dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OFT- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 27,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development firm, seeks to temporarily employ the Beneficiary as a "data 
modeler" under the H-IB 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)(l5)(H)(i)(b). The H-IB 
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, California Service Center, denied the petition. The Director concluded that the 
Petitioner had not demonstrated that the proffered position qualifies as a specialty occupation 
position. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that it has satisfied all 
evidentiary requirements. 
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 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: 
Matter ofT- Corp. 
(1) 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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F .R. § 214.2(h)( 4 )(iii)(A) to mean not just ~my 
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. THE PROFFERED POSITION 
In a letter submitted with the H -1 B visa petition, the Petitioner described the duties of the proffered 
position as follows (note: errors in the original text have not been changed): 
MAJOR RESPONSIBILITIES AND JOB DUTIES 
In this position, [the Beneficiary] will be responsible for numerous duties. The 
essential functions of the job include, but are not limited to the following (may 
perform other functions that may be assigned) 
• Work on forward and reverse engineering processes, Identify the Data 
Elements (in the source systems), Dimensions, Facts and Measure for 
new enhancement of reports; 
• Review and approve Relational and dimensional Models created by 
other Data Modelers; 
• Create and maintain the Data Model repository as per company 
standards; 
• Migrate data from Databases like Oracle, Teradata, and DB2 to 
Parallel data Warehouse; 
• Reverse Engineer existing databases into PDW specific models; 
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Matter ofT- Corp. 
• Create Dimensional Logical Data Model & Physical Data Model from 
Scratch; 
• Generate DDL 
scripts for implementing Data Modeling changes; 
• Create and maintain CDM/LDM/PDM usmg 3NFmodeling 
techniques; 
• Conduct data profiling assessment that help design a better solution' 
and reduce project risk by quickly identifying and addressing potential 
data issues; 
• Process improvement, normalization/de-normalization, data extraction, 
data cleansing, data manipulation; 
In that letter the Petitioner also stated: 
In order to successfully discharge the duties and to complete the job requirements in 
suitable manner, a Data Modeler must have theoretical and practical application [sic] 
of a body of highly specialized knowledge in the field of Computer 
Science/Engineering/IT /Mathematics, and requires a bachelor's degree or higher in 
the related field. 
In a letter submitted in response to a request for evidence (RFE), the Petitioner identified the 
following additional duties: 
• Create business definition for each data concept as identified in the model 
• Reverse engineered [sic] existing data models; 
• Create Data Quality validation template's [sic] to help reviewing logical and 
conceptual data models[.] 
In another letter submitted in response to the RFE, the Petitioner included the following additional 
duty: 
• Create business rules indicating how ent1t1es relate to each other represented 
through relati9nship between data concepts. 
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 that the proffered position qualifies as a specialty occupation. 
Specifically, there are discrepancies in the record 
that cast doubt on whether the Petitioner has 
accurately described its in-house projects and the Beneficiary's participation in them. 
The Petitioner has asserted that the Beneficiary will perform the duties described as a data modeler 
on its project, and its 
project. In support of its assertion, the Petitioner submitted project charters for both projects. The 
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(b)(6)
Matter ofT- Corp. 
project charters, among other things, list the personnel required for the projects. However, the 
project charters do not indicate that either projects require the proffered position; a data modeler. 
The project charters also do not require a database administrator, which is the occupational category 
that the Petitioner designated for the proffered position on the labor condition application (LCA). 
Further, the Petitioner provides inconsistent information regarding the required personnel for the 
projects in its response to the RFE. As to the project, the 
Petitioner states, "Number of Employees Working on it: 2." It then follows by listing four workers, 
including the Beneficiary, immediately contradicting its claim that only two employees are working 
on the project. It further states that the project requires, five additional personnel; which includes a 
resource manager/financial analyst, an ASP.NET/software developer, a business analyst, a 
programmer analyst, and a computer system analyst. Notably, this varies from the project charter, 
which lists a project sponsor, a business analyst, an IT project lead, a lead software developer, a 
build and release engineer, four software developers, and two software QA analysts. 
Similarly, as to the project, the Petitioner again states in its 
response to the RFE, "Number of Employees Working on it: 2." It then lists four workers as the 
project's project manager, and software developers, and lists the Beneficiary as its data modeler. 1 It 
further states that the project requires, in addition, a resource manager/financial analyst, an 
ASP.NET/software developer, a business analyst, a programmer analyst, and a computer system 
analyst. However, the project charter for that project also does not indicate that the project will 
require the same resources. 
Moreover, the project charter for the indicates that $500,000 
is budgeted for the project, which, as noted, will require at least 10 different positions in addition to 
"the newly formed team."2 The amount budgeted appears inadequate to 
recompense the number of people required - including a whole new team of - for the 
anticipated length ofthisproject. 3 Likewise, the project charter for the 
reflects a budget of $200,000, which also appears inadequate to recompense at least six 
resources needed for the project. 4 We have further reason to doubt the reliability of the Petitioner's 
financial projections, especially considering that the Petitioner listed a net annual income of only 
$32,500 on the H-1B petition (filed in April 2015), and reported a business income loss of -$30,774 
1 Again, the Petitioner states that two workers are assigned to that project and immediately afterward to identify four 
workers, including the Beneficiary, contradicting its own statement. 
2 The project charter makes clear that this auditing team does not yet exist, as the Petitioner "is planning to offer 
through this "new team of " 
3 
As will be explained infra, there are also discrepancies regarding the expected length of the project. 
4 
This project charter lists the required resources as including an unspecified number of "software developers." The 
Petitioner 
does not further identify how many software developers will be assigned to this particular project. 
We recognize the possibility that the same personnel would work on both the and 
projects. Even if this were the case, however, the Petitioner has not sufficiently 
documented that it has the means to support both projects projected to have a total budget of$700,000. 
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(b)(6)
Matter ofT- Corp. 
in its 2014 federal tax return. We therefore find inadequate evidence to corroborate the claimed 
scope of these two projects and, accordingly, the Petitioner's need for the Beneficiary's services in 
the manner asserted. 5 
In addition, the Petitioner's RFE response indicates that both projects will begin in early 2015 and 
will end in 18-24 months. But the project charter for the 
states that the "estimated project duration is 24-36 months." The project charter for the 
states that "total effort for the development is 18-24 months," yet 
states elsewhere that the total number of days needed to complete the project is 395 days. The 
Petitioner has not resolved these inconsistences. 
Further, although the Petitioner previously indicated that the Beneficiary would work on the 
Petitioner's in-house projects, it suggested in its RFE response that it might assign the Beneficiary to 
work elsewhere. In its RFE response, the Petitioner stated: "[The Petitioner's] workers are mostly 
IT consultants ... who are currently working at client projects in various locations. Further, the 
Petitioner is hiring employees who can work on the in-house projects and, when required to be 
placed on the client's projects." The terms of his possible reassignment to other companies' projects 
at their locations and the duties he would perform there are unknown to us. 
Considering overall the Petitioner's inconsistent and unsupported statements regarding critical 
aspects ofthe projects, such as their funding, required resources, and timelines, the Petitioner has not 
established that it has sufficient specialty occupation work available for the Beneficiary for the entire 
validity period requested. We note that the Petitioner is requesting a validity date through 
September 9, 2018, and thus, has not adequately explained and documented how it will utilize the 
Beneficiary's services for the entire validity period requested.6 
5 The Project Charters indicate that $150,000 will come from a business loan, while another $100,000 will be loaned 
from the Petitioner's owner's spouse. The Petitioner 
did not submit objective evidence of these claimed loans. 
6 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the" Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B 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 B 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 B 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). While a petitioner is certainly permitted to change its intent with regard to 
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Matter ofT- Corp. 
Doubt cast on any aspect of the Petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). It is incumbent upon the Petitioner to resolve any 
inconsistencies in the record with independent objective evidence, and attempts to explain or 
reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in 
fact, lies, will not suffice. !d. at 591-592. 
Further, we find that the record (1) does not describe the position's duties with sufficient detail; and 
(2) does not establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty. occupation. 7 
Specifically, many of the duties the Petitioner attributed to the proffered position appear to have 
been copied, with minimal editing, from the Beneficiary's resume. That resume includes the 
following duties, inter alia, in the following order (note: errors in the original have not been 
changed): 
• Reverse engineered the reports and identified the Data Elements (in the source 
systems), Dimensions, Facts and Measures required for new enhancement of 
reports. \ 
• Involved in reviewing and approving Relational & dimensional Models created by 
other Data Modelers. 
• Created and maintained the Data Model repository as per company standards. 
• Reverse Engineered existing databases into PDW specific Data models. 
• Created Dimensional Logical Data Model & Physical Data Model from Scratch. 
• Generated DDL scripts for implementing Data Modeling changes. 
• Created and maintained CDM/LDM/PDM using 3NFmodeling techniques. 
• Conducted data profiling assessment that helped design a better solution and reduce 
project risk by quickly identifying and addressing potential data issues. 
The similarity between those duties and the duties the Petitioner attributes to the proffered position 
suggests that the Petitioner, rather than providing a detailed list of the duties the Beneficiary would 
perform in the proffered position in the context of its own business operations and on a project that is 
underway, has copied from the list of duties the Beneficiary claims to have previously performed for 
other employers on other projects. The actual duties the Beneficiary would perform, therefore, are 
not clear. 
non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
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The Petitioner submitted documentation to support the H-1 8 petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
Matter ofT- Corp. 
Even assuming, arguendo, that these job duties were not copied from the Beneficiary's resume and 
are otherwise relevant to the proffered position, we still find them insufficient to convey the 
substantive nature of the work to be performed. The job duties are overly broad and the Petitioner 
did not adequately explain why those duties would require a minimum of a bachelor's degree in a 
specific specialty or its equivalent. For example, the Petitioner states that the Beneficiary would 
"work on forward and reverse engineering processes" and "identify Data Elements (in the source 
systems), Dimensions, Facts and Measure for new enhancement of reports." However, the Petitioner 
did not otherwise elaborate on the specific tasks, methodologies, and applications of knowledge that 
would be required in furtherance of these overarching duties. 
In addition, the wage-level designated by the Petitioner on the LCA raises further questions 
regarding the accuracy and reliability of its description of the proffered position and its constituent 
duties. On the LCA, the Petitioner characterized the proffered position as a wage Level I database 
administrator position. The wage levels are defined in the Department of Labor's (DOL) "Prevailing 
Wage Determination Policy Guidance," which describes a Level I wage rate as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees 
who have only a basic understanding of the occupation. These employees perform 
routine tasks that require limited, if any, exercise of judgment. The tasks provide 
experience and familiarization with the employer's methods, practices, and programs. 
The employees may perform higher level work for training and developmental 
purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored 
and reviewed for accuracy. Statements that the job offer is for a research fellow, a 
worker in training, or an internship are indicators that a Level I wage should be 
considered. 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 2009.pdf. 
In designating the proffered position at a Level I wage rate, the Petitioner indicated that the proffered 
position is a comparatively low, entry-level position relative to others within the occupation and 
indicates: (1) 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. 
However, some of the Petitioner's assertions conflict with that wage-level designation. For example, 
despite the Level I wage-level designation, the Petitioner stated, in response to the RFE, that the 
position is complex and that the Beneficiary would, "Review and approve Relational and 
dimensional Models created by other Data Modelers." This appears inconsistent with the Level I 
Matter ofT- Corp. 
designation as an entry-level employee who is expected to perform routine tasks and whose work is 
closely supervised and reviewed for accuracy. This raises additional questions regarding the 
reliability of the Petitioner's duty description. 
Yet further, the Petitioner asserted that the essential duties of the proffered position are not limited to 
those described, but that the Beneficiary may perform other duties that have not been described. We 
are unable to determine whether those other additional duties would be specialty occupation duties. 
For all of these reasons, the Petitioner has not established the substantive nature of the proffered 
position. That the Petitioner did not establish the substantive nature of the work to be performed by 
the Beneficiary precludes a finding that the proffered position is a specialty occupation under 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 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 ofcomplexity 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. 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. The appeal will be 
dismissed on this· basis. 
IV. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT- Corp., ID# 123533 (AAO Sept. 27, 2016) 
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