dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 15, 2024 In Re: 34046325 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonirnrnigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b) . The H-lB program allows a U.S. employer to 
file a petition with U.S. Citizenship and Immigration Services (USCIS) 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 record did not 
establish that the proffered position is for specialty occupation. The matter is now before us on appeal 
pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter ofChristo's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Section 10l(a)(l5)(H)(i)(b) of the Act defines an H-lB nonirnrnigrant as a foreign national "who is 
corning temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § l 184(i)(l), defines 
the term "specialty occupation" as an occupation that requires the "theoretical and practical application 
of a body of highly specialized knowledge, and 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 section 214(i)(l) of the Act, but adds a non­
exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty 
occupation under section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 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"). Lastly, 8 C.F .R. § 214.2(h)( 4)(i)(A)(l) states that 
an H-1 B classification may be granted to a foreign national who "will perform services in a specialty 
occupation ... " (emphasis added). 
Accordingly, to determine whether a beneficiary will be employed in a specialty occupation, we look 
to the record to ascertain the services the beneficiary will perform and whether such services require 
the theoretical and practical application of a body of highly specialized knowledge attained through at 
least a bachelor's degree or higher in a specific specialty or its equivalent. Without sufficient evidence 
regarding the duties a beneficiary will perform, we are unable to determine whether the beneficiary will 
be employed in an occupation that meets the statutory and regulatory definitions of a specialty occupation 
and a position that also satisfies at least one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
The services the beneficiary will perform in the position determine: ( 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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
II. PROFFERED POSITION 
The Petitioner describes itself as an IT (information technology) consulting services business. The 
proffered position is "test automation." On the labor condition application (LCA) submitted with the 
petition, the Petitioner designated the position to be in the "Software Quality Assurance Analysts and 
Testers" occupational category, corresponding to the Standard Occupational Classification (SOC) 
code 15-1253. The Petitioner stated that the job will involve the following duties: 
• Provide testing and analysis of complex systems to ensure systems are compliant with 
requirements and can perform well in production 
• Independently develop performance, functional, behavioral, API, and 508 (any as needed) test 
scripts using applicable tools, create test scenarios and execute tests 
• Analyze test results, identify performance root cause, and write test report to recommend 
improvements to the system 
• Coordinate with other testers and developers to resolve test problems and ensure customer 
satisfaction 
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• Attend requirements gathering meetings to better understand business needs, functional and 
system requirements 
• Focuses on end-to-end pipeline health and deep visibility into end-to-end quality of the overall 
program 
• Produce detailed testing documents, including a test plan, test cases, test data, and test scripts 
to automate and rapidly perform testing iteratively 
• Develop testing status reporting tools and methods that will allow stakeholders at various levels 
to quickly assess the system status of their focused area and drill down to get details as needed 
• Collaborate with the development and analyst to ensure implementation of the needed 
business, functional, and system requirements 
• Leads and takes ownership of automated testing processes and implements them; contributes 
to the design and maintenance of the test automation framework 
• Develops high quality automation test engineering best practices, test strategy, and principles 
• Gather meetings to better understand business needs, functional, and system requirements 
• Produce detailed testing documents, including a testing plan, test cases, test data, and test 
scripts to automate and rapidly perform testing iteratively 
• Provide regular and open communication across the program and stakeholders for transparency 
and awareness of progress and impediments 
• Work across stakeholders and teams to continuously improve 
• Constantly refine and stay current with emerging themes in larger Medicare policy and 
provider community 
• Participate in management and cross-functional teams as subject matter expert to develop and 
improve operating policies and procedures related to user workflows and be an advocate for 
user community 
• Understand, visualize, and manage upstream/downstream dependencies 
• Drive delivery and continuous improvement by utilizing feedback and metrics ( quality, 
delivery rate, etc.) to identify areas of opportunity 
The Petitioner maintains that the position requires a bachelor's degree in computer science or a closely 
related field. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record provides insufficient information regarding the proffered position, which in 
tum precludes us from understanding the position's substantive nature and determining whether the 
proffered position qualifies as a specialty occupation. 
A crucial aspect of this matter is whether the Petitioner has sufficiently described the duties of the 
proffered position such that we may discern the nature of the position and whether the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree in a specific specialty. When determining whether a position is a 
specialty occupation, we look to 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. At a fundamental level, the Petitioner has not 
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provided sufficient material about the specifics of the test automation projects and initiatives that the 
Beneficiary will be assigned to, or the specifics of the services that the Petitioner provides, to establish 
by a preponderance of the evidence that the proffered position is for a specialty occupation. 
First, the Petitioner has offered several iterations of its job description, and the duties described are 
vague, redundant, and do not appear to be tailored to any specific products or services offered by the 
Petitioner. The Petitioner's initial job description, although lengthy, included both redundant duties 
and those that appear unrelated to the position. For example, the duties to "attend requirements 
gathering meetings" and to "produce detailed testing documents," are repeated in the job description. 
Additionally, the duty to "constantly refine and stay current with emerging themes in larger Medicare 
policy and provider community" does not appear to relate to test automation work. In response to the 
request for evidence (RFE), the Petitioner provided additional "sub-duties" for the first eight job duties 
from the initial description. However, the Petitioner did not provide "sub-duties" for most of the duties 
in its initial description, and those that it did provide do not truly offer more insight into the day-to­
day work tasks of the position. Instead, they are often simply repetitive of other duties (for example, 
executing performance, functional, behavioral, API, and accessibility tests). On appeal, the Petitioner 
narrows the position down to four primary duties and, for the first time, provides percentages for each 
of the job duties. The Petitioner contends on appeal that it has offered an "in-depth breakdown" of 
the job responsibilities and that they demonstrate that the position is "highly technical" and 
"specialized and complex." However, upon review, we conclude that the job duties, in addition to 
evolving from the initial petition through appeal, are primarily repetitive and vague. 
Second, in addition to the unclear job description, the Petitioner has provided little specific information 
about its own products and services to help better elucidate position's requirements. The Petitioner 
provided information from its website that states that the company offers "innovative technology" and 
"a consumer-centric approach" in a "wide variety of industries" but did not provide further specific 
information. The other information in the record about the company, for example its quarterly wage 
report and tax returns, bank statements, list of its three current employees, and articles of incorporation, 
also do not provide information about its products or services. The Petitioner provided evidence of 
paid invoices for its services-specifically, its employees providing "IT consulting services"-but the 
invoices do not further describe what these services specifically are and what specific services the 
Beneficiary will provide. 
Such generalized information, in both the position description and the Petitioner's description of its 
services, impedes our ability to determine whether there is the necessary correlation between the 
proffered position and the need for a particular level of education, or educational equivalency, in a 
body of highly specialized knowledge in a specific specialty. It is not evident that the proposed duties 
as described in this record, and the position that they comprise, merit recognition of the proffered 
position as a specialty occupation. To the extent that they were described, the proposed duties did not 
provide a sufficient factual basis for conveying the substantive matters that would engage the 
Beneficiary in the actual performance of the proffered position, so as to persuasively support the claim 
that the position's actual work would require the theoretical and practical application of any particular 
educational level of highly specialized knowledge directly related to the duties and responsibilities of 
the proffered position. 
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I 
Finally, we conclude that the opinion letter in the record does not, as the Petitioner claims on appeal, 
establish that the position qualifies as a specialty occupation. The opinion letter is authored by I 
Ph.D., a faculty member of ____________ Minnesota. Professor 
c===} describes there being "a match" in the nature of the Beneficiary's degree and the position 
description. The professor asserts that a computer science degree would be "a natural fit" for the 
position and would "provide a strong foundation of knowledge" for the position's duties. The 
professor also repeats the Petitioner's job description, discusses the standard curricula taught in a 
computer science or related degree, and states that duties within the Petitioner's position relate to 
topics that are covered in a standard undergraduate computer science or related degree program. But 
generally, whether a particular degree program relates to a proffered position does not necessarily 
demonstrate that the duties of the proffered position actually require the theoretical and practical 
application of a body of highly specialized knowledge and the attainment of a bachelor's degree or 
higher in a specific specialty. As a matter of discretion, we may use opinion statements submitted by 
the Petitioner as advisory. Matter of Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). 
However, we will reject an opinion or give it less weight if it is not in accord with other information 
in the record or if it is in any way questionable. Id. We are ultimately responsible for making the final 
determination regarding an individual's eligibility for the benefit sought; the submission of expert 
opinion letters is not presumptive evidence of eligibility. Id. Here, the opinion letter is of little 
probative value because, although the professor states that it is their opinion that the position is a 
specialty occupation, the professor offers little support for this conclusion. 
Upon review of the totality of the evidence submitted, the Petitioner has not provided substantive 
detail or clarity regarding the duties the Beneficiary will perform and therefore has not established the 
minimum degree requirement for the occupation. The record does not adequately convey ( 1) the actual 
work that the Beneficiary will perform; (2) the complexity, uniqueness, or specialization of the tasks; 
and (3) the correlation between that work and a need for a particular level of education and knowledge. 
Without sufficient clarity regarding the duties the Beneficiary will perform we are unable to determine 
whether the Beneficiary will be employed in an occupation that meets the statutory and regulatory 
definitions of specialty occupation as defined by section 214(i)(l) of the Act and 8 C.F.R 
§ 214.2(h)(4)(ii) and is a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A). 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. See section 291 of the 
Act. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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