dismissed H-1B Case: It Services

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-, INC. 
Non~ Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 4, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an IT services firm, seeks to continue to employ the Beneficiary as a "programmer 
analyst ~ ETL Developer)" under the H-1B nonimmigrant classification for specialty 
occupations. See 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-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 Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner had not demonstrated that the proffered position qualifies as a specialty occupation 
position. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence of record satisfies all evidentiary requirements. 
Upon de novo review, we will dismiss the appeal. 
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. 
The regulation at 8 C.P.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: 
(b)(6)
Matter of M-, Inc. 
(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 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.P.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.P.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 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. THE PROFFERED POSITION 
In the H-18 petition, the Petitioner stated that the Beneficiary will serve as a "programmer analyst 
ETL Developer)." The Petitioner provided the following description of the duties of the 
proffered position (note: errors in the original text have not been changed): 
• Develop and document high level conceptual data process design for review by data 
analysts for writing ETL code and test plans; 
• Provide development effort estimates based on available preliminary business requirements 
of the business; 
• Review and understand data specifications and physcial [sic] data models to write, 
extract, transform, and load (ETL) code and contract [sic] generic ETL process. 
• Create design specifications for ETL processes coded for audit and maintainability 
purposes; 
• Write ETL code with deadlines to deliver 
project on scheduled timelines' 
• Write Unit test ETL code to ensure the code is free of errors' 
• Document the results of unit testing prior to handing off ETL code to testing teams; 
• Participate in regular technical peer review sessions to identify non-adherence to 
standards, design, and performance issues/improvements of ETL code; 
• Follow the Enterprise 
informatics software development life cycle and adhere to 
ETL code standards and best practices in the department; 
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Matter of M-, Inc. 
• Develop schedule specifications to automate ETL jobs using software; 
and -
• Contribute to overall architecture in developing end to end system design for 
specific data warehouse applications. 
The Petitioner stated that the proffered position requires a m1mmum of a bachelor's degree m v 
computer science, information systems, engineering, or an IT related field, or the equiva~ent. 
The Petitioner, which is located in Georgia, states that the Beneficiary would work at 
in Illinois, where he would provide his services to 
(end-client), pursuant to contracts between: (1) the Petitioner and 
(first vendor); (2) the first vendor and (second vendor); and (3) the 
second vendor and the end-client. The Petitioner's duty descriptions were confirmed in two letters 
from 
the end-client. 
(/ 
On the labor condition application (LCA) submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Software Developers, 
Applications" corresponding to the Standard 
Occupational Classification code 15-1132. 1 
III. 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 (1) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 2 
1 The Petitioner classified the proffered position at a Level I wage' (the lowest of four assignable wage levels). 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. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (1) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
~pecific instructions on required tasks and expected results. 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 _II_ 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 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 
Matter of M-, Inc. 
A. Lack of a Requirement for a Bachelor's Degree in a Specific Specialty, or the Equivalent 
Initially, we observe that the Petitioner has never asserted that the proffered position requires a 
minimum of a bachelor's degree in a specific specialty or its equivalent. The Petitioner stated that a 
bachelor's degree or its equivalent in computer science, information systems, engineering, or an IT 
related field would be a sufficient educational qualification for the proffered position. 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty (or its equivalent)" requirement of section 214(i)(l )(B) of the Act. In such a 
case, the required "body of highly specialized knowledge" would essentially be the same. Since 
there must be a close correlation between the required "body of highly specialized knowledge" and 
the position, however, a minimum entry requirement of a degree in two disparate fields, such as 
philosophy and engineering, would not meet. the statutory requirement that the degree be "in the 
specific specialty (or its equivalent)," unless the petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required "body of 
highly specialized knowledge" is essentially an amalgamation of these different specialties. Section 
214(i)(l)(B) ofthe Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," 
we do not so narrowly interpret these provisions to exclude positions from qualifying as specialty 
occupations if they permit, as a minimum entry requirement, degrees in more than one closely 
related specialty. See section 214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). This also includes 
even seemingly disparate specialties providing, again, the evidence of record establishes how each 
acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
position. 
Again, the Petitioner has represented that a bachelor's degree in computer science or engineering is 
acceptable. Here and as indicated above, the Petitioner, who bears the burden of proof in this 
proceeding, does not establish either (1) that the disciplines are closely related fields, or (2) that all 
fields of engineering are directly related to the duties and responsibilities of the proffered 
position. 3 Absent this evidence, it cannot be found that normally the minimum requirement for entry 
into the particular position proffered in this matter is a bachelor's or higher degree in a specific 
specialty, or its equivalent, under the Petitioner's own standards. 
As the evidence of record does not establish how these dissimilar fields of study form either a body 
of highly specialized knowledge or a specific specialty, or its equivalent, the Petitioner's assertion 
that the job duties of this particular position can be performed by an individual with a bachelor's 
degree in either of these fields suggests that the proffered position is not a specialty occupation. 
Therefore, absent probative evidence of a direct relationship between the claimed degrees required 
3 The field of engineering is a broad category that covers numerous and various specialties, some of which are only 
related through the basic principles of science and mathematics, e.g., nuclear engineering and aerospace engineering.· 
4 
(b)(6)
Matter of M-, Inc. 
and the duties and responsibilities of the position, it cannot be found that the proffered position 
requires, at best, anything more than a general bachelor's degree. The petition must be denied on 
this basis alone. 
I 
B. Lack of a Meaningful Job Description 
Nor does the record contain a meaningful job description that establishes the substantive nature of 
the work to be performed by the Beneficiary. 
First, as reflected in the description of the position as quoted above, the proffered position has been 
described in terms of generalized and generic functions that do not convey sufficient substantive 
information to establish the relative complexity, uniqueness and/or specialization of the proffered 
position or its duties. For example, the Petitioner stated that the Beneficiary will '~develop and 
document a high level conceptual data process design for review"; "provide development effort 
estimates"; "write ETL code within deadlines"; and "document the results of unit testing." The 
Petitioner's description is generalized and generic in that the Petitioner does not convey the 
substantive nature of the work that the Beneficiary would actually perform, or any particular body of 
highly specialized knowledge that would have to be theoretically and practically applied to perform 
it. The responsibilities for the proffered position contain generalized functions without providing 
sufficient information regarding the particular work, and associated educational requirements, into 
which the duties would manifest themselves in their day-to-day performance.4 
Second, the wage-level designated by the Petitioner on the LCA raises further questions regarding 
the accuracy and reliability of its description of the proffered position and its constituent duties. As 
noted, in designating the proffered position at a Level I wage rate, the Petitioner indicated that the 
proffered position is a comparatively low, entry-level position relative to others within the 
occupation and that the Beneficiary will be expected to perform routine tasks that require limited, if 
any, exercise of judgment, that he will be closely supervised and his work closely monitored and 
reviewed for accuracy, and that he will receive specific instructions on required tasks and expected 
results. 
However, several of the Petitioner's assertions appear to directly conflict with that wage-level 
designation. For example, despite the Level I wage-level designation, the Petitioner stated that the 
Beneficiary would design and develop high-level conceptual data process designs, and the record 
contains multiple assertions regarding the complexity of the position and its constituent duties. 
Moreover, that the Beneficiary would be sent from the Petitioner's base in suburban to work 
4 It must be noted that most of the duties attributed to the proffered position appear to have been copied, with at most 
minor amendments, from an online vacancy announcement for an ETL Developer position. See 
(last 
visited Sept. 29, 2016). That the Petitioner submitted a duty description copied from another employer indicates that the 
description is not an accurate, in-depth description of the duties of the proffered position as they would be performed in 
the context of the Petitiqper's business operations. 
5 
(b)(6)
Matter of M-, Inc. 
offsite for an end-client in suburban implies a certain degree of independence. However, 
these assertions, both explicit or implicit, raise additional questions as to whether the proffered 
position is in fact a Level I, entry-level position as claimed, and in any event further calls into 
question the reliability of the Petitioner's job description. 5 For this additional reason, we find the 
Petitioner's description of the job duties inadequate, and that the substantive nature of the duties of 
the proffered position have not been described with sufficient clarity and detail. 
While the letters from the end-client listing the duties of the position are acknowledged, we note that 
because they track the duties provided by the Petitioner. In any event, they do not discuss the duties 
that the Beneficiary would perform in the context of the Petitioner's business operation (or that of 
the end-client). For this additional reason, we find the Petitioner's description of the job duties 
inadequate, and that the substantive nature of the duties of the proffered position have not been 
described with sufficient clarity and detail. 
Finally, we note that although he is ostensibly performing his duties in Illinois pursuant to the H-1B 
petition, the Beneficiary's pay records provide a Minnesota address, and the Petitioner looks to have 
been withholding Minnesota State income tax from his pay. In that this appears to undermine the 
Petitioner's assertions regarding the Beneficiary's duty station, we find for this additional reason that 
the Petitioner's description of the job duties is inadequate, and that the substantive nature of the 
duties of the proffered position have not been described with sufficient clarity and detail. 
') 
That the Petitioner did not establish the substantive nature of the work to be performed by the 
Beneficiary precludes a 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 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. 
Because the Petitioner has not satisfied one of the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position is a specialty occupation. The petition must be denied on 
this basis alone. 
C. Speculative Employment 
Further, we observe that the period of employment requested in the H-1B petition extends from 
August 26,2015, to August 30,2017. A statement ofwork (SOW) executed between the Petitioner 
5 It also raises questions as to whether the LCA corresponds to and supports the H-1 B petition. However, because the 
H-1 B petition is not otherwise approvable, we will not explore that issue at this time. 
Matter of M-, Inc. 
and the first vendor states that the first vendor would utilize the Beneficiary's services beginning on 
March 16, 2015, a date prior to the execution of the SOW. It further states that the work would 
continue for three months "with possible extensions." That document is evidence of available work 
through June 15,2015, barely one month into the two-year period of requested employment. 
A contract between the second vendor and the end-client was not provided. In a letter submitted in 
response to a request for evidence issued in this matter, the first vendor stated that it could not be 
provided because of a "Confidentiality and Non-disclosure" section of the agreement. Although that 
letter characterizes the agreement between the first vendor and the end-client as "long-term," it does 
not reveal the termination date. 
Companies are generally permitted, of course, to keep sensitive information confidential. This does 
not, however, relieve the Petitioner of the need to demonstrate the existence of work for the 
Beneficiary to perform during the period of requested employment. The claim a document is 
confidential does not provide a blanket excuse for a petitioner not providing such a document if that 
document is material to ,the requested benefit. Although a petitioner may always refuse to submit \ 
confidential commercial information if it is deemed too sensitive, the Petitioner must also satisfy the 
burden of proof and runs the risk of a denial. Cf Matter of Marques, 16 I&N Dec. 314 (BIA 1977) 
(holding the "respondent had every right to assert his claim under the Fifth Amendment [;however], 
in so doing he runs the risk that he may fail to carry his burden of persuasion with respect to his 
application."). 
A letter from the end-client states that it has contracted for the Beneficiary to work at its location, 
but it does not reveal the beginning or end date of that arrangement. A second letter from the end­
client states that the Beneficiary's "services are provided" to the second client "on October 15th 
2015." It does not state that his services were provided before October 15, 2015, or that they would 
be provided on any subsequent date. Further, that letter is dated January 20, 2016. It is not 
persuasive evidence for the proposition that the Petitioner, when it submitted the H-IB petition on 
September 14, 2015, had any work available during the period of requested employment to which it 
could have assigned the Beneficiary. 
The Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 8 C.F.R. 
§ 103.2(b)(l). A visa petition may not be approved at a future date after the petitioner or beneficiary 
becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l 
Comm 'r 1978). In this case, the only persuasive evidence of non-speculative employment that the 
Petitioner had available to it when it filed the H -1 B petition is the SOW showing work through June 
15, 2015. Even if the H-IB petition were otherwise approvable, it could not be approved for any 
period after June 15, 2015. 6 The petition cannot be al?proved for this additional reason. 
6 The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. For example, a 
1998 proposed rule documented this position as follows: 
7 
Matter of M-, Inc. 
D. Prior Approvals 
We recognize that this ,js an extension petition. The Director's decision does not indicate whether 
she reviewed the prior approvals of the previous nonimmigrant petitions filed on behalf of the 
Beneficiary. If the previous nonimmigrant petitions were approved despite the same \ evidentiary 
deficiencies contained in the current record, those approvals would constitute material and gross 
error on the part of the Director. We are not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 
1988). It would be "absurd to suggest that [USCIS] or any agency must treat acknowledged errors 
as binding precedent." Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. 
denied, 485 U.S. 1008 (1988). A prior approval does not compel the approval of a subsequent 
petition or relieve the petitioner of its burden to provide sufficient documentation to establish current 
eligibility for the benefit sought. 55 Fed. Reg. 2606, 2612 (Jan. 26, 1990). A prior approval also does 
not preclude USCIS from denying an extension of an original visa petition based on a reassessment 
of eligibility' for the benefit sought. See Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). Furthermore, our authority over the service centers is comparable to the 
relationship between a court of appeals and a district court. Even if a service center director had 
approved nonimmigrant petitions on behalf of a beneficiary, we would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
IV. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 7 
Historically, the Service has not granted H-1 B classification on the basis of spechlative, 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) of the 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). 
7 As this finding precludes apprqval of the petition we will not address any of the additional issues we have observed on 
8 
Matter of M-, Inc. 
The burden is on the Petitioner to show 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. 
Cite as Matter of M-, Inc., ID# 123256 (AAO Oct. 4, 20 1.6) 
appeal, except to note that the current record does not establish: (I) that the Petitioner would engage the Beneficiary in 
an employer-employee relationship; and (2) that the LCA corresponds to and supports the H-1 B petition. 
9