dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 5452052 
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 "full stack 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 the proffered position qualifies as a specialty occupation and that the Beneficiary will perform 
services in a specialty occupation for the requested period of intended employment. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. Upon 
de nova review, we will dismiss the appeal. 1 
I. 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: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
1 The Petitioner submitted documentation to support the petition, including evidence regarding the position and its business 
operations. While we may not discuss every document submitted, we have reviewed and considered each one. 
(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). 
II. 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. 2 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. 
On the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner, located in Texas, stated that 
the Beneficiary will work offsite. On the labor condition application (LCA)3 submitted in support of 
the H-1B petition, 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. 4 The LCA is certified for a work location inl I Ohio. The 
Petitioner initially did not identify the end-client but provided several agreements to demonstrate a 
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 )(1 ). 
3 The Petitioner is required to submit a certified LCA 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 experience and qualifications who are performing the same services. Section 212(n)(l) 
of the Act; 20 C.F.R. § 655.731(a). 
4 The "Prevailing Wage Determination Policy Guidance" issued by the Department of Labor (DOL) provides a description 
of the wage levels. DOL's wage-level guidance specifies that a Level II designation is reserved for positions involving 
only moderately complex tasks requiring limited judgment. U.S. Dep't of Labor, Emp't & Training Admin .. Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised_ 11 _ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. Id. 
2 
contractual chain as follows: P....:e:..:.t1:..:.· t1:..:.· o:..:.n:..:e.:..r _~---=I =====[c...:(:.::fi:..:.r.=.st:....:m~id=--....:.v..:.e:..:.nd.::.o::..:r:.L)_~---==;-----------:,------' 
c=](second mid-vendor) ~ ~-----------------~or end-client). 
6 
To demonstrate the availability of work, the Petitioner submitted statements of work (SOW) pursuant 
to the end-client's August 23, 2015 agreement with the second mid-vendor. The record includes a 
signed SOW between the two parties, as required by the August 23, 2015 agreement. 7 The SOW is 
effective beginning January 1, 2018 to June 29, 2018, 8 at the end-client's location, but does not include 
available work for the Beneficiary during the intended employment period- October 1, 2018 to August 
21, 2021. The record farther includes a signed SOW between the end-client and the second 
mid-vendor for offshore work (project location! !Pakistan) effective beginning January 1, 2019 
to June 28, 2019. This SOW is not relevant to establishing the availability of work in the United States 
at the end-client's U.S. location. The only SOW from the end-client for work at its location during 
the intended employment period, is for a limited time period beginning January 1, 2019 to March 29, 
2019; however, the SOW is not signed as required by the August 23, 2015 agreement. 9 
We note that the staffing agreement between the first and second mid-vendor includes a general 
unsigned addendum "A" (SOW). On appeal, the Petitioner provides documents signed by the first 
and second mid-vendor which are identified as SOW Enterprise Services Application, SOW #46 and 
SOW #47. These documents indicate that the second mid-vendor is looking for software development 
resources and the first mid-vendor agrees to provide technical experts for ongoing projects. These 
documents do not identify the Beneficiary as the individual selected for assignment to provide services 
to the end-client. Moreover, these SOWs do not establish that the end-client is legally obligated to 
provide work to the Beneficiary. 
Without knowing the terms and conditions of all the agreements within the contractual chain including 
the scope and nature of agreed to services, as well as consistent and complete SOW s corroborating the 
work, we cannot ascertain the need for or the nature of the Beneficiary's work and whether such work 
5 Public records indicate that sometime prior to September 2015, I !Business acquired~--------~ 
c=J The record does not include probative evidence demonstrating whether! I Business or an affiliate acquired 
I O I Additionally, the entity that w/11 a~tna)h, nse t;~ Beueficia~r's senrices is 
intermittently referred to as: (1)1 I (2)1 _ __ _ I 
c=]successor in interest tol l or (3)1~-------~---~ Although these 
different companies may share a corporate relationship, the relationship is not adequately explained or corroborated and 
raises further questions as to legal obligation of any one of the particular entities to provide the Beneficiary work. In any 
event, it further diminishes the probative value of these documents to this proceeding. 
6 The record includes copies of an August 23, 2015 "Amended and Restated Master Services Agreement" between 
I I and the second mid-vendor; a July 10, 2017 subcontracting agreement between the first and second 
mid-vendors; and an August 24. 2017 subcontracting agreement between the Petitioner and the first mid-vendor. 
7 The record also includes two purchase orders frolJl I I to the second mid-vendor for software maintenance and 
software development third party labor. The purchase order, other than indicating the time frame of services (January L 
2018 to December 31. 2018) does not identify any particular resource, project, or the type of work that is being purchased. 
8 The record also includes signed SOWs for work between July 26, 2017 to June 29, 2018 that refer to the "Amended and 
Restated Master Services Agreement (MSA), dated as of July 24, 2017 and a second MSA dated December 1, 2017. The 
record does not include these documents. The expired SOWs identify the resources needed as full stack developers, a 
senior full stack developer, and a front-end developer. 
9 This SOW reverts to identifying the 2015 agreement as the agreement applicable to this SOW. 
3 
is of specialty occupation caliber. 10 There is insufficient evidence of a binding obligation on the part 
of the end-client to provide work for the Beneficiary, let alone work of specialty occupation caliber 
lasting through the end of the requested validity period. As the record does not include sufficient 
evidence of a binding obligation establishing the availability of work, the record does not establish the 
existence of a definite, non-speculative specialty occupation position for the Beneficiary. 
Even setting aside this foundational deficiency, we are still left with significant questions as to the 
proffered position's actual, substantive nature due to the inconsistencies and discrepancies contained 
within this record. 
The Petitioner initially provided a lengthy but broad overview of the proffered position and did not 
describe the duties in relation to a specific project or a specific end-client. The description includes a 
range of duties from providing application support, completing required logs and reports, and 
analyzing user roles and permission lists to developing web applications using a variety of third party 
technology, writing automated task definitions, and performing ETL operations. Without the context 
of a specific project or project team, it is not clear whether the initial duties will be the duties of a 
wage Level II "Software Developer, Applications" position, as designated on the LCA, or will 
incorporate the duties of one or more other occupations. This is important because the duties and level 
ofresponsibility necessarily impact the wage level assigned on the LCA. For example, if the position 
in relation to a specific project or for particular work required by an end-client, includes special skills 
or other requirements, that do not fall within the occupational tasks and skills indicated in the 
Occupational Information Network's (O*NET) Summary Report for the occupation of "Software 
Developer, Applications," or requires extensive experience, such skills, requirements, or experience 
may warrant an additional wage level increase. It is the lack of context for the Beneficiary's initially 
described duties that prevents an analysis of the actual duties and level of responsibility that will be 
required and precludes a determination that the certified LCA supports the position set forth in the 
petition. 
In a January 17, 2019 response to the Director's RFE, the Petitioner divides the position into five 
categories and allocates the time devoted to each category as: requirement gathering and analysis -
20%, design- 30%, coding/development- 30%, testing- 10 %, and meetings and discussions - 10%. 
The Petitioner revises and reduces the number of bullet points previously used to describe the position, 
without explanation. The Petitioner also claims that the job duties are complex and technical and that 
the individual in the position must be able to "provide Full Stack Development, Data Integration, 
Business Intelligence, Web application development and design, and data management." The range 
of technical tasks listed raises further questions regarding the Petitioner's selection of the occupation 
and wage level on the certified LCA. Significantly, the Petitioner in its RFE response again does not 
describe a project or discuss the end-client or end-client's objectives. 
10 The remaining evidence submitted by the Petitioner does not fill this le letters signed by representatives 
of the first mid-vendor and the end-client (identified as.__----.--------.----'in the December 24, 2018 and 
March 17, 2019 letters) claim that the Beneficiary will be assigned to ~--_,'s contracting support team on the ilex, 
sigma integration project. Although the letters indicate that the project will begin October 1, 2018 and will end August 31 
2121, the record does not include evidence corroborating these claims. Additionally, as will be discussed, the broad 
descriptions of proposed work do not establish that the work assigned will be specialty occupation work. 
4 
The Petitioner's descriptions of the requirements to perform the duties described create farther 
confusion regarding the responsibilities and requirements of the position. In the letter submitted in 
support of the petition, the Petitioner asserted that the duties described "require an individual with 
advanced education in the field." The Petitioner, however, does not identify a particular degree 
(associate or bachelor's) or a particular discipline. In response to the Director's RFE, the Petitioner 
asserts that because the "project" deals with the Internet of Things, a "minimum bachelor's degree or 
equivalent [m]aster's degree in [c]omputer [s]ciences" is required to understand the basic principles 
of the domain and its ecosystem. The Petitioner identifies two courses in a master's degree curriculum 
and one course in a bachelor's degree curriculum as covering the principles the duties require. 11 The 
Petitioner's inconsistent and ambiguous statements regarding the academic requirements for the 
position, even within the same document, raise farther concerns regarding the nature of the actual 
proposed position and the level of responsibility required of the position. 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. 
Moreover, as recognized in Defensor, 201 F.3d at 387-388, 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. As noted 
above, the record includes two letters signed by a representative of the end-client. 12 In the December 
24, 2018 letterJ ~onfirms the assignment of a "Full Stack (JAVA) to its work location with 
the job title "Full Stack Developer." I I indicates that the Beneficiary "will be assigned to 
project namel I will be a valuable member of our contracting support team." 13 
The end-client identifies a number of skills that are needed to perform the duties described and 
continues by stating that "[ t ]hese duties and responsibilities are in line with his professional 
background and our minimum requirements for the position, which include a Bachelor's degree / 
Master's Degree in Computer Science and Engineering or a related field." The December 24, 2018 
letter includes the same five categories and bullet point list of duties as set out in the Petitioner's 
January 7, 2019 response to the Director's RFE. 14 
On appeal, the Petitioner provides a revised letter from the end-client I I. The March 7, 
2019 letter now states that the job title is "Senior Full Stack Developer" which appears to revise the 
level ofresponsibility of the position. Additionally, the letter omits the general categories previously 
provided and indicates that the Beneficiary will spend 15% of his time on architecture, 25% of his 
11 While a few related courses may be beneficial in performing certain duties of the position, the Petitioner has not 
demonstrated how an established curriculum of such courses leading to a baccalaureate or higher degree in a specific 
specialty, or its equivalent, is required to perform the duties of the proffered position. 
12 Again, the end-client has been variously identified as I L I 
I 
I successor in interest to ... l ____________ .....,J and I~--~ . I O -
13 Given this letter's grammar and punctuation errors, inconsistent spacing, and awkward turns of phrase. we question 
whetherl I actually authored this letter. We would assume that a company that has various rep01iing requirements 
to different federal agencies would prepare a more coherent letter. 
14 The record also includes a December 24, 2018 letter from the first mid-vendor that includes the same five general 
categories of duties and the same academic requirements as set out in Contingent's December 24, 2018 letter. The first 
mid-vendor does not provide a list of duties and does not identify the type of skills needed to perform the duties as set out 
inl I letter. 
5 
time on coordination, 10% of this time on management, 2.5% of his time analyzing existing interfaces 
and their pattern of communication, and 47.5% of his time on web application development. 15 These 
duties and the time spent on them do not correspond to the role and level of responsibility previously 
described. The inconsistencies in what the Beneficiary will be expected to do, not only undermines 
the substantive nature of the proposed position, but also confirms that the position initially proffered 
was not based on a specific position. 
These end-client letters also do not consistently depict the academic requirements for the position. 
Although the end-client claims that the duties listed under the new categories require a bachelor's 
degree in computer science or information technology, the end-client repeats that its minimum 
requirements for the position include a bachelor's or master's degree in computer science and 
engineering. The end-client again does not clarify in its conclusion whether its minimum academic 
requirements are a bachelor's degree or a master's degree. It is the lack of a consistent description of 
the proposed duties including the level ofresponsibility, and the Petitioner and end-client's ambiguous 
statements regarding the academic requirements of the position that restricts our ability to ascertain 
the substantive nature of the proposed position. Neither the Petitioner nor the end-client adequately 
address the nature of the proposed position and describe why the duties described require a bachelor's 
degree in a specific specialty to perform them. 
As discussed above, the Petitioner must provide evidence of the actual day-to-day duties described so 
that those duties may be analyzed to determine if the duties are the duties of an applications software 
developer and further whether the duties as described require a bachelor's level degree in a specific 
discipline, or the equivalent to perform the duties. There are technology occupations that may be 
performed with a general degree ( either at the bachelor or associates level) and certifications or 
undefined experience in a particular program or third party software. There are also technology 
occupations that may require special skills, specific certifications, advanced knowledge, or that 
incorporate the duties of more than one occupation. Here, the Petitioner and the end-client have not 
provided sufficient consistent information to establish the nature of the proffered position and the 
minimum requirements needed to perform the duties of the position. The Petitioner has not provided 
relevant corroborating evidence sufficient to support its testimonial claims. The record does not 
establish the substantive nature of the proffered position's duties at the end-client or demonstrate that 
performing such duties would require the theoretical and practical application of highly specialized 
knowledge and attainment of at least a bachelor's degree in a specific specialty or its equivalent. 
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 
15 The letter-writer includes additional narrative discussing the duties associated with these general categories and also 
includes the previously bullet-point duties in the letter submitted in response to the Director's RFE. 
6 
an issue under criterion 3; and (5) the degree of specialization and complexity of the specific duties, 
which is the focus of criterion 4. 
Upon review of the totality of the evidence submitted, the Petitioner has not established that more 
likely than not, the proffered position is a specialty occupation under any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 16 Moreover, the record does not establish that the Petitioner satisfied the 
statutory and regulatory definitions of specialty occupation. 
ORDER: The appeal is dismissed. 
16 The deficiencies outlined in this decision also raise significant questions as to whether the Petitioner would engage the 
Beneficiary in an employer-employee relationship if this petition were approved. As the petition is not otherwise 
approvable we will not address this issue further, other than to advise the Petitioner that it should be prepared to address 
the issue in any future H-1 B filings. 
7