dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 0-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 3, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and service company, seeks to temporarily employ the 
Beneficiary as a ""software engineer" under the H-1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) § 10l(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 ofhighly 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 
evidence of record does not establish that the Petitioner has specialty occupation work available for 
the Beneficiary, and thus, that the proffered position does not qualify as a specialty occupation. 
The matter is now before us on appeal. In its appeaL the Petitioner submits additional evidence and 
asserts the proffered position is a specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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 of 0-. Inc. 
( 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 
(..f) 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 any 
baccalaureate or higher degree. but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. Cher((?{j; 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 labor condition application (LCA) submitted to support the visa petition states that the proffered 
position corresponds to standard occupational classification (SOC) code and title 15-1132. ··software 
Developers. Applications." The LCA further states that the prevailing wage is at Levell. 
In a letter dated March 25. 2015, the Petitioner explained that it .. specializes in data projects and 
products while using the latest technology. architectural structures and databases to deliver 
enterprise level applications to some of the largest insurance companies." The Petitioner stated that 
the Beneficiary. as a software developer. will be .. responsible for the development of information 
systems by designing. developing and installing software solutions." The Petitioner also submitted a 
job description that requires .. a minimum of a bachelors (or higher degree) in computer science. 
mathematics. or a related field.'' 
In response to the request for evidence (RFE), the Petitioner stated that it has specialty occupation 
work available for the Beneficiary to provide his services for an in-house job. The Petitioner stated 
that .. this job is strictly an in-house job and the worker is not sent out to work at other companies." 
The Petitioner also submitted a breakdown of the percentage of time the Beneficiary will spend on 
each duty as follows: technical decomposition of news features (35 percent): architecting solutions 
(25 percent); review code of other developers (5 percent); and. \\Titing code (35 percent). The 
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(b)(6)
Matter of 0-, Inc. 
Petitioner also stated that an ''advanced education is required'' because the insurance software is 
complex since it requires the following: 
• Calculate rates based on hundreds of factors 
• Calculate commission for agents/brokers/managing general agencies usmg 
complex formulas 
• Calculate Loss Ratio for insurance programs 
• Handle thousands [of] agents/brokers/insurers company employees 
• Handle hundreds of thousands [of] customers. 
The Petitioner also submitted a copy of an organizational chart that is illegible. Although it appears 
that the Beneficiary's position title is "new software engineer,'' it is impossible to read the supervisor 
titles, the department in which the proffered position will be placed, or the organizational structure 
ofthe company. 
In another document, the Petitioner further explained its software products as follows: 
[The Petitioner] writes and distributes core software systems to the Property and 
Casualty insurance space. Our of product include[ s J 
(policy issuance and management system). (CRM and Agency Management 
System). (data warehouse and BI suite), (payment processing 
and reconciliation), (contact management solution), (CRM and 
Lead Management Solution). We have over 25 customers in the US P&C market and 
are a leading provider of core applications to insurance carriers, general agencies and 
agencies in the US. 
On appeal, the Petitioner provides a new position description as follows: 
35% oftime- Technical decomposition of new features 
Technical decomposition for [the Petitioner] sr. software engineers consists of: 
• Analyzing user's needs 
• Analyzing new feature requests and modification requests for already existing 
features from [the Petitioner's] sales team for products [the Petitioner] creates and 
sells 
• Translating those needs and requests into technical language a less advanced group of 
software engineers would understand by creating "development items" in [the 
Petitioner's] development tracking software, 
• Communicating with software engineers who are assigned to implement decomposed 
tasks when they have questions 
25% oftime- Architecting solutions 
A person architecting a solution at [the Petitioner J: 
• Recommends upgrades for the technologies we use 
• Designs and maintains the overall architecture of our products 
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(b)(6)
Matter of 0-. Inc. 
• Makes sure that the architecture of a product he or she is responsible for is scalable 
and reliable 
• Verify that all the new feature added to the product fit the overall grand design 
• Makes sure that the overall architecture does not prevent the product the architect is 
responsible for docs not break compatibility with other products [the Petitioner] 
develops and sells by working with architects on other products 
• Documents all architectural decisions made 
5% of time - Review code of other developers 
As a Sr. Engineer a coder reviewer at [the Petitioner]: 
• Reviews code that is submitted by other developers to our source code repository and 
make sure that: 
The code is in compliance with architectural documents created by the architect. 
The code adheres to the coding standards defined in a coding standard document 
created by the architect and team leads. 
35% oftime- Writing Code 
[The Petitioner] created very complex and rich in functionality applications for the 
insurance industry. There is enough work for our team leads and architects to work 
only on the 3 items above but in an effort to prevent those higher level software 
engineers and architects becoming just theoretical engineers [the Petitioner] requires 
software engineers to implement some of the features they decompose and architect. 
The Petitioner also submits several '·payment processing"' contracts between the Petitioner and its 
clients and an opinion letter regarding the proffered position prepared by 
Associate Professor of Computer Applications and Information Systems at the 
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. the record (1) does not describe the position's duties with sufficient detail: and (2) docs 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 1 
For H-1 B approval, the Petitioner must demonstrate that a legitimate need for an employee exists 
and substantiate that it has H-1 B caliber work for the Beneficiary for the period of employment 
requested in the petition. It is incumbent upon the Petitioner to demonstrate it has suflicient work to 
require the services of a person with at least a bachelor's degree in a specific specialty. or its 
equivalent, to perform duties at a level that requires the theoretical and practical application of at 
1 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffe red 
position and its business operations . While we may not discuss every document submitted , we have reviewed and 
considered each one. 
4 
Matter of 0-, Inc. 
least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for 
the period specified in the petition. 
In this matter, the Petitioner initially indicated that the Beneficiary will be employed in-house as a 
software developer. However, upon review of the record of proceedings, we find that the Petitioner 
did not provide sufficient, credible evidence to establish in-house employment for the Beneficiary as 
a software developer for the validity of the requested H-lB employment period. Specifically, the 
Petitioner did not submit a consistent and detailed job description to adequately convey the 
substantive work to be performed by the Beneficiary. 
As ret1ected in the descriptions of the position as quoted above, the proffered position has been 
described in terms of generalized and generic functions that do not convey suflicient substantive 
information to establish the relative complexity. uniqueness and/or specialization of the protTered 
position or its duties. For example. the Petitioner stated that the Beneficiary will be responsible for 
the ''development of information systems by designing. developing and installing software 
solutions·· and "designling] and maintain[ing] the overall architecture of our products" while being 
responsible for "analyzing new feature requests and modification requests for already existing 
features from [the Petitioner's] sales team for products [the Petitioner] creates and sells." This 
description. however, is generalized and generic because the Petitioner does not convey the 
substantive nature of the work that the Beneficiary would actually perform. or any particular body of 
highly specialized knowledge that would have to be theoretically and practically applied to perform 
it. The responsibilities for the proffered position contain generalized functions without prmiding 
sufficient information regarding the particular work, and associated educational requirements. into 
which the duties \vould manifest themselves in their day-to-day performance. Although. the 
Director requested a more detailed job description. the Petitioner provided only four general duties 
and the percentage breakdown. Therefore. the Petitioner has not provided sufficient evidence to 
demonstrate what the Beneficiary would actually be doing. 
In addition, the Petitioner provided inconsistent level of authority for the proffered position. The job 
description that the Petitioner submits on appeal describes the position as "senior" software engineer. 
As a "senior'· software engineer. the Beneficiary will analyze and design and communicate \Vith 
"software engineers who are assigned to implement decomposed tasks when they have questions ... 
We note that on appeal, a petitioner cannot offer a new position to the beneficiary. or materially 
change a position's title, its level of authority within the organizational hierarchy, the associated job 
responsibilities. or the requirements of the position. A petitioner must establish that the position 
offered to the beneficiary when the petition was filed merits classification for the benefit sought. See 
Matter ofMichelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm·r 1978). A petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to USClS 
requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm·r 1998). 
We further note that the Petitioner has designated the proffered position as a Level I position on the 
(LCA). indicating that it is an entry-level position for an employee who has only basic understanding 
of the occupation. The Petitioner's designation of this position as a Level I. entry-level position 
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(b)(6)
Matter of 0-, Inc. 
undermines its claim on appeal that the pos1t1on is for a ··senior" software engineer.2 ·'[I]t is 
incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence ... 
Matter of Ho. 19 I&N Dec. 582. 591 (BIA 1988). Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing 
to where the truth lies. !d. at 591-92. 
We also note that the record of proceedings lacks documentation regarding the Petitioner's business 
activities and the actual work that the Beneficiary will perform to sufficiently substantiate the claim 
that the Petitioner has H-1 B caliber work for the Beneficiary for the period of employment requested 
in the petition. For example. on appeal, the Petitioner submits several contracts between the 
Petitioner and clients for a payment processing service. However. none of this documentation 
explains how a software engineer would assist on these projects, and none of the documents 
specifically name the Beneficiary as the personnel to assist with these projects. Thus. the Petitioner 
did not provide documents to substantiate its ongoing projects for the H-1B validity period. 
··[G]oing on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings.'" ,Hatter l?l S<?ffici, 22 I&N Dec. 158. 165 
(Comm'r 1998) (citing 1Uatter l?f"Treasure Craft l?(Cal., 14 I&N Dec. 190 (Reg'! Comm·r 1972)). 
We will also briefly address why we accord little probative weight to opinion regarding 
the proffered position. stated that he was asked to evaluate 
the degree requirements 
expected for the professional position of software engineer for the Petitioner. concluded 
that the protlered position requires preparation at the bachelor's degree level in software engineering 
or a related area at a minimum. 
We reviewed the opinion letter in its entirety; however. we find that the letter from is not 
persuasive in establishing the protTered position qualities as a specialty occupation position. 
Specifically. provides a briet: general description of the Petitioner's business activities; 
however, he does not demonstrate or assert in-depth knowledge of the Petitioner's specific business 
operations or how the duties of the position would actually be performed in the context of the 
Petitioner's business enterprise. For instance. there no evidence that he visited the Petitioner's 
premises, observed the Petitioner's employees, interviewed them about the nature of their work. or 
documented the knowledge that they apply on the job. 
There is also no indication that the Petitioner advised that it characterized the proffered 
position as an entry-level software developer position. In accordance with the relevant DOL 
explanatory information on wage levels. a Level I position is indicative that. relative to other 
positions falling under the occupational category, the Beneficiary is expected to only have a basic 
understanding of the occupation. The wage-rate indicates that the Beneficiary will be expected to 
perform routine tasks that require limited. if any, exercise of judgment: that he will be closely 
supervised and his work closely monitored and reviewed for accuracy: and that he will receive 
2 The discrepancy in the job title of software engineer as listed on the Form 1-129 and --senior'' software engineer as 
submitted on appeal. may affect the validity of the LCA since the LCA was certified for a Level I position. 
(b)(6)
Matter <?f 0-, Inc. 
specific instructions on required tasks and expected results. It appears that would have 
found this information relevant for his opinion letter. Moreover. without this information. the 
Petitioner has not demonstrated that possessed the requisite information necessary to 
adequately assess the nature of the Petitioner's position and appropriately determine parallel 
positions based upon the job duties and responsibilities. We therefore consider this a significant 
omiSSIOn. 
In short. does not provide a substantive. analytical basis for his opinion and ultimate 
conclusion. His opinion does not relate his conclusion to specific. concrete aspects of this 
Petitioner's business operations to demonstrate a sound factual basis for the conclusion about the 
educational requirements for the particular position here at issue. He has not provided sufficient 
facts that would support the assertion that the protTered position requires at least a bachelor's degree 
in a specific specialty (or its equivalent). 
In summary, and for each and all of the reasons discussed above, the opinion letter rendered by 
is not sufficient to establish the proffered position qualities as a specialty occupation. The 
conclusions reached by lack the requisite specificity and detail and are not supported by 
independent. objective evidence demonstrating the manner in which he reached such conclusions. 
Further, the opinion is not in accord with other information in the record. 
As such. neither findings nor his ultimate conclusions are worthy of deference. and his 
opinion letter is not sufficient to satisfy any criterion of the regulation at 8 C .F.R. 
§ 214.2(h)(4)(iii)(A). We may. in our discretion, use opinion statements submitted by the Petitioner 
as advisory. Matter o.fCaron Int'l. Inc .. 19 I&N Dec. 791. 795 (Comm 'r 1988). However. where an 
opinion is not in accord with other information or is in any way questionable. we are not required to 
accept or may give less weight to that evidence. Id. 
The Petitioner has not provided sufficient details regarding the nature and scope of the Beneficiary" s 
employment or any 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 and/or specialization of the 
tasks, and/or (3) the correlation between that work and a need for a particular level education of 
highly specialized knowledge in a specific specialty. 
The Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, which therefore precludes a finding 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 (I) 
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 
Matter of 0-. Inc. 
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. 
As the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. § 
214.2(h)( 4 )(iii)(A), it cannot be found that the proffered position qualifies as a specialty occupation. 
IV. CONCLUSION 
As set forth above, we find the evidence of record insufficient to establish that the proffered position 
qualifies for classification as a specialty occupation. 3 
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; Matter <~[Otiende, 26 I&N Dec. 127. 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter q/0-. Inc., ID# 16343 (AAO May 3, 2016) 
3 As these issues preclude approval of the petition, we will not address any additional deficiencies we have identified on 
appeal. 
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