dismissed H-1B Case: Information Technology

Non-Precedent Decision of the 
Administrative Appeals Office 
MATTER OF C-, LLC DATE: JULY 28,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting company, seeks to temporarily employ the 
Beneficiary as a "software developer" 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. 
§ 1101(a)(15)(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 theqretical and practical application 
of a body of highly specialized knowledge and (b) the attainment ofa 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 had 
not established that the proffered position is a specialty occupation. 
In its appeal, the Petitioner submits additional evidence and asserts that the Director erred in her 
findings. 
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) 
(B) 
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 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: 
Matter of C-, LLC 
(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. Cherto,ff, 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 support ofthe petition and in response to the Director's request for evidence (RFE), the Petitioner 
submitted the following description of the Beneficiary's duties: 
• Writing robust, manageable code- 50% 
• Designing and building software architecture for project -10% 
• Building, managing, and communicating with a small team of junior developers -
10% 
• Mentoring less experienced colleag~es with a small team of junior developers- 10% 
• Alpha testing and code review - 1 0% 
• Project management- 5% 
• Performing business requirement analysis and system designing using UML system -
5% 
The Petitioner indicated that the proffered position requires "at a minimum,· a Bachelor's Degree or 
equivalent to perform the job duties as described." 
III. ANALYSIS 
We determine that the Petitioner has not demonstrated that the proffered position qualifies as a 
specialty occupation. Specifically, the record (1) does not describe the position's duties with 
sufficient detail; (2) establish specialty occupation work for the entire requested period of 
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Matter of C-, LLC 
·employment; and (3) does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 1 
The Petitioner did not establish that the Beneficiary would have sufficient specialty occupation work 
available for the entire requested period of employment. In the letter filed in support of the petition, the 
Petitioner indicated that it offers "advanced software development and systems integration services." 
While the Petitioner stated that the Beneficiary would be employed in-house, the Petitioner provided 
little detail or evidence related to the work the Beneficiary would perform during the requested period 
of employment. 
In response to the RFE and on appeal, the Petitioner stated that the Beneficiary would work for the three 
year period on a project to update its website. In support of this assertion, the Petitioner submitted 
documents; however, the dates and content of the documents contain inconsistencies that undermine the 
Petitioner's claims regarding the project. 
Specifically, in response to the RFE, the Petitioner submitted documents created by an outside 
contractor to assess performance of its website. However, the document titled "Statement of Work & 
Proposal" is dated after the date of the filing the petition in October 2016. Further, the statement of 
work states that the contractor had only performed a "brief overview" of the Petitioner's website and 
that it was proposing a more comprehensive audit. This document is submitted with a marketing plan 
(August 2016) and invoice (September 2016) from a consultant providing a general overview of the 
Petitioner's potential customers, competitors, and its website. 
In denying the petition, the Director noted that the documents are dated after the date of filing. On 
appeal, for the first time, the Petitioner provides documents that predate the filing of the petition, 
including memorandums between the management staff regarding the website project, affidavits 
from the management, internal statement of work, and technical design specification. However, the 
Petitioner does not explain why these documents were not previously submitted in response to the 
RFE when the Director specificallyrrequested additional evidence to establish its in-house project.2 
I 
Further, the content of the documents submitted on appeal is inconsistent with previously submitted 
evidence. For example, the affidavits from the president and chief operating officer of the company 
state that in 2015 the Petitioner "involved a few web development consultants to review our current 
website to give advice on implementation of new functionality and technology solutions." However, 
the Petitioner provides no documentation to support this statement and this assertion appears to be in 
1 
The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
2 
The Petitioner must establish that .the position offered to the Beneficiary when the petition was filed merits 
classification for the benefit sought. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'! Comm'r 1978). A 
petitioner may nQt make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm 'r 1998). 
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Matter of C-, LLC 
conflict with other evidence on the record demonstrating that investigation of the project had just began 
to get underway months after the filing of the petition in August 2016. 
Furthermore, on appeal, the Petitioner now submits a statement of work arid a technical specification 
document predating the petition, while in contrast
, it previously had only provided documentation 
indicating that the project was being initially investigated after filing this petition. Moreover, the 
documentation does not reflect a comprehensive plan for the redevelopment of the Petitioner's website 
but appears to be instructions or marketing materials for utilizing a portal engine called For 
example, the document states "the allows you to create dynamic web pages 
without any programming" and' supports website development using ASP.NET MVC 5 .... 
[T]his means that you use to store data and manage content ... and generate the entire design 
of the site using your won MVC controllers and views." The Petitioner has not explained how 
relates to duties of the proffered position or its claimed project. The discrepancies in the submitted 
documentation undermine the Petitioner's claim that the Beneficiary would be tasked with completing, 
as of the date of the petition, a redevelopment of the company's website for three years. The Petitioner 
has not resolved these inconsistencies 
with independent , objective evidence pointing to where the 
truth lies. Matter ofHo, 19 I&N Dec. 582, 591~92 (BIA 1988). 
In total, this conflicting evidence leaves question as to whether the Beneficiary would work on the 
asserted website update project and that sufficient specialty occupation work related to this project 
existed as of the date of the petition. Further, these documents do not clearly convey the duties to be 
performed by the Beneficiary or the knowledge he will apply in the performance of these duties. It is 
the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 
Therefore, we find that the Petitioner has not established non-speculative work for the Beneficiary at the 
time of the petition's filing for the entire period requested. U.S. Citizenship and Immigration Services 
(USCIS) regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.F.R. § 103.2(b)(l). A visa petition may not be 
approved based on speculation of future eligibility or after the Petitioner or Beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'! 
Comm'r 1978).3 
3 The agency made clear long ago that speculative employment is not pennitted 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 
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Matter of C-, LLC 
Furthermore, the duties provided for the Beneficiary are vague and do not convey the actual day-to-day 
tasks to be performed and the knowledge required to perform them. The Petitioner asserts that the 
Beneficiary will be assigned to a three-year internal project, located at its office location in 
Illinois, focused on redesigning the company's website. However, the Petitioner only provided vague 
duties for the proffered position such as "writing robust, manageable code," "designing and building 
software architecture for [the] project," and "Alphq testing and code review." The submitted duty 
description does not reference the specifics of the project or the tasks the Beneficiary will specifically 
complete over the asserted three years, nor does it convey the knowledge required to perform these 
duties. 
The Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, wliich 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 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) t~e 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. 
Lastly, the Petitioner's claim that a bachelor's degree is a sufficient minimum requirement for entry 
into the proffered position is inadequate to establish that the proposed position qualifies as a 
specialty occupation. A petitioner must demonstrate that the proffered position requires a precise 
and specific course of study that relates directly and closely to the position in question. There must 
be a close correlation between the required specialized studies and the position; thus, the mere 
requirement of a degree, without further specification, does not establish the position as a specialty 
occupation. Cf Matter of Michael Hertz Assocs., 19 I&N Dec: 558, 560 (Comm'r 1988) ("The mere 
requirement of a college degree for the sake of general education, or to obtain what an employer 
perceives to be a higher caliber employee, also does not establish eligibility."). Thus, while a 
general-purpose bachelor's degree 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 14 7. 
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. 
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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Matter of C-, LLC 
The Petitioner asserts that its minimum requirement for the proffered position is only a bachelor's 
degree, without further requiring that that degree be in any specific specialty. Without more, the 
Petitioner's statement alone indicates that the proffered position is not in fact a specialty occupation. 
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 for classification as a 
specialty occupation. 
IV. CONCLUSION 
The Petitioner has not established that the proffered position is a specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-, LLC, ID# 432729 (AAO July 28, 2017)