dismissed H-1B Case: Software Development

MATTER OF E-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 19,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a consulting and data processing services company, seeks to temporarily employ the 
Beneficiary as an "epitec developer" 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 does not establish that the Petitioner has specialty occupation work available for 
the Beneficiary, and thus, that the proffered position qualifies as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the proffered position is a specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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, arid 
(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.P.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: 
(b)(6)
Matter of E-, Inc. 
(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. 
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. 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
The labor condition application (LCA) submitted to support the H-lB petitiOn states that the 
proffered position is an epitec developer position, and that it corresponds to standard occupational 
classification (SOC) code and title 15-1132, "Software Developers, Applications." 
In its support letter, the Petitioner stated that the Beneficiary will be assigned in-house and his job 
duties will include the following: 
• Design, modify, develop, write and implement leading-edge applications and 
components using . C#, SQL, HTML, CSS, and Java, and JavaScript. 
• Provide support for software applications and components. 
• Create and work from stories (tasks), within the Serum framework, and maintain 
documentation. 
The Petitioner also stated that the Beneficiary is an "excellent candidate to fulfill the requirements of 
this temporary professional position," as he has obtained a master of science degree in computer 
science and a bachelor's degree in computer science from the 
In response to the request for additional evidence (RFE), the Petitioner stated that the Beneficiary 
"will be working within [the Petitioner's] suite of applications as well as performing services for the 
The Petitioner also stated that it has an "ongoing contract with 
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Matter of E-, Inc. 
vendor, . supplying personnel to and provided the 
following position description for the 
Java Developer needed to drive enterprise-class design and development of Java 
applications and Bervices for using standards and 
guidelines that support high volumes, are fast, simple, reliable, distributed, and easy 
to extend and maintain. 1 
Skills Required: 
• Develop the system specifications by interpreting the business, user, 
functional, and non-functional requirements as documented in Business 
Requirements 
• Develop 
design documentation using UML and Logical design from the 
Conceptual mode 
• Responsible for understanding the capabilities and limitations of new systems, 
integration of the new and the old including limitations placed on the 
integration and performance of the combined and interfacing systems 
• Enlist Architects and SMEs to ensure the system and/or application design 
meets corporate and/or architecture requirements, standards, and optimizes 
assets 
• Requires a broad and 
comprehensive knowledge of technology and systems 
development lifecycles, including traditional waterfall and agile methodologies 
• Work with the Business Analyst and Business Customers to ensure all business 
and user requirements are met through design, build, and implement phases 
• Collaborate with program architecture leadership 
• Participate in integration testing 
On appeal, the Petitioner states that its propriety system, . requires "a full-time team to 
perform enhancements, updates, and on-going maintenance of the systems." The Petitioner further 
states that the Beneficiary is expected to be a member of this team responsible for upgrading the 
system and providing ongoing maintenance as required. The Petitioner also indicates that the 
current backlog of development requests from users will "support an additional developer for the 
next 18 months" and that the backlog includes these major programs, in part: 
1. CRM, Enhancements (1206 hours) 
2. CRM, Maintenance (456 hours) 
3. Employee Portal, New Development (1551 hours) 
1 On the Form 1-129, the proffered position is listed as epitec developer; however, this position description used the 
position title of java developer. The Petitioner did not explain the discrepancyin position titles. 
3 
(b)(6)
Matter of E-, Inc. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, 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 job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 2 
For H-IB approval, the Petitioner must demonstrate a legitimate need for a position to exist and to 
substantiate that it has H-IB 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 an epitec 
developer. However, upon review of the record of proceedings, 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-IB 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 indicated that the Beneficiary will "provide 
support for software applications and components," "design, modify, develop, write and implement 
leading-edge applications," and "create and work stories (tasks)." The Petitioner 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. 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. 
Similarly, the Petitioner also described the Beneficiary's duties for the "java developer" for the 
application ih general and vague terms. For example, the duties included "work 
with Business Analyst and Business Customers to ensure all business and user requirements are met 
through design, build, and implement phases," "collaborate with program architecture leadership," 
and "participate in integration testing." There is no further explanation of what specific tasks the 
2 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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(b)(6)
Matter of E-, Inc. 
Beneficiary will perform in furtherance of these overarching duties, who the "users" are or what 
bodies of knowledge are required to perform these duties. Moreover, the Petitioner has not 
specifically explained the duties and role of the proffered position in the context of the 
We further note that the record of proceedings lacks sufficient documentation regarding the actual 
work that the Beneficiary will perform to substantiate the claim that the Petitioner has H-1 B caliber 
work for the Beneficiary for the period of employment requested in the petition. For example, on 
appeal, the Petitioner states that the current "workload will support an additional developer for the 
next 18 months." However, the requested employment dates are for 3 years rather than 18 months. 
Further, while we note that the Petitioner provided a description of its backlog on appeal to support 
its workload needs, it is described in general and broad terms that it does not illuminate what specific 
tasks will be performed, which team member(s) will perform them, and the manner and means 
through which they will be achieved. For example, the backlog description includes "CRM, 
Enhancements (1206 hours)" and "CRM, Maintenance (456) hours," but there is no additional 
information provided to explain what these "enhancements" and "maintenance" entail. 
Moreover, while the Petitioner asserts that the Beneficiary will also work on 
application project, the record of proceeding does not include sufficient evidence to establish the 
nature of the project and its existence. For example, the Petitioner submitted a contract between the 
Petitioner and The document submitted is entitled, "Terms of Business for 
Supplying Contract Personnel," signed in August 2005. The document stated that 
has entered into agreements with customers for the "provision of on-site contract 
personnel and related services," and that they look for "suppliers to help us perform this important 
function.''3 The agreement also states that these "terms should be read in conjunction with the 
Protocol Attachments which are affixed to this document and the relevant Project Schedule(s) or 
Purchase Order(s) which we will issue to you." 
However, the Petitioner did not provide any protocol attachments or project schedules indicating that 
the Beneficiary will assist with a customer (in this case In addition, the 
documentation does not provide any contracts or agreements between and 
to indicate that will work with The documentation also did not include 
evidence of the type of work the Beneficiary would perform for As recognized in 
201 F.3d at 387-88, it is necessary for the end-client to provide sufficient information regarding the 
proposed job duties to be performed at its location(s) in order to properly ascertain the minimum 
educational requirements necessary to perform those duties. In other words, as the nurses in that 
case would provide services to the end-client hospitals and not to the petitioning staffing company, 
the Petitioner-provided job duties and alleged requirements to perform those duties were irrelevant 
3 An accompanying letter dated October 2015 from 
supplier to 
5 
indicates that it works with the Petitioner as a 
(b)(6)
Matter of E-, Inc. 
to a specialty occupation determination: See id. Here, the record of proceeding in this case is 
similarly devoid of sufficient information from the end-client, regarding the specific job duties 
to be performed by the Beneficiary for that company. 
Furthermore, the agreement submitted between the Petitioner and was signed in 
August 2005 and the Petitioner did not provide any additional documentation evidencing that this 
agreement is still valid. Therefore, the record lacks documentation substantiating that the Petitioner 
has sufficient work for the Beneficiary to perform covering the duration of the petition. "[G]oing on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden 
of proof in these proceedings." Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing 
Matter ofTreasure Craft ofCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
We find that the Petitioner has not established that the petition was filed for non-speculative work for 
the Beneficiary, for the entire period requested, that existed as of the time of the petition's filing. 
USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.F .R. 1 03 .2(b )(1 ). A visa petition may not be 
approved based on speculation of future eligibility or after the Petitioner or Beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l 
Comm'r 1978).4 
As observed above, we 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, we must 
analyze the actual duties in conjunction with the specific project(s) to which the Beneficiary will be 
assigned. The Petitioner has not provided sufficient information regarding the nature and scope of 
4 The agency made clear long ago that speculative employment is not permitted in the H-18 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 employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts . To determine whether an alien is properly 
· classifiable as an H-IB 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) of the 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. 
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 E-, Inc. 
the Beneficiary's employment or substantive evidence regarding the specialty occupation work that 
the Beneficiary would perform. 5 Without a meaningful job description, the record lacks evidence 
sufficiently concrete and informative to demonstrate that the proffered position requires the 
theoretical and practical application of a body of highly specialized knowledge and the attainment of 
a bachelor's or higher degree in the specific specialty, or its equivalent, as a minimum for entry into 
the occupation. The tasks as described do not consistently communicate: (1) the substantive nature 
and scope of the Beneficiary's employment within the Petitioner's business operations; (2) the actual 
work that the Beneficiary would perform; (3) the complexity, uniqueness and/or specialization of the 
tasks; and/or (4) the correlation between that work and a need for a particular educational level of 
highly specialized knowledge in a specific specialty. 
Therefore, we are precluded from finding that the proffered position is a specialty occupation under 
any criterion at 8 C.P.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. Thus, the 
Petitioner has not satisfied any of the criteria under the applicable provisions at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A). 
As the Petitioner has not established that it has satisfied any of the criteria at 8 C.P.R. § 
214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty occupation. 
IV. ADDITIONAL ISSUES 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need 
not fully address other issues evident in the record. That said, we wish to identify additional issues 
to inform the Petitioner that these issues should be addressed in any future proceedings. 6 
5 While the Petitioner provided a list of job duties, it is noted that petitioner-provided duties are often outside the scope 
of consideration for establishing whether the position qualifies as a specialty occupation. See Defensor v. Meissner, 201 
F.3d at 387-388 (stating that the petitioner-provided job duties and alleged requirements to perform those duties were 
irrelevant to a specialty occupation determination where the nurses in that case would provide services to the end-client 
hospitals and not to the petitioning staffing company). 
6 In reviewing a matter de novo, we may identifY additional issues not addressed below in the Director's decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 
2003) ("The AAO may deny an application or petition on a ground not identified by the Service Center."). 
Matter of E-, Inc. 
A. Employer-Employee Relationship 
As an additional basis, we note that the petition cannot be approved because the evidence does not 
demonstrate that the Petitioner qualifies as a United States employer having an employer-employee 
relationship with the Beneficiary. As detailed above, the record of proceeding lacks sufficient 
documentation evidencing what exactly the Beneficiary would do for the period of time requested or 
where exactly and for whom the Beneficiary would be providing his services. Given this specific 
lack of evidence, the Petitioner has not corroborated who has or will have actual control over the 
Beneficiary's work or duties, or the condition and scope of the Beneficiary's services. In other 
words, the Petitioner has not established whether it has made a bona fide offer of employment to the 
Beneficiary based on the evidence of record or that the Petitioner, or any other company which it 
may represent, will have and maintain the requisite employer-employee relationship with the 
Beneficiary for the duration of the requested employment period. See 8 C.F .R. § 214.2(h)( 4 )(ii) 
(defining the term "United States employer" and requiring the Petitioner to engage the Beneficiary to 
work such that it will have and maintain an employer-employee relationship with respect to the 
sponsored H-1B nonimmigrant worker). Again and as previously discussed, there is insufficient 
evidence detailing where the Beneficiary will work, the specific projects to be performed by the 
Beneficiary, or for which company the Beneficiary will ultimately perform these services. 
B. Beneficiary's Qualifications 
We do not need to examine the issue of the Beneficiary's qualifications, because the Petitioner has 
not provided sufficient evidence to demonstrate that the proffered position is a specialty occupation. 
In other words, the Beneficiary's credentials to perform a particular job are relevant only when the 
job is found to be a specialty occupation. 
The Petitioner did not submit sufficient evidence regarding the proffered position to determine 
whether it will require a baccalaureate or higher degree in a specific specialty or its equivalent. 
Absent this determination that a baccalaureate or higher degree in a specific specialty or its 
equivalent is required to perform the duties of the proffered position, it also cannot be determined 
whether the Beneficiary possesses that degree or its equivalent. Therefore, we need not and will not 
address the Beneficiary's qualifications further, except to note that, in any event, the Petitioner did 
not submit an evaluation of the Beneficiary's foreign degrees or sufficient evidence to establish that 
his degree is equivalent to a U.S. bachelor's degree in a specific specialty. As such, since evidence 
was not presented that the Beneficiary has at least a U.S. bachelor's degree in a specific specialty, or 
its equivalent, the petition could not be approved even if eligibility for the benefit sought had been 
otherwise established. 
V. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 tJ.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
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Matter of E-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter ofE-, Inc., ID# 16313 (AAO Apr. 19, 2016) 
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