dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-S-, LLC . 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN.31,2017 
APPEAL OF CALIFORN,IA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a custom software development company, seeks to temporarily employ the Beneficiary 
as a "QA engineer" under the H-lB nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 8 U.S.C. § 110l(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 
evidence of record does not establish that the Petitioner has specialty occupation work available for 
the Beneficiary, and thus, the proffered position does not qualify as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence of record establishes eligibility for the benefit sought. 
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. 
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Matter of S-S-, LLC r 
The regulation at 8 C.F.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: 
(I) 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 nqrmally 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.F.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.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 proposed 
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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. ·PROFFERED POSITION 
In the H-1B petition, the Petitioner stated that the Beneficiary will serve as a QA engineer. In 
response to the Director's request for evidence (RFE), the Petitioner provided the following job 
duties, with the percentage of time spent on each duty, for the proffered position: 
• Will analyze needs and impact to determine the direction of software quality 
assurance for information technology system to ensure the quality of the software 
products (5%). . 
• Will formulate and plan the software qualify system requirements from the client's 
business perspectives (10%). 
• Will 
automate, evaluate and implement the processes to be followed by software 
developers for quality assurance (5%). 
• Will generate and maintain test plans that provide the optimal coverage based on 
project constraints including requirements validation, functional verification and 
{' 
performance ( 1 0% ). · 
• Will test integrity of websites and applications by data driven and process driven 
tests, using the testing tools of which is [the Petitioner's] proprietary 
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(b)(6)
Matter of S-S-, LLC 
technology and other related tools. (For details, please refer to enclosed b;ochure of 
technology) (25%). 
• Will also provide timely status, metrics and issues to technical lead and Project 
Manager (5%). 
• Will communicate defects and needed engagements to software developers (15%). 
• Will improve test cycle duration through the use of an automated testing tools (5%). 
• Will develop procedures including system development, configuration control, 
software release and archival which should be adhered to\ in the software development 
process (5%). 
• Will create, modify or provide input to the quality assurance management processes 
to meet internal and contractual requirements (5%). 
• Will maintain version control, manage and test code releases. He will train project 
team with testing process and error documentation (5%). 
• Will also monitor test codes (5%). 
According to the' Petitioner , the position requires "a mtmmum of a Bachelor's degree or its 
equivalent in Computer Science, Engineering or another closely related discipline." 
The Petitioner indicated that the Beneficiary will work in-house at the branch office in 
Missouri, with periodic visits to another branch office in Kansas. 
III. ANALYSIS 
On appeal, the Petitioner indicates that the "preponderance of the evidence" standard is relevant to 
this matter, and that it established through credible evidence that the proffered position is a specialty 
occupation and sufficient H-IB caliber work exists for the Beneficiary for the entire requested 
period. 
The "preponderance of the evidence" standard requires that the evidence demonstrate that the 
Petitioner's claim is "probably true," where the determination of "truth" is made based on the factual 
circumstances of each individual case. Matter of Chawathe , 25 I&N Dec. 369, 376 (AAO 2010) 
(citing Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989)). In evaluating ·the evidence, the 
truth is to be determined not by the quantity of evidence alone 1 but by its quality. !d. Thus, in 
adjudicating the petition pursuant to the preponderance of the evidence standard, the Director must 
examine each piece of evidence for relevance, probative value, and credibility , both individually and 
within the context of the totality of the evidence , to determine whether the fact to be proven is 
probably true. 
Applying the preponderance of the evidence standard , 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 
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. Matter of S-$-. LLC 
job duties require an educational background, or its equivalent, commensurate with a specialty 
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occupatiOn. 
For H-IB approval, the Petitioner must demonstrate a legitimate need for an employee exists and to 
substantiate that it has H-1 B caliber work for the Beneficiary for the period of employment 
requested in .the petition. It is incumbent upon the Petitioner to demonstrate it has sufficient work to 
require the services of a person with at least a bachelor's degree in a specific specialty, or its 
equivalent, to perform duties at a level that requires the theoretical and practical application of at 
least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for 
the period specified in the petition. 
In this matter, the Petitioner indicated that the Beneficiary will be employed in-house as a QA 
engineer. However, we find that the Petitioner did not provide sufficient, credible evidence to 
·establish in-house employment for the Beneficiary for the validity of the requested H-1 B 
employment period. Specifically, the Petitioner did not submit a job description to adequately 
convey the substantive work to be performed by the Beneficiary. 
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 "analyze needs and impact to determine 
the direction of software quality assurance for information technology system to ensure the quality 
of the software products"; "formulate and plan the software qualify system requirements from the 
client's business perspectives"; "generate and maintain test plans that provide the optimal coverage 
based on project constraintS including requirements validation, functional verification and 
performance"; "test integrity of websites and applications by data driven and process driven tests, 
using the testing tools of which is [the Petitioner's] proprietary technology and other 
related tools"; and, "communicate defects and needed engagements to software developers." The 
Petitioner's description is generalized and generic and 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. On appeal, the 
Petitioner provided a brief description of some· software products offered by the Petitioner, but it 
does not provide a detailed understanding of the Beneficiary's responsibilities with working on these 
products. 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. 
1 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. 
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Matter of s.'.s-, LLC 
Furthermore, in the RFE, the Director requested a more detailed job description and the product to 
be developed or the service to be provided. But the Petitioner provided the same general duties and 
added the percentage breakdown for each duty. "Failure to submit requested evidence which 
precludes a material line of inquiry shall be grounds for denying the [petition]." 8 C.F.R. 
§ 103.2(b)(14). 
We further note that the record of proceedings lacks documentation regarding the Petitioner's 
business activities and the actual work that the Beneficiary will perform to sufficiently substantiate 
the claim that the Petitioner has H -1 B caliber work for the Beneficiary for the period of employment 
requested in the petition. In response to the RFE, the Petitioner stated that the Beneficiary will 
primarily be working on a project with the 
from the Petitioner's offices. The Petitioner submitted a letter from the 
executive secretary of to confirm that it has an "ongoing agreement with [the 
Petitioner] to upgrade, develop, and administer its retirement benefits management system that will 
continue after the current contract term ends on July 31, 2016 ." The letter also states that 
expects to "continue the agreement for additional phases of this project after the 
current phase to continue through September 30, 2019." 
Upon review, the letter does not indicate a need for a QA engineer and does not state how a QA 
engineer would assist on this project, or specifically name the Beneficiary as personnel to assist with 
this project. In addition, the project summary is very brief and vague and does not clearly explain 
how the additional phase will take 3 more years to complete. The Petitioner also did not submit any 
contracts or corroborating evidence that this project will continue until September 2019, and that 
there are sufficient funds to continue for the entire duration of the project. In response to the RFE , 
the Petitioner also stated that it has two other clients in the area and it expects the Beneficiary to 
work on "multiple project as needed." However, the Petitioner did not provide any information 
regarding the projects for the additional clients, or evidence that the work provided by the 
Beneficiary will be utilized on these projects. Thus, the Petitioner did not provide documents to 
substantiate its ongoing project for the H-1B validity period. 2 
2 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example , a 
1998 proposed rule documented this position as follows : 
Historically , the Service has not granted H-1 B classification on the basis of speculative , 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 employer~ to bring in temporary foreign 
workers to meet possible workforce needs arising fro111 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) ofthe 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 . 
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Matter ofS-S- , LLC 
Furthermore, upon review of the "maintenance and support service level agreement" between the 
Petitioner and section 2.4. states that "[a]s the parties develop projects to be governed 
by the Agreement, they shall enter in Statements of Work which shall contain the detailed terms of 
each project." The Petitioner did not submit ariy statement of works that lists the project details or 
the need for the Beneficiary's services. Without additional information and documentation 
establishing what projects have been secured , and accordingly, the specific duties the Beneficiary 
will perform on these projects and the knowledge required to perform these duties, we are unable to 
discern the substantive nature of the position and whether the position indeed qualifies as a specialty 
occupation. 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. 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. Id 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. The record of proceedings does not contain such evidence here . 
As observed above , USCIS in this matter 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 in this matter, USCIS must analyze the actual duties in conjunction with the 
specific project(s) to which the Beneficiary will be assigned. To allow otherwise, results in generic 
descriptions of duties that, while they may appear (in some instances) to comprise the duties of a 
specialty occupation , are not related to any actual services the Beneficiary is expected to provide . 
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 concrete and 
informative to demonstrate that the proffered position requires a specialty occupation's level of 
knowledge in a specific specialty. The tasks as described do not communicate (1) the actual work 
that the Beneficiary would perform, (2) the complexity, uniqueness and/or specialization of the 
tasks, and/or (3) the correlation between that work and a need for a particular level education of 
highly specialized knowledge in a specific specialty. 
The Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, which therefore precludes a 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) 
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) . 
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Matter of S-S-, LLC 
the normal minimum educational requirement for entry into 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, 
As the Petitioner has not established that it has satisfied 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. 
Even if assuming, for the sake of argument, that the Beneficiary would perform the duties of a 
computer systems analyst, a review of the Handbook does not indicate that, simply by virtue of its 
occupational classification, such a position qualifies as a specialty occupation in that the Handbook 
does not state a normal minimum requirement of a U.S. bachelor's or higher degree in a specific 
specialty, or its equivalent, for entry into the occupation of computer systems analyst. See U.S. 
Dept. of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Computer Systems Analysts," http://www.bls.gov/ooh/computer-and-information­
technology/computer-systems-analysts.htm#tab-4 (last visited Jan. 11, 2017). 
The Handbook subchapter entitled "How to Become a Computer Systems Analyst" states, in 
pertinent part: "A bachelor's degree in a computer or information science field is common, although 
not always a requirement. Some firms hire analysts with business or liberal arts degrees who have 
skills in information technology or computer programming." The Handbook also states: "Although 
many computer systems analysts have technical degrees, such a degree is not always a requirement. 
Many analysts have liberal arts degrees and have gained programming or technical expertise 
elsewhere." !d. 
The Handbook indicates that a bachelor's degree in a computer or info~mation science field may be 
common, but not that it is a requirement for entry into these jobs. Id. In fact, this chapter reports 
that "many" computer systems analysts may only have liberal arts degrees and programming or 
technical experience, but does not further qualify the amount of experience needed. !d. The 
Handbook also notes that many analysts have technical degrees, but does not specify a degree level 
(e.g., associate's degree) for these technical degrees. Id. The Handbook further specifies that such a 
technical degree is not always a requirement. !d. Thus, this passage of the Handbook reports that 
there are several paths for entry into the occl!lpation. 
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. 
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Matter of S-S-, LLC 
§ 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed 
position. 
Finally, the Director's decision also noted that the Petitioner did not submit sufficient evidence to 
establish that it has valid office space to house the Beneficiary. The Petitioner submitted the lease 
agreement and photographs of the office. On appeal, the Petitioner also submits a letter from the 
landlord confirming that the Petitioner leased an office space of "20 1 0 square foot office space for 8 
I 
offices and 1 support space, and 990 square foot of activity space for conferences .... " In reviewing 
the organizational chart of the branch office location where the Beneficiary will work, it has 20 
employees. Thus, lt is still not clear if the Petitioner has sufficient office space for the Beneficiary 
when the lease is for 8 offices and 1 support space. 
IV. EMPLOYER-EMPLOYEE RELATIONSHIP 
Finally, we will briefly address thejssue of whether or not the Petitioner qualifies as an H-1B 
employer. The United States Supreme Court determined that where federal law fails to clearly 
define the term "employee," courts should conclude that the term was "intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." 
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative 
Non-Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party." 
!d.; see also Clackamas Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed 
and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United 
Ins. Co. of Am., 390 U.S. 254,258 (1968)). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still 
relevant factors in determining who will control the Beneficiary, other incidents of the relationship, 
e.g., who will oversee and direct the work of the Beneficiary, who will provide the instrumentalities 
and tools, where will the work be located, and who has the right or ability to affect the projects to 
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Matter of S-S-, LLC 
which the Beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the Beneficiary's employer. As discussed above, the record of 
proceedings lacks sufficient documentation evidencing exactly what the Beneficiary would do for 
the period of time requested. Given this specific lack of evidence, the Petitioner has not established 
who has or will have actual control over the Beneficiary's work or duties, or the condition and scope. 
of the Beneficiary's services. We also note that the record does not include a statement of work for 
the client or contractual evidence of work for other clients ifthe project ends. Without 
full disclosure of all of the relevant factors, we cannot conclude that the requisite employer­
employee relationship ,will exist between the Petitioner and the Beneficiary. Therefore, the 
Director's decision is affirmed, and the appeal is dismissed for this additional reason. 
V. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-:S-, LLC, ID# 270402 (AAO Jan. 31, 2017) 
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