dismissed H-1B Case: Information Technology

MATTER OF D-R- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 18, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology firm, seeks to temporarily employ the Beneficiary as a 
"software engineer" under the H-IB nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act)§ 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(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, California Service Center, denied the petition. The Director concluded that the 
proffered position is not a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in finding that the proffered position is not a specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY 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. 
(b)(6)
Matter of D-R- Inc. 
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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 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). 
B. Proffered Position 
In the H-1B petition, the Petitioner stated that the Beneficiary will serve as a software engineer. The 
Petitioner described the Beneficiary's day-to-day responsibilities as follows: 
• Develop custom-based modules of the 
Resource Planning) system using 
ERP (Enterprise 
• Perform batch server setup, EDI implementation and integrate OLAP 
multidimensional 
reports in 
• Plan, design, develop, test, implement and support custom proprietary software 
applications; 
• Research, design, implement, document, and test system software, in accordance with 
the firm's development process; 
• Provide technical support to project team members; 
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Matter of D-R- Inc. 
• Contribute to company's intellectual property development; 
• Evaluate users requests for new or modified programs; 
• Consult with users to identify current operating procedures to clarify program 
objectives; 
• Formulate plans outlining steps required to develop programs, using structured 
analysis and design; prepare flowcharts and diagrams to illustrate sequence of steps 
program must follow, and to describe logical operations involved; 
• Write documentation to describe program development, logic, coding and 
corrections; 
• Oversee installation of hardware and software, monitor performance of program after 
implementation; 
• Conduct user training, perform periodic system updates, interact with users for future 
enhancements; and 
• Resolve software application problems. 
The Petitioner further indicated that the position requires a bachelor's degree in Computer Science, 
Information Systems, or related field. 
On the labor condition application (LCA) submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Software Developers, 
Applications" corresponding to the Standard Occupational Classification code 15-1132.1 
C. Analysis 
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. 
1 
The Petitioner classified the proffered position at a Level I wage (the lowest of tour assignable wage levels). We will 
consider this 'selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (1) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC _Guidance_ Revised_ll_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. Jd 
3 
(b)(6)
Matter of D-R- Inc. 
Specifically, the record of proceedings contains discrepancies and misleading information that 
undermine the Petitioner's claims regarding the proffered position, and the Petitioner has not 
established the nature and scope ofthe Beneficiary's employment. 
For example, the Petitioner provided misleading information regarding its in-house employment. In 
its support letter, the Petitioner stated that the Beneficiary will "perform 100% of her duties in­
house" at its location. The Petitioner indicated that "[the Petitioner] needs to re-design and re­
engineer the user interface of the [Petitioner's] package and integrate the package into the 
[Petitioner's] software which the Beneficiary has advanced expertise in." While 
the Petitioner also stated that "this position does not require the candidate to work at a client 
location," it did not submit any evidence to indicate that the Beneficiary will be working on a client 
project. However, in response to the request for evidence (RFE), the Petitioner then submitted a 
copy of contract and statement of work (SOW) with (Client), and indicated that the 
Beneficiary would work on a project for its Client. 
Further, there is a discrepancy in the record of proceedings that casts doubt on the Petitioner's claim 
that the Beneficiary's employment will be in-house. For example, the SOW executed between the 
Petitioner and the Client stated that the Client "is responsible for the cost of flights, hotels, car/taxi 
related expenses andfood per diem," which undermines the Petitioner's claim that the Beneficiary 
will "perform 100% of her duties in-house" at its location. 
We also note that the Director stated in its decision that public records indicate that the Client is a 
consulting company which provides computer-related services to its clients. The Director further 
noted that absent additional evidence between the Client and the actual end-client firm, the evidence 
does not establish the work to be performed. However, the Petitioner did not address this issue on 
appeal. 
Moreover, the documents from the Client indicated that it shares the same address as the Petitioner 
as provided in the H-lB petition and the LCA. Even assuming that an in-house project exists, the 
fact that the Petitioner shares its office with the Client also brings into question whether there is 
sufficient work space for the Beneficiary to perform her duties in the Petitioner's office space. In the 
H -1 B petition, the Petitioner indicated that it has 14 employees, but it did not provide information 
regarding how many of these employees work onsite. The Petitioner did provide photographs of a 
desk and copy machine areas. However, the Petitioner did not provide a lease agreement that 
indicates the size of its office space or maximum occupancy allowed, and information from the 
Client that indicates the number of its employees working at the same location. Therefore, we are 
unable to determine if the Beneficiary will have adequate work space to perform her duties, which in 
turn raises doubts about whether the Beneficiary will be working in-house as described in the H-lB 
petition. 
The Petitioner also provided misleading and vague information regarding the proffered duties. 
Specifically, the Petitioner initially indicated that the Beneficiary will, in part, "contribute to 
company's intellectual property development," "plan, design, develop, test, implement, and support 
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(b)(6)
Matter of D-R- Inc. 
custom proprietary software applications," and "research, design, implement, document, and test 
system software, in accordance with the firm's development process." However, in response to the 
RFE, the Petitioner indicated that it "does not produce its own software product," but "utilizes 
software for [its] services." 
Moreover, the job descriptions lack sufficient detail and concrete explanation to establish the 
substantive nature of the work within the context of the project, and the associated applications of 
specialized knowledge that their actual performance would require. For example, a document titled 
"Project Description" states that the Beneficiary's tasks include "test application functionality and 
usability with the users," "identifY bugs, develop fixes," and "use regression testing," which require 
1600 hours. There is no further explanation as to who the users or what particular tasks the 
Beneficiary will perform on a day-to-day basis (e.g., what specific testing and fixing activities are 
involved), the complexity of such tasks, and the substantive application of knowledge involved. 
Further, the general description does not delineate the demands, level of responsibilities and 
requirements necessary for the performance of these duties. 
In addition, the Petitioner provided inconsistent information regarding the minimum educational 
requirements for the proffered position. Specifically, the Petitioner initially stated that the proffered 
position requires at least "a Bachelor's degree or equivalent in Computer Science, Information 
Systems, or related field." However, in response to the RFE, the Petitioner provided a "detailed 
position description," that indicated it requires at least a bachelor's degree in computer science 
and 
experience including "at least 3 years of experience" for 
the proffered position, which differs from the prior minimum requirements stated. 2 
On appeal, the Petitioner asserts that it is providing additional evidence to distinguish itself from the 
employer in Defensor v. Meissner, 201 F.3d at 387. The Petitioner submits copies of contracts it has 
with other clients and documentation regarding work performed by its employees as evidence that 
the proffered position is a specialty occupation. However, none of these documents appear to 
pertain to the proffered position in this petition as they do not mention either the project with the 
Client on which the Beneficiary would . allegedly work for the duration of the petition, or the 
Beneficiary. There are no documents from the Client that outline the requirements for the position 
and, therefore, we cannot determine that the proffered position requires a minimum of a bachelor's 
degree or its equivalent in a specific specialty. 
2 We note that this requirement does not correspond with the Level I prevailing wage on the LCA. In designating the 
proffered position at a Level I, entry-level wage rate, the Petitioner has indicated that the proffered position is a 
comparatively low, entry-level position relative to others within the occupation, in which the Beneficiary is only required 
to have a basic understanding of the occupation. The Petitioner's designation of the proffered position as a Level I, entry­
level position thus undermines the reliability of the requirements for the proffered position contained in the "detailed 
position description" that requires additional experience. No explanation for the variances was provided by the 
Petitioner. Therefore, the Petitioner has not submitted an LCA that corresponds to the position and that is certified for the 
proper wage level. The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports 
the H-IB 
petition filed on behalfofthe Beneficiary. 
5 
Matter of D-R- Inc. 
We note that, as recognized by the court in Defensor, where the work is to be performed for entities 
other than the Petitioner, evidence of the client companies' job requirements is critical. See 
Defensor v. Meissner, 201 F.3d at 387-88. 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. /d. Such evidence 
must be sufficiently detaile4 to deJ;llonstrate the type and educational level of highly specialized 
knowledge in a specific discipline that is necessary to perform that particular work. 
Because of the discrepancies discussed above, we cannot determine the nature and scope of the 
Beneficiary's employment. The record lacks evidence sufficiently concrete and informative to 
demonstrate: (1) the actual work that the Beneficiary-would perform; (2) the complexity, uniqueness 
and/or specialization of the tasks; and/or (3) the correlation between that work and a need for a 
particular level education of highly specialized knowledge in a specific specialty. "[I]t is incumbent 
upon the petitioner to resolve the inconsistencies by independent objective evidence." Matter of Ho, 
19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the Petitioner submits competent objective evidence pointing to where the truth lies. 
/d. at 591-92. 
The inability to establish the substantive nature of the work to be performed by the Beneficiary 
consequently 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 substantive nature of that work that determines: (1) the normal 
minimum educational requirement for 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. Accordingly, as the Petitioner 
has not established that it has satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it cannot 
be found that the proffered position qualifies as a specialty occupation. 
II. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 3 
3 
Since the identified bases for denial are dispositive of the Petitioner's appeal, we will not address any of the additional 
grounds of ineligibility we observe in the record of proceeding. 
6 
Matter of D-R- Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-R- Inc., ID# 16150 (AAO Apr. 18, 2016)