dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 9041997 
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 : MAY . 1, 2020 
The Petitioner, an information technology consulting and services company, seeks to temporarily 
employ the Beneficiary as a "software developer, applications" 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 of the California Service Center denied the petition, concluding that the evidence of 
record does not establish that the proffered position qualifies as a specialty occupation. The matter is 
now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010) . We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
Upon de nova 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: 
( 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. Chertojf, 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"). 
II. PROFFERED POSITION 
The Petitioner describes itself as "an IT consulting and services company providing technology and 
functional consultants to [its] clients and executing projects on a tum-key basis." The Petitioner seeks 
to employ the Beneficiary as a "software developer, applications." On the labor condition application 
(LCA) submitted in support of the H-lB petition, the Petitioner designated the proffered position under 
the occupational category "Software Developers, Applications" corresponding to the Standard 
Occupational Classification (SOC) code 15-1132, at a Level II wage. 1 The Petitioner provided the 
following job duties (verbatim): 
• Conduct user needs analysis in order to design and develop software applications 
that address these needs; 
• Use coding languages such as Docker, Polymer, apache Kafka, Node JS, GraphQI, 
Python 3.7 to 3.2, Java/J2EE, Swing, SWT, Servlets, JSP, Restful Web services, 
HTML to design various parts of software applications such that they work 
cohesively together; 
• Utilize various tools such as Eclipse, NetBeans, IBM Web sphere Message 
Broker-V8, JUnit, Spring tool suite 3.4.0, CI (Jenkins, Nexus), SVN, GitLab, 
1 A petitioner submits the LCA to the U.S. Department of Labor 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 duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. 
§ 655.73l(a). 
2 
Talend tool ETL, etc. to create dashboards, flowcharts and other detailed 
documentation to aid other programmers to understand the structure and flow of 
the software application; and[,] 
• Conduct rigorous testing through various phases of the software development 
lifecycle to ensure that all components work without any glitches. 
The Petitioner stated that the job duties require "a computer-related bachelor's degree like the 
beneficiary's Electronic Engineering degree." 
III. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation because the record contains insufficient and 
inconsistent information regarding the services that the Beneficiary will perform. 2 
A crucial aspect of this matter is whether the duties of the proffered position are described in such a 
way that we may discern the actual, substantive nature of the position. When determining whether a 
position is a specialty occupation, we look at the nature of the business offering the employment and 
the description of the specific duties of the position as it relates to the performance of those duties 
within the context of that particular employer's business operations. 
On a fundamental level, we conclude that the Petitioner has not sufficiently described the substantive 
nature of the Beneficiary's proposed duties within its operations. In the letter of request for evidence 
(RFE), the Director requested additional documentation to demonstrate that the Petitioner had 
sufficient specialty occupation work for the Beneficiary to perform in-house for the entire period 
requested in the H-1 B petition. The Director also requested information regarding the nature of the 
proffered position, the skills required to perform the duties, and more. 3 In response, the Petitioner 
submitted a letter comprised of four sentences stating the following: 4 
[The Petitioner] is responding to your August 2, 2019 Request for Evidence. There is 
one issue. We must document the availability of in-housework [sic] for the beneficiary. 
[the Beneficiary] does have software development work available to him on our 
premises as confirmed by the attached September 20, 2019 letter of our client, 
I I 
The client's one-page letter indicated that it contracted the Petitioner until November 2022 as its 
"Strategic Technology partner to help build solutions around work flow [sic] automation and process 
optimization for [its] Association management related service offerings to [its] clients." The client 
further stated that "[p]ursuant to the current agreement [they] have in force, [the Petitioner] will 
provide the services of a Software Developer, Applications to work on [its] current project, based out 
2 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. 
3 The Director also requested additional evidence for the Petitioner to demonstrate that it will have an employer-employee 
relationship with the Beneficiary. 
4 The letter was authored by the Petitioner's "CEO and President." 
3 
of [the Petitioner's] offices." However, the contract between the Petitioner and the client was not 
submitted into the record and the Petitioner provided no explanation for not submitting it. While the 
client briefly described the services it needed as to "help build solutions around work flow [sic] 
automation and process optimization for [its] Association management related service offerings to [its] 
customers," it did not provide a sufficiently detailed information of its project, nor did it provide 
information regarding its operations, its products, or customers. The client listed the same duties 
provided by the Petitioner verbatim but provided very little context to demonstrate that the duties 
would require the services of a person with at least a bachelor's degree in a specific specialty. 
Furthermore, the client did not state the project's start date, nor did it indicate the stages of the project 
and the remaining work, if any, to be performed to complete the project. The client's letter does not 
sufficiently establish the Beneficiary's day-to-day work in relation to its project. Thus, without 
additional documents, the client's letter has little probative weight towards establishing the actual 
work to be performed by the Beneficiary for its project. 
On appeal, in addition to the previously submitted letter from the client, the Petitioner submits a 
redacted document notated as "Exhibit C" that is entitled, "Renewal: Maintenance Services and Fees" 
(Renewal) executed by the Petitioner and the client in August 2019. We note that we need not and do 
not consider the Renewal document submitted after the Director's RFE that put the Petitioner on notice 
of the deficiencies in the record. 5 However, we will briefly note that this document was executed after 
the petition was filed, and therefore, it is insufficient to demonstrate that the Petitioner had specialty 
occupation work available for the Beneficiary at the time it filed the petition. 6 Furthermore, the 
Renewal document states that the "[ m ]aintenance [ s ]ervices for the application and configuration 
listed in Exhibit A will be provided for a period of 3 9 months commencing from September 1, 2019." 
However, the record does not contain either the referenced Exhibit A or the primary document to 
which the exhibits were attached. Therefore, we are not able to review the conditions and terms upon 
which the Renewal document was based. Moreover, the information contained in the Renewal 
document is limited in scope and does not adequately establish the services to be provided by the 
Beneficiary such as duties or educational requirements for the position. 
Aside from the issues noted above, the record does not contain a sufficiently detailed description of 
the Beneficiary's duties to establish that the position requires the theoretical and practical application 
of a body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in 
the specific specialty, or its equivalent. For example, the Petitioner stated that the Beneficiary will 
"[ c ]onduct user needs analysis in order to design and develop software applications that address these 
needs." However, the Petitioner did not provide a detailed information regarding what constitutes 
"user needs analysis" and the techniques the Beneficiary would utilize in analyzing such needs. The 
Petitioner stated that the Beneficiary would use several coding languages "to design various parts of 
software applications such that they work cohesively together," but did not elaborate on the specific 
aspect of the application design in which the Beneficiary would engage. Broadly described duties do 
not illuminate the substantive application of knowledge involved or any particular educational 
requirement associated with such duties. Such a generalized description does not establish a necessary 
correlation between the proffered position and a need for a particular level of education, or its 
5 The Petitioner submitted its response to the RFE on October 1, 2019. As Exhibit C was executed in August 2019, it was 
available at the time the Petitioner submitted its RFE response. The Petitioner did not explain why it did not submit Exhibit 
C with its RFE response for the Director to consider it. 
6 The petition was filed on April 30, 2019. 
4 
equivalency, in a body of highly specialized knowledge in a specific specialty. The Petitioner farther 
stated that the Beneficiary will "[ c ]onduct rigorous testing through various phases of the software 
development lifecycle to ensure that all components work without any glitches." However, the record 
contains insufficient information detailing the "various phases" of the project, the progress of the 
project, and the remaining work, if any, to be performed to complete the project. Nor does the 
Petitioner explain what "rigorous testing" involves. With the broadly described duties, and the lack 
of evidence regarding work specific to a particular project, the record lacks sufficient information to 
understand the nature of the actual proffered position and to determine that the duties require the 
theoretical and practical application of a body of highly specialized knowledge attained by a bachelor's 
degree, or higher, in a specific discipline. 
Moreover, the Petitioner indicated that the Beneficiary will be interacting with other programmers in 
performance of his duties. The Petitioner stated that the Beneficiary will "[ u ]tilize various tools ... 
to create dashboards, flowcharts and other detailed documentation to aid other programmers to 
understand the structure and flow of the software application." However, Petitioner did not submit an 
organizational chart that would delineate the Petitioner's organization, and staffing hierarchy 
(including the job titles of the positions that the Beneficiary will manage in the proffered position, and 
the job title of the individual he will report to). Therefore, the organizational set-up, the Beneficiary's 
position within the Petitioner's overall organizational hierarchy, and the extent of his duties cannot be 
determined. The evidence does not show the operational structure within the Petitioner's project in a 
manner that would establish the Beneficiary's relative role therein. The Petitioner has not adequately 
evidenced the scope of the Beneficiary's responsibilities within the context of the Petitioner's stated 
collaborative efforts with other programmers. 
We also note that the Petitioner 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 generally described duties. That is, the Petitioner submitted 
no information to establish the percentage of time the Beneficiary will perform any of the duties 
described. Thus, the record does not specify which tasks are major functions of the proffered position, 
which farther limits an analysis of the complexity, specialization, or uniqueness of the proffered 
position. 
The Petitioner stated that it requires a "computer-related bachelor's degree like the beneficiary's 
Electronic Engineering degree" referencing the Beneficiary's qualifications. However, the test to 
establish a position as a specialty occupation is not the credentials of a proposed beneficiary, but 
whether the position itself requires at least a bachelor's degree in a specific specialty, or its equivalent. 
Here, the Petitioner has not established the substantive nature of the Beneficiary's work. We also note 
that the client requires "related work experience" in addition to a bachelor's degree in computer science 
or a closely related field. Notably, the Petitioner does not explain the inconsistency in the position 
requirements stated by the client. Furthermore, the client does not quantify the length of experience it 
requires, nor does it elaborate on whether such experience should be equivalent to knowledge gained 
through a bachelor's degree or higher in a specific specialty. The inconsistent position requirements 
raise farther questions regarding the substantive nature of the position. The Petitioner must resolve 
the inconsistencies in the record with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies may lead 
5 
us to reevaluate the reliability and sufficiency of other evidence submitted in support of the requested 
immigration benefit. Id. 
As the record does not contain sufficient documentation regarding the actual work that the Beneficiary 
would perform during the intended period of employment, the Petitioner has not established the 
substantive nature of the work to be performed by the Beneficiary. This precludes a conclusion 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. 
Therefore, the Petitioner has not established that the proffered position is a specialty occupation. 7 
ORDER: The appeal is dismissed. 
7 As the ground discussed above is dispositive of the Petitioner's eligibility for the benefit sought in this matter, we will 
not address and will instead reserve our determination on whether the Petitioner has established non-speculative 
employment for the Beneficiary. 
6