dismissed H-1B Case: Software Development

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-S- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 14, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting company, seeks to temporarily employ the 
Beneficiary as a "programmer analyst" under the H-1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(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 Vermont Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that the proffered position is a specialty occupation. 
On appeal, the Petitioner submits additional evidence and contends that the petition should be 
approved. 
Upon de novo review, we will dismiss the appeal. 
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 entryinto 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: 
Matter of S-S- Inc. 
(I) 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 have consistently interpreted 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. PROFFERED POSITION 
According to the Petitioner, the Beneficiary will serve as a "programmer analyst" and, on the labor 
condition application (LCA)1 submitted in support of the H-lB petition, designated the proffered 
position under the occupational category "Software Developers, Applications" corresponding to the 
Standard Occupational Classification code 15-1132.2 
1 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services (USCIS) 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. See Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 
(AAO 2015). 
2 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. 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_II_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. !d. 
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Matter of S-S- Inc. 
On appeal, the Beneficiary states that the Beneficiary would work on an in-house project, which it 
describes as follows (note: errors in the original text have not been changed): 
Our tool is a Web-Based application to manage 
resources - projects, releases, team-members and generate complex reports. The 
application is being developed using Dot NET and the backend as SQL server. The 
tool has both the Tab-based and screen based navigation for ease of access to both the 
clients and for the vendors. has a Common UI across the screens - Search 
Control and Detailed Data View. It also has a Dropdown based search control to filer 
the data as per user requirement. The tool has an Excel-like view for consistency and 
accuracy of data provides helps generate management reports with ease. 
The Petitioner provided the following description of the proffered position in its support letter (note: 
errors in the original text have not been changed): 
• [The Beneficiary] is responsible to create custom objects and fields, Customized 
UI interface. 
• [The Beneficiary] is responsible to import data using Data loader and exported 
using Data Export Wizard. 
• [The Beneficiary] is responsible to create custom object tabs, custom buttons and 
links. Override standard buttons and tab home pages. Created Page Layouts and 
customized using enhanced page layout editor. And also created List view in 
Salesforce classic. 
• [The Beneficiary] is responsible to utilize the drag and drop report builder to get 
the value using filters, cross filters and filter logic to create a tabular report, 
summary report, matrix report and joined reports. 
• [The Beneficiary] is responsible to create dashboards to display the right data 
using dashboard filters and created charts to add it to the report. Customized 
report chart in the page layout. 
• [The Beneficiary] is responsible to create various profiles and configured the 
permissions based on the organizational hierarchy. 
• [The Beneficiary] is responsible to create Custom formula field and used formula 
filed editor and debugging the formulas. 
• [The Beneficiary] is responsible to implement roll-up summary fields reviewing 
the object relationships and created validations rules to check the data entered in 
the records meet the requirement. 
- • [The Beneficiary] is responsible to control the data access at organization, object, 
field and record level. Controlled the data access at record level using OWD, role 
hierarchy, sharing rules and manual sharing. 
• [The Beneficiary] is responsible to automate the basic business processes with 
process builder. 
• [The Beneficiary] is responsible to controlled access to the data at Object, Field 
and Record level, created role hierarchy and sharing Rules. 
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Matter of S-S- Inc. 
• [The Beneficiary] is responsible to utilize 
deployments to different sandboxes and production. 
and Change sets to make 
In its response to the Director's request for additional evidence (RFE), the Petitioner stated that the 
proffered position requires a bachelor's degree with a concentration in computers. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated the existence of a specialty occupation position.3 Specifically, the 
Petitioner has not established that (1) it has secured definite, non-speculative specialty occupation 
work for the Beneficiary for the entire validity period requested;4 and (2) the job duties require an 
educational background, or its equivalent, commensurate with a specialty occupation. 5 
The Petitioner stated that it wishes to employ the Beneficiary for a 34-month period; however, the 
record lacks documentation regarding the work that the Beneficiary would perform to sufficiently 
substantiate that it has H-1 B caliber work for the requested period. For instance, the Petitioner stated 
its intention to create a vendor-management tool, which is described as a "Web-Based 
application to manage resources." In support of this contention, the Petitioner submitted a 
"Functional Specification" document, a 39-page document which provides an overview of the 
project. 
3 We hereby withdraw the Director's statement that the position of programmer analyst is traditionally considered a 
specialty o,ccupation. The Director does not cite to any authoritative or objective source to support this statement. 
4 
Speculative employment is not permitted in the H-1 8 program. For example, a 1998 proposed rule documented this 
position as follows: 
Historically, the Service has not granted H-1 8 classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 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-1 8 nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require- the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 8 classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). 
5 
The Petitioner submitted documentation to support the H-18 petition, including evidence regarding the proffered 
position and the Petitioner's business operations. While we may not discuss every document submitted, we have 
reviewed and considered each one. 
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- Matter of S-S- Inc. 
The Petitioner, however, did not submit do<;umentation demonstrating that it has the capacity and 
resources to develop such a product. We note that the Petitioner submitted a "Project Budget" for 
Phase I of the project. According to this document, the Petitioner will require the services 
of a project manager, a project leader, a system analyst/business analyst, an undefined number of 
programmers, an undefined number of system testers, and an undefined numbers of vendor 
consultants. The document also allows for additional team resources (i.e., contractors, temporary 
staff, and other consultants) as necessary. 
At the time of filing, however, the Petitioner stated on the Form I-129, Petition for a Nonimmigrant 
Worker, that it currently has only one employee, who we presume is the Petitioner's president and 
signatory. There is no indication that the Petitioner has since hired the additional resources 
identified in the budget report, nor does it appear, based on the financial documents included in the 
record, that the Petitioner has the available funds to employ the number of staff it deems necessary 
for work on the proposed project. As noted by the Director, the Petitioner's 2015 tax 
return indicates that the Petitioner had approximately $41 ,000 in gross receipts or sales, paid no 
salaries or wages to employees, and had a negative ordinary business income. Although the 
Petitioner claims on appeal that these low figures are the result of the Petitioner's relatively short 
time doing business, they nevertheless present \a recent financial snapshot of the Petitioner's 
operations. 
The Petitioner also submitted an internal market analysis report, which estimates the total cost of the 
project in Phase I to be $175,000. The plan further indicates that it will be targeting small and 
mid-sized financial and health care organizations as potential prospects for the project, 
thereby suggesting that it has not secured any customers. Therefore , despite the s\}bmission of the 
functional specification document and the marketing plan, which provide an overview of this 
proposed project, there is no evidence in the record to establish that the Petitioner has initiated such a 
project, or has the resources and funding to do so. The Director noted in her denial that "it does not 
appear as though your company has made any investments or contributions" toward the 
project." On appeal, the Petitioner states that because its "product development cost[ s] will start 
appearing in the year 2016 tax returns," which had not yet been filed when the appeal was prepared. 
However, tax returns are not the only way a petitioner can demonstrate a financial investment. The 
record lacks supporting evidence such as: (1) a business plan; (2) competitive or cost analysis; (3) 
evidence substantiating investments or revenue sources; (4) documentation regarding its sales, costs, 
and income projections; (5) contracts; or (6) its timeline for developing the product.6 While the 
PowerPoint presentation is acknowledged, the purpose for which the presentation was developed is 
unclear. The Petitioner does not, for example, indicate to whom it was presented, and for what 
purpose. 
6 The H-1 B classification is not intended for companies to engage in speculative employment and hire foreign workers to 
meet possible workforce needs arising from potential business expansions , customers , or contracts. Again, the agency 
made clear long ago that speculative employment is not permitted in the H-1 B program . See, e.g., 63 Fed. Reg. at 
30,419- 20. 
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Matter of S-S- Inc. 
In addition, the terms and conditions of the Beneficiary's employment, as described in the offer of 
employment letter submitted in response to the RFE, indicate that the term of the Beneficiary's 
employment is 24 months. This statement contradicts the Petitioner's attestation on the Form I-129 
that it will employ the Beneficiary for a 34-month period. Regardless, the record as currently 
constituted does not establish that a legitimate project is available for any part of the requested 
validity period. 
Setting the issue of speculative employment aside, w'e turn to the Petitioner's job description, which 
we find lacks the specificity and detail necessary to support its claim that the proffered position is a 
specialty occupation. While a generalized description may be appropriate when defining the range 
of duties that are performed within an occupation, such generic descriptions generally cannot be 
relied upon by the Petitioner when discussing the duties attached to specific employment for H-1 B 
approval. In establishing such a position as a specialty occupation, the description of the proffered 
position must include sufficient details to substantiate that the Petitioner has H-1 B caliber work for 
the Beneficiary. 
The Petitioner has not provided sufficient details regarding the nature and scope of the Beneficiary's 
employment or substantive evidence regarding the actual work that the Beneficiary would perform. 
Without a meaningful job description, the record lacks evidence sufficiently concrete and 
informative to demonstrate that the proffered position requires a specialty occupation's level of 
knowledge in a specific specialty. The tasks as described do not communicate (1) the actual work 
that the Beneficiary would perform; (2) the complexity, uniqueness or specialization of the tasks; or 
(3) the correlation between that work and a need for a particular level education of highly specialized 
knowledge in a specific specialty. 
Further, the record contains inconsistencies that raise questions regarding the Petitioner's job 
description. For example, the Beneficiary's performance review form purports to evaluate the 
Beneficiary's effectiveness at managing his "subordinates," including how well he delegates 
responsibility, coordinates his subordinates' activities, as well as his overall leadership. However, as 
noted, the Petitioner stated on the Form I-129 that it currently has only one employee. It is therefore 
unclear who the Beneficiary would manage, to whom he would delegate responsibility, and who he 
would lead. 
The Petitioner's Level I wage designation compounds this problem and raises further questions. As 
noted, in designating a Level I wage the Petitioner indicated that the Beneficiary would perform 
routine tasks that require limited, if any, exercise of judgment; that he would be closely supervised 
and his work closely monitored and reviewed for accuracy; and that he would receive specific 
instructions on required tasks and expected results. As instructed in the DOL wage-level guidance 
cited above, statements that a job offer is for a research fellow, a worker in training, or an internship 
are indicators that a Level I wage should be considered. However, the Beneficiary's apparent 
management, delegation, and overall leadership responsibilities appear to conflict with the Level I 
designation. These and similar statements of record appear to indicate that the Beneficiary would 
exercise a higher level of judgement, discretion, and independence than that indicated by the Level I. 
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Matter of S-S- Inc. 
wage designation. In any event, it calls into question the reliability of the Petitioner's job 
description. 7 
For all of these reasons, we find that the Petitioner has not sufficiently established the substantive 
nature of the proffered position. Consequently, we are precluded from finding that the protlered 
position satisfies any criterion at 8 C.F.R. § 2I4 .2(h)(4)(iii)(A), because it is the substantive nature of 
that work that determines (I) the normal minimum educational requirement for the particular position, 
which is the focus of criterion I; (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 protiered 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 evidence does not satisfy any of the criteria at 8 C.F.R. § 2I4.2(h)(4)(iii)(A), it 
cannot be found that the proffered position qualifies as a specialty occupation. 
IV. ADDITIONAL ISSUES 
We also find that the Petitioner has not offered the Beneficiary a wage equal to or greater than that 
required by law, and submitted an LCA that corresponds to the petition. 
Section 212(n)(l)(A) of the Act, 8 U.S.C. § 1182(n)(l)(A), states in pertinent part that the Petitioner 
must offer wages that are at least the actual wage paid by the employer to all other individuals with 
similar experience and qualifications for the specific employment in question or the prevailing wage 
for the position in the area of employment, whichever is greater. Here, an independent review of the 
FLC Data Center's Online Wage Library indicates that the prevailing wage for the protiered position 
in the Petitioner's Metropolitan Statistical Area at the time of certification was $67,787.8 The 
Petitioner attested on the Form I-129 petition, however, that it would only pay the Beneficiary an 
annual salary of $65,000. Therefore, the Petitioner has not otiered a wage that is equal to or greater 
than the prevailing wage. · 
In addition, the Petitioner has not submitted a valid LCA that corresponds to the petition. 
While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL 
regulations note that the Department of Homeland Security (DHS) (i.e., its immigration benefits 
branch, USCIS) is the department responsible for determining whether the content of an LCA tiled 
7 
It also calls into question whether the LCA corresponds to and supports the H-1 B petition . 20 C.F.R . § 655. 705(b ). 
8 
For more information, please see Foreign Labor Certification Data Center 's Online Wage Library , on the Internet at 
http://www.tlcdatacenter .com/OesQuickResults .aspx?code = 17-2141 &area= &year = 15&source= I, (last visited 
Aug. II, 2017). 
Matter of S-S- Inc. 
for a particular Form I-129 actually supports that petition. See 20 C.F.R. § 655.705(b), which states, 
in pertinent part (emphasis added): 
For H-1B visas ... DHS accepts the employer's petition (DHS Form 1-129) with the 
DOL-certified LCA attached. In doing so, the DHS determines whether the petition 
is supported by an LCA which corresponds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-1 B visa classification. 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports 
the H-1 B petition filed on behalf of the Beneficiary. The Petitioner has not submitted a valid LCA 
for the correct wage, and the petition cannot be approved for these additional reasons. 
V. CONCLUSION 
We find that the Petitioner has not (1) established that the proffered positiOn is a specialty 
occupation; (2) established that it would pay the Beneficiary the prevailing wage; and (3) submitted 
an LCA that corresponds to the petition. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-S- Inc., ID# 443276 (AAO Aug. 14, 2017) 
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