dismissed H-1B Case: Software Development

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-S-I-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG.4,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting services company, seeks to temporarily employ 
the Beneficiary as a "software programmer analyst" under the H-lB nonimmigrant classification for 
specialty occupations. See section 101(a)(l5)(H)(i)(b) ofthe Immigration and Nationality Act (the 
Act), 8 U~S.C. § 1101(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 Director of the California Service Center denied the petition, concluding that the Petitioner had 
not demonstrated that the proffered position qualifies as a specialty occupation position. 
On appeal, the Petitioner submits additional evidence and asserts that the evidence submitted is 
sufficient to demonstrate eligibility. 
Upon de novo review, we will dismiss the appeal. 1 
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. 
1 We follow the preponderance ofthe evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
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Matter of D-S-1-· 
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 
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 have consistently interpreted 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. Cherto_ff, 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.Jd 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H -1 B petition, the Petitioner stated that the Beneficiary will serve as a "software programmer 
analyst."2 On the labor condition application (LCA)3 submitted in support of the H-1B petition, the 
Petitioner designated the proffered position under the occupational category "Software Developers, 
Applications" corresponding to the Standard Occupational Classification code 15-1132.4 
\ 
2 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. 
3 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services (USCIS) 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. See Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 
(AAO 2015). 
4 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). The 
"Prevailing Wage Determination Policy Guidance" issued by the DOL provides a description of the wage levels. A 
Level I wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic 
understanding of the occupation. This wage rate indicates: (I) 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 
2 
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Matter of D-S-1-
In a statement submitted in response to the Director's request for evidence (RFE), the Petitioner 
submitted the following description ofthe duties of the proffered position: 
~ 
• Assist with analysis, Design, creating and integrating technical and application 
components to meet 
business requirements 
• Participate in analyzing high-level software methodologies and solutions utilizing 
functional and technical expertise 
• Develop, Maintain, enhance and repair Web based applications to correspond 
with business requirements 
• Help Maintain, enhance and repair Web based applications to correspond with 
business requirements 
• Perform coding migration, database change management & data management 
through the various stages ofthe development life cycle. 
• Perform Quality assurance, including System Testing, Unit Testing, Integration 
testing and regression testing of applications 
• Assist with creating and integrating technical and application components to meet 
business requirements 
· • Utilize software life cycle methodology 
• Developing or Administration of SQL using SQL Server, Oracle, DB2 or MySQL 
• Assist with all technically related tasks throughout the software development life 
cycle 
• Using html, JavaScript and developing with Tomcat, WebSphere or liS 
• Seek out and research new technology re: enhancing existing applications as 
requested 
• Participate in code reviews 
• Utilize software life cycle methodology 
• Assist with all technically related tasks throughout the software development life 
cycle 
• Seek out and research new technology re: enhancing existing applications as 
requested 
• Work independently and as a member of a team 
The Petitioner also indicated that the beneficiary's time would be divided as follows: 
• 20% on Understanding the business requirements of the client and creating 
functional and technical specification documents 
• 10% on the Enterprise architecture design and provide design solutions 
results . U.S. Dep't of Labor, Emp't & Training Admin ., Prevailing Wage Determinati on Policy Guidance , Nonagric . 
Immigration Programs (rev . Nov. 2009), ' available at http ://flcdatacenter.com /download/NPWHC_Guidance_ 
Revised _ ll_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 oppqrtunity. !d. 
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Matter of D-S-1-
• 5% on creating user stories, tasks to team members for each individual 
activity/Serum methodology 
• 40% on Programming solutions, with .net, Ruby, Javascript, Web Services, liS, 
HTML,XML, XSD,XSL T, SOAP. 
• 10% Testing the Application and making the application product ready 
• 10% communication of cross-functionality across teams and with key project 
stake holders (Mobile team and Web application teams) 
• 5% on Documenting the application for further enhancements & end users. 
The Petitioner concluded by stating that "the candidate for this position must possess at least a 
Bachelor's Degree in Computer Science, Engineering, Information Technology, Mathematics, or 
Science, or other related technical field in addition to relevant work experience." 
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 Petitioner has not established that (1) it has secured definite, non-speculative 
specialty occupation work for the Beneficiary for the entire validity period requested; and (2) the job 
duties require an educational background, or its equivalent, commensurate with a specialty 
. 5 
occupatiOn. 
For H-1B approval, the Petitioner must demonstrate a legitimate need for an employee exists and 
substantiate that it has H-lB caliber work for the Beneficiary for the period of employment 
requested in the petition. It is incumbent upon the Petitioner to demonstrate it has sufficient 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 
5 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 8 classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 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 8 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 8 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). 
4 
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Matter of D-S-1-
least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for 
· the period specified in the petition. 
The Petitioner stated that it wishes to employ the Beneficiary in-house from October 2016 to August 
2019; however, the record lacks documentation regarding the work that the Beneficiary would 
perform to sufficiently substantiate that it has H-1B caliber work for the requested period. For 
instance, the Petitioner stated that it is developing a software platform, . which it states 
is a web and mobile application that will be sold through monthly subscriptions to education centers. 
In support, the Petitioner submitted printouts from the website for the proposed platform as well as a 
from to demonstrate that the application was available for download. The 
Petitioner also submitted a copy of its business plan, which included a section dedicated to the 
platform. 
The record, however, contains insufficient evidence to establish that project exists. In 
her decision, the Director pointed out that the website was registered to a company 
identified as not the Petitioner, and thereby 
casting doubt on the claims that the Petitioner was truly developing the platform. On 
appeal, the Petitioner responds by claiming that it has an ongoing business relationship with 
and that many of its resources are currently working on projects for The Petitioner claims 
that because of this close business relationship, the website was erroneously registered 
in the name of and the Petitioner provides a document reflecting its request to change the 
domain ownership ofthe website. 
Upon review, we do not find the Petitioner's assertions convincing. First, the Petitioner submitted 
no evidence, such as contracts, work orders, or other documentation, to corroborate its claim that it 
had an ongoing business relationship with Moreover, while the Petitioner's request to 
change the domain registration is noted, we observe when visiting this website that the site is no 
longer functional, and does not appear to have been re-registered in the Petitioner's name. In fact, an 
Internet search for the term ' reveals no other website currently in existence, and 
yields no information akin to the detailed platform information previously submitted by the 
Petitioner in response to the RFE.6 This is questionable given the Petitioner's claims that the 
software platform currently should be well submerged in the marketing phase according to its 
business plan. 
Specifically, the Petitioner's business plan indicates that the beta version of the software (' 
will be launched in March 2017, and identifies a milestone of enrolling at least 10 customers 
in the testing phase by August 2017. To achieve this goal, the Petitioner indicates that it will use 
indicating that its website will "be optimized for Keyword 
searches" and that it will using web advertising in the form of 
6 See www. (last visited August 2, 20 17). The site appears with a dark gray background, and simply 
contains the following links: "Trademark Free Zone," "Review our Privacy Policy," "Service Agreement," and ''Legal 
Notice," all of which, when clicked, provide information pertaining to the policies of 
5 
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Matter of D-S-1-
advertisements, and As noted, however, an Internet search of the term ' 
yields no results, despite the Petitioner's claims in its business plan that the platform should 
currently be optimized for keyword searches. 
Moreover, we note the submission of a screenshot from which indicates that as of May 2016, 
Version 2.0 of the app is available for download. This contradicts the Petitioner's 
claim that the app is simply in "beta" stage and will not be fully developed and functional until late 
2017. A review of the screenshot further demonstrates that the app has received one user 
review, which states "Great improvements from previous version." This suggests that users are in 
fact able to download and use the app for its intended purposes, thereby raising questions regarding 
the actual stage of development of this platform and the legitimacy of the claims and timelines set 
forth in the Petitioner's business plan It is unclear how the platform is claimed to be in "beta" stage, 
yet the second version of the platform was available on over one year ago. The Petitioner 
must resolve these discrepancies in the record with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Nevertheless, the business plan indicates that two to three salespersons will be targeting potential 
customers in the education sector, with the hope of obtaining 10 schools who will generate revenue 
in the approximate amount of $271,000 for 2017, based on an average of 120 students using the app 
at a monthly fee of$19.99. The Petitioner thereby suggests that it has not secured any customers for 
whom the tool will be created. Moreover, the simultaneous lack of an available website or webpage 
advertising the platform raises questions regarding the legitimacy of the project. 
Therefore, despite the submission of the business plan and the related documents providing an 
overview of the platform, there is insufficient evidence to establish whether the 
Petitioner has in fact initiated such a project, or will ultimately be creating this platform as claimed 
in the timelines provided. While the Petitioner has performed a competitive analysis for the project 
and submitted an email regarding availability of line of credit from a bank, there are no contracts 
evidencing the existence of monthly subscribers and insufficient documentation regarding its income 
projections. Based on the discrepancies noted above, the timeline for developing the platform is 
unclear.7 
Moreover, the description of the Beneficiary's duties provided by the Petitioner lacks the specificity 
and detail necessary to support the Petitioner's contention that the position is a specialty occupation. 
In support of the petition, the Petitioner provided a generalized description of the duties of the 
proffered position, without mentioning the project in any manner. The assertion that 
the Beneficiary would work on the development of the project was made for the first 
time in response to the RFE regarding the availability of H -1 B caliber work for the duration of the 
7 The H-1 B classification is not intended for companies to engage in speculative employment and hire foreign workers to 
meet possible workforce needs arising from potential business expansions, customers, or contracts. The agency made 
clear long ago that speculative employment is not permitted in the H-1 B program. See. e.g.. 63 Fed. Reg. 30419, 
30419- 30420 (June 4, 1998). 
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Matter of D-S-1-
requested period. USCIS regulations affirmatively require a petitioner to establish eligibility for the 
benefit it is seeking at the time the petition is filed. See 8 C.F.R. § l03.2(b)(l). A visa petition may 
not be approved based on speculation of future eligibility or after the Petitioner or Beneficiary 
becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17l&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 USCIS requirements. See ]vfatter of lzummi , 22 I&N Dec. 169, 176 
(Assoc . Comm ' r 1998). 
We note that the initial letter of support indicated that the Petitioner provides "enterprise integration 
services to meet the unique· needs of each client," and that its sample performance appraisal 
measures the ability of employees to understand client requirements. Therefore, the generalized 
description of duties initially provided appeared to define the range of duties that would be 
performed by the Beneficiary at virtually any client site or on any client project, and appear to only 
have been narrowed to a specific project after the RFE. Regardless , we find that the duties as stated 
do not include sufficient details to substantiate that the Petitioner has H-1 B caliber work for the 
Beneficiary. 
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. The Petitioner has not provided sufficient details regarding the nature and scope of the 
Beneficiary's employment or 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 perfom1; (2) the complexity, uniqueness or specialization of the 
tasks; 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 thus 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 ( 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. 
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Matter of D-S-1-
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. 8 
IV. CONCLUSION 
The Petitioner has not established that the proffered position qualifies as a specialty occupation 
position. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-S-1- ID# 435742 (AAO Aug. 4, 2017) 
8 As this issue precludes approval of the petition, we need not and will not address any of the additional issues we have 
observed in our de novo review of this matter.