dismissed H-1B Case: It Consulting

MATTER OF C-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 23,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an IT consulting company, seeks to temporarily employ the Beneficiary as a 
"software developer" under the H-lB nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(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 ofhighly 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 Petitioner did 
not establish that the proffered position is a specialty occupation. 
On appeal, the Petitioner submits additional evidence and contends that the petition should be 
approved. 
Upon de novo review, we will dismiss the appeal. 1 
I. 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 
(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. 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe, 25 l&N Dec. 369, 375-76 
(AAO 2010). 
Matter ofC-, LLC 
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: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the p~rticular 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). We have consistently interpreted 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. 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). 
II. PROFFERED POSITION 
The Petitioner stated in its support letter that the Beneficiary will serve as a "software developer" 
and, on appeal, states that he will serve as a "senior developer." On the labor condition application 
(LCA)2 submitted in support of the H-18 petition it designated the profTered position under the 
occupational category "Software Developers, Applications" corresponding to the Standard 
Occupational Classification code 15-1132.3 
2 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B worker the higher of either 
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. See 
Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
3 The Petitioner classified the proffered position at a Level II wage. We will consider this selection in our analysis of the 
position. The "Prevailing Wage Determination Policy Guidance" issued by the DOL provides a description of the wage 
levels. DOL's wage-level guidance specifies that a Level II designation is reserved for positions involving only 
moderately complex tasks requiring limited judgment. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC _Guidance_ Revised _I I_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. /d. 
2 
Matter of C-, LLC 
In its support letter, the Petitioner described the duties of the proffered position as follows (note: 
errors in the original text have not been changed):4 
• Project management 5% 
• Performing business requirement analysis and system design using UML system 
5% 
• Building, managing and communicating with a small team of junior developers 
10% 
• Mentoring of less experienced colleagues and educating them in new technologies 
10% 
• Designing and building software architecture for the project 10% 
• Writing robust manageable code 50% 
. • Alpha testing and code review 10% 
According to the Petitioner, the proffered position requires "at a minimum, a Bachelor's degree or 
equivalent." 
IlL ANALYSIS 
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 does not (1) describe the position's duties with sufficient detail; (2) establish 
specialty occupation work for the entire requested period of employment; and (3) establish that the 
job duties require an educational background, or its equivalent, commensurate with a specialty 
occupation. 5 
As a preliminary matter, the Petitioner's claim that a bachelor's degree is a sufficient minimum 
requirement for entry into the proffered position is inadequate to establish that the proposed position 
qualifies as a specialty occupation. 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 
4 In response to the Director's request for evidence (RFE) and on appeal, the Petitioner provided additional details about 
the duties of the position. We reviewed the record in its entirety. 
5 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 
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Matter ofC-, LLC 
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., 484 F.3d at 147. 
The Petitioner asserts that its minimum requirement for the proffered position is only a bachelor's 
degree, without further requiring that 
that degree be in any specific specialty. Without more, the 
Petitioner's statement alone indicates that the proffered position is not in fact a specialty 
occupation. The Director's decision must therefore be affirmed and the appeal dismissed on this 
basis alone. 
Setting this foundational deficiency aside, we find next that the record does not demonstrate that the 
Petitioner secured definite, non-speculative work for the Beneficiary before it filed this petition. 
On the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner indicated that the 
Beneficiary would work in-house; however, the Petitioner did not initially identify any particular 
product, program, or project upon which the Beneficiary would work. When it replied to the 
Director's RFE, the Petitioner stated that 
that the Beneficiary would work on an in-house project 
overhauling the Petitioner's website. However, all the documentation submitted in response to the 
RFE was dated after the petition was filed in April 20 16; in other words, the Petitioner did not 
establish existence of work for the Beneficiary to perform at the time of tiling the petition. 
For example, the report described as a "marketing plan for [the Petitioner] ... for the 
"was prepared by a consultant in August 2016. The consultant's invoice was sent 
in September 2016. The "Statement of Work & Proposal SEO Audit" document, which was based 
on the consultant's research, was prepared in October 2016. While the ' and Audit Report" 
document is not dated, given that the recommendations appear to be based on the consultant'sinitial 
work, it was presumably prepared after the consulting services were rendered in August 2016. In 
other words, all documentation pertaining to the website overhaul was prepared after the petition 
was filed. Consequently, the Director found that the Petitioner did not demonstrate that the project 
for the Beneficiary existed prior to the filing of the petition. 
On appeal, the Petitioner attempts to cure this deficiency by claiming that the website overhaul 
project actually began before the petition was filed, and submits documentation that was purportedly 
created prior to the filing of the petition. For example, two of the Petitioner's executives submit 
identical affidavits 6 in which they claim the company "involved [a] few web development 
consultants to review our website" in October 2015, including Company L that prepared the 
"Statement of Work & Proposal SEQ Audit" dated October 2016. However, there is no evidence of 
any involvement by Company L or any other company on the project prior to the summer of 2016. 
6 The use of identical language and phrasing raises questions as to who actually wrote these letters, and undermines their 
overall credibility and probative value. In evaluating the evidence, the truth is to be determined not by the quantity of 
evidence alone but by its quality (including relevance, probative value, and credibility) of the evidence. Chawathe at 
376; Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm 'r 1989). 
4 
.
Matter ofC- , LLC 
Nor are we persuaded by the intra-office memoranda the Petitioner claims were exchanged among 
its executives prior to the filing of the petition. For example, the Petitioner submits a memorandum 
dated July 2015, in which the company's president makes the following statement: "I had an idea 
over the holiday weekend to improve our online presence. As a technology company, we should 
embrace new IT developments and online tools to conduct business." 
Setting aside our credibility concerns regarding these memoranda , 7 we observe that they appear to 
overlap and conflict with one another. For example, in a memorandum dated October 2015, the 
Petitioner's president purports to notify its chief operating officer that the company's current website 
needs an update or a completed overhaul. However, the chief operating officer had already made a 
similar recommendation to the president in a memorandum dated July 2015. 
On appeal, the Petitioner now submits a statement of work and a technical specification document 
predating the petition, while in contrast, it previously had only provided documentation indicating that 
the project was being initially investigated after filing this petition. Moreover, the documentation does 
not reflect a comprehensive plan for the redevelopment of the Petitioner's website but appears to be 
instructions or marketing materials for utilizing a portal engine called For example, the 
document states "the Portal Engine allows you to create dynamic web pages without any 
programming" and ' supports website development using ASP.NET MVC 5 .... [T]his means 
that you use to store data and manage content ... and generate the entire design of the site 
using your won MVC controllers and views." The Petitioner has not 
explained how relates to 
duties of the proffered position or its claimed project. The discrepancies in the submitted 
documentation undermine the Petitioner's claim that the Beneficiary would be tasked with completing, 
as of the date of the petition, a redevelopment of the company's website for three years. The Petitioner 
has not resolved these inconsistencies with independent , objective evidence pointing to where the 
truth lies. Matter ofHo , 19 I&N Dec. 582, 591-92 (BIA 1988). 
Nor are we persuaded by the Petitioner's numerous assertions on appeal that it filed the H-lB 
petition so that the Beneficiary could work on the website overhaul project. First and foremost, we 
observe once again that the Petitioner made no reference to this project when it filed the petition. 
Further, we note that neither the employment agreement between the Petitioner and the Beneficiary 
nor the offer letter, both of which were prepared prior to the filing of the petition , reference the 
website overhaul project. 8 In addition, we observe that the employment agreement contains the 
following provision (note: errors in the original text have not been changed) : 
14. TRAVEL. Employee acknowledges that travel will be necessary to perform the 
services contemplated hereunder and Employee agrees to travel within the U.S. upon 
the request of the Employer. 
7 
It seems likely that an information technology company would use email or some other type of electronic 
communication (which would have the added benefit of an electronic date stamp) rather than preparing and distributing 
paper-based, intra-office memoranda. 
The offer letter contains a listing of job duties but makes no reference to the website overhaul project. 
5 
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Matter of C-, LLC 
For assignment longer than six (6) month Employer will pay for relocation of 
the Employee and his family. 
If this petition was filed so that the Beneficiary could work on the website overhaul project as the 
Petitioner now claims, then it is unclear why it included a provision for off-site work assignments 
exceeding six months in length in the employment agreement. 
The Petitioner also submits a lease on appeal it claims was executed in January 2016 and reflects the 
acquisition of additional office space to accommodate increased staffing associated with the website 
overhaul project. However, we observe that the Director specifically requested a copy of the 
Petitioner's "current" lease in her RFE, and the Petitioner submitted a lease executed in June 2015 in 
response. The Petitioner does not explain why this newer lease was not submitted in response to the 
RFE and is being submitted for the first time on appeal. 
In total, the conflicting evidence leaves question as to whether the Beneficiary would work on the 
asserted website update project and that sufficient specialty occupation work related to this project 
existed as of the date of the petition. The Petitioner must establish eligibility at the time of tiling the 
nonimmigrant visa petitiOn. 8 C.F.R. § 103.2(b)(l). Considered as a whole, we find that the 
evidence of record does not establish that the Petitioner secured definite, non-speculative 
employment for the Beneficiary. 9 
Further, the duties provided for the Beneficiary are vague and do not convey the actual day-to-day 
tasks to be performed and the knowledge required to perform them. The Petitioner asserts that the 
Beneficiary will be assigned to a three-year internal project, located at its office location in 
Illinois, focused on redesigning the company's website. However, the Petitioner only provided vague 
9 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 
alien 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 alien 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 alien 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 alien 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). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
Matter ofC-, LLC 
duties for the proffered position such as "writing robust manageable code," "designing and building 
software architecture for the project," and "Alpha testing and code review." These duty descriptions do 
not reference the specifics of the project or the tasks the Beneficiary will specifically complete over the 
asserted three years, nor do they convey the knowledge required to perfonn these duties. 
The Petitioner's Level II wage designation raises additional questions regarding the overall 
reliability of its job descriptions. As noted, in designating a Level II wage the Petitioner indicated 
that the proffered position involves only moderately complex tasks requiring limited judgement. 
However, several of the proposed duties appear to conflict with the Petitioner's Level II designation. 
For example, the Petitioner stated that the Beneficiary would mentor other colleagues, and on appeal 
it refers to the Beneficiary as a "senior" developer. 10 These statements suggest that the Beneficiary 
would exercise a higher level of judgement and discretion than that indicated by the Petitioner's 
Level II wage designation. 11 In any event, they call into question the reliability of the Petitioner's 
job description. 
In addition to the discrepancies discussed above, we observe that the Petitioner stated on the Form 
I-129 that it has 15 employees, and on appeal it claims to have filed 9 H-1B petitions. However, the 
Petitioner's organization chart identifies 28 U.S.-based employees as well as an unnamed accountant 
and unnamed "office management" personnel. The Petitioner does not explain this discrepancy. 
The Petitioner must resolve these discrepancies and inconsistencies with independent, objective 
evidence pointing to where the truth lies. Ho, 19 I&N Dec. at 591-92. Unresolved material 
inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted 
in support of the requested immigration benefit. !d. 
When considered collectively, the deficiencies, inconsistencies, and discrepancies discussed above 
prevent us from ascertaining the actual, substantive nature of the proffered position. This in turn 
precludes a finding that the proffered position satisfies any criteri_on 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 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. 
10 
According to the DOL wage-level guidance cited above, the-word "senior" in a job title is an indicator that a Level Ill 
wage should be considered. 
11 
In addition, they call into question whether the LCA corresponds to and supports the H-1 8 petition under 20 C.F.R. 
§ 655.705(b), which would appear to constitute another ground for denial. However, because the Petitioner has not 
established that the proffered position is a specialty occupation we will not discuss this matter further except to note that 
the Petitioner should be prepared to address it in any future proceedings. 
Matter of C-. LLC 
As the evidence does not satisfy any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it cannot be 
found that the proffered position qualifies as a specialty occupation. 
IV. CONCLUSION 
The Petitioner has not established that the proffered position is a specialty occupation. 12 
ORDER: The appeal is dismissed. 
Cite as Matter o.fC-. LLC, ID# 402339 (AAO Aug. 23, 2017) 
12 
Because this issue precludes approval of the petition we will not address additional issues we have observed in our de 
novo review of this matter. 
8