dismissed H-1B Case: Software Development

MATTER OF N-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 31,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer company, seeks to temporarily employ the Beneficiary as a "software 
engineer" under the H-1B nonimmigrant classification for specialty occupations. See Immigration and 
Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 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 
evidence of record is insufficient to establish that the proffered position qualifies as a specialty 
occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director's 
conclusion is erroneous. 
Upon de novo review, the appeal will be dismissed. 
I. 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) 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. 
Matter of N-, Inc. 
The regulation at 8 C.P.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.P.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 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. 
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.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. Fed. 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. 
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Matter of N-, Inc. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.P.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. 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, US CIS regularly approves H -1 B petitions for qualified 
individuals 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-IB 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 individual, 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 or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specializ;ed 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, 201 F.3d at 387-88, 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 387-88. The court held that the former Immigration 
and Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
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. !d. 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. The Proffered Position 
On the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner described itself as a 22-
employee "Software Services" company. The Petitioner seeks to employ the Beneficiary as a 
"software engineer" from October 1, 2015, to July 22, 2018. The Petitioner indicated that the 
Beneficiary will work off-site in Michigan. 
The labor condition application (LCA) submitted to support the visa petition states that the proffered 
position corresponds to Standard Occupational Classification (SOC) code and occupation title 
15-1132, "Software Developers, Applications," from the Occupational Information Network 
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Matter of N-, Inc. 
(O*NET). The LCA further states that the proffered position is a Level I, entry-level, position. The 
LCA lists the sole place ofemployment as the Michigan address. 
In its cover letter, the Petitioner stated that the Beneficiary "will be designated to primarily 
work at 
[the Petitioner's] end-client site located [in] Michigan This assignment is 
based on [the Petitioner's] direct contract with [the end-client]." The Petitioner then described the 
proffered position as follows (verbatim): 
• Understanding the requirements - identifying the stakeholders, helping to analyze 
the requirements and extracting those of architectural significance; 
• Formulating 
the design- creating a solution structure which will meet the various 
requirements, balancing the goals and constraints on the solution; 
• Communicating the architecture - making sure that everyone understands the 
architecture; 
• Supporting the developers - making sure that the developers are able to realize 
the architecture, by a combination of men to ring and direct involvement; 
• Verifying the implementation - ensuring the delivered system is consistent with 
the agreed architecture, and will meet the requirements. 
In 
response to the Director's request for evidence (RFE), the Petitioner submitted a description of the 
proffered duties with percentages of time, as follows (verbatim): 
Tasks Difficulty %Time 
Level to be 
Spent 
L Develops information systems by designing, developing, and 
installing software solutions. Determines operational feasibility by 5 25% 
evaluating analysis, problem definition, requirements, solution 
development, and proposed solutions. Documents and demonstrates 
solutions by developing documentation, flowcharts, layouts, diagrams, 
charts, code comments and clear code. 
2. Prepares and installs solutions by determining and designing system 4 15% 
specifications, standards, and programming. Improves operations by 
conducting systems analysis; recommending changes in policies and 
procedures. 
3. Obtains and licenses software by obtaining required information from 4 15% 
vendors; recommending purchases; testing and approving products. 
4. Updates job knowledge by studying state-of-the-art development 4 15% 
tools, programming techniques, and computing equipment; 
participating m educational opportunities; reading professional 
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Matter of N-, Inc. 
publications; maintaining personal networks; participating m 
professional organizations. 
5. Protects operations by keeping information confidential. Provides 4 
information by collecting, analyzing, and summarizing development 
and service issues. 
6. Accomplishes engineering and organization mission by completing 3 
related results as needed. 
7. Develops software solutions by studying information needs; 4 
conferring with users; studying systems flow, data usage, and work 
processes; investigating problem areas; following the software 
development lifecycle. 
Notes on Difficulty Level 
1 Novice 
2 Some Exposure 
3 Familiarity with Computers 
4 Bachelor's 
5 Master's 
20% 
5% 
5% 
The Petitioner stated that the proffered position requires a bachelor's degree in computer science, 
electronics, computer information systems, or a related field, plus at least two to four years of related 
expenence. 
The Petitioner submitted a letter from the claimed end-client stating that the Beneficiary will work at 
its business premises in Michigan as a "Software Engineer for the project entitled 
The end-client letter lists job duties similar to those listed in the Petitioner's RFE 
response. The same end-client letter states that the company has "never recruited for [the proffered] 
position for less than a Bachelor's degree in the following fields Computer Science, Computer 
Applications, Information Technology, Mathematics, Business or a closely related field [sic]," along 
with at least two to three years of related experience. The Petitioner also submitted two "Assigned 
Personnel Forms" which describe the "Services to be performed" as "Design, development, test, 
Implementation etc." 
C. Analysis 
As a preliminary matter, the end-client's assertion that a bachelor's degree in "Business" is a 
sufficient minimum requirement for entry into the proffered position is inadequate to establish that 
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(b)(6)
Matter of N-, Inc. 
the proposed position qualifies as a specialty occupation. 1 A petitioner must demonstrate that the 
proffered position requires a precise and specific course of study that relates directly and closely to 
the position in question. Since there must be a close correlation between the required specialized 
studies and the position, the requirement of a degree with a generalized title, such as "Business," 
does not establish the position as a specialty occupation. Cf Matter of Michael Hertz Assocs., 19 
I&N Dec. 558, 560 (Comm'r 1988). 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)(l) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. As discussed supra, USCIS interprets the degree requirement at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed 
position. Although a general-purpose business degree may be a legitimate prerequisite for a 
particular position, requiring such a degree, without more, will not justify a finding that a particular 
position qualifies for classification as a specialty occupation. Royal Siam Corp. v. Chertoff, 484 
F.3d at 147.2 Without more, a degree requirement in "Business," alone, indicates that the proffered 
position is not in fact a specialty occupation. 
Moreover, it also cannot be found that the proffered position qualifies a specialty occupation because 
the Petitioner has not credibly and sufficiently demonstrated the substantive nature of the proffered 
position? 
The evidence of record does not contain a detailed explanation of the project, 
such as the nature, complexity, and length of this particular project. In addition, none of the job 
1 While the Petitioner's list of acceptable degrees does not contain a degree in business, the Petitioner has not explained 
why its requirements differ from the end-client's requirements. Regardless, to the extent that the Petitioner's 
descriptions differ from those provided by the end-client, we defer to the end-client's descriptions. See Defensor v. 
Meissner, 201 F.3d at 387-88 (the petitioner-provided job duties and alleged requirements to perform those duties are 
irrelevant to a specialty occupation determination). 
2 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
!d. 
The courts and the agency consistently have stated that, although a general-purpose bachelor's degree, 
such as a business administration degree, may be a legitimate prerequisite for a particular position, 
requiring such a degree, without more, will not justify the granting of a petition for an H-1 B specialty 
occupation visa. See, e.g., Tapis Int 'I v. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti, 36 F. 
Supp. 2d at 1164-66; cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 ([Comm'r] 1988) 
(providing frequently cited analysis in connection with a conceptually similar provision). This is as it 
should be: elsewise, an employer could ensure the granting of a specialty occupation visa petition by 
the simple expedient of creating a generic (and essentially artificial) degree requirement. 
3 
The California Secretary of State website indicates that the Petitioner's corporate status has been suspended. That is, 
the Petitioner's powers, rights and privileges, including the right to use its corporate name in California, were suspended. 
See attached print-outs. The Petitioner's corporate status raises questions regarding whether the Petitioner's offer of 
employment to the Beneficiary is bonafide. 
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Matter of N-, Inc. 
duties contained in the record of proceedings is specifically explained within the context of the 
project. Instead, the evidence of record contains generalized, duplicative, and 
inconsistent descriptions ofthe work to be performed by the Beneficiary. 
For instance, the Assigned Personnel Forms signed by the Petitioner and the end-client simply 
describe the "Services to be performed" as "Design, development, test, Implementation etc." No 
further details about these job duties, such as what system(s) or application(s) the Beneficiary will 
design and develop, or how these duties specifically relate to the project, were 
provided in the Assigned Personnel Forms. 
The end-client letter contains substantially 
the same job duties as those found in the Petitioner's RFE 
response. However, these job duties are described in broad and duplicative terms. For example, the 
Petitioner stated that the Beneficiary will spend 25% of his time on the duties of: developing 
information systems by designing, developing, and installing software solutions; determining 
operational feasibility by evaluating analysis, problem definition, requirements, solution 
development, and proposed solutions; and documenting and demonstrating solutions by developing 
documentation, flowcharts, layouts, diagrams, charts, code comments and clear code. The Petitioner 
then stated that the Beneficiary will spend another 15% of his time on the duties of: preparing and 
installing solutions by determining and designing system specifications, standards, and 
programming; and improving operations by conducting systems analysis; recommending changes in 
policies and procedures. The Petitioner further stated that the Beneficiary will spend an additional 
5% of his time on "[d]evelops software solutions ... following the software development lifecycle." 
The Petitioner has not adequately distinguished these sets of duties from one another, even though 
they account for separate percentages of time. 
As another example of broadly-stated job duties, the Petitioner stated that the Beneficiary will 
perform the duty of "[ o ]btains and licenses software by obtaining required information from 
vendors; recommending purchases." However, there is no further explanation of what specific tasks 
the Beneficiary will perform (e.g., what is meant by "[ o ]btains and licenses software"). There is also 
no explanation of what "software" he will license, what types of "purchases" he will recommend, 
and how these duties specifically relate to the project. Additionally, there is 
no explanation of how these job duties are consistent with the Petitioner's initial job descriptions, 
which do not appear to contain any job duties involving obtaining/licensing software and 
recommending purchases. 
With regard to the first set of duties listed in the RFE response, the Petitioner indicated that these 
duties are a "Difficulty Level" 5, which requires a master's degree. However, the Petitioner has 
never claimed that the proffered position requires a master's degree. Nor has the Petitioner claimed 
that positions located within the "Software Developers, Applications" occupational classification 
normally require a master's degree. Rather, the Petitioner repeatedly states that a bachelor's degree 
is the normal minimum requirement for this as well as other positions within the "Software 
Developers, Applications" occupational classification. We observe that the Petitioner designated the 
proffered position as a Level I (entry) position, which indicates that the proffered position is a 
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Matter of N-, Inc. 
comparatively low, entry-level position relative to others within the occupation.4 The Petitioner's 
designation of this position as a Level I, entry-level position further undermines the Petitioner's 
characterizations of the proffered position. 5 
"[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective 
evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. !d. at 591-92. "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." !d. at 591. 
Finally, the evidence of record contains vague statements by the Petitioner and the end-client 
regarding the Beneficiary's "primary" work duties and location that further lead us to question the 
nature of the proffered position. For instance, both Assigned Personnel Forms list the Beneficiary's 
"Primary work location" as the end-client's Michigan premises. The Petitioner states in its cover 
letter that the Beneficiary "will be designated to primarily work at [the Petitioner's] end-client site." 
However, the use of the words "primary" or "primarily" denotes that the Beneficiary may also be 
assigned to perform work at other, unspecified locations, and that he may be assigned to perform job 
duties other than those disclosed in the petition. The Petitioner's Employment Agreements with the 
Beneficiary contain other similar provisions indicating that the Beneficiary may be assigned to · 
perform undisclosed work, such as that the Beneficiary's "duties shall be rendered at [Petitioner's] 
business premises or at such other places as the [Petitioner] may require" and that she "shall also 
4 A Levell wage rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a 
basic understanding of the occupation. These employees perform routine tasks that require limited, if 
any, exercise of judgment. The tasks provide experience and familiarization with the employer's 
methods, practices, and programs. The employees may perform higher level work for training and 
developmental purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored and reviewed for 
accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship 
are indicators that a Level I wage should be considered. 
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/pdf/NPWHC 
_Guidance_Revised_11_2009.pdf 
5 
The Petitioner's designation of this position as a Level I, entry-level position undermines the claim that the proffered 
position requires minimum entry requirements above that normally required for other positions within the same 
occupation. Nevertheless, a Level I wage-designation does not preclude a proffered position from classification as a 
specialty occupation, just as a Level IV wage-designation does not definitively establish such a classification. In certain 
occupations (e.g., doctors or lawyers), a Level I, entry-level position would still require a minimum of a bachelor's 
degree in a specific specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not 
reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry 
requirement of at least a bachelor's degree in a specific specialty, or its equivalent. That is, a position's wage level 
designation may be a relevant factor but is not itself conclusive evidence that a proffered position meets the requirements 
of section 214(i)(l) ofthe Act. 
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Matter of N-, Inc. 
perform such other duties in the ordinary course of business as performed by other persons in similar 
such positions, as well as such other reasonable duties as may be assigned fromtime to time by the 
[Petitioner]." When considered as a whole, the evidence of record lacks a sufficient, detailed 
explanation of all the work the Beneficiary will be assigned to perform during the entire validity 
period requested, including the location(s) of such work and the specific job duties to be performed. 
For all of the above reasons, we find the evidence of record insufficient to demonstrate the 
substantive nature of the proffered position and its constituent duties. Consequently, we are 
precluded from 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 nomi.al 
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. 
Accordingly, as the evidence 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. The appeal will be 
dismissed and the petition denied for this reason. 
II. CONCLUSION 
The Petitioner has not established that the proffered position, more likely than not, qualifies as a 
specialty occupation. 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. 
Cite as Matter ofN-, Inc., ID# 16819 (AAO May 31, 2016) 
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