dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 5847380 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 9, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(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 California Service Center Director denied the petition, concluding that the Petitioner did not 
establish that: ( 1) the proffered position qualifies as a specialty occupation, and (2) an 
employer-employee relationship will exist with the Beneficiary. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 1 
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. 
1 We follow the preponderance of the evidence standard. Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010) . 
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: 
(]) 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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertojf, 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). 
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. 
B. Proffered Position 
The Petitioner, located in California, plans to assign the Beneficiary to work as a "performance 
engineer" for K-, an end-client located in Wisconsin. It submitted a certified labor condition 
application (LCA)2 for the "Software Developer, Applications" occupational category corresponding 
to the Standard Occupational Classification (SOC) code 15-1132, with a level II wage solely for that 
employment location. The Petitioner also provided a job description for the proffered position, along 
with the approximate percentage of time the Beneficiary will spend on each duty, as follows: 
2 A petitioner submits the LCA to U.S. Department of Labor (DOL) to demonstrate that it will pay an H-1 B worker the 
higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid 
by the employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 
C.F.R. § 655.73l(a). 
2 
• Understands complex software applications, gathers business requirements, and 
develops performance engineering strategies; ( 10%) 
• Using [ the Petitioner's] proprietary load-testing software, the performance engineer 
plans, designs and conducts performance testing of web applications, assessing 
server performance, effect of user behavior, and scalability of applications under 
load; (25%) 
• Designs performance test scenarios based on analysis of application load patterns 
in production system. Coordinates with development and infrastructure teams to 
build performance test scenarios that replicate production system, including user, 
network, and third-party back-end services; (20%) 
• Designs and writes performance test strips. Simulates WAN environment and 
back-end services. Profiles application code. Executes and coordinates monitoring 
of performance tests at network, system, application, and database layers; (25%) 
• Analyzes performance test results, identifying potential bottlenecks. Produces and 
presents comprehensive test reports; (10%) 
• Performance-tunes applications based on deep analysis of performance test reports. 
(10%) 
C. Analysis 
Upon review of the record in its totality, we conclude that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. Specifically, the record provides inconsistent and 
insufficient information regarding the proffered position, which in tum precludes us from 
understanding the position's substantive nature and the determination of whether the proffered 
position qualifies as a specialty occupation. 3 
The Petitioner is a software development firm who markets its proprietary products to retail industry 
clients, and provides post-sale technical support for its products to customers utilizing personnel who 
are either located "off-shore," or who perform services at end-client locations within the United States. 
The Petitioner wishes to employ the Beneficiary to provide technical support services with the end­
client. It initially summarized the nature of the proffered position in a generic fashion, as follows: 
[The performance engineer] will conduct performance analysis on [the Petitioner's] 
products, customize products and provide post-sale technical support to clients. 
Petitioner has a contract with [the end-client] to provide it with assistance and support 
as necessary to cause [the Petitioner's products] to perform in accordance with 
specifications set forth in the licensing contract and to maintain the software in operable 
condition by providing bug fixes, corrections, and maintenance services as required. 
3 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. 
3 
As a preliminary matter, we conclude that the Petitioner has provided inconsistent evidence regarding 
the minimum requirements for the proffered position. The Petitioner has maintained throughout this 
proceeding that a bachelor's degree or higher in computer information systems, computer science, or 
a related field is required for entry into the position. However, it has also submitted several statements 
of work [SOW s] executed in 2016 and 2017, 4 that describe some of the general technical services to 
be provided by the Petitioner's staff for the end-client, and identifies the various position titles that 
personnel will be assigned to thereunder, including "lead performance analysts, lead performance 
engineers, performance engineers, and executive performance analysts." The SOWs also provide "the 
skills needed" for each of the identified positions. According to the SOWs, the skills needed for the 
proffered position are (verbatim): 
Performance Engineers 
a) 1 + years of IT experience with the knowledge of performance testing & tuning or 
demonstrated knowledge of [the Petitioner's proprietary products] or similar 
tools/ solutions. 
b) Ability to create text scripts, results summaries, and status reports. 
c) Vast knowledge and experience oflntemet protocol suites ( e.g. IP, TCP, http/https ). 
d) Knowledge of C, Linux and utilities. 
Skills needed as defined within this SOW are guidelines and exceptions will be 
mutually agreed upon. [The Petitioner's] resources will be assigned work based on 
their roles. 
All resources must have highly effective verbal and written communication and 
collaboration skills. 
The Director denied the petition, in part, concluding that as the end-client did not require a bachelor's 
degree or higher in a specific specialty to perform the duties of the proffered position, the Petitioner had 
not established that the position qualified as a specialty occupation. 5 On appeal, the Petitioner asserts: 
[The Director] unduly ignores all other evidence provided in this regard and relied upon 
a portion of one [SOW] which did not mention the educational qualifications for the 
position. Even if the educational qualifications were not mentioned in the [SOW], it does 
not change the fact that all other evidence shows that the particular position is a specialty 
occupation. Additionally, the particular [SOW] indicates the professional experience 
required for each position and not the educational experience. 
4 Notably, the submitted SOWs were executed at various times, e.g. September 2017, March 2017, February 2017, and 
February 2016 which were for periods of service that expired on or before December 2018, while the required period of 
requested employment in the petition was from October 2018 through September 2021. 
5 As recognized by the court in Defensor, 201 F.3d at 387-88, where, as here, the work is to be performed for entities other 
than the petitioner, evidence of the client company's job requirements is critical. 
4 
The Petitioner's assertions on appeal are not persuasive. First, the proffered position's skill and work 
experience requirements which we quoted above were included in at least four of the SOW s presented in 
the record, not in just one document as suggested by the Petitioner. Therefore, the record does not 
support the Petitioner's contention that only "the particular [SOW] indicates the professional 
experience required for each position and not the educational experience." 
Second, the SOW s state the "[ s ]kills needed as defined within this SOW are guidelines and exceptions 
will be mutually agreed upon." However, the Petitioner has not documented that the end-client 
required an exception in the SOW guidelines for the proffered position's requirements which included 
requirements of at least a bachelor's degree or higher in a specific specialty to perform the duties of the 
proffered position. Notably, the Director issued a request for evidence (RFE) asking for evidence to 
establish the end-client's position requirements, such as end-client letters, position descriptions, and 
relevant contractual documentation specific to the Beneficiary's employment. However, the Petitioner 
has not submitted evidence from the end-client which would clarify its minimum qualifications to 
perform the proffered position's job duties, beyond the material presented in the aforementioned 
SOWs. 6 
Here, the Petitioner does not sufficiently explain why the contractual documentation with the end-client 
presents position requirements (involving less than two years of work experience and various information 
technology knowledge and/ or skill sets) that differ from the education requirements that the Petitioner put 
forth within other material in the record. The Petitioner must resolve this inconsistency in the record 
with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
A petitioner must demonstrate that the proffered position requires a precise and specific course of 
study that relates directly to the position in question. 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 stated above, we interpret 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. In light of the inconsistencies and ambiguities regarding the 
minimum educational requirements for the position, the record does not establish that the position 
qualifies as a specialty occupation. 
Moreover, a crucial aspect of this matter is whether the Petitioner has sufficiently described the duties 
of the proffered position such that we may discern the nature of the position and whether the position 
actually requires the theoretical and practical application of a body of highly specialized knowledge 
attained through at least a baccalaureate degree in a specific discipline. When determining whether a 
position is a specialty occupation, we look at the nature of the business offering the employment and 
the description of the specific duties of the position as it relates to the performance of those duties 
within the context of that particular employer's business operations. 
6 "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)(l4). 
5 
Considering the record in totality, we conclude that the vague material presented regarding the 
Beneficiary's assignment with the end-client in the petition is insufficient evidence of an obligation on 
the part of the end-client to provide work for the Beneficiary, let alone work of specialty occupation 
caliber for the requested validity period. In other words, the evidence of record is currently insufficient 
to establish the terms and conditions of the proffered position at the end-client location. 7 
We determine that the Petitioner has not adequately established the Beneficiary's off site employment 
for the period of intended H-lB employment. The Petitioner has provided contractual documentation 
to illustrate its on-going relationship with the end-client since 2012, including the 2012 "volume 
license order form" for the licensing of the Petitioner's products to the end-client, the associated 
"services agreements" [SAs] which the end-client executed to obtain the Petitioner's post-sale 
technical support services as part of the licensing agreement, and the previously discussed SOW s 
which were executed in 2016 and 201 7. The Director requested contractual documentation specific to 
the Beneficiary's employment, and evidence that would detail how the Beneficiary's specific job duties 
relate to the Petitioner's and the end-client's products and services in her RFE. In response to the 
RFE, the Petitioner stated that "the [SAs] allow the Petitioner to staff the agreements as needed," and 
are valid until [they are] terminated by either [party]." The Petitioner also indicated: 
[The end-client and the Petitioner] specify additional projects and/or 
extensions/modifications of existing projects via different contractual vehicles, 
including but not limited to, [SOW s]. So at any given time there may be simultaneously 
be various active projects under various SOWS and/or other instruments. 
[The] total number [ of] Petitioner resources who are dedicated to various [end-client] 
projects both offshore and onshore is 125. Onshore, the Petitioner has dedicated a 
total of 28 resources to various projects at [the end-client location]. 
Importantly, the Petitioner did not identify the specific projects the Beneficiary would be assigned to 
at the end-client location. The Petitioner provided a "sampling of invoices to [the end-client]" in 
response to the RFE, including a January 2019 sales invoice for "hardware appliances for enterprise 
DevOps" for the •j IData Center," and various 2018 invoices for "[product] synthetic 
monitoring." However, the Petitioner did not clarify whether these invoices relate to specific projects 
or service contracts that require the Beneficiary's services, nor did it describe how it was staffing its 
"various projects" at the end-client location, sufficient to illustrate the nature of the Beneficiary's 
performance engineer role therein. 
7 A petitioner must establish eligibility at the time of filing the petition. See 8 C.F.R. § 103.2(b)(l). The agency made 
clear long ago that speculative employment is not permitted in the H-lB program. See, e.g..63 Fed. Reg. 30,419. 30,419-
20 (June 4, 1998). 
6 
We acknowledge that the Petitioner has indicated that the Petitioner and not the end-client may decide 
how to staff its operations to meet the terms of the SA agreements. While the previously discussed 
SOWs, which expired on or before December 2018, call for the general deployment of Petitioner 
personnel, either "offshore" or "onshore" to provide services to the end-client, they do not delineate 
the staffing plan for the on-going placement of the Petitioner's staff at the end-client's work location. 
For instance, the SOW s contain a table that identifies various rates of compensation for each position 
category, including the "performance engineer" position, for work performed for the end-client 
onshore in the United States, or offshore outside of the United States. The SOWs also briefly discuss 
"offshore to onshore rotation," noting that this occurs: 
When an offshore [Petitioner] resource is temporarily transferred to [the end-client's] 
onsite location, per the request of [the end-client], for a duration of more than (1) 
month, but no more than (3) consecutive months. This resource will be considered on 
rotation to onsite. 
The Director requested evidence in her RFE, such as letters from the end-client, copies of actual work 
assignments, technical documentation, milestone tables, and end-client contractual documentation 
which would establish the technical services that the Beneficiary would provide in his performance 
engineer role, and the date and duration of his services at the end-client location. However, the 
Petitioner has not sufficiently addressed this aspect. The record lacks probative evidence regarding the 
project for which the Beneficiary will be assigned; and the actual work that the Beneficiary would 
perform during the intended period of employment; to establish the substantive nature of the work the 
Beneficiary will be performing for the end-client, and the associated applications of specialized 
knowledge that their actual performance will require. For instance, on appeal the Petitioner asserts that 
the specific duties to be performed by the Beneficiary are mentioned in the submitted contractual 
agreements with the end-client. The SOWs presented in the record outline various team 
responsibilities relating to "performance test[ing]" and "production support," but they do not describe 
the specific duties that are respectively performed by the "lead performance analysts, lead performance 
engineers, performance engineers, and executive performance analysts" employed thereunder. 
In summary, the Petitioner has not established the scope, duration, and magnitude of the technical 
services to be provided at the end-client's location, to show the substantive nature of the Beneficiary's 
role therein. 8 It is the Petitioner's burden to prove by a preponderance of evidence that it is qualified 
for the benefit sought. Matter of Chawathe, 25 I&N Dec. at 376. In evaluating the evidence, eligibility 
is to be determined not by the quantity of evidence alone but by its quality. Id. Here, the 
documentation provided is not probative towards establishing the terms and conditions of the 
Beneficiary's assignment as imposed by the end-client. See Defensor, 201 F.3d at 387-88. 
The Petitioner also describes various generic duties that software developers may typically perform, 
stating that the Beneficiary will be responsible for "[d]esign[ing] performance test scenarios based on 
analysis of application load patterns in production system," "[c]oordinat[ing] with development and 
infrastructure teams to build performance test scenarios that replicate production system," 
"[ a ]nalyz[ing] performance test results, identifying potential bottlenecks," and [p ]roducing and 
present[ing] comprehensive test reports." These descriptions identify the performance of generic 
8 Defensor, 201 F.3d at 387-88. 
7 
information technology job functions which do not give context to the specific tasks that the 
Beneficiary will perform, particularly absent their correlation to tangible work assignments at the end­
client location. The Petitioner does not provide sufficient detail regarding the work these duties with 
the end-client will entail, and how these tasks merit recognition of the proffered position as a specialty 
occupation. In other words, the job duties as described do not communicate (1) the actual work that 
the Beneficiary would perform, (2) the complexity, uniqueness, or specialization of the tasks, and (3) 
the correlation between that work and a need for a particular level education of highly specialized 
knowledge in a specific specialty. 
Due to the inconsistencies and lack of sufficient information in the record, we conclude that the 
Petitioner has not established the substantive nature of the work to be performed by the Beneficiary. 
This precludes a conclusion 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 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. 9 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
Because the Petitioner has not demonstrated eligibility as noted above, we decline to reach and hereby 
reserve the Petitioner's appellate arguments regarding its claimed employer-employee relationship 
with the Beneficiary. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (finding it unnecessary to 
analyze additional grounds when another independent issue is dispositive of the appeal); see also 
Matter of L-A-C, 26 I&N Dec. 516, 526 (BIA 2015) ( declining to reach alternative issues on appeal 
where an applicant is otherwise ineligible). 
III. CONCLUSION 
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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
9 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not fiuiher discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
8