dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 11822151 
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 . 2, 2020 
The Petitioner, an information technology solutions company, seeks to employ the Beneficiary 
temporarily under the H-lB nonimmigrant 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 California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualifies as a specialty 
occupation or that the Beneficiary would perform services in a specialty occupation for the requested 
period. 
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 nova. 3 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-lB 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. § l 184(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. § 2 l 4.2(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 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b) . 
2 Section 291 of the Act; Matter of Chawathe, 25 J&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 definitions of a specialty occupation under 
8 C.F.R. § 214.2(h)(4)(i)(A)(I) states that an H-lB classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " ( emphasis added). 
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.5 The Director may request additional evidence 
in the course of making this determination. 6 In addition, a petitioner must establish eligibility at the 
time of filing the petition and must continue to be eligible through adjudication. 7 
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). 
II. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not established the substantive nature of the work that the Beneficiary will perform due 
to a lack of specificity in its description of the duties and material inconsistencies contained within the 
record of proceeding. Because the Petitioner has not established the substantive nature of the work to 
be performed by the Beneficiary, we are precluded from determining that the proffered position 
satisfies any of the regulatory specialty-occupation criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Regarding inconsistencies in the record, we observe the following: 
Evidence Job Title and/or Duties 
Form 1-129, Petition for Software Developer C# 
Nonimmigrant Worker 
Beneficiary's resume section C# Web Developer 8 
for her employment with • Programming an ASP .NET application for a law firm to 
Petitioner since April 2018 mitigate the threat calculation per client case using c#, 
react, bootstrap, entity framework. 
• Developed frontend of a web application forl I I I residents to apply for permits online usmg 
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 Co1p. 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 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
6 8 C.F.R. § 103 .2(b )(8). 
7 8 C.F.R. § 103.2(b)(l). 
8 We note that software developers, applications, the occupation listed on the labor condition application (LCA), and web 
2 
April 18, 2018 Offer Letter 
Letter from 
practice director 
Petitioner's job 
(verbatim) 
Beneficiary's 
description 
bootstrap 3.3.7, wordpress, React.js as a client-side 
language. 
• Developed new features for a medical assessment web 
application using php and codeigniter framework with 
mySQL database. This application is used to automate the 
QA session for a sickness diagnosis. 
• Fixed bugs and tested various ASP.NET Core web 
application, React native and Xamarin mobile 
applications. 
C# Web Developer 
• Developing web and cross platform mobile application 
usmg: 
o Languages - (C#, HTML5, ES6, CSS3, ReactJs, 
Xml, TypedScript, Node.js) with Agile 
methodology 
o Frameworks - (MVC and Entity Modals) 
o Tools - (Visual Studio 2017, SQL server 
management 201 7) 
• Fixing bugs and testing the existing applications. 
DevOps Engineer 2. States that she "has been continuously 
employed in that role since April 2018." 
• Develops software application based on provided 
specifications. 
• Performs coding, debugging, testing, and troubleshooting 
throughout the application development process. 
developers are two distinct occupations with different educational requirements and standard occupational classification 
codes. For example, according to the "How to Become a Web Developer" section of the Occupational Outlook Handbook: 
Educational requirements for web developers vary with the setting they work in and the type of work they do. 
Requirements range from a high school diploma to a bachelor's degree. An associate's degree in web design or 
related field is the most common requirement. 
However, for more specialized developer positions, such as back-end web developers, some employers prefer 
workers who have at least a bachelor's degree in computer science, programming, or a related field. 
Web developers need to have a thorough understanding of HTML programming. Many employers also want 
developers to understand other programming languages, such as JavaScript or SQL, and have knowledge of 
multimedia publishing tools, such as Flash. Throughout their career, web developers must keep up to date on new 
tools and computer languages. 
Some employers prefer web developers who have both a computer degree and coursework in graphic design, 
especially if the developer will be heavily involved in the website's visual appearance. 
This stands in contrast to the section on software developers which states, in part, that "[s]oftware developers usually have 
a bachelor's degree, typically in computer science, software engineering, or a related field. Computer science degree 
programs are the most common, because they tend to cover a broad range of topics." 
3 
• Provides first-tier maintenance and support for client 
applications. 
• Researches issues, diagnoses root causes, and corrects 
issues via data updates or through source code 
modifications. 
• Implements software application based on provided 
specifications. 
• Provides first-tier maintenance and support for client 
applications. 9 
• Tests submitted code to ensure acceptance criteria are 
properly met. 
• Reviews code submitted by other developers to ensure 
coding standards are met 
• Deploys application to test and production deployment 
environments. 
• Maintains system design documentation when structural 
changes are made. 
• Performs end-user testing and produces a testing result 
document. 
First, the Petitioner must resolve these inconsistencies with independent, objective evidence pointing 
to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material 
inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted 
in support of the requested immigration benefit. Id. 
Second, in order to establish that the position qualifies as a specialty occupation, the provided 
description must sufficiently describe the actual work the Beneficiary will perform, and the correlation 
between that work and the need for a particular level of knowledge in a specific specialty. 
See Defensor v. Meissner, 201 F.3d 384,387 (5th Cir. 2000). A position may not qualify as a specialty 
occupation based solely on either a preference for certain qualifications for the position or the claimed 
requirements of a petitioner. Id. at 387. Instead, the record must establish that the performance of the 
duties of the proffered position requires both the theoretical and practical application of a body of 
highly specialized knowledge and the attainment of a baccalaureate or higher degree in a specific 
specialty, or its equivalent, as the minimum for entry into the occupation. See section 214(i)(l) of the 
Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation"). Here, the Petitioner 
provided only general bullet points such as "provides first-tier maintenance and support for client 
applications" and "implements software application based on provided specifications," which do not 
adequately convey the actual work the Beneficiary will perform or the need for any particular level of 
education. 10 
Further, we note there is no prov1s10n in the law for specialty occupations which permits the 
performance of non-qualifying duties. While we view the performance of duties that are incidental to 
9 It is unclear why this duty is listed twice. 
10 The sample work assignments provided by the Petitioner do not lend clarity to the nature of the proffered position. 
4 
the primary duties of the proffered position as acceptable when they are unpredictable, intermittent, 
and of a minor nature, anything beyond that, e.g., predictable, recurring, and substantive job 
responsibilities, must be specialty occupation duties or the proffered position as a whole cannot be 
approved as a specialty occupation. The Petitioner does not sufficiently address how the general duties 
it provided require the theoretical and practical application of highly specialized knowledge and 
attainment of at least a bachelor's degree in a specific specialty or its equivalent and has not established 
that any of these duties require a bachelor's degree or higher in a specific specialty to perform them. 
Based upon the inconsistent information in the record and the general and vague duties, the Petitioner 
has not sufficiently established the substantive nature of the work to be performed by the Beneficiary. 
We are, therefore, precluded from a conclusion that the proffered position satisfies any of the criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A) because is the substantive nature of the Beneficiary's 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. 
As the Petitioner has not established that the proffered position is a specialty occupation, then it also 
cannot demonstrate that the Beneficiary will be performing services in a specialty occupation. 
III. CONCLUSION 
Based on the foregoing, we cannot conclude that the proffered position qualifies as a specialty 
occupation, and we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
5