dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 6865429 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : NOV . 23, 2020 
The Petitioner, a software development company, seeks to temporarily employ the Beneficiary as a 
"server engineer" under the H-lB nonirnrnigrant classification for specialty occupations . See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S .C. § l 10l(a)(l5)(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 California Service Center denied the petition, concluding that the record does not 
demonstrate, as required, that the Beneficiary is qualified to perform the duties of the proffered 
position. 
On appeal, the Petitioner states that the Director erred in determining that the evidence in the record 
of proceeding did not establish that the Beneficiary is qualified to perform the duties of the proffered 
position. We also note here at the outset of this decision that the Petitioner submits new evidence in 
this matter for the first time on appeal, and such evidence was not provided at either the time of petition 
filing or in response to a request for evidence (RFE) previously issued by the Director . 
Upon de nova review, we will dismiss the appeal. 1 
I. LAW AND REGULATIONS 
Section 2 l 4(i)(l) of the Act, 8 U.S .C. § l 184(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 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010) . 
(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: 
( 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 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. Chertojf, 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 
The Petitioner claims that it will employ the Beneficiary as a "server engineer" and describes the 
proffered position (verbatim) as follows: 
The Position Offered: Software Developer 
(Internal Title: Server Engineer) 
"As provided above, our business focus is on designing and developing software applications for 
I lusers and connecting applications withl !carriers andl !providers to sponsor 
data. Accordingly, we require experienced Software Developers who can build the needed software 
infrastructure to tailor each client's needs. 
[Petitioner] has offered [Beneficiary] full-time temporary employment in the position of Software 
Developer at our offices inl I CA. 
Job Duties and Description: 
In this specialty occupation, [Beneficiary] will: 
• Develop, create, and modify software applications and specialized programs. 
2 
• Design software with the aim of optimizing operational efficiency. 
• Analyze and design software to build network stack to support millions of users. 
• Track solutions from design through implementation. 
• Responsible for further developing, securing, and scaling the backend infrastructure of our 
existing software to support the platform in order to handle millions of concurrent API calls 
while deploying, automating, maintaining, troubleshooting and improving the systems that 
keep the backend infrastructure running smoothly. 
• Work individually and will coordinate with our development team and mobile operators." 
Furthermore, the Petitioner states that it believes that the proffered position of software developer is a 
specialty occupation because the nature of the duties is so specialized and complex that the level of 
knowledge required to perform them is most closely associated to that of a bachelor's degree in 
computer science, engineering, information technology or a closely related field. 
III. LEGAL FRAMEWORK 
Section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an individual applying for classification 
as an H-1B nonimmigrant worker must possess: 
(A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in paragraph (1 )(B) for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such degree, and 
(ii) recognition of expertise in the specialty through progressively responsible 
positions relating to the specialty. 
In implementing section 214(i)(2) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(C) states that 
a beneficiary must also meet one of the following criteria in order to qualify to perform services in a 
specialty occupation: 
(]) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate 
or higher degree required by the specialty occupation from an accredited college 
or university; 
(3) Hold an unrestricted State license, registration or certification which authorizes 
him or her to fully practice the specialty occupation and be immediately engaged 
in that specialty in the state of intended employment; or 
( 4) Have education, specialized training, and/or progressively responsible experience 
that is equivalent to completion of a United States baccalaureate or higher degree 
3 
in the specialty occupation, and have recognition of expertise in the specialty 
through progressively responsible positions directly related to the specialty. 
Therefore, if a license is not required and if the beneficiary does not possess the required U.S. degree 
or its foreign degree equivalent, the petitioner must show that the beneficiary possesses both 
(1) education, specialized training, and/or progressively responsible experience in the specialty 
equivalent to the completion of such degree, and (2) recognition of expertise in the specialty through 
progressively responsible positions relating to the specialty. 
In order to equate a beneficiary's credentials to a U.S. baccalaureate or higher degree, the provisions 
at 8 C.F.R. § 214.2(h)(4)(iii)(D) require one or more of the following: 
(]) An evaluation from an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited college or university 
which has a program for granting such credit based on an individual's training 
and/or work experience; 
(2) The results ofrecognized college-level equivalency examinations or special credit 
programs, such as the College Level Examination Program (CLEP), or Program 
on Noncollegiate Sponsored Instruction (PONSI); 
(3) An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials;2 
( 4) Evidence of certification or registration from a nationally-recognized professional 
association or society for the specialty that is known to grant certification or 
registration to persons in the occupational specialty who have achieved a certain 
level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, and/or work experience in areas related to the specialty and 
that the alien has achieved recognition of expertise in the specialty occupation as 
a result of such training and experience .... 
In accordance with 8 C.F.R. § 214.2(h)(4)(iii)(D)(5): 
For purposes of determining equivalency to a baccalaureate degree in the specialty, 
three years of specialized training and/or work experience must be demonstrated 
for each year of college-level training the alien lacks . . . . It must be clearly 
demonstrated that the alien's training and/or work experience included the 
theoretical and practical application of specialized knowledge required by the 
specialty occupation; that the alien's experience was gained while working with 
2 The Petitioner should note that, in accordance with this provision, we will accept a credential evaluation service's 
evaluation of education only, not training and/or work experience. 
4 
peers, supervisors, or subordinates who have a degree or its equivalent in the 
specialty occupation; and that the alien has recognition of expertise in the specialty 
evidenced by at least one type of documentation such as: 
(i) Recognition of expertise in the specialty occupation by at least two 
recognized authorities in the same specialty occupation; 3 
(ii) Membership in a recognized foreign or United States association or society 
in the specialty occupation; 
(iii) Published material by or about the alien in professional publications, trade 
journals, books, or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation in a foreign 
country; or 
(v) Achievements which a recognized authority has determined to be 
significant contributions to the field of the specialty occupation. 
It is worth noting that, by its very terms, 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) is a matter strictly for USCIS 
application and determination, and that, also by the clear terms of the rule, experience will merit a 
positive determination only to the extent that the record of proceedings establishes all of the qualifying 
elements at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5), including, but not limited to, a type of recognition of 
expertise in the specialty occupation. 
IV. ANALYSIS 
In this matter, the Beneficiar earned a bachelor's degree in "management" from 1~-----~ 
I !university" in in 2016. The Petitioner's cover letter states that the Beneficiary 
worked as a software developer at~-----~ inl I from September 2007 until May 2014, 
and since April 2015 he has been working for the Petitioner remotely from his home country as a 
server engineer. The Petitioner states that based on the Beneficiary's academic credentials and his 
professional work experience he is an ideal candidate for the position in question and is folly qualified 
to carry out the duties associated with the position offered. Finally, the Petitioner states that the 
Beneficiary has the equivalent of a bachelor's degree in information technology. 
The record contains an evaluation of the Beneficiary's combined education and work experience from 
I I Associate Professor of Computer Applications and Information Systems at the 
University I l I !opines the Beneficiary's combined education and work 
experience of at least 10 and one half years is equivalent to a U.S. bachelor's degree in Information 
Technology. We also note here that another evaluation was submitted in response to a January 15, 
3 The term "recognized authority" means a person or organization with expertise in a particular field, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested. 8 C.F.R. § 214.2(h)(4)(ii). A recognized 
authority's opinion must state: (1) the writer's qualifications as an expert; (2) the writer's experience giving such opinions, 
citing specific instances where past opinions have been accepted as authoritative and by whom; (3) how the conclusions 
were reached; and (4) the basis for the conclusions supp01ied by copies or citations of any research material used. Id. 
5 
2019 RFE issued by the Director from I I, Professor and Chair of Computer Science at 
the University! ~ who opines that the.Beneficiary's combined education and work 
experience are equivalent to a U.S. bachelor's degree in Computer Information Systems. We concur 
with the Director's determination that these evaluations do not satisfy any of the regulatory criteria set 
forth above. 
The record does not satisfy 8 C.F.R. § 214.2(h)(4)(iii)(C)(l) because the Beneficiary does not possess 
a U.S. degree. It does not satisfy 8 C.F.R. § 214.2(h)(4)(iii)(C)(2) because the Beneficiary's foreign 
degree alone is not equivalent to a U.S. bachelor's degree required by the occupation, and it does not 
satisfy 8 C.F.R. § 214.2(h)(4)(iii)(C)(3) because there is no indication the Beneficiary holds and 
unrestricted State license, registration or certification which authorizes him to fully practice the 
specialty occupation and be immediately engaged in that specialty in the state of intended employment. 
This leaves 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) as the Petitioner's only remaining path. 
There are five alternative methods by which to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(C)(4), and those 
methods are set forth at 8 C.F.R. §§ 214.2(h)(4)(iii)(D)(l)-(5). The record, however, satisfies none of 
them. 
We disagree with the Petitioner's assertion that the evidence ofrecord is sufficient to satisfy 8 C.F.R. 
§ 214.2(h)(4)(iii)(D)(l). The record contains no evidence thatl I has the authority to 
grant college-level credit for training and/or experience in the specialty at an accredited college or 
university which has a program for granting such credit based on an individual's training and/or work 
expenence. His letter therefore does not satisfy this criterion. 
Nor does I I's evaluation satisfy this criterion. Th bmitted a letter from 
I I the I Iui~ersitvl 6 dean of the School of Business. 
Though the letter froml lregarding.__ _____ ~cre entia sis acknowledged, we 
find it insufficient. As noted, the regulations specifically mandate that the evaluator possess the 
authority to grant college-level credit for training and/or experience in the specialty at an accredited 
college or university with a program for granting such credit. 
~'s letter states that "in his capacity as Associate Professor of Information Systems,n 
LJ.uthorizes the granting of'life experience' credits through the University! ~'~ 
degree completion program offered through the School of Continuing and Professional Studies." 
Although the letter from I I states that more information about thel I ~ I 
I O O ~ program is available online, no further information has 
been proactively provided to shed light on the I l program. As always, the burden of proof rests 
with the Petitioner to establish eligibil~ty thro1gh the submission of probative evidence. It is not the 
responsibility of USCIS to research th program on the Petitioner's behalf. 
Furthermore, there is a lack of evidence demonstrating the extent of I I's participation in 
or personal knowledge of the I I program, or sufficient evidence to support the statement 
regarding "life experience" credits through thel L program at the Universit~ I The 
letter from the dean does not establish that. h involvement in the UniversityD 
.__ ___ _.Isl !program qualifies him as "an official who has authority to grant college-level 
credit for training and/or experience in the specialty." Specifically, the dean claims thatl I 
6 
Dis authorized to grant "life experience" credits, not "college-level credit" and not "college-level 
credit in the [pertinent] specialty" as specified at 8 C.F.R. § 214.2(h)(4)(iii)(D)(l). We will not 
speculate as to the nature, qualifying grounds, or academic weight of what is meant ly "lifer 
experience" credits, and the record of proceedings throws little light on this aspect of the 
program. 
It is the Petitioner's burden to establish both what constitutes "life experience" as defined for credit­
assessment in thd I program, and also that "life experience" evaluated for credit in thel I 
program is substantially the same as "training and/or work experience" which must be the basis of 
college-credit awarded by a person whom a petitioner holds out as qualifying as an 8 C.F.R. 
§ 214.2(h)(4)(iii)(D)(l) official. The Petitioner has not met that burden. We find that the Petitioner 
has not established tha~ I is an official who has authority to grant college-level credit 
for training and/or experience in the specialty at an accredited college of university which has a 
program in granting such credit based on an individual's training and/or work experience. 
The Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(D)(l). We may, in our 
discretion, use an evaluation of a person's foreign education as an advisory opinion. Matter of Sea, 
Inc., 19 I&N Dec. 817,820 (Comm'r 1988). However, where an opinion is not in accord with other 
information or is in any way questionable, we may discount or give less weight to that evaluation. Id. 
We therefore find this documentation to be unpersuasive. For all of these reasons, we findl I 
c=Js evaluation insufficient. 
In addition to the material deficiencies noted above, we also find that both I I and 
~----~I erroneously simplify the "three-for-one" rule. As we noted above, the only section of 
the H-lB beneficiary-qualification regulations that provides for application of a three-for-one ratio is 
the provision at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5), and that provision reserves its application 
exclusively for USCIS agency-determinations. Further, that provision requires substantially more than 
simply equating any three years of work experience in a specific field to attainment of a year's worth 
of U.S. college credit in that field or specialty. In fact, the provision inserts a number of elements of 
proof into the experience and/or training equation that both evaluators overlooked. 
We may, in our discretion, discount or give less weight to an evaluation of a person's foreign education 
where that opinion is not in accord with other information or is in any way questionable. Matter of 
Sea, Inc., 19 I&N Dec. 817, 820 (Comm'r 1988). We exercise that discretion here and find that these 
three evaluations do not satisfy 8 C.F.R. § 214.2(h)(4)(iii)(D)(l). 
Nor is there sufficient evidence in the record to satisfy 8 C.F.R. §§ 214.2(h)(4)(iii)(D)(2), (3), or (4). 
We will therefore tum to 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) which, as noted above, grants us the 
authority to make our own determination on the Beneficiary's qualifications. The record is not 
sufficient to satisfy that criterion either, as neither the evaluations, the documents accompanying them, 
nor any other part of the record of proceedings that was before the Director when she made her decision 
provides sufficient work-experience evidence for us to reasonably conclude that the Petitioner has 
satisfied one of the requirements of 8 C.F.R. § 214.2(h)(4)(iii)(D)(5)(i)-(v). 4 Accordingly, we cannot 
4 Though acknowledged, the two briefletters regarding the Beneficiary's work experience lack the detail necessary to meet 
these requirements. 
7 
conclude that the evidence of the Beneficiary's work experience qualifies for recognition of any years 
of college-level credit by correct application of the H-lB beneficiary-qualification regulations' "three­
for-one" standard. Therefore, based upon the findings articulated above, we conclude that the totality 
of the evidence regarding the Beneficiary's foreign education and work experience does not satisfy 
any criterion at 8 C.F.R. §§ 214.2(h)(4)(iii)(C) and (h)(4)(iii)(D). 
V. NEW EVIDENCE SUBMITTED ON APPEAL 
Importantly, we point out here that the Petitioner now submits "new evidence" for consideration in 
this matter for the first time on appeal. This evidence consists of the Beneficiary's resume as 
documentation of his past work experience as well as a letter dated March 3, 2017 attesting to the 
Beneficiary's past employment with I lfrom May 2006 through December 2014. 5 
We question why this evidence was not submitted earlier in adjudicatory process, either with the initial 
filing of the petition or in response to the RFE, and decline to afford it any evidentiary weight. 
Accordingly, the evidentiary value of this document as well as the Beneficiary's resume carry less if 
little to no weight at this stage of the process. Where, as here, a Petitioner has been put on notice of a 
deficiency in the evidence and has been given an opportunity to respond to that deficiency, we will 
not accept evidence offered for the first time on appeal. Matter of Soriano, 19 I&N Dec. 764 (BIA 
1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). 
In Soriano, the BIA held that if a petitioner was put on notice of an evidentiary requirement (by statute, 
regulation, form instructions, RFE, NOID, NOIR, etc.) and was given a reasonable opportunity to 
provide the evidence before the issuance of the unfavorable decision, then any new evidence submitted 
on appeal pertaining to that requirement would not be considered, and the appeal would be adjudicated 
based on the evidentiary record before the director. 
VI. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
5 Though we will not consider this letter for the reasons stated below we note nonetheless that it was not prepared on 
company letterhead, which would reduce its evidentiary value even if we were to consider it. 
8