dismissed H-1B Case: Information Technology

MATTER OF P-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 23,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a business and information technology consulting firm, seeks to temporarily employ 
the Beneficiary as a "senior technical consultant" under the H -1 B 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)(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 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 
evidence of record does not establish that the position offered to the Beneficiary qualifies as a 
specialty occupation and that there is specialty occupation }YOrk available for the duration of the 
requested validity period. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
a brief, and asserts that the Director erred in finding that specialty occupdtion work was not available 
for the Beneficiary. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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 P-, 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: 
(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). 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. 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). 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title . . The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations , are factors to be considered. USCIS must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor, 201 F. 3d 384. The critical element is not the title of the 
position or an employer's self-imposed standards, but whether the position actually 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 as the minimum for entry into the 
occupation , as required by the Act. 
II. PROFFERED POSITION 
In the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner stated that the Beneficiary 
will be employed at its offices in Texas as a "senior technical consultant." The Petitioner 
also submitted a labor condition application (LCA) that listed three places of employment - the 
2 
(b)(6)
Matter of P-, Inc. 
Petitioner's offices in Texas, the Beneficiary's home address m Texas, and an 
address in Texas.' 
In the letter of support, the Petitioner stated that the Beneficiary will be assigned to its EPS 
consulting business unit and that the Beneficiary "will work collaboratively as a part of a long-term 
project team tasked with designing , developing , and delivering specialized business technology 
solutions to Petitioner ' s clients. " In addition , the Petitioner submitted the following job duties for 
the proffered position (verbatim): 
Analyze user needs; Define, evaluate , and document overall solution requirements for 
application/database modifications, enhancements and integration; Lead team to 
design and develop customized software/applications; Provide strategic planning and 
technical direction to team; Lead implementation of chosen business solutions; 
Review system test results and recommend appropriate modifications /solutions. 
The Petitioner also stated that the proffered position requires a bachelor ' s degree m computer 
science, computer engipeering , or a closely related field. 
In response to the Director's request for evidence (RFE), the Petitioner provided the following duties 
and percentages of time to be spent on each duty (verbatim): 
Job Duties 
Compose , orchestrate , publish, and build APis 
Develop the unit test processes , tests the interface , and participate in 
integration testing; provides application support during testing phases 
and production 
Secure data channels 
%of 
Time 
45% 
20% 
15% 
Generate interactive API documentation from industry-standard WADL 10% 
files 
Test API functionality through integrated API Explorer 10% 
In addition , the Petitioner stated that the proffered position requires at least a bachelor 's degree in 
computer science, information technology , software engineering, or a closely related field. 
III. ANALYSTS 
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. 
Specifically , the record (1) does not describe the position's duties with sufficient detail; and (2) does 
1 
On appeal , the Petitioner states that the Beneficiar y is "less likely" to work in Texas. 
3 
Matter of P-. Inc. 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation? 
A crucial aspect of this matter is whether the Petitioner has sufficiently described the duties of the 
proffered position such that USC IS 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 baccalaureate degree in a specific discipline. Upon review, we find that 
the Petitioner has not done so. 
For example, the Petitioner initially described the proposed duties in terms of generalized and 
generic functions that did not convey sutlicient ·substantive information to establish the relative 
complexity, uniqueness and/or specialization of the proffered position or its duties. The abstract 
level of information provided about the proffered position and its constituent duties is exemplified 
by the Petitioner's assertion that the Beneficiary will "[a]nalyze user needs" and "[d]efine, evaluate, 
and document overall solution requirements for application/database modifications, enhancements 
and integration." However, the statements did not provide any insight into the Beneficiary's actual 
duties, nor do they include any information regarding the specific tasks that the Beneficiary will 
perform. 
Further, the Petitioner claimed in pertinent part that the Beneficiary 'Nill "[ c ]om pose, orchestrate, 
publish, and build APis" and "[ s ]ecure data channels." Notably, the Petitioner did not demonstrate 
how the performance of these duties, as described in the record, would require the attainment of a 
bachelor's or higher degree in a specific specialty, or its equivalent. 
The Petitioner also claimed the Beneficiary will "[l]ead team to design and develop customized 
software/applications." The Petitioner's statement did not convey any pertinent details as to the 
actual work involved in this task. The Petitioner did not convey how a baccalaureate level of 
education (or higher) in a specific specialty, or its equivalent, would be required to perform these 
tasks. Thus, the overall responsibilities for the proffered position contained generalized functions 
without providing sufficient information regarding the particular work and the associated 
educational requirements into which the duties would manifest themselves in their day-to-day 
performance within the Petitioner's business operations. 
Such generalized information does not in itself establish a necessary correlation between any 
dimension of the proffered position and a need for a particular level of education, or educational 
equivalency, in a body ofhighly specialized knowledge in a specific specialty. It is not evident that 
the proposed duties as initially described in this record of proceeding, 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 basi~ for conveying the 
2 
The Petitioner submitted documentation to support the H-1 B 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. 
4 
(b)(6)
Matter of P-, Inc. 
substantive matters that would engage the Beneficiary in the actual performance of the proffered 
position for the entire 3-year period requested, 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 in a specific specialty directly related to the duties 
and responsibilities of the proffered position. 
Moreover, although the Petitioner provides a number of service agreements and statements of work 
(SOW) between itself and various clients, the Petitioner has not specifically explained the duties and 
role of the proffered position in the context of any of these projects. That is, nowhere is the 
Beneficiary's name or the proffered position title mentioned in these documents. Notably, some of 
the SOWs are not signed by the Petitioner or the client, and some of them were executed after the 
filing of the H-lB petition. We further note that the SOWs indicate that the services will end prior to 
the end of the requested H-1 B validity period. A petition must be tiled for non-speculative work for 
the Beneficiary, for the entire period requested, that existed as of the time of the petition's filing . 
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. l03.2(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 Afatter of Michelin Tire Corp. , 17 l&N Dec. 248. 
~ 
The Petitioner also submits a letter from on appeal. However, the letter does not 
describe the particular duties of the Beneficiary in detail. It lists the same general and vague duties 
as provided by the Petitioner in its response to the RFE. The letter does not further explain what 
each of these duties specifically entails, and how each duty specifically relates to the activities and 
timelines outlined in the SOWs. 
In addition, although the Petitioner states that the Beneficiary will work from its offices in 
Texas '~·ith occasionally working from home in Texas, we note that the offer of employment 
letter submitted with the initial petition states that "[t]his is a travel position and you will be 
expected to be on client site Monday through Friday most weeks." According to the offer letter, the 
Beneficiary may be placed at various locations and, thus, not necessarily in or Texas 
as indicated by the Petitioner. 
Here, the Petitioner has not provided sufficient details regarding the nature and scope of the 
Beneficiary's employment or substantive evidence regarding the actual work that the Beneficiary 
would perform. Without a meaningful job description, the record lacks evidence sufficiently 
concrete and informative to demonstrate that the proffered position requires a specialty occupation's 
level of knowledge in a specific specialty. The tasks as described do not communicate: (l) 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 of 
knowledge in a specific specialty. 
As the Petitioner has not established 
the substantive nature of the work to be performed by the 
Beneficiary, this precludes a finding that the proffered position satisfies any criterion at 8 C.F.R. 
5 
Matter of P -, Inc. 
§ 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 sp@cific duties, which is the focus of criterion 4. 
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. 
IV. 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. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of P-, Inc., ID# 139288 (AAO Jan. 23, 20 17) 
6