dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 6059191 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 17, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "software developer" under the H-lB 
nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The California Service Center Director denied the petition, concluding that the record did not establish 
that: (1) the proffered position qualifies as a specialty occupation and that the Beneficiary will perform 
services in a specialty occupation for the requested period of employment; (2) an employer-employee 
relationship existed between the Petitioner and the Beneficiary; and (3) the Beneficiary is qualified to 
perform the duties of the position. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. Upon 
de novo review, we will dismiss the appeal. 
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. 
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. 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). 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, the Petitioner has not 
demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the record 
does not include sufficient consistent, probative evidence of the existence of specialty occupation work 
when the petition was filed. The Petitioner also has not demonstrated the substantive nature of the 
proffered position and has not established that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 
We conclude first that the Petitioner has not established the existence of definitive, non-speculative 
employment for the Beneficiary. This is particularly important in a case such as this, where the very 
existence of the proffered position is dependent entirely upon the willingness of an end-client to 
provide it. And if we cannot determine whether the proffered position as described in this petition 
would actually exist then we cannot ascertain its substantive nature, let alone determine whether it is 
a specialty occupation. 
On the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner checked the box indicating 
that the Beneficiary would not work offsite. On the labor condition application (LCA) 1 submitted in 
support of the H-lB petition, the Petitioner stated that the Beneficiary's work location would be at its 
offices inl I Florida. However in the letter in support of the petition, the Petitioner stated 
that the Beneficiary would be assigned to its client's locatio~ lin 
1 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-IB 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 experience and qualifications who are performing the same services. Section 212(n)(l) 
ofthe Act; 20 C.F.R. § 655.73l(a). 
2 
I I Florida. In response to the Director's request for evidence (RFE), the Petitioner changed 
the off site location to another location within I I Florida. The number of changes in the 
address location strongly suggests that the Petitioner did not have a particular position available for 
the Beneficiary when the petition was filed. 2 
The Petitioner initially lists a number of projects and states that the Beneficiary will work on the 
I !Team; however, the initial record does not include probative evidence of the existence of 
such projects either in-house or for an end-client. The initial record only includes the Petitioner's 
March 10, 2015 staffing agreement wit~ I doing business asc=J 
initial mid-vendor which includes a reference to an agreement between the initial mid-vendor 
and~-------~ Although the March 10, 2015 staffing agreement refers to statements of 
work (SOW), work authorizations (WA) and purchase orders (PO), the initial record does not include 
,...fil!Y....fequests for staffing, or a copy of the agreement between the mid-vendor and I I 
L_JThus, when the petition was filed on April 3, 2018 for a requested employment period beginning 
October 1, 2018 and continuing to August 1, 2021, the record did not contain corroborating 
requisition( s) for the Beneficiary to perform the described services or other evidence that an end-client 
or the initial mid-vendor had requisitioned specific staff to work on particular projects at the initial 
mid-vendor's or the end-client's facility. 
In res onse to the Director's RFE, the Petitioner identifies the end-client as I 
d/b/a I I operating as a subsidiary of r=I ~-------------1 
~---~" The Petitioner explains that it does not have a direct contract with the end-client and 
that the end-client has replaced the initial mid-vendor I I with I l<new 
mid-vendor). The Petitioner provided a copy of its September 1, 2018 supplier agreement with the 
new mid-vendor. The record does not include documentation establishing when the end-client 
terminated its relationship with the initial mid-vendor and replaced it with another. Moreover, the 
record does not include the end-client's agreements with either the initial mid-vendor or the new 
mid-vendor. 3 Thus, the record does not contain sufficient evidence regarding the contractual 
relationships between these parties to understand the terms and conditions of the Beneficiary's claimed 
assignment in relation to the proposed position and the successor mid-vendor progression. 4 
2 The Petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied from the 
time of filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
3 The new mid-vendor states that for confidentiality and associated obligations it cannot provide its contractual agreement 
with the end-client. While a petitioner should always disclose when a submission contains confidential commercial 
information, the claim does not provide a blanket excuse for a petitioner not providing such a document if that document 
is material to the requested benefit. 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(6 )(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, 52 
Fed. Reg. 23,781 (June 23, 1987). In this matter, although the lack of one of these contracts is a decision by the new 
mid-vendor, the lack of this documentation as well as the lack of information regarding the succession of mid-vendors 
restricts our ability to ascertain if and when the end-client is legally obligated to provide the Beneficiary work. let alone 
specialty occupation work. 
4 We have reviewed what appears to be a requisition for the Beneficiary's services from September 1, 2018 to December 
31, 2019. This document was provided in response to the Director's RFE. As will be discussed this document is 
insufficient to establish that the Petitioner had work for the Beneficiary when the petition was filed, rather it appears to be 
for a different position than the position initially proffered here. 
3 
Without the full chain of contracts in this case, we cannot determine whether there is any legal 
obligation on the part of the end-client to provide the position described in this petition. Though 
acknowledged, the letters from the Petitioner and the end-client do not fill this gap, as they are not 
probative evidence of an obligation on the part of the end-client to provide the position the Petitioner 
inconsistently describes. For example, we question the validity of the end-client letter which states 
that the Beneficiary has been working at its facility since August 20, 2018 and was placed by the 
Petitioner through an agreement with the new mid-vendor. As noted, the Petitioner's agreement with 
the new mid-vendor is referred to as being dated September 1, 2018, and thus was not valid when the 
Beneficiary began working for the end-client. Moreover, as discussed above, no requisitions or SOW s 
were provided when the petition was filed. This further demonstrates the petition was filed for 
speculative employment. 5 Moreover, the Petitioner provides two different sets of duties as the 
proposed duties of the position. This further confirms that when the petition was filed in April 2018, 
the Petitioner did not have a definite, non-speculative specialty occupation position for the 
Beneficiary. 
Even ifwe were to set this foundational deficiency aside entirely we would still be left with significant 
questions as to the proffered position's actual, substantive nature due to the inconsistencies, 
discrepancies, and unanswered questions contained within the record. 
On the LCA, the Petitioner designated the proffered position under the occupational category 
"Software Developer, Applications" corresponding to the Standard Occupational Classification (SOC) 
code 15-1132, at a Level II wage. Although the Petitioner claims that the proffered position is a 
software developer position, the Petitioner's initially described a position which focused on writing 
and reviewing code. The Petitioner's organizational chart also identifies the Beneficiary's position as 
"programmer." 6 
In response to the Director's RFE, the Petitioner provided a different set of duties outlining the 
proposed functional role 7 as: 
• Analyze functional needs of the user/customer 15% 
• Design, develop, test and implementation - 50% 
• Planning, meeting and deployment activities - 15% 
• Production support and documentation - 20% 
The Petitioner also noted that the duties described were associated with an undefined amount of 
experience and knowledge of third party technology, but did not indicate that specific duties required 
5 Speculative employment is generally not permitted in the H-lB program. See, e.g., 63 Fed. Reg. 30419, 30419-20 
(proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). 
6 The Petitioner also submitted the excerpt from the Foreign Labor Certification Data Center Online Wage Library for 
"Computer Programmers" SOC Code 15-1131. 
7 The Petitioner added general narrative under each of these functions but the description does not convey the Beneficiary's 
day-to-day responsibilities in relation to a particular project or in such a way as to illuminate the substantive application 
of knowledge involved or any pa1iicular educational requirement associated with such duties. It is not possible to ascertain 
the nature and level of responsibility of the proposed position, including whether the duties as generally described 
correspond to the occupation and wage designated on the LCA. The record is simply deficient in this regard. 
4 
bachelor-level courses in a specific discipline to perform them. 8 The Petitioner also indicated that the 
Beneficiary would work on the I I project - but did not describe his actual duties or role in 
relation to the project. The Petitioner's ambiguous statements regarding the academic requirements 
for the position raise farther concerns regarding the nature of the actual proposed position and the 
level of responsibility required of the position. 9 The change in description of duties and academic 
requirements of the proffered position, also strongly suggest that an actual position was not available 
for the Beneficiary when the petition was filed. 
As referenced above, the Petitioner also provided a letter from the end-client listing the same functions, 
duties, and time spent as set out in the Petitioner's letter in response to the Director's RFE. 10 The 
end-client did not identify a specific project but indicated that the Beneficiary "is currently supporting 
a number of internal projects as a Senor IT Developer/Software Developer" and that the projects are 
ongoing with the possibility of extension. On the claimed requisition, which does not include a 
description of duties, the end-client identifies the proposed position as an "IT-Applications 
Development-JAVA Developer IV." The requisition does not offer enough information to determine 
whether the identified position is the same as the position initially proposed or is the same position 
described in the end-client's letter. Although we do not rely solely on titles regarding proposed 
positions, when a beneficiary is fulfilling requests for augmentation of staff: the record must provide 
sufficient consistent evidence establishing the level ofresponsibility and requirements expected of the 
requested resource. Here the different descriptions of proposed duties in the record as well as the 
different titles which appear to reflect different levels of responsibility cast doubt on the substantive 
nature of the position. 11 
8 We have reviewed the opinion prepared by.__ _______ _. who concludes that it is apparent fi-om the Petitioner's 
second decrjptjon of duties that the position requires a minimum of a bachelor's degree or higher in computer information 
systems. ]does not address the Petitioner's first description of duties. Moreover,! I offers conclusory 
statements without meaningful review and cogent analysis to demonstrate how and why the duties described would require 
a bachelor's degree in a specific discipline, or its equivalent, rather than certifications in third party technology, some 
experience, and a few basic foundational techuology courses. Even if the record included a consistent description of the 
proposed duties, we do not find the opinion submitted probative. 
9 The Petitioner initially did not specify any degree requirement as necessary to perform the duties of the proffered position. 
In a letter in response to the Director's RFE, the Petitioner noted that the "suitable candidate must have earned at least a 
bachelor's degree (or its equivalent) in Computer-Related field or the equivalent along with relevant experience in 
programming, software development or other directly related experience." The Petitioner added in the same letter that its 
software developer position required a degree in computer science, computer engineering, information technology, 
information systems, or a closely related/equivalent concentration. As stated above, when describing the proposed duties 
in a separate document provided in response to the Director's RFE, the Petitioner referred to the duties as associated with 
knowledge and experience with third party technology but did not refer to a specific degree requirement. 
IO The Petitioner asserts on appeal that the Director erronPTS)Y reiected tr end-client letter when the Director noted that 
the record did not include evidence that the letter-writer, .r I I Workforce Vendor Manager, had 
authority to write a letter on the end-client's behalf The Petitioner does not offer evidence on appeal, establishing that the 
letter-writer had authority to represent the end-client. The Petitioner's failure to provide probative evidence regarding this 
individual's authority on appeal raises further questions as to the reliability of its evidence. 
11 The inconsistent descriptions and different titles provided also raise concern that the Petitioner did not submit an LCA 
that corresponds to the petition in terms of occupation and wage level. While DOL is the agency that certifies LCA 
applications before they are submitted to U.S. Citizenship and Immigration Services (USCIS), DOL regulations note that 
the Department of Homeland Security (DHS) (i.e., its immigration benefits branch, USCIS) is the depa1iment responsible 
for determining whether the content ofan LCA filed for a particular Form 1-129 actually supports that petition. See 20 
C.F.R. § 655.705(b). Here, the record does not include sufficient information to conclude that the certified LCA supports 
the petition. 
5 
We also note that the end-client does not specify the number and type of resources it needs for the 
claimed ongoing projects. Additionally, it indicates generally that the position requires the attainment 
of a bachelor's degree in an IT related field or equivalent work experience, but does not specify its 
standards for measuring equivalent work experience. Without the context of the proposed duties 
within the context of a project, a consistent description of the proposed duties and the level of 
responsibility of the proposed position, and an understanding of the end-client's academic 
requirements for the proffered position corroborated by a consistent description of duties, we cannot 
ascertain the substantive nature of the proffered position. 
The inconsistent and ambiguous information in the record when viewed in its totality do not establish 
the substantive nature of the work to be performed by the Beneficiary, which therefore 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. The Petitioner 
has not established that the proffered position is a specialty occupation under the regulation at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The Petitioner also has not established that the proposed position satisfies the 
definitions of specialty occupation as set out in the statute and regulation. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We also conclude that the Petitioner has not demonstrated that it qualifies as a United States employer. 
The record does not include contracts executed between either of the mid-vendors.12 We also note 
that the record does not include any evidence substantiating the end-client's replacement of the initial 
mid-vendor with the new mid-vendor. The record does not include probative evidence indicating that 
the terms and conditions of the contracts between the end-client and the two mid-vendors are 
substantially the same. We also cannot determine what restrictions have been placed on the Petitioner 
regarding its consultants by the end-client. We cannot determine what limitations and restrictions 
regarding the actual supervision and instruction of the Beneficiary the mid-vendors may have agreed 
to. 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. 
The record does not establish that it is the Petitioner who will instruct and direct the Beneficiary's 
performance of daily duties. The Petitioner has not established how it will direct and control the 
Beneficiary's day-to-day work and work product such that it 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-lB nonimmigrant worker). The lack of contracts, SOWs, 
12 We have reviewed the end-client's letter and its conclusory statements regarding the Petitioner's employment 
relationship with the Beneficiary. However, the inconsistent information in the letter along with the lack of corroborating 
information describing how and who directs the Beneficiary in the day-to-day performance of his work is insufficient to 
establish the Petitioner's employment relationship with the Beneficiary. 
6 
or other evidence establishing the specific scope and nature of the Beneficiary's work, as well as a 
lack of evidence of the conditions of his supervision, preclude a conclusion that an employer-employee 
relationship exists between the Petitioner and the Beneficiary. The petition cannot be approved for 
this additional reason. 
III. BENEFICIARY'S QUALIFICATIONS 
We also 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 or that it has an employer-employee relationship with the Beneficiary. That is, the 
Beneficiary's credentials to perform a particular job are relevant only when the job is found to be a 
specialty occupation. Therefore, we need not and will not address the Beneficiary's qualifications. 
IV. CONCLUSION 
The Petitioner has not established that the proffered position qualifies as a specialty occupation and 
that the Beneficiary will perform services in a specialty occupation throughout the requested 
employment period. The record also does not establish the employer-employee relationship between 
the Petitioner and the Beneficiary. We do not reach the issue of the Beneficiary's qualifications to 
perform the duties of the proffered position as the other issues are dis positive of the appeal. 
ORDER: The appeal is dismissed. 
7