dismissed H-1B Case: Software Development

(b)(6)
DATE: JUL 3 1 2015 
INRE: Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, California Service Center , denied the nonimmigrant visa petition . The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
I. PROCEDURALBACKGROUND 
On the Form I-129 v1sa petition, the petitioner describes itself as a 385-employee software 
development and consulting company established in In order to employ the benefici ary in 
what it designates as a "Senior Consultant II, Quality Assurance" position at a salary of $95,000 per 
year/ the petitioner seeks to classify her as a nonimmigrant worker in a specialty occup ation 
pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). 
The director denied the petition, concluding that the evidence of record did not establish that the 
proffered position qualifies as a specialty occupation. 
The record of proceeding before us contains the following: (1) the Form I-129 and supporting 
documentation; (2) the director's request for additional evidence (RFE); (3) the petitioner 's response 
to the RFE; (4) the director's letter denying the petition; and (5) the Form I-290B , Notice of Appeal 
or Motion, and supporting documentation. 
Upon review of the entire record of proceedin~, we find that the evidence of record does not overcome 
the director's basis for denying this petition . Accordingly , the appeal will be dismissed , and the 
petition will be denied . 
II. SPECIALTY OCCUPATION 
To meet the petitioner's burden of proof in establishing the proffered pos1t10n as a specialty 
occupation, the evidence of record must establish that the employment the petitioner is offering to 
the beneficiary meets the following statutory and regulatory requirements. 
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: 
1 The Labor Condition Application (LCA) submitted by the petitioner in support of the petition was certified 
for use with a job prospect within the "Software Developers, Applications" occupational classification, 
SOC (O*NET/OES) Code 15-1132 . 
2 In the exercise of our administrative review in this matter, as in all matters that come within our purview, 
we follow the preponderance of the evidence standard as specified in the controlling precedent decision, 
Matter of Chawath e, 25 I&N Dec. 369 (AAO 2010), unless the law specifically provides that a different 
standard applies. 
(b)(6)
Page 3 
NON-PRECEDENT DECISION 
(A) theoretic al and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following : 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)) requires the 
attainment of a b achelor's degree or higher in a specific specialty, or its equivalent , 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation , a proposed position 
must meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent 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.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) 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. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.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.F.R . 
§ 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
F.3d 384, 387 (5th Cir. 2000) . To avoid this result, 8 C.F.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 altern atives 
to, the statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R . 
§ 214.2(h)(4)(ii) , U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 
8 C.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 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, USCrS regularly approves H-lB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly 
been able to establish a minimum entry requirement in the United States of a baccalaureate or 
higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer 's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry 
into the occupation, as required by the Act. 
B. The Proffered Position 
In its support letter , the petitioner stated that the beneficiary's duties would include the following: 
The Senior Consultant II shall be responsible for engaging in one to several clients in 
the analysis, design, hands-on development and delivery of web-based application. 
In addition, the Senior Consultant II will provide technical direction and leadership 
in the architecture, design, development, and deployment of Microsoft solutions 
within [the petitioner's] client base. 
More specifically, [the beneficiary] will be responsible for the following job duites: 
• Develop, execute and maintain test plans for the product releases. 
• Design, develop and maintain/enhance the QA automation software. 
• Design, implementation and documentation of test cases and addition of these 
test cases to the automated test suites. 
• Track and report on test status. 
(b)(6)
Page 5 
NON-PRECEDENT DECISION 
• Defect reporting and tracking. 
• Demonstrated abilities to lead small QA teams in successfully participating in 
the release of software applications. 
• Work with junior QA engineers to mentor them in the area of testing best 
practices and methodologies. 
• Identify and execute the manual test coverage. 
• Act as test coordinator and lead for selected 
projects[.] 
The petitioner stated in the support letter that the proffered position requires a bachelor's degree in 
computer science or equivalent. The petitioner submitted the exact same duties in response_ to the 
Director's RFE. 
The petitioner also submitted a Labor Condition Application (LCA) in support of the instant 
H-1B petition. The LCA designation for the proffered position corresponds to the occupational 
classification of "Software Developers, Applications" - SOC (ONET/OES) Code 15-1132. The 
petitioner indicated both on the Form I-129 and in the LCA that the beneficiary will work at the 
petitioner's location and did not provide additional work sites. 
C. Analysis 
For H-1B approval, the petitioner must demonstrate a legitimate need for an employee exists and to 
substantiate that it has H-lB 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 "Senior 
Consultant II, Quality Assurance." However, upon review of the record of proceeding, 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-lB employment period. Specifically, the petitioner 
did not submit a job description to adequately convey the substantive work to be performed by the 
beneficiary. While the petitioner has indicated that the beneficiary will be working on in-house 
client projects, and claimed that its "business model is fluid and new assignments and contracts with 
end-clients are in constant negotiation" (emphasis in the original) , the petitioner has not submitted 
sufficient, credible evidence corroborating these assertions. 3 
3 In response to the Director's RFE, the petitioner stated that because of "confidentiality agreements" with its 
clients, the petitioner was not able to provide agreements or statements of work detailing the projects. Both 
the Freedom of Information Act and the Trade Secrets Act provide for the protection of a petitioner's 
confidential business information when it is submitted to USCIS. See 5 U.S.C. § 552(b )( 4), 18 U.S.C. 
§ 1905. Additionally, the petitioner may request pre-disclosure notification pursuant to Executive Order No. 
12,600, "Predisclosure Notification Procedures for Confidential Commercial Information." Exec. Order No. 
12,600, 1987 WL 181359 (June 23, 1987). 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
A petition must be 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 petition er 
to establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. 
§ 103.2(b)(l). Again, 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. Here, the petitioner did not submit sufficient credible 
documentary evidence that it had specialty occupation work available for the beneficiary for the 
duration of the requested time period. 4 
Furthermore, as reflected in the descriptions 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 states that the beneficiary will 
"[d]evelop, execute and maintain test plans for the product releases" and "[d]esign , develop and 
maintain/enhance the QA automation software." The petitioner's description is generalized and 
Although the petitioner submitted a "Change Order" from 1 it was not signed by the petitioner. 
Furthermore, this docum ent indicated that the project for ended on December 31, 2014, and that 
another change order would be required in the event desired to extend the terms beyond that 
date. The record of proc eeding contains no subsequent changer order. Nor does the record contain the 
October 15, 2011 Master Agreement pursuant to which the submitted change order was issued. The 
petitioner also submitt ed a "sample" statement of services (SOS) from Assurant, to which the petition er 
refers as "only illustrativ e of the type of projects [the beneficiary] may be assigned to." (Emphasis in the 
original). However, this SOS indicates that the project ended on August 27, 2014, prior to the filing of this 
petition. 
4 The agency made clear long ago that speculative employment is not permitted in the H-1B program. For 
example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1B 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-1B 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-1B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998) . 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.P.R. § 214.2(h)(2)(i)(E) . 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
generic in that the petitioner does not convey the substantive nature of the work that the beneficiary 
would actually perform, any particular body of highly specialized knowledge that would have to be 
theoretically and practically applied to perform it, or the educational level of any such knowledge 
that may be necessary. The abstract, speculative level of information regarding the proffered 
position and the duties comprising it is further exemplified by the phrases "[t]rack and report on test 
status," "[d]efect prevention through early involvement with project teams," "[d]efect reporting and 
tracking," "[w]ork with junior QA engineers," and "[a]ct as test coordinator and lead for selected 
projects." Furthermore, the stated duty of "[d]emonstrat[ing] abilities to lead small QA teams" is a 
job qualification, not a job duty. 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. 
Without additional information describing the specific duties the petitioner requires the beneficiary 
to perform, as those duties relate to specific projects, users is unable to discern the nature of the 
position and whether the position indeed qualifies as a specialty occupation. Without a meaningful 
job description within the context of non-speculative employment, the petitioner may not establish 
any of the alternate criteria at 8 C.F.R. · § 214.2(h)(4)(iii)(A). The duties as described by the 
petitioner do not establish that the work proposed for the beneficiary actually exists. 
Based upon a complete review of the record of proceeding, we find that the petitioner has not 
established (1) the actual work that the beneficiary would perform, (2) the complexity, uniqueness 
and/or specialization of the tasks, and/or (3) the correlation between that work and a need for a 
particular level education of highly specialized knowledge in a specific specialty. Consequently, 
these material omissions preclude a determination that the petitioner's proffered position qualifies as 
a specialty occupation under the pertinent statutory and regulatory provisions. There is a lack of 
probative evidence substantiating the petitioner's claims with regard to the duties, responsibilities 
and requirements of the proffered position. 
The failure to establish the substantive nature of the work to be performed by the beneficiary 
consequently 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) the 
normal minimum educational requirement for the particular position, which is the focus of criterion 
1; (2) industry positions which are parallel to the proffered position and thus appropriate for review 
for a common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. Accordingly, 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. 
On appeal, counsel asserts that USCrS approved other petitions that the petitioner had previously 
filed on behalf of other employees in similar positions. The Director's decision does not indicate 
whether the service center reviewed the prior approvals of the other nonimmigrant petitions. If the 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
previous nonimmigrant petitiOns were approved based on the same unsupported assertions 
contained in the current record, the approvals would constitute material and gross error on the part 
of the director. We are not required to approve petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r 1988). It would be "absurd to 
suggest that [US CIS] or any agency must treat acknowledged errors as binding precedent." Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
A prior approval does not compel the approval of a subsequent petition or relieve the petitioner of 
its burden to provide sufficient documentation to establish current eligibility for the benefit sought. 
55 Fed. Reg. 2606, 2612 (Jan. 26, 1990). A prior approval also does not preclude USCIS from 
denying an extension of an original visa petition based on a reassessment of eligibility for the 
benefit sought. See Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 
2004). Furthermore, our authority over the service centers is comparable to the relationship 
between a court of appeals and a district court. Even if a service center director had approved the 
nonimmigrant petitions on behalf of the petitioner, we would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
As the record of proceeding does not establish that the petitioner 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. For this reason, the appeal will be dismissed. 
III. CONCLUSION AND ORDER 
The petition will be denied and the appeal dismissed for the above stated reasons.5 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 of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied. 
5 As the grounds discussed above are dispositive of the petitioner's eligibility for the benefit sought in this 
matter, we will not address and will instead reserve our determination on the additional issues and 
deficiencies that we observe in the record of proceeding with regard to the approval of the H-lB petition.