dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 8441292 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 27, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "devops quality engineer" 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 . § l 10l(a)(l5)(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 Vermont Service Center Director denied the petition, concluding that the record did not establish 
that the proffered position qualifies as a specialty occupation and that the Beneficiary would perform 
services in a specialty occupation for the duration of the requested employment period . 
The petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 1 
The Administrative Appeals Office (AAO) reviews the questions in this matter de nova. 2 Upon de 
nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § l 184(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. 
1 Section 291 of the Act; Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc ., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
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: 
( I) 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). 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
The Petitioner's Form I-129, Petition for a Nonimmigrant Worker, indicated that the Beneficiary will 
work onsite at the Petitioner's offices. On the labor condition application (LCA) 3 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 
15-1132. In its letter in support of the petition, the Petitioner indicated that it provides consulting 
solutions to a wide variety of industries and that the Beneficiary "will be involved in the design, 
testing, and implementation of software systems and applications." The Petitioner added that the 
Beneficiary "may design and develop both packaged and systems software, including relational 
databases, or is involved in creating custom software applications for clients" and will evaluate user 
requests for new or modified programs. The Petitioner listed five broad categories of duties and 
allocated the Beneficiary's time to those categories and then added an eight-bullet point list of general 
responsibilities. 
In response to the Director's request for evidence (RFE), the Petitioner indicated that the Beneficiary 
will be involved in the development of its specific software product for marketing and sales 
organizations. The Petitioner repeated the initial five categories and allocation of time as follows: 
3 The Petitioner is required to submit a certified LCA 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 experience and qualifications who are performing the same services. Section 212(n)(l) 
of the Act; 20 C.F.R. § 655.73l(a). 
2 
• Application testing, planning, and implementation (50%); 
• Application test automation scripting and integration (20% ); 
• Defect monitoring and KPI reporting (10%); 
• Application releases into DevOps facilities (10%); and, 
• New open technologies and automation methods research and innovation (10%). 
The Petitioner also interspersed the initial eight responsibilities into the five categories and added an 
additional five duties for the proposed position. The Petitioner provided an overview of the claimed 
project and asserted that the Beneficiary's involvement in the project would include design and 
development primarily of the ERP systems integration components of the project. 
The Petitioner asserts that "a candidate must have completed course work and training in Computer 
Science or a closely related area at the undergraduate level at a minimum to competently handle the 
duties required by the Software Developer position of the Petitioner (emphasis in original)." 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not include consistent, probative evidence regarding the nature of the 
proposed position, such that it can be concluded that the job duties require an educational background, 
or its equivalent, commensurate with a specialty occupation. 
The petition was filed April 3, 2018 for a requested employment period beginning October 1, 2018 to 
August 31, 2021. The Petitioner asserts that the Beneficiary's proposed position will be involved, 
generally in the ERP component design and development of its product. However, the record does 
not include sufficient evidence to ascertain how the broadly stated duties of the position fit within the 
context of the claimed in-house project. Although the Petitioner provides an overview and market 
analysis of a product, the information appears dated, e.g. the market analysis timeline indicates that 
the "market scoping and design" began in 2016. Additionally, the record does not include probative 
evidence of when the product actually began development and when it is expected to be ready for sale 
and implementation. 4 As the Director notes, the two Statements of Work (SOW) between the 
Petitioner and a claimed buyer for the Petitioner's product, specifically state that the SOW's are 
provisional, prospective, and non-binding. Thus, these documents do not assist in establishing the 
current viability of the claimed product. 
On appeal, the Petitioner submits four consecutively numbered invoices issued to the claimed buyer 
of the product, dated January 31, 2019 for $6,075, February 18, 2019 for $7,290, March 8, 2019 for 
$6,075, and March 29, 2019 for $4,860. The Petitioner also provides photocopies of two cashed 
checks, one dated March 4, 2019 in the amount of $6,075 and the second dated May 9, 2019 in the 
amount of $7,290. Both checks bear the memo "Sun payment." Neither the Petitioner's invoice nor 
the project name or SOW include the name "Sun." There is also no indication that the claimed buyer 
has made further payments to the Petitioner, for any reason. This information does not assist in 
establishing the Petitioner has a potential market for the claimed product or that the product required 
4 In the appeal brief, dated July 11, 2019, the Petitioner asserts that the product is still in development. 
3 
or requires the services of a DevOps quality engineer. The record is insufficient to establish that the 
Petitioner had an ongoing in-house project that required the services of an H-lB caliber employee 
when the petition was filed and that will continue throughout the intended employment period. 5 The 
record does not include sufficient probative evidence to establish the stage of the product or the 
revenue necessary to sustain the project when the petition was filed. 6 
The Petitioner also does not provide probative evidence of the resources used or employed to design, 
develop, and complete the claimed product. In the service center decision, the Director notes that the 
individual the Petitioner listed as previously employed in the proffered position, had been assigned to 
work for a new end-client a little over a month after his entry into the United States; thus, undermining 
the Petitioner's claim that it actually had or has in-house work available for its employees. On appeal, 
the Petitioner asserts that it contracts with independent contractors to provide their services to the 
Petitioner in the development of its application. Although the Petitioner submits some agreements, 
the agreements do not include sufficient information to determine the particular duties these 
individuals performed or will perform on the claimed project and the record does not include evidence 
of payments made to these individuals for any work completed. 7 Further, the Petitioner does not 
provide updates or comprehensible evidence establishing the stage of the particular product, its 
expected completion date, and rollout. 
Setting aside the inadequacy of probative evidence demonstrating the Petitioner has actual in-house 
work for the Beneficiary to perform, the Petitioner also does not establish the nature of the proposed 
position and why the duties described require a bachelor's degree in a specific specialty to perform 
them. The Petitioner does not explain how the proposed position fits with the context of work on the 
claimed product or the Beneficiary's level of responsibility in relation to the claimed project or within 
the Petitioner's overall business operations. 8 Moreover, stating that the Beneficiary will design and 
develop the ERP systems integration components of the product, develop scripts and automation tools 
used to build, integrate, and deploy software releases, and enable integration, automation by analyzing, 
designing, and implementing testing and quality assurance strategies, does not explain what the 
Beneficiary would actually be doing, but instead describe duties of "typical" positions located within 
generic technology occupations, which does little to assist us in understanding how the Beneficiary 
would actually spend her time. That is, the Petitioner does not correlate the duties described to 
particular milestones or deliverables within the project, within a project team, or within its business 
operations. Overall the generic and general duties describe a technology occupation, however, it is 
not clear whether the duties will be the duties of an applications software developer position, as 
designated on the LCA, or will incorporate the duties of one or more other occupations. 9 It is the lack 
5 We also note that the Petitioner's employment agreement, dated October 1, 2018, with the Beneficiary is for a two-year 
period, not for the requested employment period on the petition ending August 31, 2021. This also raises questions whether 
the Petitioner has actual employment for the requested employment period. 
6 The Petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied from the 
time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
7 The Petitioner does not explain on appeal the role or capacity that these individuals filled or will fill within the context 
of its claimed project. Thus, it is not clear that the proposed position is required for the product or how the position will 
fit within the Petitioner's claimed product team, if any. 
8 We observe that the record does not include the Petitioner's organizational chart or include information regarding the 
Petitioner's business structure and methodologies. 
9 For example, the record includes references to duties that may fall within the parameters of a systems software developer, 
4 
of a detailed description related to the Petitioner's actual business that precludes a conclusion that the 
duties require a specific degree and further that the certified LCA supports the position set forth in the 
petition. 
We have reviewed the position evaluation prepared by.__ _______ ~ Professor of Computer 
Information Systems, College ofBusinessJ !University to understand why or how the duties 
described require a bachelor's degree in a specific specialty, or its equivalent. 10 I ~epeats the 
description of the proposed duties and opines that a position with these duties would "normally be 
filled by a graduate with a minimum of a Bachelor's Degree in Computer Science, a related, area, or 
the equivalent." I I lists 12 courses he claims are required by a computer science major which 
would prepare a student for the position and then refers to three courses ( computer programming, 
software engineering, and systems programming) as particular courses that would be required to 
handle the duties of the proposed position. HoweverJ ldoes not offer a meaningful analysis 
establishing how a detailed course of study related to specific duties is required or why such a 
curriculum is necessary to perform the duties described. While a few related courses may be beneficial 
in performing certain duties of the position, the record does not demonstrate how an established 
curriculum of such courses leading to a baccalaureate or higher degree in a specific specialty, or its 
equivalent, is required to perform the generic duties of the proffered position . 
.__ __ ____.I also claims that the proposed position is a professional position with "a great level of 
responsibility within the company" and "functions as a technical expert in problem and incident resolution 
for middleware infra issues" and that the individual in the proffered position will serve in a highly skilled 
leadership role. This raises questions regarding I Is actual knowledge of the proposed position 
within the context of the Petitioner's business operations. The Petitioner here has designated the proffered 
position as one that requires only a Level II wage, a position for an employee who has a good 
understanding of the occupation but who will only perform moderately complex tasks that require limited 
judgement. 11 Such a characterization appears at odds with I ts assessment that the position has a 
great level of responsibility and will serve in a highly skilled leadership role. 
an occupation that requires a higher wage than the occupation designated on the LCA. See Foreign Labor Certification 
Data Center Online Wage Library at https://flcdatacenter.com/OesQuickResults.aspx?code=l5-
l 133&area=e=::1year=l 8&source=I. 
10 Service records show thatl ! used a template with conclusory findings and little or no analysis to support his 
conclusion that the Petitioner's particular position is a specialty occupation. For exampleJ I repeats the Petitioner's 
description of duties, repeats the duties listed in the Handbook and the O*NET for this occupation, lists a number of courses 
that may be part of a computer science degree, and identifies three courses that may prepare an individual to perform the 
duties of this position. Service records show that this same template with the same language, organization, and similar 
conclusory statements regarding different occupations and also without supporting analysis has been submitted on behalf 
of other petitioners. The similarity in conclusions, without cogent analysis, strongly suggests that the authors of the 
opinions were asked to confirm a preconceived notion as to the required degrees, not objectively assess the proffered 
position and opine on the minimum bachelor's degree required. While we will review the opinion presented, it has little 
probative value in establishing that the duties of this particular position require a bachelor's degree in a specific specialty, 
or its equivalent. 
11 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/pdt!NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
5 
Although! lalso opines that the industry standard for a DevOps quality engineer is a minimum 
bachelor's decree in computer science, a related area, or the equivalent, the record does not include 
evidence that lhas published, conducted research, run surveys, or engaged in any enterprise, 
pursuit, or employment - academic or otherwise - regarding the minimum education requirements for 
such positions ( or parallel positions). While he may have anecdotal information regarding recruitment 
by employers for students who study computer science, the record does not include relevant research, 
studies, surveys, or other authoritative publications as part of his review and/or as a foundation for his 
opinion. 12 We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. 
Matter of Caron Int'!, 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 also discusses the Beneficiary's academic and experience requirements throughout the 
record, however, the test to establish a position as a specialty occupation is not the skill set or education 
of a proposed beneficiary, but whether the position itself qualifies as a specialty occupation. Thus, 
whether or not the Beneficiary in this case has completed a specialized course of study directly related 
to the proffered position is irrelevant to the issue of whether the proffered position qualifies as a 
specialty occupation, i.e., whether the duties of the proffered position require the theoretical and 
practical application of a body of highly specialized knowledge and the attainment of a bachelor's 
degree or higher in a specific specialty, or its equivalent. Section 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)( 4)(ii). Neither the Petitioner no~ I have established the proffered position qualifies 
as a specialty occupation under the statutory or regulatory definition. 
Without a more meaningful job description related to particular work, the record lacks sufficient 
informative evidence to demonstrate that the proffered position requires a body of highly specialized 
knowledge associated with a bachelor's degree in a specific specialty, or its equivalent. The Petitioner 
has not established the substantive nature of the work to be performed by the Beneficiary, which 
therefore 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. 
Upon review of the totality of the evidence submitted, the Petitioner has not established that more 
likely than not, the proffered position is a specialty occupation under any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The record also does not demonstrate that performing the duties described 
would require the theoretical and practical application of highly specialized knowledge and attainment 
12 We have considered I Is reference to the Department of Labor's Occupational Outlook Handbook and his 
conclusion that DevOps Quality Engineers within companies like the Petitioner which are engaged in computer systems 
design are prevalent and growing. However, the growth or lack of growth of this occupation does not establish that the 
occupation is a specialty occupation. 
6 
of at least a bachelor's degree in a specific specialty or its equivalent. See section 2 l 4(i)(l) of the Act; 
8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation). 
ORDER: The appeal is dismissed. 
7