dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 23193960 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 01, 2022 
The Petitioner, an information technology (IT) software development services company, seeks to 
temporarily employ the Beneficiary as a "software engineer" under the H-1B nonimmigrant 
classification for specialty occupations. 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-1B 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 Nebraska Service Center denied the petition, concluding that the record does not 
establish that the proffered position qualifies as a specialty occupation. The matter is now before us 
on appeal. On appeal, the Petitioner resubmits the previously provided evidence and asserts that the 
proffered position qualifies as a specialty occupation. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 
(AAO 2010). We review the questions in this matter de nova. See Matter of Christo 's Inc., 26 l&N 
Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant as a foreign national "who is 
coming 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)(I) 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.1 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B 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). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) 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)(1). 
II. 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.2 
Specifically, the Petitioner has not established the substantive nature of the work the Beneficiary will 
perform, which precludes a conclusion that the proffered position satisfies any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
The Petitioner, an IT software development company, located in Virginia, filed this petition for the 
Beneficiary to work as a software engineer from October 1, 2021, to September 30, 2024. The 
Petitioner indicated on the Form 1-129, Petition for a Nonimmigrant Worker, that the Beneficiary will 
1 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)(1) 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"). 
2 The Petitioner submitted documentation to support the H-lB petition, including evidence regarding the proffered 
position. While we may not discuss every document submitted, we have reviewed and considered each one. 
2 
work offsite. On the labor condition application (LCA) 3 submitted in support of the H-1B petition, 
the Petitioner identified I I (the client) place of business inl I Michigan, as the 
Beneficiary's work location. In its support letter, the Petitioner stated that the client has contracted 
the Beneficiary's services in the position offered, and per its agreement with the client, it expects the 
project to continue for the period requested on the petition as an end date has not been set. The 
Petitioner neither identified nor provided further details of a specific project with the client. 
Furthermore, the Petitioner did not provide a copy of the contract it has with the client. 
In response to the Director's request for evidence, the Petitioner submitted a letter from the client, in 
which it stated that the work for the Beneficiary was arranged through "a series of contracts" with the 
Petitioner, and that the letter, while it confirms the Beneficiary's assignment, "does not alter or create 
any legal obligation" between the parties. The client also repeated, verbatim, the duties listed in the 
Petitioner's support letter. However, the client did not provide any information regarding its project 
to which the Beneficiary will be assigned. 
Upon review, we observe that the record here does not include probative evidence of the substantive 
nature of the claimed work and does not establish that any such work will be H-1B caliber work. We 
review the actual duties the Beneficiary will be expected to perform to ascertain whether those duties 
require at least a baccalaureate degree in a specific specialty, or its equivalent, as required for 
classification as a specialty occupation. To accomplish that task, we must analyze the actual duties in 
conjunction with specific work or project(s) to which the Beneficiary will be assigned. To allow 
otherwise results in generic descriptions of duties that, while they may appear (in some instances) to 
comprise the duties of a specialty occupation, are not related to any actual services the Beneficiary is 
expected to provide. Notably, neither the Petitioner nor the client identified a specific project to which 
the Beneficiary will be assigned and therefore, leaving the listed duties without a context. For 
example, the Petitioner stated that the Beneficiary will be "[i]nvolved in the analysis, design, 
development, and testing phases of Software Development Lifecycle (SDLC) using agile development 
methodology." 4 However, the Petitioner did not state to which software project the Beneficiary will 
be assigned, did not elaborate on the extent of the Beneficiary's involvement in the SDLC and did not 
explain the specific tasks associated with each stage of the SDLC in relation to a specific project. The 
Petitioner also stated that the Beneficiary will be "[i]nvolve[d] in enhancement and change request as 
a part of production support for the current application," but did not explain what the "current 
application" is, nor did it provide any details regarding the Beneficiary's specific role in "enhancement 
and change request" and tasks associated with such role in relation to a specific project. Here, the 
Petitioner has not provided sufficient details regarding the nature and scope of the Beneficiary's 
employment or any substantive evidence regarding the actual work that the Beneficiary would 
perform. Without a meaningful job description, the record lacks evidence sufficiently probative and 
informative to demonstrate that the proffered position requires a specialty occupation's level of 
knowledge in a specific specialty. 
3 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1B worker the higher of either 
the prevai I ing 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)(1) 
of the Act; 20 C.F.R. § 655.731(a). 
4 For the sake of brevity, we will not discuss each duty the Petitioner listed. However, we have reviewed and considered 
each one. 
3 
We also reviewed the position evaluation prepared by I a professor at _ 
Universityj !Minnesota, to assist in understanding the nature of the proffered position. 
The professor stated that he reviewed the Petitioner's support letter regarding its business and 
operations, the LCA, information regarding the Beneficiary's qualifications, as well as additional 
resources, such as the Petitioner's company website, in rendering his opinion. However, the professor 
did not discuss the Beneficiary's duties in relation to a specific project or that the Beneficiary works 
offsite for a client. The absence of any substantive discussion of the duties specific to the client's project 
raises doubts about his level of familiarity with the proffered position and also undermines his conclusion 
regarding the degree requirement of the position. We may, in our discretion, 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, where an opinion is not in accord with other information or is in any way questionable, 
we are not required to accept or may give less weight to that evidence. Id. 
The Petitioner asserts that the position requires a bachelor's degree in computer science or the foreign 
equivalent, in an appropriate IT related field and claims that the Beneficiary is well qualified for the 
position and references his qualifications. However, the test to establish a position as a specialty 
occupation is not the credentials of a proposed beneficiary, but whether the position itself requires at 
least a bachelor's degree in a specific specialty, or its equivalent. In this matter, as we cannot 
determine the substantive nature of the position, we cannot properly evaluate what degree is required 
in order to perform the duties of the position. Accordingly, an analysis of the Beneficiary's 
qualifications in this matter is premature. A beneficiary's credentials to perform a particular job are 
relevant only when the job is first found to be a specialty occupation. Absent a determination that a 
baccalaureate or higher degree in a specific specialty or its equivalent is required to perform the duties 
of the particular position proffered here, it cannot be determined that the Beneficiary possesses the 
degree the position requires. 
Without more specific and persuasive evidence regarding the nature of the proffered position's duties, 
the record lacks sufficient information to understand the nature of the actual proffered position and to 
determine that the duties require the theoretical and practical application of a body of highly 
specialized knowledge attained by a bachelor's degree, or higher, in a specific discipline. 
The Petitioner has not established the substantive nature of the Beneficiary's work. Consequently, this 
precludes a conclusion 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) 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 4.5 
5 As the lack of probative 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 asse1iions on appeal regarding the criteria under 
8 C.F.R. § 214.2(h)(4)(iii){A). 
4 
Accordingly, 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. Section 291 of 
the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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