dismissed H-1B Case: It Consulting

(b)(6)
DATE: JUN 1 2 2015 
INRE: Petitioner: 
Beneficiary: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigr ation S e rvice~ 
Admini strative Appeals Office 
20 Massachusetts Ave ., N.W ., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www .uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO . 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www. uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition. The matter is now before 
the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will 
be denied. 
I. PROCEDURALBACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
48-employee "IT Consulting" company established in In order to employ the beneficiary in 
what it designates as a "Software Quality Assurance Engineer" position, the petitioner seeks to 
classify him as a nonimmigrant worker m a specialty occupation pursuant to section 
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a )(15)(H)(i)(b ). 
The Director denied the petition on October 1, 2014, concluding that the evidence of record did not 
establish that the proffered position qualifies as a specialty occupation. On appeal, the petitioner 
asserts that the Director's basis for denial of the petition was erroneous and contends that it satisfied 
all evidentiary requirements. 
The record of proceeding before us contains: (1) the Form I-129 and the supporting documentation 
filed with it; (2) the Director's request for additional evidence (RFE); (3) the petitioner's response to 
the RFE; ( 4) the Director's letter denying the petition; and (5) the Form I-290B and the petitioner's 
submissions on appeal. We reviewed the record in its entirety before issuing our decision. 1 
For the reasons that will be discussed below, we agree with the Director's decision that the petitioner 
has not established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
II. THE PROFFERED 
POSITION 
On the Form I-129 the petitioner indicates that it seeks to employ the beneficiary as a full-time 
,,Software Quality Assurance Engineer" at the rate of pay of $64,000 per year. In addition, the 
petitioner states on that form that the beneficiary will work at the petitioner's business address, 
from October 1, 2014 to September 18, 
2017. On the H Classification Supplement to Form I-129 (Form I-129 Supplement H), the 
petitioner provides the following description of the proposed duties: "The beneficiary will render 
computer programming and system analysis duties. Provide technical support." 
The Labor Condition Application (LCA) submitted to support the petition states that the proffered 
position title is "Software Quality Assurance Engineers and Testers [sic]," and that it corresponds to 
Standard Occupational Classification (SOC) code and title "15-1199, Computer Occupations, All 
1 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
Other," from the Occupational Information Network (O*NET). The LCA further states that the 
proffered position is a Level II position. 
The petitioner submitted, inter alia, a letter of support, dated March 31, 2014, describing itself as a 
"business and technology consulting firm specializing in design, development, and delivery of end­
to-end ERP solutions .... " The petitioner also stated the following about the proffered position: 
In general, as Software Quality Assurance Engineer, the Beneficiary will 
confer with 
client management, customers, and staff to define system goals and then create 
necessary roadmaps, graphs, models, and other materials to document and present the 
steps necessary to realize system goals. The Beneficiary will specify inputs to be 
accessed by the system, design the processing steps, and format the output to meet 
user needs. 
In response to the RFE, the petitioner submitted a letter, dated September 9, 2014, clarifying that 
"[t]he project to which we intend to assign [the beneficiary] is for our customer 
with whom we have an SOW for the enhancement and development of Version 2.0 of their 
' The petitioner stated that the beneficiary "will be involved throughout the entire 
SDLC of the project, and his focus will be on providing the QA and Testing functions." The 
petitioner explained that the beneficiary will perform all work on this project from the petitioner's 
own premises. The petitioner further stated that "[t]he project is expected to extend till at least 
August 31, 2016. However, it is more than probable that with further enhancements and further 
modules being added onto this . . . the project will be extended beyond this 
currently projected end date." The petitioner also stated that it "would not hire anyone without the 
minimum of a Bachelor's degree in Computer Science or Engineering or CIS or MIS or some other 
directly related field of study." 
The petitioner submitted a letter, dated August 25, 2014, from the Chief Executive Officer (CEO) of 
confirming that the beneficiary "will be providing Software Quality Assurance 
Engineer services to the project LMS Version 2.0 Enhancements," and that he will be providing 
these services from the petitioner's office. The letter further states that the beneficiary "will engage 
in the complex analysis, design, testing of software systems/applications," and specifically lists the 
following tasks: 
• Performing database testing by executing SQL queries[;] 
• Analyze requirements, Create test cases and execute test cases, log the defects[;] 
• Creates complex test plans using templates and guidelines[;] 
• Creates test cases and test scripts[; and] 
• Documents all phases of the Systems QA process[.] 
CEO also stated that the proffered position requires at least a bachelor's degree "in 
an area such as Computer Science, Engineering or another closely related field." 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
III. SPECIALTY OCCUPATION 
To meet its burden of proof in establishing the proffered position as a specialty occupation, the 
petitioner must establish that the employment it is offering to the beneficiary meets the following 
statutory and regulatory requirements. 
A. Legal Framework 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(l) defines the 
term "specialty occupation" as one 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. 
The term "specialty occupation" is further defined at 8 C.P.R.§ 214.2(h)(4)(ii) as: 
An occupation which requires [(1)] 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 requires [(2)] the attainment of a bachelor's degree or higher in a 
specific specialty, or its equivalent, as a minimum 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, the position must 
meet one of the following criteria: 
(1) 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 pos1t10ns 
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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
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)(l) 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. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-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 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-1B petitions for qualified aliens 
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-1B 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 alien, 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 nor 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. 
We note that, as recognized by the court in Defensor, supra, 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 387-388. The court held that the former Immigration and 
Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
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. Such 
evidence must be sufficiently detailed to demonstrate the type and educational level of highly 
specialized knowledge in a specific discipline that is necessary to perform that particular work. 
B. Analysis 
We find that the record of proceeding in this case does not contain sufficient information regarding 
the specific job duties to be performed by the beneficiary while assigned to the "LMS Version 2.0 
Enhancements" project for the end-client The petitioner asserts that "[t]he SOW 
contains all details of the project scope, its proposed schedule, the many deliverables and products 
and services that must be provided at each stage, our responsibilities for successful delivery, and 
estimated costs"; however, we find that the SOW lacks the necessary level of details regarding the 
beneficiary's claimed assignment. For example, while the SOW broadly describes the activities to 
be completed and the overall positions constituting the petitioner's "team," it does not illuminate 
what specific tasks will be performed, which team member(s) will perform them, and the manner 
and means through which they will be achieved. In fact, the SOW does not identify the beneficiary 
or any of the individuals constituting the petitioner's "team" by name. Furthermore, the Master 
Services Agreement (MSA) executed by the petitioner and states that a list of all of 
the petitioner's employees, consultants, and subcontractors providing services to 
would be attached to the MSA; however, no such attachment is appended to the MSA. 
The letter from the end-client confirming the beneficiary's assignment, too, is insufficient, as it does 
not describe the particular duties of the beneficiary in detail. It lists the beneficiary's services in 
overly broad and repetitive terms that do not appear to be specifically tied to the "LMS Version 2.0 
Enhancements" project. To illustrate, the letter simply states that the beneficiary will "[p ]erform 
database testing," " [ 
c ]reate test cases and execute test cases," " [create] complex test plans," " [create] 
test cases and test scripts," and " [ d]ocument all phases of the Systems QA process." 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 
SOW. 
Nor has the petitioner submitted sufficient, credible explanations of the beneficiary's specific tasks 
with respect to the "LMS Version 2.0 Enhancements" project. In fact, the petitioner's descriptions 
of the proffered position and its constituent duties raise additional questions regarding the nature of 
the proffered position. For example, the petitioner described the proposed duties on the Form I-129 
Supplement H as "render[ing] computer programming and system analysis duties. Provide 
technical support." Likewise, the petitioner stated in its initial support letter that the beneficiary 
"will confer with client management, customers, and staff to define system goals and then create 
necessary roadmaps, graphs, models, and other materials," and "will specify inputs to be accessed 
by the system, design the processing steps, and format the output to meet user needs." The 
employment agreement dated March 18, 2014 between the petitioner and the beneficiary lists his 
duties as including "analyzing the business requirements, designing and developing software 
solutions as per specific requirements." However, the letter from the end-client contains no such 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
job duties for the beneficiary. It is incumbent upon the petitioner to resolve any inconsistencies in 
the record by independent objective evidence, and doubt cast on any aspect of the petitioner's proof 
may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Furthermore, the evidence of record does not sufficiently demonstrate what work the beneficiary 
would be doing for the entire validity period requested. The SOW specifies the delivery due date as 
August 31, 2016, and the petitioner has acknowledged that this date represents the "currently 
projected end date." On the other hand, the petitioner requested a validity period through 
September 18, 2017. Although the petitioner claimed that it is "more than probable that ... the 
project will be extended beyond this currently projected end date," there is insufficient 
corroborating evidence that the project has actually been extended beyond the acknowledged 
August 31, 2016 due date.2 We note that a petition must be filed for non-speculative work for the 
beneficiary, for the entire period requested, that existed as of the time of the petition's filing. US CIS 
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. 103.2(b )(1). 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 Matter of Michelin Tire Corp., 17 I&N Dec. 248. Therefore, even if the record 
contained sufficient evidence regarding the specific duties to be performed by the beneficiary, the 
petition could not be approved for the entire requested validity period. 
Based on the lack of reliable, detailed information and documentation regarding the 
11
LMS Version 
2.0 Enhancements" project and the specific duties the beneficiary will perform on it, we cannot find 
that the petitioner has met its burden of proof in establishing that the beneficiary will be employed 
to exclusively perform in-house services on this project, as claimed. Thus, we find that the 
evidence of record is insufficient to establish the substantive nature of the work to be performed by 
the beneficiary. 
The failure to establish the substantive nature of the work to be performed by the beneficiary 
consequently precludes a finding 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 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. 
2 
The end-client's letter vaguely states that this project is "an ongoing, long-term project that is expected to 
last at least the next three years." However, without additional explanation, including why this statement 
differs from the information found in the SOW, the end-client's letter is insufficient to corroborate the 
petitioner's claims. 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
Accordingly, as the evidence of record 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. 
For this reason, the appeal will be dismissed and the petition denied. 
IV. CONCLUSION AND ORDER 
As set forth above, we agree with the Director's findings that the evidence of record does not 
establish that the proffered position qualifies for classification as a specialty occupation. For this 
reason, the petition will be denied and the appeal dismissed? 
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; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied. 
3 As the identified ground of ineligibility is dispositive of the appeal, we will not address any of the 
additional deficiencies we have identified on appeal.