e. Develop scripts and utilities for the automation of testing tasks. 
10. To develop and maintain technology policies , standards and procedures manual; 
(5%) 
11. Evaluate and recommend new technologies. Provide ongoing monitoring, 
performance analysis and benchmarking. (5%) 
12. Provides technical presentations to internal and external clients . 
According to the Petitioner, the proffered position requires a bachelor's degree in "IT/Engineering or 
related field." 
III. SPECIALTY OCCUPATION 
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 provide (1) sufficient, credible evidence to establish in-house 
employment for the Beneficiary for the validity of the requested H -1 B employment period, 
(2) sufficient detail regarding the position's duties , and (3) that the job duties require an educational 
background , or its equivalent, commensurate with a specialty occupation? 
The Petitioner has not provided consistent information regarding in..:house project for the 
Beneficiary. The Petitioner repeatedly asserts that "it has its own products that are in [the] 
developmental stage" and claims that it is "currently building [its] own product line ., 
As evidence, the Petitioner submitted a variety of documents, including the project charter and 
technical design specification documents for ' ' and printouts from its 
2 While we may not discuss every document submitted , we have reviewed and considered each one. 
3 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 l&N Dec. 369, 375-76 
(AAO 2010). 
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website. In response to the RFE, however, the Petitioner described itself as "an 
'' and claims that "since uses predominantly software 
... we get complimentary development licenses to buil[d] the product." The Petitioner did not 
provide documentary evidence that it has received the described license, and, as a result of the 
claimed partnership, it is unclear whether any of the products, including are 
the Petitioner's "own product," as claimed.4 The Petitioner must resolve these inconsistencies in the 
record with independent, objective evidence pointing to where the truth lies. Matter of Ho, I9 l&N 
Dec. 582, 59I-92 (BIA 1988). 
We also note that the Petitioner provided information regarding a number of client projects, 
including "in-house project consulting agreements," but, the provided itinerary does not indicate that 
the Beneficiary will be involved in any project beyond the product line, or even to which 
of the products the Beneficiary will be assigned. Regardless, even if we assume that the 
Petitioner has an in-house project, we find that the Petitioner did not provide sufficient, credible 
evidence to establish that it has sufficient in-house employment for the Beneficiary for the validity 
of the requested H-IB employment period. For example, according to the project charter for 
the total project timeline is estimated to be 33,580 hours5 and lists II 
individuals, including 2 software engineers, assigned to the project, not including the Beneficiary. 
First, we note that the Petitioner has not provided evidence to establish that the project requires 
another software engineer. In addition, contrary to the claimed three year project timeline, even 
assuming that I2 individuals, including the Beneficiary, worked 40 hours per week for 50 weeks per 
year, the project would be complete in less than a year and a half. For H-lB approval, the Petitioner 
must demonstrate that a legitimate need for ari employee exists and substantiate that it has H-lB 
caliber work for the Beneficiary for the period of employment requested in the petition.6 
4 The Petitioner states that ' is "an open standards-based solution for managing media 
companies' work processes and is based on the and Business Process 
Management platforms . According to an news release, ·based solution to address the 
evolving challenges in managing the increasing complexity and inefficiencies in running a content-oriented business." 
See http:/, 
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The Petitioner incorrectly provided a total estimate of 31, 180 hours. 
6 
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 
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-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 . 
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Further, the Petitioner did not submit a job description that adequately conveys the substantive work 
to be performed by the Beneficiary. As evident from the job description above, the Petitioner 
described the duties of the proffered position in relatively general terms. The job description lacks 
sufficient detail to establish the substantive nature of the work within the context of any project( s) the 
Beneficiary will work on, and the associated applications of specialized knowledge that their actual 
performance would require. While a generalized description may be appropriate when defining the 
range of duties that are performed within an occupation , such generic descriptions generally cannot 
be relied upon by the Petitioner when discussing the duties attached to specific employment for 
H-lB approval. In establishing such a position as a specialty occupation , the description of the 
proffered position must include sufficient details to substantiate that the Petitioner has H -1 B caliber 
work for the Beneficiary. For example, it is unclear what theoretical and practical application of a 
body of highly specialized knowledge is required to assist with "[p]rovid[ing] technical presentations 
to internal and external clients" or to "[in]anag[e] knowledge repository in SharePoint/Wiki ." 
Further, the Petitioner has not explained how the Beneficiary will "assist" with "tak[ing] 
responsibility for the complete integrity of a solution, " and who the Beneficiary will assist. Without 
a meaningful job description, the record lacks sufficiently informative evidence to demonstrate that 
the proffered position requires a specialty occupation's level of knowledge in a specific specialty. 
The tasks as described do not communicate the actual work that the Beneficiary will perform, the 
complexity, uniqueness or specialization of the tasks, or the correlation between that work and a 
need for a particular ltivel education of highly specialized knowledge in a specific specialty. 
In light of the above, the Petitioner has not established the substantive nature of the work to be 
performed by the Beneficiary. This 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 substanti ve 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. 
We also find that the Petitioner's claimed entry requirement of at least a bachelor ' s degree in 
"IT/Engineering or related field" for the proffered position , without more , is inadequate to establish 
that the proposed position qualifies as· a specialty occupation. In general , provided the specialties are 
closely related, e.g., chemistry and biochemistry, a minimum of a bachelor's or higher degree in 
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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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 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 degr,ee 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)( 1 )(B) of the 
Act (emphasis added).7 ' 
The issue here is that the field of engineering is a broad category that covers numerous and various 
specialties, some of which are only related through the basic principles of science and mathematics , 
e.g., nuclear engineering and aerospace engineering. It is not readily apparent that a general degree 
in engineering or one of its other sub-specialties, such as chemical engineering or nuclear 
engineering, is closely related to information technology or that engineering or any and all 
engineering specialties are directly related to the duties and responsibilities of the particular position 
proffered in this matter. 
Here, the Petitioner has not established either that (1) information technology and engineering in 
general are closely related fields or (2) engineering or any and all engineering specialties are directly 
related to the duties and responsibilities of the proffered position. 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 under the Petitioner's own 
standards. 
Therefore, absent evidence of a direct relationship between the claimed degrees required and the 
duties and responsibilities of the position, it cannot be found that the proffered position requires 
anything more than a general bachelor's degree. As explained above, we interpret the degree 
requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly 
related to the proposed position. We have .consistently stated that, although a general-purpose 
bachelor's degree, such as a degree in business administration, may be a legitimate prerequisite for a 
particular position, requiring such a degree, without more, will not justify a finding that a particular 
position qualifies for classification as a specialty occupation. Royal Siam Corp ., 484 F.3d at 147. 
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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). This also includes even seemingly disparate specialties providing, again, the evidence of 
record establishes how each acceptable , specific field of study is directly related to the duties and responsibilities of the 
particular position. 
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IV. CONCLUSION 
The Petitioner has not established that the proffered position qualifies as a specialty occupation. 8 
ORDER: The appeal is dismissed. 
Cite as Matter of ID# 433811 (AAO June 2, 2017) 
8 As the Petitioner has not established that the proffered position qualifies as a specialty occupation, we need not address 
additional issues in the record. 
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