dismissed H-1B Case: Software

U.S. Citizenship 
and Immigration 
Services 
In Re: 19120098 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 20, 2021 
The Petitioner seeks to temporarily employ the Beneficiary as an "Automation Engineer II" under the 
H-lB 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 Vermont Service Center Director denied the petition , concluding that the Petitioner did not 
establish that the proffered position is a specialty occupation. In these proceedings, it is the Petitioner 's 
burden to establish eligibility for the requested benefit by a preponderance of the evidence. 1 
Upon de nova review, we will dismiss the appeal. 2 
I. LEGAL FRAMEWORK 
According to the filing requirements for applications and petitions found at 8 C.F .R. § 103 .2(b )( 1 ), 
... [ a ]n applicant or petitioner must establish that he or she is eligible for the requested 
benefit at the time of filing the benefit request and must continue to be eligible through 
adjudication. Each benefit request must be properly completed and filed with all initial 
evidence required by applicable regulations and other USCIS instructions . Any 
evidence submitted in connection with a benefit request is incorporated into and 
considered part of the request. 
The regulations require that before filing a Form 1-129, Petition for a Nonimmigrant Worker , a 
petitioner obtain a certified labor condition application (LCA) from the Department of Labor (DOL) 
in the occupational specialty in which the H-lB worker will be employed. 3 Additionally , a petitioner 
1 See section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
3 See 8 C.F.R. § 214.2(h)(4)(i)(B) . 
submits the LCA to the DOL 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 duties, experience, and qualifications. 4 
Section 101 ( a )(l 5)(H)(i)(b) of the Act defines an H-1 B nonirnrnigrant as a foreign national "who is 
corning temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific 
specialty (or its equivalent) as a minimum for entry into the occupation in the United States." The 
regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates section 214(i)(l) of the Act but adds a 
non-exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 5 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(l) states that an H-lB classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. The services the 
Beneficiary will perform in the position determine: (1) the normal minimum educational requirement 
for entry into the particular position, which is the focus of criterion I; (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. 6 Without sufficient evidence regarding the duties the Beneficiary will perform, we are unable to 
determine whether the Beneficiary will be employed in an occupation that meets the statutory and 
regulatory definitions of a specialty occupation and is a position that also satisfies at least one of the 
criteria at 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 2 l 4(i)( I) of the Act. 7 The Director may request additional evidence 
in the course of making this determination. 8 Where, as here, a petitioner has been put on notice of a 
4 See section 212(n)(l) of the Act, 8 U.S.C. § l 182(n)(l )(A); 20 C.F.R. § 655.73 l(a). 
5 The regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty 
occupation under section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe the term "degree" to mean not 
just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See 
Royal Siam 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"). 
6 See 8 C.F.R. § 214.2(h)(4)(iii)(A). 
7 See 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
8 See 8 C.F.R. § 103.2(b)(8). 
2 
deficiency in the evidence and has been given an opportunity to respond to that deficiency, we will 
not accept evidence 9 offered for the first time on appeal. 10 
Further, the purpose of the request for evidence (RFE) is to elicit information that clarifies whether 
eligibility for the benefit sought has been established. 11 When responding to an RFE, the Petitioner 
cannot offer a new position to the Beneficiary, or materially change a position's title, its level of 
authority within the organizational hierarchy, its associated job responsibilities, or the requirements of 
the position. The Petitioner must establish that the position offered to the Beneficiary when the 
petition was filed merits classification for the benefit sought. 12 If significant changes are made to the 
initial request for approval, the Petitioner must file a new petition rather than seek approval of a 
petition that is not supported by the facts in the record. 
In this matter, the appeal will be adjudicated based on the record of proceeding before the Director. 
II. ANALYSIS 
Upon review of the record, we conclude that the Petitioner has not established that the services the 
Beneficiary will perform qualify as a specialty occupation under sections 10l(a)(l5)(H)(i)(b), 
214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 
Specifically, the record provides insufficient information regarding the proffered position, which in 
turn precludes us from understanding the position's substantive nature and determining whether the 
proffered position qualifies as a specialty occupation. When determining whether a position is a 
specialty occupation, we 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 performance of those duties within the context 
of that particular employer's business operations. 
On the Form I-129, the Petitioner identifies itself as a software publisher. In its letter in support of the 
petition, the Petitioner noted that it had been founded in 2020 "with a mission of providing high value 
solutions to address business problems." On the LCA submitted in support of the H-lB petition, the 
Petitioner designated the proffered position under the occupational category "Software Quality 
Assurance Engineers and Testers" corresponding to the standard occupational classification (SOC) 
code 15-1199.01. 13 
9 On appeal, the Petitioner provides a different description of the proposed duties, submits its organizational chart, provides 
a new position evaluation prepared byl I includes several job postings, and evidence of employees hired 
subsequent to filing the petition. In the request for evidence (RFE), the Director identified multiple types of evidence that 
might demonstrate how the proffered position qualifies as a specialty occupation including: an explanation of the initially 
described duties showing how the duties related to specific projects; job postings from similar organizations; the 
Petitioner's organizational chart; evidence of hiring requirements and individuals hired for the position; and letters from 
individuals attesting to the specialty occupation nature of the proffered position accompanied by documentary evidence 
detailing the individual's expertise. Although the Petitioner provided a position evaluation, it did not provide other 
relevant, requested evidence in response to the RFE. 
10 See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 
1988). 
II 8 C.F.R. § 103.2(b)(8). 
12 See Matter of Michelin Tire Corp., 17 l&N Dec. 248,249 (Reg'! Comm'r 1978). 
13 The O*NET recently updated its occupational classifications. The "Software Quality Assurance Engineers and Testers" 
3 
The Petitioner listed the proposed duties as follows: 
• Analyze project requirements and develop Test Strategies and Plans. [5%] 
• Review project documentation for all assigned projects to ensure that the project 
requirements are clearly defined. [5%] 
• Knowledgeable in various SDLC methodologies including waterfall, agile, and 
iterative approaches. [5%] 
• Document test cases to ensure that all functionality is performing as intended. 
[10%] 
• Conduct test case reviews & provide test case to requirements traceability. [ l 0%] 
• Conduct formal test case review sessions with project team and incorporate 
feedback. [5%] 
• Execute test cases, document actual results, and evaluate compared to expected 
results. [ 10%] 
• Develop SQL queries to retrieve data for validation purposes. [10%] 
• Report defects and escalate issues as needed. [ 5%] 
• Coordinate efforts with multiple vendors to keep project on track. [5%] 
• Generate reports based on project needs. [10%] 
• Participate in Test review and defect meetings. [5%] 
• Review Test plans/strategy to ensure adequate testing. [5%] 
• Coordinate project activities with internal departments. [10%] 
The Petitioner stated that its minimum requirements for the proffered position "includes a bachelor's 
degree in Information Technology, Computer Information Systems, Electronics Engineering or a 
related degree." 
The duties described above are generic and without context. We must review the actual duties the 
Beneficiary will be expected to perform to ascertain whether those duties require at least a 
baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a 
specialty occupation. To accomplish that task, we must analyze the actual duties in conjunction with 
the specific project(s) to which the Beneficiary will be assigned. Here, the Petitioner has not provided 
sufficient details regarding the nature and scope of the Beneficiary's employment or any substantive 
evidence regarding the actual work that the Beneficiary would perform. Without a meaningful job 
description, the record lacks evidence sufficiently probative and informative to demonstrate that the 
proffered position requires bachelor's-level knowledge in a specific specialty. 
In the description the Petitioner provided a broad overview of a technology occupation. Although some 
of the duties appear to correspond to a "Software Quality Assurance Engineers and Testers" occupation, 
the proposed duties are basic and perfunctory and describe the occupation, not a particular position. 14 
occupation is now identified as SOC code 15-1253.00. See Summary Report for: 15-1199.01 - Software Quality 
Assurance Engineers and Testers, O*NET OnLine Archives (Nov. 17, 2020), https://www.onetonline.org/ Archive_ ONET­
SOC _ 20 IO_ Taxonomy_ 09 _ 2020/link/summary/ 15-1199.01. 
14 While this type of description may be appropriate when discussing duties that may be performed within an occupational 
category, without information describing the Beneficiary's specific tasks to be performed within the Petitioner's business, 
such a basic generic description does not establish the substantive nature of the proffered position's duties or demonstrate 
4 
For example, documenting test cases to ensure functionality, conducting test case reviews and providing 
test cases, and executing test cases, documenting and evaluating results broadly describe the occupation, 
but do not describe the Beneficiary's specific tasks to be performed within the Petitioner's business. 
Additionally, analyzing project requirements and developing test strategies and plans and reviewing 
project documentation to ensure that requirements are clearly defined do not communicate the scope or 
level of responsibility that will be involved. Without more specific information we cannot ascertain the 
application of knowledge needed nor the occupation and wage level required. 
Further, tasks that involve sessions with a project team and coordinating activities with internal 
departments, do not appear to apply to the Petitioner's two-employee business. Similarly, 
coordinating efforts with multiple vendors is without context as the Petitioner has not provided 
evidence that it had purchases or sales of any IT products with vendors when the petition was filed. 
Moreover, identifying the knowledge wanted for a particular position, such as knowledge of SDLC 
methodologies does not describe the duties to be performed. 15 The lack of detailed information 
regarding the position raises questions regarding the nature of the position and level of responsibility 
of this position within the company. In other words, the Petitioner does not provide adequate 
information to delineate how the job description translates to specific duties and responsibilities and 
how such work will be conducted within the Petitioner's business operations. The Petitioner's 
description of proposed duties is insufficient to establish the substantive nature of the position. 
Although the Petitioner outlined two projects 
16 
(the~-----------~ and thd~--~ 
I I), and claimed that the Beneficiary will "provide proprietary, specialized and 
knowledge-based IT development services" the record does not include evidence of what knowledge 
will be applied and how the Beneficiary's general duties will be incorporated into work performed on 
the projects. Moreover, the Petitioner stated that its "model is to list the prospect projects with [its] 
customers, set the priority, get it approved from the management and staff the resources." However, 
the record does not include evidence that the Petitioner, organized in January 2020, had generated 
sales from any prospects when the petition was filed. 17 
The Petitioner also appears to rely on the Beneficiary's education, a foreign degree evaluated to the 
equivalent of a master's degree in computer information systems and his 10 years of experience 18 to 
demonstrate the proffered position is a specialty occupation. However, the test to establish a position 
that performing such duties would require the theoretical and practical application of highly specialized knowledge and 
attainment of at least a bachelor's degree in a specific specialty or its equivalent. 
15 Notably using third-party tools and technologies that the Petitioner has not established require bachelor's-level 
specialized knowledge does not assist in a dete1mination that a position is a specialty occupation. That is, knowledge 
gained through certifications or trainings on the tools and technologies may be sufficient. 
16 Although these are identified as projects, it appears from the brief descriptions that they may actually be products. For 
example, the Petitioner provides a power point overview of these products, among others, that appear to be used for sales 
purposes. 
17 The record does not include evidence that the Petitioner, established in January 2020, had clients, had entered into master 
subscription agreements, or statements of work when the petition was filed in June 2020. 
18 If the Petitioner is relying on the Beneficiary's 10 years of experience, and believes the position requires this amount of 
experience, such an experience requirement would require an increase in the wage level from a level II to a level IV. See 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration 
Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdfiNPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
5 
as a specialty occupation is not the skill set or education of a proposed beneficiary, but whether the 
position itself qualifies as a specialty occupation. Thus, whether or not the Beneficiary in this case 
has completed a specialized course of study directly related to the proffered position is irrelevant to 
the issue of whether the proffered position qualifies as a specialty occupation, i.e., whether the duties 
of the proffered position require the theoretical and practical application of a body of highly 
specialized knowledge and the attainment of a bachelor's degree or higher in a specific specialty, or 
its equivalent. Section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). Here, the Petitioner has not 
established how the generic duties it describes, require the theoretical and practical application of a 
body of highly specialized knowledge such that a bachelor's or higher degree in a specific specialty, 
or its equivalent, is required to perform them. 
we also reviewed the position evaluation authored byl I Adjunct Proferor,I 
School of Cybersecurity and Information Technology, University o~ I. 19 
I I repeats the Petitioner's generic job description and opines that "a minimum of a Bachelor's 
Degree in Computer Information Systems, Information Technology, Electronics Engineering, or a 
related area or the equivalent provides the student with the core competencies and skills needed for 
[the proffered position]." While I I may draw inferences that one of these degrees may be 
beneficial in performing certain duties of the position, we disagree with any inference that such a 
degree is required in order to perform the duties of the proffered position. Put simply, stating that a 
person with a bachelor's degree in computer information systems, information technology, electronics 
engineering or a related area could perform the duties of the proffered position is not the same as 
stating that such a degree is required to perform those duties. 
~---~lalso lists nine courses he claims are emblematic of courses required to obtain a bachelor's 
degree in one of the referenced disciplines. He does not describe how or why any of these courses 
would be required to perform the duties of the proffered position. Although! I also identified 
three courses ( computer programming, systems analysis and design, and IT project management) as 
required to perform the duties of the position, he does not offer cogent analysis explaining why these 
courses are required to perform the duties of a software quality assurance engineer or tester. For 
example, the duties described by the Petitioner do not indicate that the Beneficiary will perform 
computer programming duties, andl I does not adequately explain why he included this 
course as necessary to perform the generic duties described. Similarly, he does not sufficiently 
elaborate on why a systems analysis and design course is necessary for a position that generally 
participates in test review and report generation.I I does not appear to consider other methods 
that could also provide the knowledge and skills to perform the nonspecific duties set out in the 
Petitioner's description. For example, through several years of experience building the necessary 
skills and knowledge to perform in the position. Consequently, the professor does not account for 
obvious alternative explanations. 20 A lack of sufficient consideration of alternatives is a basis that can 
adversely affect the evidentiary weight of such an opinion. 21 
Finally,! lciaims that it is typical for a company providing innovative~! -----~ 
analytics solutions to hire an individual with a bachelor's degree in computer information systems, 
19 The Petitioner provided this position evaluation in response to the Director's RFE. 
20 See Claar v. Burlington N.R.R., 29 F.3d 499, 502 (9th Cir. 1994). 
21 See Ambrosini v. Labarraque, 101 F.3d 129, 140 (D.C. Cir. 1996). 
6 
information technology, electronics engineering, or a related area to perform the duties of the proffered 
position. I I appears to base this claim on the importance of this work to the success of the 
company, not the specialized nature of the duties. However, neither the importance of the work, nor 
the proffered position's role in it, can substitute for specialization. Overall,I h evaluation is 
formulaic and does little to provide an understanding of the proffered position and to demonstrate how 
the particular duties provided by the Petitioner require a bachelor's degree in a specific specialty, or 
its equivalent. 
Although the Beneficiary may require technological knowledge to perform some of the described 
tasks, the record does not include probative evidence that this knowledge is gained through 
bachelor's-level study in a specific discipline. We also cannot determine from the record that the 
Beneficiary will perform the duties of the occupation designated on the LCA at the wage level 
certified. 22 There are technology occupations that may be performed with a general degree ( either at 
the bachelor or associates level) and certifications or undefined experience in a particular program or 
third party software. There are also technology occupations that may require special skills, specific 
certifications, advanced knowledge, or that incorporate the duties of more than one occupation. Here, 
the Petitioner has not provided sufficient probative information to establish the nature of the proffered 
position and the minimum requirements needed to perform the duties of the position. The Petitioner 
has not provided relevant corroborating evidence sufficient to support its testimonial claims. The 
record does not establish the substantive nature of the proffered position's duties or demonstrate that 
performing such duties would require the theoretical and practical application of highly specialized 
knowledge and attainment of at least a bachelor's degree in a specific specialty or its equivalent. 
III. CONCLUSION 
Absent more detailed and persuasive evidence regarding the nature of the proffered position's duties, 
the Petitioner has failed to demonstrate the substantive nature of the work to be performed by the 
Beneficiary. This precludes further analysis of whether the proffered position satisfies any criterion 
at 8 C.F.R. § 214.2(h)(4)(iii)(A). The Petitioner has not submitted consistent, corroborative evidence 
to adequately communicate (1) the nature of the actual work that the Beneficiary would perform, (2) 
the complexity, uniqueness, or specialization of the tasks, and (3) the correlation between that work 
and a need for a particular level education of highly specialized knowledge in a specific specialty. 
Moreover, the record does not establish that the Petitioner satisfied the statutory and regulatory 
22 The LCA serves as the critical mechanism for enforcing section 212(n)(l) of the Act, 8 U.S.C. § l 182(n)(l). See Labor 
Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB Visas in Specialty Occupations 
and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United States, 65 Fed. 
Reg. 80,110, 80, 110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that the wage 
protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring 
temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] with 
[DOL ]."). While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL regulations 
note that the Department of Homeland Security (DHS) (i.e., its immigration benefits branch, USCIS) is the department 
responsible for determining whether the content of an LCA filed for a particular Form 1-129 actually supports that 
petition. See 20 C.F.R. § 655.705(b). The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that "the 
petition is supported by an LCA which corresponds with the petition .... " 
7 
definitions of specialty occupation. Accordingly, the Petitioner has not established that the proffered 
position is a specialty occupation. 
ORDER: The appeal is dismissed. 
8