dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 10767845 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 11, 2020 
The Petitioner, a knowledge management software developer, seeks to temporarily employ the 
Beneficiary as a "software engineer" under the H-1B nonimmigrant classification for specialty 
occupations. 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 of the Vermont Service Center denied the petition , concluding that the Petitioner did not 
establish that the proffered position qualifies as a specialty occupation. On appeal, the Petitioner 
asserts that the Director erred. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christa 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(I) of the Act but adds a 
non-exhaustive list of fields of endeavor. In addition , 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position.1 Lastly, 
8 C.F.R. § 214.2(h)(4)(i){A){1) states that an H-1B classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " (emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The setvices the Beneficiary will perform in the position determine: (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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(1). 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the substantive nature of the proffered position, which precludes a determination of whether the 
proffered position qualifies as a specialty occupation under sections 101(a)(15)(H)(i)(b), 214(i)(1) of 
the Act; 8 C.F.R. § 214.2(h)(4)(i)(A)(1), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 2 Specifically, the 
record lacks sufficient information regarding the Beneficiary's duties and contains inconsistencies that 
undermine the Petitioner's claims regarding the proffered position. 
For example, the Petitioner initially did not describe the position's duties with sufficient details. As 
noted, the Petitioner indicated that the Beneficiary will be employed as a "software engineer" and 
1 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 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"). 
2 The Petitioner submitted documentation to support the H-1B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 
classified the position as a "Computer Programmer" SOC code 15-1131 in the labor condition 
application (LCA). 3 In the initial filing, the Petitioner described the Beneficiary's duties as follows: 
Create, modify, and test the code, forms and script that allow computer applications to 
run. Work from specifications drawn up by software developers or other individuals. 
May assist software developers by analyzing user needs and designing software 
solutions. May develop and write computer programs to store, locate, and retrieve 
specific documents, data, and information. 
Notably, this description is verbatim from the general occupational duties provided in the 
Occupational Information Network (O*NET) Summary Report for "Computer Programmers" SOC 
code 15-1131.4 However, providing generic job duties for a proffered position from O*NET or 
another Internet source, is not sufficient to establish that the Beneficiary will be performing services 
in a specialty occupation. Cf. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 
1989), aff'd, 905 F.2d 41 (2d. Cir. 1990) (Specifics are an important indication of the nature of the 
Beneficiary's duties, otherwise meeting the requirements would simply be a matter of providing a job 
title or reiterating the regulation). While this type of description may be appropriate when defining 
the range of duties that may be performed within an occupational category, without information 
describing the Beneficiary's specific tasks to be performed within the Petitioner's business, the generic 
description does not establish the substantive nature of the proffered position's duties or demonstrate 
that performing such duties would require the theoretical and practical application of highly 
specialized knowledge and attainment of at least a bachelor's degree in a specific specialty or its 
equivalent. 
In response to the Director's request for evidence (RFE), the Petitioner provided a more detailed job 
description; however, additional information regarding the Beneficiary's duties present 
inconsistencies that raise questions regarding the substantive nature of the position and whether the 
LCA corresponds with and supports the petition. 5 The Petitioner provided the following duties in 
response to the RFE: 
I Assist project/product manager by analyzing business and end-user needs, and 
designing the software solution architecture. (5% of time) 
I Create detailed technical and implementation plan based on the statement of work 
drawn up by the project manager from business requirements. (10% of time) 
I Create, modify, and test the software code, forms, and script to meet the specified 
technical requirements. (65 % of time) 
3 A petitioner submits the LCA to U.S. Department of Labor (DOL) to demonstrate that it will pay an H-1B 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 duties, experience, and qualifications. Section 212(n)(1) of the Act; 
20 C.F.R. § 655.731(a). 
4 For more information, see https://www.onetonline.org/link/summary/15-1131.00 (last visited Sept. 11, 2020). 
5 While DOL certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) determines whether the LCA's 
attestations and content corresponds with and supports the H-1B petition. See 20 C.F.R. § 655.705(b) ("DHS determines 
whether the petition is supported by an LCA which corresponds with the petition .... "). See also Matter of Simeio 
Solutions, 26 l&N Dec. 542, 546 n.6 (AAO 2015). 
3 
I Create and update documentation of existing and ne~ I product features. (15 
% of time) 
I Assist customer field engineers in installing, deploying, operating and 
troubleshooting thel I software product and solutions. (5% of time) 
In addition, the Petitioner provided a "more detailed description of [the Beneficiary's] primary 
responsibilities and the breakdown of the work percentages for each": 
I Assist the project/product manager to update I Is I I and ._I _ __. 
product architecture to seamlessly integrate the technical requirement 
communicated by th~ I business team. (5% of time) 
I Assist the project/product manager to analyze the end-user needs and create user 
stories for each technical requirement. (5% of time) 
I For each user story, assist in creating technical task/sub-task cards on the relevant 
project's Jira project and Trello page. Include test cases and acceptance criteria for 
each technical task/sub-task. 5 % of time) 
I Modify and test ,___ _____ __.s Document Preprocessing module to accept 
as input different formatted customer documents for processing and automatic 
extraction of knowledge. (5% of time) 
I Modify and test I h Named Entity Recognition (NER) module 
with machine learning algorithms, models, and rules updates to extract customer 
specific concepts defined in customer ontology or domain model. (15 % of time) 
I Modify and test I ts state-of-the-ar~I I engine 
software code by adding new predicate functions to extract customer domain 
specific semantic relations defined in customer ontology or domain model. (20% 
of time) 
I Update thel I Application Programming Interface {API) to expose the 
new product features for integration with....._ _______ ~ product and 
Customer's internal solutions. (10% of time) 
I Update thel I core libraries with data structures and functions required to 
support the new product features. (15% of time) 
I Update the internal Java docs, Wiki pages, and GIT issues repositories with 
modifications performed during the software development activities. Support the 
II documentation team update the customer facing documentation forD 
r==::Jandl I products. (15% of time) 
I Assist customer field engineers in installing, deploying, operating and 
troubleshooting the I I software product and solutions. (5% of time) 
We note that additional duties provided in the RFE include "analyzing business and end-user needs, and 
designing the software solution architecture," "create detailed technical and implementation plan based 
on the statement of work," "update ... product architecture to seamlessly integrate the technical 
requirement," "modify and test ... module" to extract various data, and "update the internal Java docs, 
Wiki pages, and GIT issues repositories with modifications performed during the software development 
activities." However, analyzing business requirements or modifying design, creating plans or updating 
4 
architecture do not appear to be consistent with duties of "Computer Programmers" as described in 
O*NET.6 
On the other hand, these duties closely correlate to O*NET duties for "Software Developers, 
Applications" which include "[m]odify existing software to correct errors, allow it to adapt to new 
hardware, or to improve its performance," "[a]nalyze user needs and software requirements to 
determine feasibility of design," "[c]onfer with systems analysts, engineers, programmers and others 
to design system and to obtain information on project limitations and capabilities, performance 
requirements and interfaces," "[s]tore, retrieve, and manipulate data for analysis of system capabilities 
and requirements," and "[d]esign, develop and modify software systems, using scientific analysis and 
mathematical models to predict and measure outcome and consequences of design. "7 Given this 
correlation, additional evidence and differentiating details concerning the job duties is necessary to 
understand the nature of the proposed position and ascertain whether the most relevant occupational 
category was selected on the LCA to support the position described in the petition. 8 The DOL 
guidance instructs employers to use the SOC code with the higher paying wage on the LCA when a 
position incorporates the duties of more than one related occupation. 9 In this case, we note that the 
"Software Developers, Applications" occupation demands a wage that exceeds the wage for the 
"Computer Programmers" category. 10 
We reviewed the Petitioner's assertion that "while there is no 'Software Engineer' position specifically 
listed by the Department of Labor in either the [Handbook] or in the O*Net, the position and 
description of a 'Computer Programmer' consistently appears in searches for Computer Science, 
Software Engineering, [and] Computer Engineering."11 However, we observe that such search results 
of the O*N ET database also consistently include a variety of other occupations. Among those other 
occupations, "Software Engineer" is listed specifically within the sample of reported job titles for 
"Software Developers, Applications" SOC code 15-1132.12 Conversely, "software engineer" does not 
6 See https://www.onetonline.org/link/summary/15-1131.00 (last visited Sept. 11, 2020). 
7 O*NET Summary Report for "Software Developers, Applications," https://www.onetonline.org/link/details/15-1132.00 
(last visited Sept. 11, 2020). 
8 As a related matter, we observe there are other ambiguities in the record relating to the job duties. Specifically, the 
Petitioner provided three different lists describing the position duties with differing percentages of time assigned to those 
duties. Although there some overlapping terms are used in describing the duties across the three lists, the duties and tasks 
listed in each are largely distinct and do not clearly reference the other lists. Without further context, the differences in 
describing duties and accounting for time devoted to each task raises questions with regards to the order of importance and 
level of responsibility related to each duty. This ambiguity in the record further limits our ability to best determine the 
appropriate SOC code. 
9 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. 
10 Notably, in the area and for the time period when the petition was filed, the relevant prevailing wage for a Level 11 
"Computer Programmers" position, SOC code 15-1131 ($71,802 per year) was about $5,000 per year lower than the 
relevant prevailing wage for a Level I "Software Developers, Applications" position, SOC code 15-1132 ($77,189 per 
year) and, even more significantly, over $20,000 lower than a Level 11 position in the latter occupation ($93,538). See the 
Foreign Labor Certification Data Center Online Wage Library for additional information, 
https:/ /flcdatacenter. com/OESWi zardStart. aspx .. 
11 We further note that these search terms are academic disciplines, and academic requirements are only one aspect of 
determining job requirements for a proffered position. 
12 O*NET Summary Report for "Software Developers, Applications," https://www.onetonline.org/link/summary/15-
1132.00 (last visited Sept. 11, 2020). 
5 
appear among the sample of reported job titles for "Computer Programmers" SOC code 15-1131.13 
While job titles alone are not dispositive, the Petitioner's job title's compatibility with other 
occupations raise additional questions regarding whether the proffered position is appropriately 
classified on the LCA. 
In this regard, we observe further that in comparing its duties to those of "Computer Programmers" as 
described by the DOL, the Petitioner stated that its position "is far more advanced and technical than 
a basic Computer Programmer." Also, according to the Petitioner, the Beneficiary wil I "[w]ork from 
specifications drawn up by software developers or other individuals" and "[m]ay assist software 
developers by analyzing user needs and designing software solutions." However, the Petitioner's 
provided organizational chart does not list any software developers. Rather, it lists six individuals 
employed in "software engineer I" positions and one person employed as a "Sr. Software Engineer" 
in a "software engineer 11" position. It is, therefore, unclear who will perform the software 
development functions for the Petitioner's organization. Given the Petitioner's description of the 
position as "far more advanced" than other computer programmer positions, it appears likely that those 
duties may actually be performed by the Beneficiary and other software engineers. We acknowledge 
that the Handbook states that "Computer Programmers" work closely with software developers and in 
some businesses their duties overlap. However, as noted above, when a position incorporates the 
duties of more than one occupation, an LCA should be submitted for the occupation with the higher 
paying wage. Without sufficient evidence and clarification regarding the substantive nature of the 
proposed position, we cannot ascertain either the application of knowledge needed to perform the 
position or the most appropriate occupation and wage level required. 
Thus, although the duties were described in length, the duties present inconsistencies in the record and 
lack sufficient probative detail to ascertain the substantive nature of the position. Further, we cannot 
conclude that the petition is supported by an LCA which corresponds with the petition, a necessary 
element to establish eligibility for this visa classification.14 
Without more specific and persuasive evidence regarding the nature of the proffered position's duties, 
and in the absence of consistent job description, the Petitioner has not demonstrated 
the substantive nature of the work to be performed by the Beneficiary. This, therefore, precludes 
analysis of whether the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) and 
section 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation).15 
13 O*NET Summary Report for "Computer Programmers," https://www.onetonline.org/link/summary/15-1131.00 (last 
visited Sept. 11, 2020). 
14 The LCA serves as the critical mechanism for enforcing section 212{n){1) of the Act, 8 U.S.C. § 1182(n){1). While 
DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL regulations note that the 
Department of Homeland Security (DHS) (i.e., its immigration benefits branch, USCIS) is the department responsible for 
determining whether the content of an LCA filed for a particular Form 1-129 actually supports that petition. See 20 C.F.R. 
§ 655.705(b). The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that "the petition is supported by an 
LCA which corresponds with the petition .... " 
15 Because the Petitioner has not established the substantive nature of the work to be performed by the Beneficiary, it has 
not demonstrated that the proffered position meets the statutory definition of a specialty occupation. See Section 214(i)(I) 
of the Act. Therefore, further discussion of the issues raised on appeal regarding whether the Petitioner satisfies any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) is not necessary. 
6 
ORDER: The appeal is dismissed. 
7