dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8991808 
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 19, 2020 
The Petitioner, an information technology consulting and services company, 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)(l5)(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 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." On the labor condition application (LCA) 1 
submitted in support of the H-1 B 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. The Petitioner provided the 
following job duties (verbatim): 
• Use core Java programming skills and JStruts to design, develop, test and deploy 
software applications. 
• Analyze user requirements to design and develop databases, etc., through the use 
of JavaScript libraries and tools to increase operational efficiency. 
• Develop web interfaces and services using ReST and ReSTful for interaction with 
wide database integration projects. 
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 
• Use knowledge ofIDE and tools such as Eclipse, Oracle SQL Developer, Jenkins, 
GIT, Putty, Talend Open Source (TOS), Swagger, WinSCP etc., in building robust 
software applications. 
• Build custom databases using Oracle, MySQL, Mongo and Sybase in integration 
and enhancement projects as per client requirements. 
• Prepare and execute test plans for Unit Testing and Integration testing using JUnits 
for Unit Testing Business Logics. 
The Petitioner stated that the job duties require "a computer-related bachelor's degree like the 
Electronic[s] Engineering degree possessed by [the Beneficiary]." 
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 
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. 
The Petitioner stated that the Beneficiary "will be assigned to [its] portal software development project 
for ,__ _______ _____.-I I company" (the client) and submitted a statement of work 
(SOW) dated January 8, 2018 to provide details of the project. According to the SOW, the Petitioner 
will "develop a web[-]based system that would replace the [client's] existing legacy software 
developed and managed" by a different company. The project will "be executed in 2 phases, followed 
by post[-]implementation phase." The SOW contains a table that provides the following timeline: 
Wkl Wk2 Wk3 Wk4 Wk5 Wk6 Wk7 Wk8 Wk9 WklO Wkll Wkl2 Wk13 Wkl4 
12/18 12/25 1/1 1/8 1/15 1/22 1/29 2/5 2/12 2/19 2/26 3/5 3/12 3/19 
Phase 1 - Client Portal (Refer Appendix A) 
Phase 2 - Backoffice Application (Refer Appendix B) 
The SOW indicated that the "Requirement Gathering Phase" would be "2 weeks each;" the "Build 
Phase" would be "5&7 weeks for the Client Portal and BackOffice Upgrade respectively;" the "Testing 
Phase" would be "l week each after each sprint," and the "Production Server Deployment & Data Set 
up [sic] Phase" would be "l week each." The post-implementation phase would require the Petitioner 
to provide necessary documentation to the client, fix bugs, and help train the trainer for the client once 
the implementation is completed. The SOW states that at the end of 14 weeks, it will go live with 
"upgraded Backoffice." According to the SOW, a "separate agreement will be provided to [the client] 
2 The Petitioner submitted documentation to suppmt the H-lB 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 
for long term support of the application" and the project "shall commence within a week from the 
[ d]ate of signing this document." 
The table above depicting the timeline refers to "Appendix A" and "Appendix B," suggesting there 
are other documents associated with the SOW. However, the Petitioner did not submit these 
appendices into the record and did not provide an explanation for not providing them. Furthermore, 
the SOW states that a "separate agreement will be provided" to the client for "long[- ]term support of 
the application." However, the record does not contain such an agreement. Again, the Petitioner does 
not explain the reasons for not submitting it. Therefore, we are unable to review terms and conditions 
expressed in the appendices and the agreement for the long-term support of the application. 
While the SOW indicates that the project was supposed to "commence within a week from the Date 
of signing" it, the Petitioner provided insufficient information detailing the progress of the project. 
Based on the timeline provided in the SOW and the start date of within one week of January 8, 2018 
(the signature date of the SOW), at the time the petition was filed, 3 the project would have been near 
the end of the 14-week timeline indicated in the table. However, the Petitioner did not provide 
information regarding the status of the project and did not sufficiently explain the services it is 
supposed to provide after the completion of Phases 1 and 2. The record is also ambiguous regarding 
the Beneficiary's role, if any, for the project's "long-term support." 
Moreover, the SOW states that the Petitioner "will position a Project Manager and a Development 
team consisting of Business Analyst, QA and Developers." However, the Petitioner did not indicate 
how many developers would be assigned to this project. 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 claimed project. The 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). 4 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. 
On appeal, the Petitioner asserts that "the customer contract and customer letter" establish that the 
Petitioner has available in-house work for the Beneficiary and submits a letter from the client. 
Notably, the letter is undated, and the client does not provide the contract title or the date it became 
effective. The letter does not establish whether the client wrote this letter prior to the implementation 
of the project or during a particular phase after its commencement. The client states that it has 
contracted the Petitioner to develop "a client web portal which includes back office migration" and 
lists the duties associated with the position. 5 The client further states that the Beneficiary will 
"[ e ]ngage with the client team to design and plan the solution recommended and work with the larger 
team of programmers to ensure that all the modules work cohesively as per our needs." However, it 
is not clear to whom the client is referring by "the client team" - whether the client is referring to a 
team within its operations or to a team designated by its customers. This further calls into question 
3 The petition was filed on April 2, 2018. 
4 On the petition, the Petitioner stated having nine employees in the United States. 
5 For the sake of brevity. we will not quote the entire duties provided by the client; however, we have closely reviewed 
and considered them. 
4 
the nature of the project, what exactly the Beneficiary will be doing, and whether those job duties 
require an educational level commensurate with a specialty occupation. 
The letter also provides insufficient information regarding the Beneficiary's role within the "larger 
team of programmers." The record does not contain a detailed information regarding how many 
programmers will be in the team, and whether the Petitioner will provide the entire team of 
programmers or whether the client has contracts with companies other than the Petitioner to provide 
additional services. Moreover, the record is silent on whether the Beneficiary will supervise any of 
the team members and to whom he will report within the team and the overall project. As noted, the 
Petitioner did not provide an organizational chart depicting the Beneficiary's position within its 
organizational hierarchy. Therefore, the Beneficiary's role within the "larger team of programmers" 
and the extent of his duties cannot be determined. Furthermore, while the client states that they are 
"excited to have [the Beneficiary] to help [them] stabilize this project," it does not explain what it 
means by "stabilize" and how the Beneficiary would accomplish that goal. The information provided 
in the letter is general and provides insufficient insight into the position to help us understand the true 
nature of the proffered position and the duties associated with it. 
For the reasons discussed, the SOW and the client's letter are insufficient to support the Petitioner's 
assertion that the proffered position qualifies as a specialty occupation. 
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 
"[a]nalyze user requirements to design and develop databases .... " However, the Petitioner did not 
explain how the user requirements would be gathered, who would be responsible for collecting the 
data and the techniques the Beneficiary would utilize in analyzing them. The Petitioner stated that the 
Beneficiary would use several software tools to "design, develop, test and deploy software 
applications," but did not elaborate on the specific aspect of the application design in which the 
Beneficiary would be involved. The Petitioner farther stated that the Beneficiary will "[ d]evelop web 
interfaces and services using ReST and ReSTfol for interaction with wide database integration 
projects." Again, the Petitioner did not explain the Beneficiary's specific role in developing "web 
interfaces and services." 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 equivalency, in a body of highly specialized knowledge 
in a specific specialty. 
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. 
5 
The Petitioner stated that it requires a "computer-related bachelor's degree like the Electronic[s] 
Engineering degree possessed by [the Beneficiary]" 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 itselfrequires 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. 
As the record does not contain sufficient information 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. 6 
ORDER: The appeal is dismissed. 
6 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