dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 9044529 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 6, 2020 
The Petitioner, a software development and project management company, seeks to temporarily 
employ the Beneficiary as a "technical architect II" under the H-lB nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 10l(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 California Service Center denied the petition, concluding that the evidence of 
record does not establish that the proffered position qualifies as a specialty occupation. The matter is 
now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services .. . in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific 
specialty (or its equivalent) as a minimum for entry into the occupation in the United States." The 
regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates section 214(i)(l) of the Act, but adds a 
non-exhaustive list of fields of endeavor. In addition, 8 C.F .R. § 214.2(h)( 4 )(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 1 Lastly, 
1 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii) . We construe the tenn "degree" to mean not just any 
8 C.F.R. § 214.2(h)(4)(i)(A)(I) states that an H-lB classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position determine: (1) the normal 
minimum educational requirement for entry into the particular position, which is the focus of criterion 
1; (2) industry positions which are parallel to the proffered position and thus appropriate for review 
for a common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, 
when that is an issue under criterion 3; and (5) the degree of specialization and complexity of the 
specific duties, which is the focus of criterion 4. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Further, as recognized by the court in Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir 2000), 
where the work is to be performed for entities other than the petitioner, evidence of the client 
companies' job requirements is critical. The court held that the former Immigration and Naturalization 
Service had reasonably interpreted the statute and regulations as requiring the petitioner to produce 
evidence that a proffered position qualifies as a specialty occupation on the basis of the requirements 
imposed by the entities using the beneficiary's services. Id. Such evidence must be sufficiently 
detailed to demonstrate the type and educational level of highly specialized knowledge in a specific 
discipline that is necessary to perform that particular work. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the services in a specialty occupation that the Beneficiary would perform during the requested period 
of employment, which precludes a determination of whether the proffered position qualifies as a 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Cmp. 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 paiticular position"). 
2 
specialty occupation under sections 101(a)(l5)(H)(i)(b), 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A).2 
A crucial aspect of this matter is whether the duties of the proffered position are described in such a 
way that we may discern the actual, substantive nature of the position. When determining whether a 
position is a specialty occupation, we look at the nature of the business offering the employment and 
the description of the specific duties of the position as it relates to the performance of those duties 
within the context of that particular employer's business operations. 
On a fundamental level, we conclude that the Petitioner has not sufficiently delineated the substantive 
nature of the Beneficiary's proposed duties within the end-client's operations. The Petitioner, which 
is located in Indiana, asserts the Beneficiary will work for an end-client, via two mid-vendors, 3 in 
Wisconsin as a technical architect II. 4 However, the record does not contain sufficient evidence to 
establish the services the Beneficiary will perform. Specifically, the record (1) does not describe the 
position's duties with sufficient detail; and (2) does not establish that the job duties reqmre an 
educational background, or its equivalent, commensurate with a specialty occupation. 
The end-client, a state agency that focuses on the educational needs of the children, grants fonds to 
agencies pursuant to various state and federal programs. 5 The end-client stated that agencies receiving 
federal fonds through it must adhere to the federal and state laws and regulations, and submit 
applications for grants through their web portal. According to the end-client, the Beneficiary will be 
"responsible for providing quality assurance and analysis for an innovative federal grants web 
management system that was designed, developed, and operated" by it. The end-client farther stated: 
This position will be responsible or performing quality assurance systems testing 
through manual application testing, load testing, generating test cases, developing 
regression test plans, and implementing automated system testing scripts. This person 
will assist the team on implementing quality products while working closely with 
product owners, developers, systems analyst, and scrum masters to groom and 
prioritize the team's system testing and integration plans., this person will work closely 
with others to accomplish project objectives, or independently to accomplish daily 
work requirements as a member of the Applications Development Team. Objectives, 
priorities and deadlines are established in consultation with the department program 
area leaders, project managers, and the Applications Development Team manager. 
2 The Petitioner submitted documentation to suppmt the H-lB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
3 The record indicates that the contractual relationship includes the Petitioner, 
(vendor 1 )J tvendor 2), and the end-client. .__ ___________ ___. 
4 The Petitioner submitted a certified labor condition application (LCA) for the occupational category "Software 
Developer, Systems Software" corresponding to Standard Occupational Classification (SOC) code 15-1133. with a Level 
TT wage. A petitioner submits the LCA to the Department of Labor (DOL) to demonstrate that it will pay an H-1 B worker 
the higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage 
paid by the employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.73l(a). 
5 See https://dpi.wi.gov/. 
3 
Other responsibilities include: Design, implement, and maintain the organization's 
application systems and/or IT infrastructure; Provide an architectural framework for 
information system development, maintenance, and enhancement efforts; Understand 
user and process requirements and ensure those requirements can be achieved through 
high quality deliverables; Work closely with developers and engineers to develop road 
maps for applications, align development plans, and to ensure effective integration 
among information systems and the IT infrastructure; Monitor technological 
advancements to ensure that solutions are continuously improved, supported, and 
aligned with industry and company standards as well as emerging business 
requirements; Understand the interactions between systems, applications, and services 
within the environment and evaluate the impact of changes or additions; Analyze 
systems and perform usability testing to ensure performance and reliability, enhance 
scalability, and meet security requirements. 
The end-client grouped the tasks associated with the proffered position under three categories and 
indicated the percentages of time the Beneficiary would spend on each category as follows: 
• Requirements Gathering and Business Analysis - 15% 
• Manual and Automation Testing of Federal Grants web application Functionality-
70% 
• Maintenance and Production support of Federal Grants application - 15% 
The proffered duties suggest that the Beneficiary will be assisting various teams and will be "working 
closely with product owners, developers, systems analyst, and scrum masters," as well as "department 
program area leaders, project managers, and the Applications Development Team manager." 
However, the record does not contain sufficient information regarding the end-client's organizational 
structure. For example, the Petitioner did not submit an organizational chart of the end-client that 
would delineate the end-client's organization, and the Beneficiary's position within the end-client's 
overall organizational hierarchy. 6 Therefore, the extent of the Beneficiary's duties cannot be 
determined. The evidence does not show the operational structure within the end-client's project in a 
manner that would establish the Beneficiary's relative role therein. The Petitioner has not adequately 
evidenced the scope of the Beneficiary's responsibilities within the context of the asserted 
collaborative duties. 
Furthermore, the record does not contain a sufficiently detailed description of the Beneficiary's duties 
to establish that the position requires the theoretical and practical application of a body of highly 
specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty, 
or its equivalent. The duties such as "[r]eview epics/features and sort priority order, backlog 
grooming," "[ w ]ork on Agile/Scrum Methodology to meet timelines with quality deliverables," 
"[ e ]valuate, recommend, and assist with the implementation of automated testing tools and strategies," 
and "[a]ssure Federal Grants web application is functionally stable enough to go to production" do not 
illuminate the substantive application of knowledge involved or any particular educational 
requirement associated with such duties. Such a generalized description does not establish a necessary 
6 The record contains an organizational chart of the Petitioner. However, the Petitioner's chart is insufficient to 
demonstrate the Beneficiary's position within the end-client's organizational structure of its project. 
4 
correlation between the proffered pos1t10n and a need for a particular level of education, or its 
equivalency, in a body of highly specialized knowledge in a specific specialty. While the position may 
require that the Beneficiary possess some skills and technical knowledge in order to perform these duties, 
the record lacks sufficient information to understand the nature of the actual proffered position and to 
determine that the duties require the theoretical and practical application of a body of highly 
specialized knowledge attained by a bachelor's degree, or higher, in a specific discipline. 
As noted, where the work is to be performed for entities other than the petitioner, evidence of the client 
companies' job requirements is critical. 7 The end-client stated that the proffered position requires "a 
minimum of a bachelor's [d]egree in [c]omputer [s]cience, [c]omputer [a]pplictions, CIS, 
[i]nformation [t]echnology or related field." The end-client also listed the following "required 
technical skills" for the proffered position: 
• Experience using relational databases (writing queries, etc.) using SQL Server or 
Oracle. 
• Experience using project management software for Scrum (Preferred experience 
using Visual Studio Online). 
• Experience using Visual Studio and Visual Studio Test Manager. 
• Experience with functional, regression, load, performance and security testing. 
• Experience writing and managing automated test suites using various test software 
suites. 
• Experience using automated testing tools. 
• Experience testing and performance/load testing web applications. 
The end-client further stated that the proffered position "requires an individual with exceptional skills, 
not limited to" as follows: 
Selenium, Azure DevOps, Team Foundation Server (TFS), MS Test Manager, 
MS-Office, SQL Server/Oracle, Business Analysis, Test Automation, Test Tool 
Evaluation, Manual Testing, Test Strategy, Test Planning, Test Cases, Test Scripts, 
User story writing, .Net, C#, Kendo, Agile/Scrum, Test and Defect Management. 
However, the end-client did not explain how the Beneficiary would gain such knowledge; whether the 
required experience would be at a level of a bachelor's or a higher degree; and also, did not quantify 
the experience it requires to gain such skills and knowledge. Therefore, the experience requirement 
as stated by the end-client is insufficient to demonstrate that the position requires the theoretical and 
practical application of a body of highly specialized knowledge as required by the Act. Moreover, 
because the end-client did not specify the length of experience it requires, we cannot determine 
whether the position was certified for the correct wage level. 8 
7 See Defensor v. Meissner, 201 F.3d at 387-88. 
8 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. U.S. Dep't of Labor, Emp't & 
Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009); 
http://flcdatacenter.com/download/NPWHCGuidance _Revised_ 11 _ 2009 .pdf. 
5 
The Petitioner reiterated end-client's degree requirements and claimed that the Beneficiary is well 
qualified for the position, referencing his qualifications. However, the test to establish a position as a 
specialty occupation is not the credentials of a proposed beneficiary, but whether the position itself 
requires at least a bachelor's degree in a specific specialty, or its equivalent. Here, the Petitioner has 
not established the substantive nature of the Beneficiary's work. 
The Petitioner submitted an opinion letter authored by~-------~ a professor at I.___ _ ____. 
University. In his letter, the professor (1) described the credentials that he asserts qualify him to opine 
upon the nature of the proffered position; (2) described aspects of the previously discussed job duties 
proposed for the Beneficiary; and (3) stated that these duties require at least a bachelor's degree in 
computer science, computer applications, computer information systems, information technology or 
another closely related field. We carefully evaluated the professor's assertions in support of the instant 
petition but find them insufficient. 
The professor stated that he reviewed the Petitioner's "support letter regarding [its] business and 
operations, and labor condition application information including the beneficiary's qualifications." He 
also stated that he reviewed "[ a ]dditional resources, including a review of company website, their 
Vision Statement, and information relating to offered service, processes, and goals to further 
understand [the Petitioner's] business model, as well as the details of the proffered position." 
However, when determining whether a position is a specialty occupation, 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 are 
critical. Here, the Beneficiary will be performing his duties at the end-client's location for the 
end-client's project. While the professor points out that he reviewed the Petitioner's website to further 
understand its business model, he makes no reference to the end-client and what information regarding 
the end-client, if any, he may have reviewed to understand the end-client's business operations. 
In his letter, the professor's analysis falls short of providing a meaningful discussion of what the 
Beneficiary will actually do in the proffered position at the end-client's location and how those duties 
require the theoretical and practical application of a body of highly specialized knowledge. While we 
appreciate the professor's discussion of the proffered duties, his conclusory statements do not 
sufficiently articulate how he was able to adequately assess the nature of the position at the end-client 
and appropriately determine the educational requirements of the position based upon the generally 
described duties. The absence of any substantive discussion of the duties specific to the end-client's 
project raises doubts about his level of familiarity with the proffered position and also undermines his 
conclusion regarding the degree requirement of the position and diminishes the probative value of his 
letter. 
In summary, we conclude that the Petitioner has not demonstrated through the professor's letter how 
an established curriculum of courses leading to a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is required to successfully serve in the proffered position. For the reasons discussed, 
we find that the professor's opinion letter lends little probative value to the matter here. Matter of 
Caron Int'!, 19 I&N Dec. 791, 795 (Comm'r 1988) (The service is not required to accept or may give 
less weight to an advisory opinion when it is "not in accord with other information or is in any way 
questionable."). For the sake of brevity, we will not address other deficiencies within his analysis of 
the proffered position. 
6 
The Petitioner has not established the substantive nature of the Beneficiary's work. Consequently, this 
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 an issue 
under criterion 3; and (5) the degree of specialization and complexity of the specific duties, which is the 
focus of criterion 4. 9 
The Petitioner has not established that the proffered position is a specialty occupation. 
ORDER: The appeal is dismissed. 
9 As the lack of probative evidence in the record precludes a conclusion that the proffered position is a specialty occupation 
and is dispositive of the appeal, we will not further discuss the Petitioner's asse1tions on appeal regarding the criteria under 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
7