dismissed H-1B Case: Software Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 18, 2015 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software consulting firm, seeks to employ the Beneficiary in what it designates as a 
full-time "Quality Analyst" position. The Petitioner seeks to classify him as a nonimmigrant worker 
in a specialty occupation. See 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, Vermont Service Center, denied the 
petition. The matter is now before us on appeal. The appeal will be dismissed. 
The Director denied the petition, finding the evidence insufficient to establish that the proffered 
position qualifies for classification as a specialty occupation position. On appeal, the Petitioner 
asserts that the Director's basis for denial was erroneous and contends that the Petitioner satisfied all 
evidentiary requirements. 
The record of proceeding before us contains: (1) the Petitioner's Form I-129 and the supporting 
documentation filed with it; (2) the service center's request for additional evidence (RFE); (3) the 
Petitioner's response to the RFE; ( 4) the Director's denial letter; and (5) the Notice of Appeal or 
Motion (Form I-290B) and the Petitioner's submissions on appeal. We reviewed the record in its 
entirety before issuing our decision. 
For the reasons that will be discussed below, we agree with the Director 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. 
I. THE PROFFERED POSITION 
The Petitioner claims in the Labor Condition Application (LCA) submitted to support the visa 
petition that the proffered position corresponds to Standard Occupational Classification (SOC) code 
and title 15-1199, Computer Applications, All Other, from the Occupational Information Network 
(O*NET). 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
Matter of K-, Inc. 
In a letter dated March 12, 2014, the Petitioner explained that it will assign the Beneficiary to an 
in-house project for the entire three-year validity period requested. The Petitioner listed the 
following duties of the proffered position verbatim: 
• Conduct internal audits to measure adherence to established QA standards for 
software development, application integration, and information system 
performance, and corresponding documentation. 
• Create and execute test plans and scripts that will determine optimal application 
performance. 
• Verify and revise quality assurance standards as needed. 
• Ensure that testing activities allow applications to meet business requirements and 
systems, goals, fulfill end-user requirements, and identify existing or potential 
Issues. 
• Collaborate with software/systems personnel in application testing, such as 
system, unit, regression, load, and acceptance testing methods. 
• Make recommendations for improvement of applications to programmers and 
software developers or engineers. 
• Communicate test progress, test results, and other relevant information to project 
stakeholders and management. 
• Test any new software to ensure integration into company systems meets 
functional requirements, system compliance, and technical specifications. 
• Analyze formal test results in order to discover any report any defects, bugs, 
errors, configuration issues, and interoperability flaws. 
• Assist in the development of change control processes, practices, and guidelines 
for new and existing technologies. 
• Participate in developing, distributing, and coordinating in-depth end-user reviews 
for modified and new systems or applications. Cultivate and disseminate 
knowledge of quality assurance best practices. 
• Document software defects, using a bug tracking system, and report defects to 
software developers and project managers. 
• Identify, analyze, and document problems with program function, output, online 
screen, or content. 
• Review software documentation to ensure technical accuracy, compliance, or 
completeness, or to mitigate risks. 
• Advise, mentor, train or assist quality assurance analysts and developers at other 
skill levels, as needed, to ensure timely releases of high quality code. 
• Achieve a service-focused culture with emphasis on delivering on-time, high­
quality products and services to internal and external customers. 
The Petitioner further stated that the proffered position requires the "attainment of at least a 
Bachelor's degree in Electrical Engineering, Computer Science, or a closely related field as the 
minimum requirement for entry into the occupation." 
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(b)(6)
Matter of K-, Inc. 
In other documentation submitted in support of the petition, the Petitioner identified the name of the 
project to which the Beneficiary would be assigned as The Petitioner 
explained that it is seeking to develop a new computer application, , 
a web-
based interface which will allow consumers, employers, insurance compames, and the federal 
government to exchange information regarding health insurance plans. The Petitioner stated that the 
Beneficiary "will be actively involved in the design, development and production support of 
II. SPECIALTY OCCUPATION 
The issue is whether the evidence of record establishes that the Petitioner will employ the 
Beneficiary 
in a specialty occupation position. 
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) 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.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires 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 [(2)] requires 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, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent 1s normally the m1mmum 
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 
2 The Petitioner also refers to as 
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Matter of K-, Inc. 
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. 
As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.P.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 
oflanguage 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 ofW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.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.P.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.P.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.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 proffered 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"). 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-lB 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 
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(b)(6)
Matter of K-, Inc. 
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. 
B. Analysis 
We agree with the Director and find that there are inconsistencies with respect to the asserted 
in-house project the Petitioner is developing and the work to be performed by the Beneficiary. 
For instance, the Petitioner submitted a document entitled" 
Vl.O" dated March 27, 2014. Under the subsection "Operations Plan," this document describes the 
development process as consisting of six phases: (1) requirements building; (2) design; (3) 
development; (4) testing; (5) deployment; and (6) modification. The plan states that the Petitioner 
"has begun development of and expects completion of the complete 
version by December, 2017." The plan also states: "During the development phase, will only 
need to have developers and a project manager. These staff members will be current 'on the bench' 
contractors who are between assignments and who can devote time to the project." In another 
section describing the team members needed for the project, the plan states that "software 
development will be provided through contract labor, at least initially. The programming will 
require up to 20 developers during the startup development phase." 
The proffered position here, however, is not a developer or project manager position, but rather a 
quality analyst tasked to perform duties related to quality assurance and testing. The Petitioner has 
not explained how it would utilize the Beneficiary's 
quality assurance and testing services during the 
development process, considering the Petitioner's assertions that the initial development and 
programming would only be performed by contractor-developers. 
The Vl.O" also contains a "Financial Summary" table 
indicating that the Petitioner anticipates employing 6.4 employees on the project during 2014, and 
incurring Operating Expenses of $105,800 during that year. Other entries in the table show that the 
Petitioner anticipates gross profits on the project of$975,000 during 2015, $3,331,125 in 2016, and 
$7,933,643 
during 2017. However, as duly noted by the Director in the RFE, it is not apparent how 
the Petitioner could reasonably anticipate such significant profits - including almost $1,000,000 in 
2015 - when a completed version of the software is not expected until December 2017. The 
Director also questioned why the Petitioner anticipated Operating Expenses of only $105,800 during 
2014, notwithstanding that it proposed to employ 6.4 employees on the project. 
In response to the RFE, the Petitioner submitted an amended " 
V1.6" dated July 17, 2014. In pertinent part, this document revised the "Operations Plan" to 
indicate that the development process now consists of seven phases, including two new phases of 
(b)(6)
Matter of K-, Inc. 
"initiation" and "research." 3 The document also revised the "Financial Summary" table to show that 
the Petitioner anticipates no gross profits through 2016, and $622,574 in gross profits in 2017. The 
revised "Financial Summary" also shows that no operating expenses were expended and no workers 
were assigned to the project during 2014. Furthermore, the revised plan states that the Petitioner 
"has begun development of and expects completion by October, 2016." 
The plan states that "[t]here will be a significant marketing push to launch the basic version of 
in 2017 .... " 
However, this amended commercialization plan does not fully address the concerns raised by the 
Director, and in fact, it raises additional, unresolved concerns. For instance, the Petitioner did not 
satisfactorily explain why the initial document represented that the Petitioner would derive gross 
receipts from the project prior to its completion , or why it initially represented that it was able to 
employ 6.4 workers on the project while only incurring operating expenses of $105,800. Nor did the 
Petitioner satisfactorily explain why the expected completion date of the project changed from 
December 2017 to October 2016. The Petitioner also did not satisfactorily explain why the amended 
plan shows no operating expenses or workers assigned to the project in 2014, when the Petitioner 
expressly stated that it already "has begun development of : "4 
There are also discrepancies with respect to how many total phases constitute the development 
process, and the duties to be performed during each phase. As stated above, the first 
commercialization plan lists six developmental phases, while the amended plan lists seven 
developmental phases. Furthermore, the Petitioner submitted a different document, entitled "Project 
Assigned," indicating that the Beneficiary is needed for only 
three phases : Phase I, October 2014 to 
October 2015; Phase II, October 2015 to October 2016; and Phase III, October 2016 to October 
2017. The Petitioner has not explained how these three phases correlate to the six or seven phases 
· described in the Petitioner 's commercialization plans. 
Overall, these and other unexplained, unreconciled 
inconsistencies in the evidence of record call into 
question the credibility of the Petitioner's documentation and claims regarding its claimed 
Doubt cast on any aspect of the Petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. Matt er of Ho , 19 I&N Dec. 582, 591-92 (BIA 1988). It is incumbent upon the 
Petitioner to resolve any inconsistencies in the record with independent objective evidence, and 
attempts to explain or reconcile such inconsistencies , absent competent objective evidence pointing 
to where the truth, in fact, lies, will not suffice. Id. At 591-592. 
While the Petitioner submitted critical reviews of its 
CEO of , and 
product from 
Professor in the Department of Computer 
3 The amended plan confusingly states that "we expect a total of 6-10 developers will be needed for this projec t" and 
that "[t]he programmin g will require up to 20 develop ers durin g the startup developm ent phase." The amend ed plan 
states, as did the previou s version, that "staff member s" and initial developers "will be provid ed through contract labor." 
4 Both the commercialization plan dated March 27, 2014 , and the new plan dated July 17, 2014 , stated that the Petitioner 
"has begun development of 
(b)(6)
Matter of K-, Inc. 
Science at 
evidence of that 
we decline to consider these rev1ews as probative 
is a bona fide project. 
With respect to the reviews by these reviews conclude that the Petitioner's 
"financial model is solid" and "operations plan looks sound." 5 As discussed above, however, there 
are significant discrepancies and inconsistencies with respect to the Petitioner's financial analyses 
and operations plans as described in the commercialization plans. The reviews by . do 
not indicate whether the author considered, or was even aware of, these 
discrepancies and 
inconsistencies. We consider these to be significant omissions, in that it suggests an incomplete or 
inaccurate review of the evidence and a faulty factual basis for his ultimate conclusions. 
attests that he based his review upon "copies of documents provided by [the 
Petitioner] and Physical demo of the software and the prototypes conducted via Webinar." He also 
lists the documents he reviewed as including "Peer Review Process," "Test cases," "User Interface 
design," "UI Testing," and "Release testing." However, there is insufficient evidence that the 
Petitioner has even completed a working demo or prototype of the solution 
for to have reviewed. Nor is there sufficient evidence that the Petitioner has actually 
created the majority of the documents claims to have reviewed, many of which 
would necessarily follow the development of a working demo or prototype. 6 More specifically, the 
Petitioner's "Timeline" indicates that the Petitioner has not substantially begun any activities related 
to developing code, developer testing (primary debugging), developing a prototype, or any testing 
functions. 7 As such, it is unclear what evidence, if any, actually reviewed to come to his 
ultimate conclusions. 
We may, in our discretion , use as advisory opm10n statements submitted as expert testimony. 
However, where an opinion is not in accord with other information or is in any way questionable, we 
are not required to accept or may give less weight to that evidence. Matter of Caron International, 
19 I&N Dec. 791 (Comm'r 1988). 
Finally, we note that the record of proceeding contains some evidence suggesting that the 
Beneficiary would be placed off-site. More specifically, the Petitioner's offer letter dated, March 3, 
2014, states that the Beneficiary "may be required to work at any of the Client sites, if need be."8 
Similarly, the Employment Agreement between the Petitioner ("Company ") and the Beneficiary 
("employee ") states that the employee "agrees and understands that the Company has the right to 
5 The Petitioner submitted the amended review from along with the amended commercialization plan. 
6 For example, it is not clear how there could be documents related to a peer review process or release testing if the 
Petitioner has not yet developed a working demo or prototype . 
7 The Timeline specifically indicates that 0% of the activity "Develop prototype based on functional specification" has 
been completed. While the Timeline also indicates that 2% of the activity "Design / Prototype Development complete " 
has been completed , there is no explanation of the difference between these two activities. Nevertheless , a 2% 
completion rate does not indicate the existence of a working prototype. 
8 The same offer Jetter states that the Beneficiary is "required to perform the duties en I is ted in the enclosure marked 
annexure-!. " However, no enclosure marked 
annexure-) was submitted with the instant petition. The lack of this 
particular annexure raises additional questions as to the actual duties to be performed by the Beneficiary. 
(b)(6)
Matter of K-, Inc. 
control the employee ' s work in situations where the employee is working offsite at a client 
location." 9 In addition, the Petitioner submitted "documents pertaining to the Petitioner's direct 
clients, and :,J ... as proof of the Petitioner's other ongoing engagements 
and availability of specialty occupation work (emphasis added)." 10 The Petitioner also submitted 
several reference letters asse1iing that the Petitioner has been providing subcontracting services for 
these other companies. The Petitioner acknowledged on appeal that "the record discloses that the 
Petitioner 's historical activities have focused on software consulting ." Thus , in light of these 
"historical activities " and the lack of credible evidence establishing that is a 
bona fide in-house project , we find that the evidence of record does not sufficiently demonstrate that 
the Beneficiary will be assigned to work in-house on the as claimed. 
Based upon a complete review of the record of proceeding, we find that the Petitioner has not 
established: (1) the actual work that the Beneficiary would perform; (2) the complexity, uniqueness 
and/or specialization of the tasks; and/or (3) the coiTelation between that work and a need for a 
particular level education of highly specialized knowledge in a specific specialty. Consequently, 
these material omissions preclude a determination that the Petitioner 's proffered position qualifies as 
a specialty occupation under the pertinent statutory and regulatory provisions. There is a lack of 
evidence substantiating the Petitioner's claims with regard to the duties, responsibilities and 
requirements of the proffered position. 
For these reasons, the evidence of record does not demonstrate the substantive nature of the duties 
the Beneficiary would perform on that project. 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.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. 
The Petitioner has not satisfied any of the criteria at 8 C .F.R. § 214.2(h)(4)(iii)(A) and, therefore , it 
cannot be found that the proffered position qualifies as a specialty occupation. The appeal will be 
dismissed and the petition denied for this reason. 
9 On appeal, the Petitioner explains this provision in the Employment Agreement by stating that it uses a "stand ard 
format for its employment agreements." However , the Petitioner's explanation does not fully address why a similar 
provision regarding potential off-site placement is also included in the Petitioner 's offer letter to the Beneficiary. 
10 
Although the Petitioner asserts that is one of its clients , the letter from the State of states 
that the Petitioner 's bid was not successful. 
Matter of K-, Inc. 
III. CONCLUSION 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe 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 K-, Inc., ID# 13007 (AAO Sept. 18, 20 15) 
9