dismissed H-1B Case: Software Development

MATTER OF DWM-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 25,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WURKER 
The Petitioner, a software development and computer consulting services company, seeks to 
temporarily employ the Beneficiary as a "QA analyst" under the H-1B 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)(15)(H)(i)(b). The H-1B 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, Vermont Service Center, denied the petition. The Director concluded that the Petitioner 
had not demonstrated that the Beneficiary is qualified to perform services in a specialty occupation. 
The Director further determined that the Beneficiary had not maintained her nonimmigrant status. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in 
concluding that the Beneficiary is not qualified to perform the duties of the proffered position, and 
submits additional evidence in support ofthis assertion. 
Upon de novo review, we will dismiss the appeal. 
I. BENEFICIARY'S STATUS 
The Director determined that the record did not establish the Beneficiary had maintained her 
nonimmigrant status. The Petitioner submitted an appeal addressing, intra alia, the denial of the 
change of status request. We will not address this issue as we lack jurisdiction over this matter. 
The authority to adjudicate appeals is delegated to us by the Secretary of Homeland Security 
pursuant to the authority vested in him. DHS Delegation No. 0150.1 (effective Mar. 1, 2003) 
(delegation of appellate jurisdiction to USCIS); 6 U.S.C. § 112(b)(1 ); see also 8 C.F.R. § 2.1 (2003). 
The regulations limit our jurisdiction over petitions for temporary workers to those described under 8 
C.F.R. §§ 214.2 and 214.6. See 8 C.F.R. § 103.1(f)(3)(iii)(J) (2003). 
A request for a change of status in an H-1B submission is not a petition within the meaning of 
section 214(c)(l) of the Act, 8 U.S.C. § 1184(c)(1), and does not confer any of the appeal rights 
Matter of DWM-, Inc. 
normally associated with a petition. The Form I-129, Petition for a Nonimmigrant Worker, in this 
context is merely the vehicle by which information is collected to make a determination on the 
application for change of status. There is no appeal of the denial of an application for a change of 
nonimmigrant classification. 8 C.F.R. § 248.3(g). ' 
We do not have jurisdiction over this matter, as issues surrounding the Beneficiary's maintenance of 
nonimmigrant status are within the sole discretion of the Director. Therefore, we will not further 
address this issue. 
II. SPECIALTY OCCUPATION 
The Director denied the petition, concluding that the Petitioner did not establish that the Beneficiary 
is qualified to perform the services in a specialty occupation. A beneficiary's credentials to perform 
a particular job, however, are relevant only when the job is found to qualify as a specialty 
occupation; U.S. Citizenship and Immigration Services (USCIS) is required to follow long-standing 
legal standards and determine first, whether the proffered position qualifies as a specialty 
occupation, and second, whether a beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assoc., 19 I&N Dec. 558, 560 
(Comm'r 1988) ("The facts of a beneficiary's background only come at issue after it is found that 
the position in which the petitioner intends to employ him falls within [a specialty occupation]."). In 
the instant case, the record of proceedings does not establish that the proffered position qualifies as a 
specialty occupation. 
A. 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: 
(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 
2 
(b)(6)
Matter of DWM- , Inc. 
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). US CIS 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. 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). 
B. The Proffered Position 
The Petitioner submitted a labor condition application (LCA) in support of the instant H -1 B, 
indicating that the proffered position was that of a QA analyst and corresponds to the Standard 
Occupational Classification (SOC) code 15-1199, at a Level II wage. 1 We note that, while SOC 
code 15-1199 corresponds to the occupational category "Computer Occupations, All Other," the 
Petitioner classified the proffered position within the sub-occupational category of "Software 
Quality Assurance Engineers and Tester ," which corresponds to SOC code 15-1199.0 I. 
In its initial letter of support, the Petitioner claimed that the Beneficiary would be employed offsite at 
the offices of its client, and would be responsible for the following duties: 
• Write and execute detailed Test Cases based on requirements. 
• Participate in End-to-End validation . of Professional, Hospital, Dental, Medical 
Transportation, and Pharmacy claims while transitioning from ICD-9 codes to 
ICD-10. 
• Work with the Test Lead 
towards implementation of the Test Cycles. 
• Work with other Support Groups towards the successful execution of Test Cases. 
• Identify risks and provide recommendations to the Test Lead. 
• Develop, modify, and execute ICD 10 test cases and test scripts. 
1 The "Prevailing Wage Determination Policy Guidance" issued by the U.S. Department of Labor provides a description 
of the wage levels. A Level li wage rate is for a petitioner who expects its employee to perform moderately complex 
tasks that require limited judgment. U.S. Dep't of Labor, Emp't & Training Admin ., Prevailing Wage Determination 
Policy Guidance, Nonagric . Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com /download/NPWHC _Guidance_ Revised _ II_ 2009.pdf. 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 . !d. 
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(b)(6)
Matter of DWM-, Inc. 
• Test and Validate data and diagnos(e] codes, Sugarcodes from ICD-9 to ICD-10. 
• Identify all testing prerequisites. 
. The Petitioner did not indicate that there are any specific requirements for the proffered position.2 
C. 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 notdescribe 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.3 
First, we note that the documentation submitted in support of the proffered position, which the 
Petitioner claims will be performed on site at the offices of is insufficient. The Petitioner 
submitted a Master Services Agreement (MSA) with the vendor which it 
claims constitutes the basis for its assignment of the Beneficiary to work onsite at However, the 
MSA does not include a statement of work or work order, nor does it identify the Beneficiary by 
name or articulate the nature of the need for the Beneficiary's services as a QA analyst. Although 
the Petitioner submitted a letter from in response to the Director's request for evidence (RFE), 
which confirms that the Beneficiary is rendering services at its South Carolina location, it 
provides no details regarding the nature of the project. Notably, the letter refers to the 
Beneficiary's services as a "Programmer." That is, the document does not indicate that the 
Beneficiary is a QA analyst (as stated in the H-1 B petition) but rather a "Programmer." There is no 
indication that the duties of a programmer are the same as a QA analyst. Moreover, the letter refers 
to a Statement of Work, which is not included in the record. 
The Petitioner also submitted a letter from in response to the RFE, which is intended to further 
verify the assignment of the Beneficiary to the location.4 However, this letter states that the 
Beneficiary is providing services "for our client at There is no documentation in the 
record to establish the relationship between and nor is there any discussion of the 
specific requirements of this third-party client. Absent documentation establishing the existence of a 
specific project, and the details of such a project, we are unable to determine the nature of the 
Beneficiary's · duties. Moreover, the employment agreement submitted in response to the RFE 
indicates that the Beneficiary "agrees to be assigned in any facility/client sites as Company deems it 
2 The Petitioner does not claim 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 a specific specialty, or its equivalent , as 
the minimum requirement for entry into the occupation, as required by the Act. 
3 The Petitioner submitted documentation to support the H-1 B 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. · 
4 The letter provides a list of duties· for the Beneficiary . Notably , the duties do not match the tasks provided by the 
Petitioner for the proffered position in the letter of support . 
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Matter of DWM- , Inc. 
necessary .... " This clause in the employment agreement clearly indicates that the nature and 
duration of the Beneficiary's assignments may fluctuate during the requested validity period. This 
clause, therefore, coupled with the lack of documentation pertaining to the claimed project upon 
which the Beneficiary is currently said to be working, renders it impossible to determine the true 
nature and requirements of the proffered position. 
This lack of documentation is further significant because the duties of the position, as currently 
presented, are in abstract and generalized terms such as "identify all testing pre-requisites" and 
"write and execute detailed Test Cases based on Requirements." These duties do not communicate 
what the Beneficiary would do on day-to-day basis or what bodies of knowledge are required to 
perform these duties. We note that these duties are derived from client requirements and 
prerequisites, none of which have been presented into the record. 
Here, the record suggested that the entity ultimately employing the Beneficiary is which is 
not mentioned in the record aside from a brief sentence in the letter from submitted in response 
to the RFE. Absent a description of the conditions of the Beneficiary 's employment, such as 
contractual agreements, statements of work, work orders, service agreements, and/or letters from 
authorized officials of (or any other ultimate client companies where the Beneficiary would 
work) that describe, in detail, the duties to be performed, we cannot determine the substantive nature 
of the duties of the proffered position. 
As recognized in Defensor v. Meissner , 201 F.3d at 387-8, it is necessary for the end-client to 
provide sufficient information regarding the proposed job duties to be performed at its location in 
order to properly ascertain the minimum educational requirements necessary to perform those duties. 
In other words, as the nurses in that case would provide services to the end-client hospitals and not 
to the petitioning staffing company, the Petitioner-provided job duties and alleged requirements to 
perform those duties were irrelevant to a specialty occupation determination . See id. 
Further, the record lacks credible evidence that when the Petitioner filed the petition, the Petitioner 
had secured any other work of any type for the Beneficiary to perform during the requested period of 
employment. Aside from the generic MSA with which does not identify the Beneficiary as a 
contractor or state the need for the services of a QA analyst in general, there is no other evidence to 
demonstrate that specialty occupation work was secured for the Beneficiary at the time of filing. 
The record as constituted contains insufficient evidence to corroborate the existence of the claimed 
project, or the substantive nature of the particular duties that its development would require. 5 
5 The agency made clear long ago that speculative employment is not permitted in the H-1 8 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 
5 
(b)(6)
Matter of DWM-, Inc. 
I 
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.P.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 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 criterion4. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 
8 C.P.R. § 214.2(h)(4)(iii)(A), it cannot be found thatthe proffered position qualifies as a specialty 
occupation. 
III. BENEFICIARY'S QUALIFICATIONS 
We do not need to examine the issue of the Beneficiary's qualifications because the Petitioner has 
not provided sufficient evidence to demonstrate that the proffered position is a specialty occupation. 
In other words, a beneficiary's credentials to perform a particular job are relevant only when the job 
is found to be a specialty occupation. 
As discussed in this decision, the Petitioner did not submit sufficient evidence regarding the 
proffered position to determine whether it will require a baccalaureate or higher degree in a specific 
specialty or its equivalent. Absent this determination that a baccalaureate or higher degree in a 
specific specialty, or its equivalent, is required to perform the duties of the proffered position, it also 
cannot be determined whether the Beneficiary possesses that degree, or its equivalent. Therefore, 
we need' not and will not address the Beneficiary's qualifications further, except to note that, in any 
event, the combined evaluation of the Beneficiary's education and work experience submitted by the 
Petitioner is insufficient to establish that the Beneficiary possesses the equivalent to a U.S. 
bachelor's degree in any specific specialty.6 
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) ofthe 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) . 
6 We concur with the Petitioner's assertions that the Beneficiary's degree rrom was not in English, 
as the Director concluded , but rather in the field of science. Specifically , the "medium" identified on the Beneficiary 's 
diploma was English, which was improperly interpreted by the 
Director to be the Beneficiary 's field of study . The 
(b)(6)
Matter of DWM-, Inc. 
The claimed equivalency was based in part on experience; however, the record does not contain 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. 8 C.F.R. 
§ 214.2(h)(4)(iii)(C)(l). We note that although the evaluator , may be 
concurrently employed by the submitted evaluation was issued by a 
credential evaluation service , not by In accordance with 8 C.F.R. 
§ 214.2(h)(4)(iii)(C)(3) , we will accept a credential evaluation service ' s evaluation of education 
only, not training and/or work experience. The record also does not contain sufficient evidence that 
the Beneficiary has recognition of expertise in the specialty through progressively responsible 
positions directly related to the specialty. See 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) and (D)(l). For 
instance, while the afore-mentioned education evaluation makes certain claims regarding the 
qualifications of the Beneficiary's peers, Jhe evidence in the record does not corroborate these 
claims. As such, since inadequate evidence was presented that the Beneficiary has at least a U.S. 
bachelor's degree in a specific specialty, or its equivalent, the petition could not be approved even if 
eligibility for the benefit sought had been otherwise established. 
IV. CONCLUSION 
We may deny an application or petition that does not comply with the technical requirements of the 
law even if the Director does not identify all of the grounds for denial in the initial decision. See 
Spencer Enters., Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001). 
Moreover
, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated . . 
grounds. See Spe!lcer Enters., Inc. v. United States, 229 F. Supp. 2d at 1037; see also BDPCS, Inc. 
v. FCC, 351 F.3d 1177, 1183 (D.C. Cir. 2003) ("When an agency offers multiple grounds for a 
decision, we will affirm the agency so long as any one of the grounds is valid, unless it is 
demonstrated that the agency would not have acted on that basis if the alternative grounds were 
unavailable."). 
The petition will be . denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 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 ofOtiende , 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofDWM- , Inc., ID# 17758 (AAO Aug. 25, 2016) 
accompanying transcript demonstrates that the Beneficiary 's field of study was in science, specifically noting course 
completed in math, chemistry , and physics .