dismissed H-1B Case: Software Consulting

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 30, 2024 In Re: 31702624 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to employ the Beneficiary 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 Director of the California Service Center denied the petition, concluding that the record did not 
establish the Petitioner's proffered job qualified as a specialty occupation under section 101 
(a)(15)(H)(i)(b) of the Act. 1 The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. PUBLIC LAW 114-113 
The Director issued a request for evidence (RFE) informing the Petitioner that it did not appear exempt 
from the fee mandated by the Consolidated Appropriations Act, Pub. L. No. 114-113, § 411(b), 129 
Stat. 2242, 3006 (2015). Public Law 114-113 requires an additional $4,000 fee for petitioners that 
employ 50 or more employees in the United States if more than 50% of those employees are in H-lB, 
L-lA, or L-lB status. The Petitioner claimed to have had 168 employees in the United States at the 
1 The Director also concluded the record did not establish the Beneficiary was qualified to perform the duties of the 
proffered position. Long-standing legal standards require that the Director first determine whether the proffered position 
qualifies for classification as a specialty occupation and then move to determine whether the Beneficiary was qualified for 
the position at the time the nonimmigrant petition was filed . Cf Matter ofMichael Hertz Assocs. , 19 I&N Dec. 558, 560 
(Comm'r 1988). Because our conclusion the Petitioner 's proffered position is not a specialty occupation is dispositive, we 
need not evaluate the Beneficiary's qualifications and reserve the issue. See INS v. Bagamasbad , 429 U.S. 24, 25 (1976) 
("courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they 
reach"); see also Matter ofL-A-C- , 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal 
where an applicant is otherwise ineligible). 
time of filing and certified under penalty of perjury that it had confirmed "all information contained 
in the petition, including all responses to the specific question, and in the supporting documents, is 
complete, true, and correct." The Director performed a search of U.S. Citizenship and Immigration 
Services (USCIS) records and found that the Petitioner "obtained at least 291 H-lB or L-1 Form 1-129 
approvals in the last three years compared to the claimed 168 U.S. employees [claimed] on the Form 
1-129." This appeared to exceed the 50% threshold for the fee. 
The Director provided an opportunity for the Petitioner to provide specific evidence to establish it was 
exempt from the additional fee. In response to the RFE, the Petitioner provided a table containing the 
name, status, and USCIS receipt number as applicable for its current employees and stated in its 
accompanying letter that the "fees are appropriate." The Petitioner's table and statement are 
insufficient because they are not material, relevant, or probative to establish the Petitioner is exempt 
from the additional fee. The table and the statement do not adequately establish the employment status 
of the employees with the Petitioner. Moreover, despite the Director's specific request, the Petitioner 
neglected to submit payroll records for all employees for the pay period in effect when they filed the 
petition and the one preceding which could have further illuminated the Petitioner's assertions. Nor 
did the Petitioner submit any other documentation on the list the Director suggested to address their 
incomplete assertions. So, the record does not establish, through any reliable evidence, the actual 
number of the Petitioner's employees at the time of filing the petition and the percentage of which 
were in H-lB, L-lA, or L-lB status to determine whether the Petitioner is exempt from the fee required 
by Public Law 114-113. 
II. SPECIALTY OCCUPATION 
We now tum to the Petitioner's appeal of the Director's decision that their proffered position is not a 
specialty occupation. The Petitioner filed its petition to seek to employ the Beneficiary as a computer 
systems analyst and it submitted a labor condition application (LCA) certified for a position in the 
computer systems analysts occupational category. The Director may request additional evidence when 
determining eligibility for the requested benefit. 8 C.F .R. § 103 .2(b )(8). In addition, a petitioner must 
establish eligibility at the time of filing the petition and must continue to be eligible through 
adjudication. 8 C.F.R. § 103.2(b)(l). 
Upon review of the record in its totality, we conclude the evidence does not reflect the proffered 
position would require at least a bachelor's degree or its equivalent in computer science or directly 
related fields(s). The Petitioner has not established that the proffered position qualifies as a specialty 
occupation. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: (A) the 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. 
2 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) adds a non-exhaustive list of fields of endeavor to the 
statutory definition. And the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires that the proffered 
position must also 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 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. 
The statute and regulations must be read together to make sure the proffered position meets the 
definition of a specialty occupation. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) 
(holding that construction of language which takes into account the design of the statue as a whole is 
preferred); see also COIT Independence Joint Venture v. Fed. Sav. And Loan Ins. Corp., 489 U.S. 561 
(1989); Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). Considering the statute and the regulations 
separately could lead to scenarios where a petitioner satisfies a regulatory factor but not the definition 
of specialty occupation contained in the statute. See Defensor v. Meissner, 201 F.3d 384, 387 (5th 
Cir. 2000). The regulatory criteria read together with the statute gives effect to the statutory intent. 
See Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 56 
Fed. Reg. 61111, 61112 (Dec. 2, 1991). 
So, we construe the term "degree" in 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 
supporting the statutory definition of specialty occupation. 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"). USCIS' application of 
this standard has resulted in the orderly approval of H-1B petitions for engineers, certified public 
accountants, information technology professionals, and other occupations commensurate with what 
Congress intended when it created the H-1B category. 
And job title or broad occupational category alone does not determine whether a particular job is a 
specialty occupation under the regulations and statute. The nature of a petitioner's business operations 
along with the specific duties of the proffered job are also considered. We must evaluate the 
employment of the individual and determine whether the position qualifies as a specialty occupation. 
See Defensor, 201 F.3d 384. So, a petitioner's self-imposed requirements are not as critical as whether 
the nature of the position the petitioner offers requires the application of a theoretical and practical 
body of knowledge gained after earning the required baccalaureate or higher degree in the specific 
specialty required to accomplish the duties of the job. 
B. Analysis 
The Petitioner, founded in 2012, describes itself as a "software consulting" business. This description 
does not shed any meaningful light on the Petitioner's business and whether it requires the services of 
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an individual performing the duties of a specialty occupation. So, the Director's RFE requested the 
Petitioner submit additional evidence regarding the Petitioner. But the Petitioner's response to the 
RFE did not address the Director's request for additional evidence regarding the Petitioner's 
organization. Consequently, the record does not illustrate the nature of the Petitioner's business 
operations. The evidence in the record is unable to illuminate what specific business the Petitioner 
operates and the services it offers. As stated previously, whilst it can be inferred from the record that 
the Petitioner's business may have some connection to information technology and staff augmentation, 
it is wholly unclear what the nature of the service provided by the Petitioner to its clients is. When it 
is unclear as to what exactly the Petitioner does, it is equally unclear whether work of a specialty 
nature is required to accomplish the Petitioner's services in "software consulting." If we are unable 
to assess, categorize, and comprehend the Petitioner's business, we cannot conclusively determine the 
type and complexity of the work described in the proffered job duties. 
And this is made especially more difficult when a petitioner does not provide a sufficient job 
description consisting of comprehensible job duties. The Petitioner contends that it does "not even 
need to discuss or disclose job duties of the purposes of specialty occupation criteria (sic)." 2 This is 
incorrect. 3 As stated earlier, we must evaluate the employment of the individual and determine 
whether the position qualifies as a specialty occupation. See Defensor, 201 F.3d 384. The petition, 
RFE, and appeal do not contain any description of the position's duties. The Petitioner instead 
provided a list of specific technical tools it claims the occupant of the proffered computer systems 
analyst position would utilize. But the identification of the tools and technologies that would be used 
in the proffered position does not adequately convey the substantive work the computer systems 
analyst performs. The abstractness of the description of the tools provided by the Petitioner renders it 
impossible to evaluate whether the proffered job is a specialty occupation and the job duties require 
an educational background, or its equivalent, commensurate with a specialty occupation. So, the 
record does not sufficiently establish the substantive nature of the proffered position, which precludes 
us from determining that the proffered position qualifies as a specialty occupation under sections 
10l(a)(15)(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). 
III. CONCLUSION 
It is the Petitioner's burden to provide material, relevant, or probative 
evidence of the nature of its 
proffered specialty occupation. The Petitioner has not met their burden for the reasons set forth above. 
ORDER: The appeal is dismissed. 
2 The Petitioner also asserts on appeal that the Director relied upon "withdrawn memos [and] unpublished AAO decisions 
in determinizing (sic) specialty occupation." We do not observe any citation to withdrawn memos and unpublished AAO 
decisions by the Director upon our de novo review. 
3 It is unclear how, if petitioners do not "need to discuss or disclose job duties" as the Petitioner claims, USCIS is to 
determine whether those petitioners' proffered positions are, in fact, specialty occupations. 
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