dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 22569937 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 27, 2022 
The Petitioner, a software and development consulting company, seeks to temporarily employ the 
Beneficiary as a "software developer" under the H-lB nonimmigrant classification for specialty 
occupations. 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 Nebraska Service Center denied the Form 1-129, Petition for a Nonimmigrant 
Worker, concluding that the Petitioner did not establish that it submitted a certified labor condition 
application (LCA) for the occupational classification for which the Beneficiary will be employed . The 
Petitioner subsequently filed a motion to reopen and motion to reconsider , and the Director concluded 
the underlying adverse decision would remain undisturbed. The matter is now before us on appeal. 
On appeal, the Petitioner submits a brief and additional evidence, and asserts that the Director erred 
in denying the petition. 
In these proceedings, it is the Petitioner 's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 
(AAO 2010). We review the questions in this matter de nova. See Matter of Christo 's Inc., 26 l&N 
Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Before filing a pet1t10n for H-lB classification, the regulation requires petitioners to obtain 
certification from the DOL that the organization has filed an LCA in the occupational specialty in 
which its foreign national personnel will be employed. 8 C.F.R. § 214.2(h)(4)(i)(B)(l). The purpose 
of DOL's LCA wage requirement is "to protect U.S. workers' wages and eliminate any economic 
incentive or advantage in hiring temporary foreign workers." See Labor Condition Applications and 
Requirements for Employers Using Nonimmigrants on H-lB Visas in Specialty Occupations and as 
Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80, 110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-
56). See also Aleutian Cap. Partners, LLC v. Scalia, 975 F.3d 220, 231 (2d Cir. 2020) (quoting 20 
C.F.R. § 655.0(a)(l) and finding that a primary goal of U.S. non-immigrant foreign worker programs 
like the H-lB Program is to ensure that "the employment of the foreign worker in the job opportunity 
will not adversely affect the wages or working conditions of similarly employed U.S. workers."). 
The LCA also serves to protect H-lB workers from wage abuses. A petitioner submits the LCA to 
DOL to demonstrate that it will pay an H-lB 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 212(n)(l) of the Act; 20 C.F.R. 
§ 655.73l(a). See also Venkatraman v. REI Sys., Inc., 417 F.3d 418,422 & n.3 (4th Cir. 2005); Patel 
v. Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal Vojtisek-Lom & Adm 'r Wage & Hour Div. 
v. Clean Air Tech. Int'l, Inc., 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 
2009). 
Furthermore, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(B)(2) provides that a petitioner must state 
that it will comply with the terms of the LCA. While DOL certifies the LCA, U.S. Citizenship and 
Immigration Services (USCIS) "determines whether the petition is supported by an LCA which 
corresponds with the petition, whether the occupation named in the labor condition application is a 
specialty occupation ... , and whether the qualifications of the nonimmigrant meet the statutory 
requirements for H-lB visa classification." 20 C.F.R. § 655.705(b ). See also Matter of Simeio 
Solutions, 26 I&N Dec. 542, 546 n.6 (AAO 2015). 
USCIS possesses the authority to evaluate whether the proffered position's duties are in accordance 
with the occupational classification on the LCA, and if not, to determine under which occupational 
titles the responsibilities correspond. See GCCG Inc v. Holder, 999 F. Supp. 2d 1161, 1167-68 (N.D. 
Cal. 2013) (in which the court agreed with USCIS that a large portion of the beneficiary's duties were 
most similar to those found within the Bookkeeping, Accounting, and Auditing Clerks occupation, 
rather than within the Accountants Standard Occupational Classificational (SOC) code.) 
It is important for USCIS to ensure the employer has selected the SOC code on the LCA that most 
closely matches the proffered position for reasons that affect H-1 B statutory and regulatory 
requirements. First, the wrong SOC code can direct USCIS to evaluate an inapplicable occupational 
title or occupation. It is the occupation itself that we evaluate to decide if it requires a "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." Section 214(i)(l) of the Act. Therefore, an incorrect SOC code could mean we 
would not be able to properly evaluate whether a petitioner has satisfied the statute's definition of a 
specialty occupation. 
In addition, Section 10l(a)(l5)(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 
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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, 8 C.F.R. § 214.2(h)(4)(i)(A)(l) 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. 
§ 2 l 4.2(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). 
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 
In the support letter, the Petitioner stated that it is engaged in the business of software training, 
development and information technology services, and it delivers high quality, reliable and cost­
effective information technology services to customers globally. It further stated that it consolidates 
"decades" of software development and maintenance experience in delivering and supporting 
enterprise applications and products. 2 In the support letter, the Petitioner described the duties and 
responsibilities of the proffered position as follows: 
• Defending systems against unauthorized access and Performing vulnerability and 
penetration tests. 
1 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions ofa specialty occupation under 
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 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"). 
2 The Petitioner indicated it was established in 2019 and the Petitioner did not explain how it has "decades" of software 
development and maintenance experience. 
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• Monitoring traffic for suspicious activity and Implementing network security 
policies. 
• Configuring and supporting security tools (firewalls, antivirus, and IDS/IPS 
software). 
• Analyzing and establishing security requirements, and Conducting security audits 
• Identifying threats and working on steps to defend against them. 
• Training employees in security awareness/procedures, Developing and updating 
disaster recovery protocols. 
• Making policy recommendations, and providing technical security advice. 
• Consulting with staff, managers, and executives on best security practices. 
• Troubleshoot and provide support at all levels of operation of assigned 
applications. 
• Support multi-tier application deployments and change methodology. 
• Work with internal IT & business teams, outside consultants, and vendors to 
implement new software and upgrade existing applications following best 
practices and standards. 
• Collaborate with development and infrastructure teams to understand application 
changes and their impact on middleware services and systems. 
• Provide status updates to team members and development managers as requested. 
• Responds to ad-hoc requests with timely and accurate assistance. 
• Clearly communicate information to internal and external teams. 
• Utilize analytical and technical skills to creatively solve problems, improve 
service, and support organizational needs 
• Implement and perform monitoring using appropriate tools to meet service level 
agreements. 
• Works with the Service Desk to facilitate production support efforts and Tier-1 
support responses to application related issues. 
• Builds strong relationships with internal customers and vendor support resources. 
• Adhere to IT Security Policies and develop all solutions with security in mind. 
• Providing after-hours and weekend support on an as-needed basis or in an on-call 
rotation. 
• Maintain installation and run-book documentation as well as any other reference 
materials needed in order to support applications and services. 
• Installing and tuning IIS or Apache web servers. 
• Windows operating system tools, permissions, and troubleshooting. 
• Administration of Jboss and Tomcat application server platforms, including Java 
Virtual Machines turning and thread analysis. 
• Providing services for Java and .NET application deployments and 
troubleshooting in a multi-server environment. 
• Providing expertise skills in DevOps principles and technologies (PowerShell, 
Ansible, Python). 
• Load Balancing technologies, Maintaining SSL server certificates. 
• Administration/Maintenance ofWebMethods, or MuleSoft and Cloud platforms 
(Azure, A WS). 
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• Supporting code management and deployment tools such as Octopus, TFS, 
GitHub, and Jenkins. 
• Commitment to displaying a high level of customer service, and Strong problem 
solving and troubleshooting. 
• Having expertise skills to communicate robust solutions and concepts to technical 
resources as well as non-technical customers and users. 
• Ability to work in a team atmosphere and collaborate cross disciplines with other 
functional IT teams. 
• Proactive to adapt new technologies skills, flexible, and able to prioritize multiple 
tasks while working in a quick- packed changing environment. 
According to the Petitioner, the proffered position requires at least a bachelor's degree in computer 
science, computer information systems, information technology, or a closely related field. 
On the LCA submitted in support of the H-1 B petition, the Petitioner designated the proffered position 
under the occupational category "Software Developers, Applications" corresponding to the standard 
occupational classification code (SOC) 15-1132 from the Occupational Information Network 
(O*NET), at a wage level II rate. According to O*NET's description, positions located within the 
"Software Developers, Applications" occupation primarily "[ d]evelop, create, and modify general 
computer applications software or specialized utility programs." 3 
A crucial aspect of this matter is whether the Petitioner has sufficiently described the duties of the 
proffered position such that we may discern the nature of the position and whether the position 
corresponds to the SOC code of 15-1132 for Software developers, applications. 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 performance of those duties within the context of that particular employer's business 
operations. 
We acknowledge the claim that the duties will not be identical to the duties listed in the O*NET; 
however, the Petitioner submitted duties of the proffered position that are overarching and abstract, 
and duties that do not appear to align with the duties of a software developer. Although the Petitioner 
submitted a chart that indicated which duties listed in the O*NET correspond with the duties 
performed by the Beneficiary, it does not appear that the majority of the duties correspond. For 
example, the Beneficiary will by "analyzing and establishing security requirements and conducting 
security audits;" "identifying threats and working on steps to defend against them;" "training 
employees in security awareness/procedures, developing and updating disaster recovery protocols;" 
"making policy recommendations, and providing technical security advice;" and "consulting with 
staff, managers, and executives on best security practices." Several of these duties appear to relate to 
identifying security threats and establishing and implementing security policies to protect the 
computer systems and information network rather than developing or creating computer application 
software. 
3 O*NET OnLine Archives, "Summary Report for: 15-1132.00 - Software Developers, Applications," 
https://www.onetonline.org/ Archive_ ONET-SOC _ 201 O _Taxonomy_ 09 _ 2020/link/summary/15-1132.00 (last visited 
Sep. 27, 2022). 
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In addition, the Petitioner indicated on the petition that it has one employee; however, several of the 
job duties performed by the Beneficiary include working with team members and departments that do 
not exist in the Petitioner's business. For example, the Beneficiary will "work with internal IT & 
business teams, outside consultants, and vendors to implement new software and upgrade existing 
applications following best practices and standards;" "collaborate with development and infrastructure 
teams to understand application changes and their impact on middleware services and systems;" 
"provide status updates to teams members and development managers as requested;" "responds to ad­
hoc requests with timely and accurate assistance;" "clearly communicates information to internal and 
external teams;" "works with the service desk to facilitate production support efforts and Tier-1 
support responses to application related issues;" "builds strong relationships with internal customers 
and vendor support resources;" and, "consult with staff, managers, and executives on best security 
practices." Since the Petitioner employs one individual and it did not document an organizational 
structure beyond the one employee, it is not clear how the Beneficiary will collaborate and work with 
staff, managers, executives, development and infrastructure teams, internal teams, or the service desk. 
When a petition includes discrepancies, those inconsistencies will raise concerns about the veracity of 
the Petitioner's assertions. The Petitioner must resolve these inconsistencies with independent and 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency 
of other evidence submitted in support of the requested immigration benefit. Id. 
In addition, the job description listed several skills required to perform the job rather than describe the 
actual day to day duties of the proffered position. For example, the job description indicated that the 
Beneficiary will have a "commitment to displaying a high level of customer service, and strong 
problem solving and troubleshooting;" must have "expertise skills to communicate robust solutions 
and concepts to technical resources as well as non-technical customers and users;" an ability to work 
in a "team atmosphere and collaborate cross disciplines with other functional IT teams;" and, must be 
"proactive to adapt new technologies skills, flexible, and able to prioritize multiple tasks while 
working in a quick-paced changing environment." It appears that this portion of the job description 
lists interpersonal skills, communication skills, and other qualities that enable a person to be successful 
in a workplace but does not provide a meaningful understanding of the tasks and duties required of 
the Beneficiary when working in the proffered position. 
The job description also indicated that the Beneficiary will "troubleshoot and provide support at all 
levels of operation of assigned applications;" "support multi-tier application deployments and change 
methodology;" and, "implement and perform monitoring using appropriate tools to meet service level 
agreements;" but the Petitioner does not describe the type of software solutions, knowledge, and skills 
the Beneficiary would need to perform these duties. Although the Petitioner listed programming 
languages, operating systems, and tools to be utilized by the Beneficiary, it did not provide sufficient 
explanation of how she would use them to perform her job duties, and the frequency of use. The 
Petitioner has not established the complexity of the job duties, the amount of supervision required, and 
the level of judgment and understanding required to perform the duties. Furthermore, the phrases 
could cover a range of issues, and without additional information, do not provide any insights into the 
Beneficiary's day-to-day work. These generalized tasks do not provide sufficient detail to determine 
if the position falls under the occupational category of a software developer. 
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In sum, there are inconsistencies, ambiguities, and discrepancies in the petition and supporting 
documents, which lead us to question the Petitioner's claims that it correctly designated the proffered 
position under the occupational category "Software Developers, Applications" in the LCA. The 
Petitioner must resolve these inconsistencies with independent and objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In addition, absent more specific and consistent evidence regarding the nature of the proffered 
position's duties and requirements, the Petitioner has failed to demonstrate the substantive nature of 
the work to be performed by the Beneficiary. This, therefore, precludes our ability to ascertain the 
nature of the position and whether the proffered position satisfies any criterion at 8 C.F.R. § 
214.2(h)(4)(iii)(A). Additionally, the record does not demonstrate that performing the general duties 
described 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. See section 214(i)(l) 
of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation). 
III. CONCLUSION 
As set forth above, we conclude that the evidence of record does not establish, more likely than not, 
that the Petitioner submitted a certified LCA for the occupational classification for which the 
Beneficiary will be employed. Accordingly, the appeal will be dismissed for the above stated reasons. 
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. 
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