dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10546820 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 16, 2020 
The Petitioner , an information technology consulting company , seeks to temporarily employ the 
Beneficiary as an "RP A developer" under the H-lB nonirnmigrant classification for specialty 
occupations. 1 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 record did not 
establish that: (1) the position qualifies as a specialty occupation , and (2) the Beneficiary would be 
performing services in a specialty occupation. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 2 
We review the questions in this matter de novo. 3 Upon de novo review , we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(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. § 1184(i)(l) , defines the 
term "specialty occupation " as an occupation that requires "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. 4 Lastly , 
1 Immigration and Nation ality Act (the Act) section l0l(a )( 15)(H)(i)(b ), 8 U.S.C. § l 10l (a)(l5)(H)(i )(b ). 
2 Section 291 of the Act ; Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010) . 
3 See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
4 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A) must be read with the statutory and regulatory definition s of a speci alty occupation under 
section 214(i)(l) of the Act and 8 C.F.R . § 214.2(h )(4)(ii). We construe the tenn "degree" to mean not just any 
8 C.F.R. § 214.2(h)(4)(i)(A)(]) states that an H-lB classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the 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 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 
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). 
Further, as recognized by the court in Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000), 
where the work is to be performed for entities other than the petitioner, evidence of the client 
companies' job requirements is critical. 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. Id. Such evidence must be sufficiently 
detailed to demonstrate the type and educational level of highly specialized knowledge in a specific 
discipline that is necessary to perform that particular work. 
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. ANALYSIS 
The Petitioner intends to deploy the Beneficiary to work as an "RP A developer" for an end-client in 
I I Ohio through an agreement with an intermediate vendor. The Petitioner designated the 
proffered position as a "Software Developers, Systems Software" occupation corresponding to the 
Standard Occupational Classification (SOC) code 15-1133 on the labor condition application (LCA) 
at a Level II wage. 5 
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"). 
5 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B worker the higher of either 
2 
Regarding its minimum qualifications for the proffered position, the Petitioner stated that it requires 
at least a bachelor's degree in computer science, information technology, or a closely related field. In 
contrast, the end-client stated that in addition to a bachelor's degree in computer science or information 
technology, it will also accept a bachelor's degree in electrical engineering or a related field, and also 
indicated that it required "RP A Developer's experience" for the position. 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the services in a specialty occupation that the Beneficiary would perform during the requested period 
of employment due to a lack of specificity in the duties to be performed. This precludes a 
determination of whether the proffered position qualifies as a specialty occupation under sections 
10l(a)(15)(H)(i)(b), 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and 
(iii)(A).6 
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. With the initial petition filing, 
the Petitioner provided a list of seventeen bulleted duties in a support letter as well as a letter from the 
end-client, which included ten bulleted duties. While several of the bulleted duties in each document 
overlap, it is not apparent whether one list carries more evidentiary value and accuracy in capturing 
the substantive nature of the position than another. In response to the Director's request for evidence 
(RFE), the Petitioner provided another letter from the end-client containing eight bulleted duties. No 
explanation was provided for the modification to its prior list of ten duties, nor did it provide an 
explanation as to why several of the original duties were omitted. 
Taking together the various lists of duties submitted in the initial letters and the updated end-client 
letter submitted in response to the RFE, we cannot determine the substantive nature of the position. 
Neither the Petitioner nor the end-client provide any context beyond these bulleted duties with regard 
to the project(s) upon which the Beneficiary will work or the level of complexity and specialization 
associated with those duties. Despite the numerous lists of duties, we have little information 
concerning how these duties operate within the context of the end-client's project. The contractual 
documentation between the Petitioner, the vendor, and the end-client merely establishes the 
contractual relationship between the parties, and does not define what the Beneficiary's role in the 
end-client work will be. As articulated, the duties could apply to almost any software development 
project and do not contain sufficient project-specific information whereby we might determine the 
substantive nature of the position. 
Further questions concerning the substantive nature of the position arise when examining the duties 
both individually and collectively. As stated, the duties that were presented by the Petitioner and the 
end-client with the initial filing do not match each other, and the updated list of duties in the client 
letter submitted in response to the RFE do not match either of the prior letters. While we acknowledge 
that several of the duties in each list overlap, the Petitioner did not acknowledge or explain these 
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 experience and qualifications who are performing the same services. Section 212(n)(l) 
ofthe Act; 20 C.F.R. § 655.731(a). 
6 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 
changes and discrepancies and as such, it is difficult to ascertain whether the position has remained 
the same or if there is a material change in the substance of the work the Beneficiary will perform. It 
is well established that a petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to USCIS requirements. 7 
The duties presented are overly generalized, which undermines a determination that the position's 
duties are specialized and complex. For example, it is unclear what theoretical and practical 
application of a body of highly specialized knowledge is required to "[ s ]upport operations teams 
during UAT and production rollout phases," "[d]evelop[] arid Customized automation libraries using 
C#.N et, NU nit, Visual Studio, WebAPI, SQL Server," and "[b ]uild Automation operation handbook." 
From the indeterminate nature of the duties, it is not self-evident that they are qualifying under the H-lB 
program. Without more, it would be difficult to conclude that such duties are so specialized and complex, 
or that the duties comprise a position that is so complex or unique, that one must attain a bachelor's degree 
in a specific specialty in order to perform them. Here, the general statements in the record in conjunction 
with the lack of description and material about the nature of the project(s) and initiative(s) to which 
the Beneficiary will be assigned do not provide sufficient insight into the Beneficiary's duties. 8 
Moreover, the duties indicate significant usage of third-party tools and technologies. Many of these 
tools are used to automate processes or to facilitate shortcuts to time-consuming manual functions, 
which suggests that the proffered position requires knowledge of the tool more than the functions or 
processes underlying the tool. As third-party tools and technologies need not be learned in a bachelor's 
degree program in a specific specialty, we question whether knowledge sufficient to perform the 
proffered position's duties could be gained through certifications or trainings on the tools and 
technologies. Coding and programming languages need not be learned in bachelor's degree programs, 
yet these duties appear to be a major function of the proffered position. Accordingly, the need for a 
bachelor's degree or higher in a specific specialty in order to carry out the duties of the position has 
not been established. 
Finally, as previously stated, the end-client requires a bachelor's degree in computer science, 
information technology, electrical engineering, or a related field, along with "RPA Developer's 
experience." Neither the Petitioner nor the end-client has explained what constitutes "RP A 
Developer's experience" or how much experience is required. The Petitioner, therefore, has not 
demonstrated that payment of a Level II wage to the Beneficiary correlates to the experience the 
position requires. At minimum, the end-client's requirement for "RP A Developer's experience" is 
inconsistent with the Petitioner's requirements for the position. The end-client's undefined experience 
requirements suggest that the LCA may not correspond with the petition, which further obscures the 
substantive nature of the position. 
When considered collectively, we conclude that the inconsistencies, discrepancies, and lack of 
documentation in the record raise questions as to the actual, substantive nature of the proffered 
position. 9 The Petitioner has not submitted consistent, probative evidence to adequately communicate 
7 See Matter of Izummi, 22 T&N Dec. 169, 176 (Assoc. Comm'r 1998). 
8 Cf Matter of Michael Hertz Assocs., 19 T&N Dec. 558, 560 (Comm'r 1988) (indicating USCTS must evaluate the actual 
tasks, demands, and duties to determine whether a petitioner has established the position realistically requires the 
specialized knowledge-both theoretical and applied-which is almost exclusively obtained at the baccalaureate level). 
9 Matter of Chawathe, 25 l&N Dec. at 376. 
4 
(1) the actual work that the Beneficiary would perform, (2) the complexity, uniqueness, or 
specialization of the tasks, and (3) the correlation between that work and a need for a particular level 
education of highly specialized knowledge in a specific specialty. Accordingly, the Petitioner has not 
established that the proffered position is a specialty occupation. 10 
III. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
The appeal will be dismissed for the above stated reason. In visa petition proceedings, It IS a 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
10 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal. 
5