dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 100897 41 
Appeal of Texas Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT. 21, 2020 
The Petitioner, a software development and consulting company, seeks to extend the Beneficiary's 
temporary employment as a "programmer analyst" 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 H-lB program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application of 
a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the 
specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the Texas Service Center denied the petition, concluding that the evidence of record 
does not establish that: (1) the proffered position qualifies as a specialty occupation, and (2) the 
Beneficiary would perform services in a specialty occupation for the requested period of intended 
employment. The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010) . We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) . . . "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(l) of the Act, but adds a non­
exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position .1 Lastly, 
1 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
8 C.F.R. § 214.2(h)(4)(i)(A)(I) states that an H-lB classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position determine: (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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Further, as recognized by the court in Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000), 
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. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the substantive nature of the work the Beneficiary would perform during the intended period of 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 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 COip. 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"). 
2 
employment, which precludes the determination of whether the proffered position qualifies as a 
specialty occupation. 2 
The Petitioner indicated on the petition and on the certified labor condition application (LCA) 3 that 
the Beneficiary will work as a "programmer analyst" for'-----------~ inl I 
Florida, for the requested period of employment from August 2019 to July 2022. The Petitioner 
described the relationship with the end-client as follows: 
The Petitioner ......... I ---.-----,-----__,l 4 ..... I~---------~ I I FL .___~I GA .___ _ ___,I FL 
(Vendor) (End-client) 
However, the record does not contain sufficient evidence to establish the services the Beneficiary will 
perform. 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. 
In support of the contractual relationship, the Petitioner submitted a services agreement (SA) executed 
by the vendor and the end-client in February 2017. However, the Petitioner submitted only what 
appears to be an incomplete first page and the signature page of a 10-page document, which prevents 
us from reviewing all of the terms of the agreement. 5 The unredacted portion of the SA states that the 
vendor "to perform certain services as may be described in any statement of work, purchase order, 
proposal or quote approved by [the end-client]." However, the record does not contain a statement of 
work, purchase order, proposal, or quote approved by the end-client. Therefore, we are unable to 
determine the contractual terms and the specifics of the Beneficiary's position at the end-client. 
Without full disclosure of the complete contract terms and a document describing the specifics of the 
services requested and approved by the end-client, the SA between the vendor and the end-client has 
little probative weight towards establishing the actual work to be performed by the Beneficiary for the 
end-client for any specific period or location. 
The Petitioner also submitted an agreement entitled "Sub-Contractor Agreement" (SCA) executed 
with the vendor in May 2019, which states that the Petitioner "to perform the Services set forth in each 
Purchase Order." The record contains "Purchase Order NO. l" executed by the Petitioner and the 
vendor in May 2019. The purchase order identifies the Beneficiary and the end-client by name, 
2 The Petitioner submitted documentation to suppmt the H-lB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
3 A petitioner submits the LCA to the U.S. Department of Labor 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 2 l 2(n)(l) of the Act; 20 C.F.R. 
§ 655.73l(a). 
4 The documents from the vendor reflects l I, and/or'.______,,-------.-----'" as 
the company name. Some of the vendor's documents c~ntaid ·I I' logo. 
5 The bottom half of the first page appears to be covered by a blank page prior to making a copy of it. Therefore, we cannot 
determine the full content of this page. 
3 
location of work, the assignment commencement date, and more. Notably, the completion date of the 
assignment is left blank. The purchase order also lists the following responsibilities of the 
"Programmer Analyst" position: 
• Flexible and able to handle all situations in a professional manner. 
• Knowledge of serve/database procedures. 
• Unit and integration testing and results validation. 
• Work with the Software Development Life Cycle (SDLC). 
• Work with Object Oriented Development/Programming (OOD/OOP). 
• Strong problem-determination skills and resolution experience. 
• Excellent teamwork and communication skills (written and verbal). 
• Designing/developing the application services for an enterprise application 
solution. 
• Creating unit test plans/cases, developing, unit testing, conducting code and unit 
test walkthroughs. 
However, the letters from the vendor raise questions regarding whether the end-client needs the 
Beneficiary's services for the assignment identified in the purchase order any longer. The Petitioner 
submitted two letters from the vendor-one is dated September 24, 2019, and the other is dated January 
6, 2020. While the letters are virtually identical in terms of their content, the manner which the vendor 
refers to the Beneficiary's employment is different. In the September 2019 letter, the vendor states 
that the "letter confirms that [the Beneficiary], an employee of [the Petitioner], is working as a 
Programmer Analyst at [the end-client'] worksite ... "(emphasis added). However, in the January 
2020 letter submitted on appeal, the vendor states that the "letter confirms that [the Beneficiary], an 
employee of [ the Petitioner] was working as a Programmer Analyst at [ the end-client's] worksite ... " 
( emphasis added). In the 2020 letter, the vendor lists responsibilities similar to the ones contained in 
the purchase order and in its September 2019 letter, but refers to the responsibilities also in the past 
tense. While the vendor states that it provided the letters to "confirm the assignment," it does not 
indicate to which specific assignment it is referring in the letters and when the Beneficiary may have 
stopped providing services for the end-client. The vendor's usage of the past tense in reference to the 
Beneficiary's assignment and the responsibilities raises questions regarding whether the Beneficiary's 
services are needed for the period of employment requested on the petition. Therefore, the SCA and 
the purchase order executed by the Petitioner and the vendor have little probative weight towards 
establishing the actual work to be performed by the Beneficiary for the end-client for the period 
requested on the petition. 
In response to the Director's request for evidence, the Petitioner submitted a letter from the end-client, 
dated September 25, 2019. In the letter, the end-client stated that the Beneficiary "is currently 
assigned" to it to "work as an Independent Contractor ... since August 22, 2019." On appeal, the 
Petitioner resubmits the same 2019 letter from the end-client, but does not provide any letter from the 
end-client post-dating its 2019 letter. In its letter, while the end-client identifies the project as "the 
I !Hardware, OS and SQL Upgrade," it does not provide a detailed information about the 
scope of the project and deliverables; nor does it explain the Beneficiary's roles and responsibilities 
in detail or its requirements for the position. Furthermore, the end-client does not state how long the 
assignment would last. Therefore, the end-client's letter has little probative weight towards 
4 
establishing the actual work to be performed by the Beneficiary for its project and whether it has a 
continuing need for the Beneficiary's services. 
The Petitioner submitted a seven-page document entitled "Detailed Position Description" that contains 
the Petitioner's logo on the top and its contact information on the bottom of each page. While this 
document is signed by the Petitioner's president, he did not disclose the source of the information he 
provided. We reiterate that the record does not contain duties from the end-client. In this document, 
the Petitioner describes the project, lists the duties, and provides the percentages of time the 
Beneficiary would devote to each duty. 6 Notably, the duties listed in this document are different than 
the ones provided by the vendor and the ones listed in the purchase order. Although the duties 
provided by the Petitioner are not probative because the Beneficiary will be directly working for the 
end-client at the end-client location, we have closely reviewed and considered them. The duties as 
described by the Petitioner do not establish a necessary correlation between the proffered position and 
a need for a particular level of education, or its equivalency, in a body of highly specialized knowledge 
in a specific specialty. 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 particular employer. Without a detailed information from the end-client regarding 
assignments that the Beneficiary would engage in, the description of the duties provided by the 
Petitioner does not provide sufficient basis to conclude that the position 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, or its equivalent. For example, duties such as "[c]reate all 
the tables for the audit year," "[l]oad multiple years of data to support audit," "[ a ]nalyze the payments 
which are made to the vendors with invoice date and payment date," "[ w ]rite complex queries, stored 
procedures to implement business logic," and "[l]oad data from different production services into 
staging and then finally tol I application" do not meaningfully establish a need for a particular 
level of education, or its equivalency, in a body of highly specialized knowledge in a specific specialty. 
With the broadly described duties and insufficient evidence from the end-client regarding the work to 
be performed by the Beneficiary, the record lacks evidence to demonstrate that the proffered position 
requires a bachelor's degree level of knowledge in a specific specialty. That is, the record does not 
adequately communicate (1) the actual work that the Beneficiary will perform; (2) the complexity, 
uniqueness, or specialization of the tasks; and (3) the correlation between that work and a need for a 
particular level of education and knowledge. 
Also critical is the lack of evidence directly from the end-client regarding whatever academic 
requirement it has for the proffered position. Although the Petitioner claimed that the position requires 
a bachelor's degree in computer science or computer information systems, there is insufficient 
evidence that the end-client imposes the same requirement. A preference for high-caliber employees 
is not sufficient to establish a position as a specialty occupation. As discussed above, because the 
Beneficiary will be directly working for the end-client at the end-client's place of business, the 
end-client job requirements are critical in determining whether the position qualifies as a specialty 
occupation. See generally Defensor, 201 F. 3d 384. Here, the end-client did not indicate a degree 
requirement in a specific specialty for the proffered position. We note that while the purchase order 
6 We note that the project duration indicated in this document is not corroborated by the end-client and the vendor. 
Fmthermore, for the sake of brevity, we will not quote the duties listed in this document by the Petitioner; however, we 
have closely reviewed and considered them. 
5 
indicates a few knowledge areas and skills for the position, it does not specify whether such knowledge 
and skills would be gained through experience, training, or formal education; nor does it explain 
whether such knowledge should be equivalent to a bachelor's degree or higher in a specific specialty. 
The Petitioner also submitted an opinion letter authored b~ I a faculty member at 
.__ _ ____.!University. In his letter, the professor (1) described the credentials that he asserts qualify him 
to opine upon the nature of the proffered position; (2) described aspects of the previously discussed 
job duties as provided by the Petitioner; and (3) stated that these duties require a bachelor's degree in 
in computer science or computer information systems and the application of specialized knowledge in 
these fields. We carefully evaluated the professor's assertions in support of the instant petition but 
find them insufficient. 
The professor stated that he reviewed the following documentation: 
• The petitioner's employer's support letter regarding petitioner's business and 
operations and labor condition application (LCA) information including the 
beneficiary's qualifications; 
• Additional sources, including a review of company website, their Vision 
Statement, and information relating to offered series, processes, and goals to 
further understand [ the Petitioner's] business model, as well as the details of the 
proffered position. 
• A visit to the Petitioner's company is not needed due to my knowledge, 
expertise and experience in the industry. 
However, the professor did not discuss the proffered position at the end-client. The absence of any 
substantive discussion of the duties specific to the end-client's project raises doubts about his level of 
familiarity with the proffered position and also undermines his conclusion regarding the degree 
requirement of the position. The omission of a discussion or acknowledgement of the position at the 
end-client diminishes the evidentiary value of this opinion as it does not appear to be based on a 
complete understanding of the proffered position. As a result, we conclude that the Petitioner has not 
demonstrated that the professor possessed the requisite information to adequately assess the nature of 
the position and appropriately determine the educational requirements of the position, based upon the 
job duties and level of responsibilities. While we appreciate the professor's discussion of duties 
provided by the Petitioner, his analysis falls short of providing a meaningful discussion of what the 
Beneficiary will actually do in the proffered position at the end-client and how those duties require the 
theoretical and practical application of a body of highly specialized knowledge. We may, in our 
discretion, use opinion statements submitted by the Petitioner as advisory. Matter of Caron Int 'l, Inc., 19 
I&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not in accord with other information 
or is in any way questionable, we are not required to accept or may give less weight to that evidence. Id. 
The Petitioner repeatedly claims that the Beneficiary is well qualified for the position, and references 
his qualifications. However, the test to establish a position as a specialty occupation is not the 
education or experience of a proposed beneficiary, but whether the position itself requires at least a 
bachelor's degree in a specific specialty, or its equivalent. 
6 
Given the insufficient evidence from the end-client regarding the position and its requirements, we 
conclude that the Petitioner has not established the substantive nature of the work to be performed by 
the Beneficiary, which 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. 7 
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 for classification as a 
specialty occupation. 
ORDER: The appeal is dismissed. 
7 As the lack of probative evidence in the record precludes a conclusion that the proffered position is a specialty occupation 
and is dispositive of the appeal, we will not further discuss the Petitioner's asseitions on appeal regarding the criteria under 
8 C.F.R. § 214.2(h)(4)(iii)(A) and whether the Beneficiary will perfonn services in a specialty occupation for the requested 
period of intended employment. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("comis and agencies are not required to 
make findings on issues the decision of which is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 
l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is othe1wise 
ineligible). 
7