dismissed H-1B Case: It Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-T- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 29,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an "IT consulting and software development firm," seeks to temporarily employ the 
Beneficiary as a "validation analyst" under the H-1B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) § 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, California Service Center, denied the petition. The Director concluded: (1) that the 
proffered position is not a specialty occupation; and (2) that the Beneficiary is not qualified to 
perform the duties of a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in finding that the proffered position is not a specialty occupation and 
that the Beneficiary is not qualified to perform the duties of a specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
We will first address whether the evidence of record establishes that the Petitioner will employ the 
Beneficiary in a specialty occupation position. 
A. 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) theoretical and practical application of a body of highly specialized 
knowledge, and 
Matter of S- T- Inc 
(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. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
aminimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
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(b)(6)
Matter of S- T- Inc 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets 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 proffered 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"). Applying this standard, USCIS regularly approves H-lB petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty or its equivalent directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
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 Beneficiary, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 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. 
B. The Petitioner and the Proffered Position 
The Petitioner stated in its support letter dated April 2, 2015, that it is an "innovative software 
development company." According to the Form I-129 , Petition for a Nonimmigrant Worker, the 
Petitioner is located in Georgia, was founded in 2014, has a gross income of $737,862, 
and employs two individuals . The Petitioner stated that "[t]he dynamic management team at [the 
Petitioner] contributes greatly with their innovative ideas by adapting latest technologies and modern 
methods to help the needs of its customers." 
According to the Petitioner's support letter, the Beneficiary would be employed as a full-time 
validation analyst working on an operational support project for its end-client, 
which is located in Washington, for the duration of the petition. The 
Petitioner stated that the Beneficiary would (verbatim): 
• Review Business Requirements & prepare Validation Master Plan (VMP). 
• Review the v
alidation protocols for the LIMS application. 
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(b)(6)
Matter of S-T- Inc 
• Develop documentation for all aspects of Computer System Validation (CSV). 
• Track, analyze and document the defects by performing Manual Testing[.] 
• Validate Standard Operating Procedure (SOPs) to ensure compliance with 
USFDA rules and regulations, 21 CFR Part 11 compliance strategies. 
• Review Corrective and Preventive Action (CAPA) and create Remediation Plans 
for the project management approval after the GAP analysis. 
• Review the User Requirement Specification (URS) and the Functional 
Requirement Specification (FRS) document and analyzing the causes leading to 
discrepancies and failure of the execute OQ scripts. 
• Develop FDA compliance documentations [sic], Prepared Standard Operating 
Procedures (SOPs) according to required specifications. 
• Prepare documentation during various stages of AERS validation lifecycle, in 
accordance with FDA regulations. 
• Develop validation and quality assurance programs including templates for 
validation related documentation such as Validation Protocols, Installation 
Qualification (IQ), Operational Qualification (OQ), Performance Qualification 
(PQ). 
• Involve in calibration of and checking its accuracy, detection 
limit, noise level, precision, repeatability, reproducibility and robustness. 
• Involve in preparing and reviewing Operational Qualification (OQ) and 
Performance Qualification (PQ) protocols. 
• Design, implement and validate 21 CFR Part 11 compliance strategies for LIMS. 
• Co-ordinate with Business Owners, System Owners, Business Analyst and 
Technical Writers[.] 
• Perform software quality assurance validation tests and system compliance to 
federal regulations (CFR Part 11) and set overall strategic vision for multiple 
sites. 
• Assess risk and compliance issues for Data Migration activities and OQ execution 
and communicate the risk issues with the IT and the management team. 
• Prepare a Data Migration Summary Report stating the data migration activities 
taken place while loading the static data in the LIMS application. 
• Analyze the System Problem Reports (SPR) and identifying execution and 
protocol generation 
errors related to the OQ and End to End Test scripts. 
• Identify discrepancies causing failure in the OQ scripts and re-writing the OQ 
scripts. 
• Executes the OQ scripts for the project to make sure the scripts are updated with 
the current system specification and the system meet[s] the functionalities 
specified in the URS and FRS. 
• Prepare System Problem Report (SPR) Forms that proves a high degree of 
assurance regarding the root causes of the failures in the pre-executed copy and 
the resolutions taken to resolve the issues. 
• Create the Requirement Traceability Matrix document to track the URS and FRS 
are fulfilled by executing the OQ and PQ scripts. 
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Matter of S-T- Inc 
• Prepare the Validation Summary Report that summarizes the validation activities 
that were performed for the LIMS application. 
• Review Vendor Audit Report summarizing the SDLC approach and 
methodologies. 
• Review implementation of software systems in conformance with regulatory 
requirements as they pertain to 21 CFR Part 11 and GAMP standards. 
• Coordinate, locate, track, organizes [sic], and verify validation documentation for 
cGMP compliance and regulatory requirements. 
• Review the User Requirement and prepared the detailed Test Plans and Test 
Criteria. 
• Develop, review and execute Test Plans, Test Cases and Test Conditions. 
• Perform Functionality and Regression testing using Win Runner and QTP. 
• Manage and organize requirement coverage, Test Case Management and Defect 
Management using Quality Center. 
• Analyze Business, User and Functional requirements to develop Test Plans, Test 
Cases and Test Scripts and organized requirement coverage using Quality Center. 
• Develop Requirement Traceability Matrix (RTM) to track User and Functional 
requirements. 
• Prepare Standard Operating Procedures (SOPs) according to required 
specifications. 
The Petitioner stated that it requires a minimum of a: 
[b ]achelor' s degree or foreign equivalent in CS/CIS/CE or other closely related 
Engineering field with related professional experience. Alternatively, since this 
position is heavily involved in the business side of the Healthcare and Pharmaceutical 
Company, Business Administration or Pharmaceutical major with advanced 
validation experience is also required. 
The submitted labor condition application (LCA) indicates that the Petitioner has classified the 
proffered position as a computer systems analyst at a Level I wage. 
C. Analysis 
When determining whether a position is a specialty occupation, we must look at the nature of the 
business offering the employment and the description of the specific duties of the position as it 
relates to the particular employer. To ascertain the intent of a petitioner, USCIS looks to the Form 
I -129 and the documents filed in support of the petition. It is only in this manner that the agency can 
determine the exact position offered, the location of employment, the proffered wage, et cetera. 
Pursuant to 8 C.F.R. § 214.2(h)(9)(i), the Director has the responsibility to consider all of the 
evidence submitted by a petitioner and such other evidence that he or she may independently require 
to assist his or her adjudication. Further, the regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that 
"[a]n H-1B petition involving a specialty occupation shall be accompanied by [d]ocumentation ... 
Matter of S-T- Inc 
or any other required evidence sufficient to establish . . . that the services the beneficiary is to 
perform are in a specialty occupation." 
Moreover, we note that, as recognized by the court in Defensor, 201 F.3d at 387-88, where the work 
is to be performed for entities other than the Petitioner, evidence of the client companies' job 
requirements is critical. See Defensor v. Meissner, 201 F.3d at 387-88. 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. at 384. In other words, as the nurses in that case would provide services to the end-client 
hospitals and not to the petitioning staffing company, the petitioner-provided job duties and alleged 
requirements to perform those duties were irrelevant to a specialty occupation determination. See id. 
Here, the record of proceeding in this case is similarly devoid of sufficient information from the 
claimed end-client regarding the specific job duties to be performed by the Beneficiary for that 
company. While the letter from the end-client dated March 27, 2015, is acknowledged, we find that 
it does not establish the substantive nature of the proffered position. Specifically, the letter does not 
reference the Beneficiary by name, discuss her position in any meaningful detail, indicate that the 
end-client needs the Beneficiary's services for the duration of the petition, or indicate that a 
bachelor's degree in a specific specialty, or the equivalent is required to perform the duties. 
For example, the letter from the end-client states that it is "looking to fill five positions with the 
resources of [the Petitioner]," and that the letter is issued "for the five candidates," but does not 
name the candidates or the Beneficiary. The letter further states that a "validation analyst" will 
"ensure complete understanding and compliance to SDLC," "write precise validation documents, 
validation reports, and validation plans," and "write precise and complete records to assist clinical 
data systems validation." However, there is no further explanation of what is required to "ensure 
complete understanding and compliance to SDLC" or what "SDLC" is. Further, there is insufficient 
information on what is meant by general terms "write precise validation documents" or "write 
precise and complete records." The duties as described do not provide sufficient information 
regarding the particular work and its day-to-day performance within the end-client's business 
operations. The duties also do not provide any particular details regarding the demands, level of 
responsibilities and requirements necessary for the performance of these duties. In other words, the 
generalized duties do not establish requirement of theoretical and practical application of any particular 
educational level of highly specialized knowledge in a specific specialty directly related to the demands 
of the proffered position. 
The Petitioner provided other documents in support of the proffered position; however, they do not 
provide sufficient information regarding the duties and the requirements for the position. The 
Petitioner submitted a service agreement executed between the Petitioner and a vendor, and a work 
order for the end-client issued pursuant to that agreement. However, neither documents describe any 
duties of the proffered position nor detail the qualifications necessary to perform them. 
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Matter of S- T- Inc 
Moreover, we note that the record contains no contracts, service agreements, work orders, or other 
agreements executed between the vendor and the end-client. In other words, the record contains no 
evidence of any binding obligation on the part of the end-client to provide the work opportunity 
upon which the entire petition is b~sed. Absent such evidence delineating the contractual terms of 
the project to which the Beneficiary is assigned, including the duties and the requirements for the 
position, we are unable determine the substantive nature of the proffered position. 
In addition, the record does not establish that the Beneficiary will be employed for the validity of the 
requested H -1 B employment period. While the Petitioner makes several generalized assertions in 
this regard, we note that neither the work order nor the letter from the end-client indicate that the 
Beneficiary would provide services for the end-client throughout the duration of the petition. 
Specifically, the work order has a field titled "Project Duration/Start Date"; however, it only listed a 
start date of October 1, 2015 and no "project duration" was given. Moreover, the end-client's letter 
specifically states that "this letter is issued ... based on our future need for a project, and is subject 
to change," and that "it shall NOT be considered as project agreement, work order or has any related 
influence [sic]." As the record of proceeding does not contain sufficient evidence establishing that 
the Beneficiary would be assigned to work for the end-client for the entire validity period requested, 
we cannot find that the Petitioner has demonstrated a legitimate need for the Beneficiary's services. 
In other words, the Petitioner has not demonstrated that it has secured definitive, non-speculative 
H -1 B caliber work for the beneficiary for the entire period of employment requested in the petition. 1 
The Petitioner has not provided sufficient information regarding the nature and scope of the 
Beneficiary's employment or substantive evidence regarding the specialty occupation work that the 
Beneficiary would perform? Without a meaningful job description, the record lacks evidence 
1 The agency made clear long ago that speculative employment is not permitted 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 
individual 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 individual 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) ofthe Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the individual has the appropriate degree for the occupation. In 
the 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 individual 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). 
2 While the Petitioner provided a list of job duties, it is noted that petitioner-provided duties are often outside the scope 
of consideration for establishing whether the position qualifies as a specialty occupation. See Defensor v. Meissner, 201 
Matter of S-T- Inc 
sufficiently concrete and informative to demonstrate that the proffered pos1t1on requires the 
theoretical and practical application of a body of highly specialized knowledge and the attainment of 
a bachelor's or higher degree in the specific specialty, or its equivalent, as a minimum for entry into 
the occupation. The tasks as described do not consistently communicate: (1) the substantive nature 
and scope of the Beneficiary's employment within the Petitioner's business operations; (2) the actual 
work that the Beneficiary would perform; (3) the complexity, uniqueness and/or specialization of the 
tasks; and/or (4) the correlation between that work and a need for a particular educational level of 
highly specialized knowledge in a specific specialty. 
Therefore, we are precluded from finding that the proffered position is a specialty occupation under 
any criterion at 8 C.P.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 ofthe 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. Thus, the 
Petitioner has not satisfied any of the criteria under the applicable provisions at 8 C.F .R. 
§ 214.2(h)(4)(iii)(A). 
We further note that even if we were to assume the existence of the proffered position as claimed, 
the Petitioner has not established that the proffered position qualifies as a specialty occupation 
because the end-client does not require a bachelor's degree in a specific specialty, or the equivalent, 
for the proffered position. Specifically, the letter from the end-client states that it "requires someone 
with minimum of a bachelor's degree or foreign equivalent with related working experience." 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. v. Chertoff, 484 F.3d at 147. 
F.3d at 387-388 (stating that the petitioner-provided job duties and alleged requirements to perform those duties were 
irrelevant to a specialty occupation determination where the nurses in that case would provide services to the end-client 
hospitals and not to the petitioning staffing company). 
(b)(6)
Matter of S-T- Inc 
We will also briefly address why we accord little probative weight to opm10n 
regarding the proffered position. In the letter, states that "[i]t is apparent that a 
Validation Analyst with the specific duties listed below would be considered a professional position 
and would normally be filled by a graduate with a minimum of a Bachelor's Degree in Information 
Systems or a related area, or the equivalent." However, we find that opm10n is not 
based upon sufficient information about the validation analyst position proposed here. 
does not relate any personal observations of the Petitioner's operations or the work that 
the Beneficiary will perform, nor does he state that he has reviewed any projects or work products 
related to the proffered position. Further, does not seem to be aware that the Beneficiary 
will be working on a project at the site of the end-client. Therefore, opinion does not 
relate his conclusions to specific, concrete aspects of this Petitioner's business operations and its 
projects to demonstrate a sound factual basis for his conclusions about the duties of the proffered 
position and its educational requirements. 
Fmiher, there is also no indication that the Petitioner advised that it characterized the 
proffered position as a low, entry-level validation analyst position for a beginning employee who has 
only a basic understanding of the occupation (as indicated by the wage-level on the LCA). 
indicates that: 
[i]t is important to note that the duties described above are not those of a lower level 
employee performing tasks such as those duties performed by a Technologist or an 
IT-support employee, but rather those of a professional employee with a strong 
background in engineering concepts and principles and a much greater great [sic] 
level of responsibility within the company. 
It appears that would have found the wage-level information relevant for his opinion 
letter. Moreover, without this information, the Petitioner has not demonstrated that 
possessed the requisite data necessary to adequately assess the nature of the proffered position. 
Moreover, also concludes that the proffered position requires at least a bachelor's degree 
in information systems or a related field, which is a narrower minimum requirement than both the 
end-client's stated requirement of a "minimum of a bachelor's degree or foreign equivalent with 
related working experience" and the Petitioner's stated requirement of a "[b]achelor's degree or 
foreign equivalent in CS/CIS/CE or other closely related Engineering field with related professional 
experience . .. [and a] Business Administration or Pharmaceutical major with advanced validation 
experience." With the limited information provided , it is not clear how arrives at this 
conclusion. 
For all of these reasons, we find that letter holds little probative value toward 
establishing the proffered position as a specialty occupation. 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, 
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Matter of S-T- Inc 
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. !d. 
II. BENEFICIARY'S QUALIFICATIONS 
The Director also found that the Beneficiary would not be qualified to perform the duties of the 
proffered position if the job had been determined to be a specialty occupation. However, a 
beneficiary's credentials to perform a particular job are relevant only when the job is found to be a 
specialty occupation. As discussed in this decision, the Petitioner did not demonstrate that the 
proffered position requires at least a baccalaureate or higher degree in a specific specialty, or its 
equivalent. Therefore, we need not and will not address the Beneficiary's qualifications further. 
III. CONCLUSION 
As set forth above, we agree with the Director's conclusion that the evidence of record as currently 
constituted does not establish that the proffered position is a specialty occupation.3 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-T- Inc, ID# 15964 (AAO Mar. 29, 2016) 
3 As this issue precludes approval of the petition, we need not address any of the additional deficiencies we have 
observed in the record of proceeding. 
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