dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 9230539 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: WL Y 6, 2020 
The Petitioner, a software development and project management company, seeks to temporarily 
employ the Beneficiary as a "computer networks architect" under the H-1 B 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-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 evidence of 
record does not establish that the proffered position qualifies as a specialty occupation. The matter is 
now before us on appeal. 
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 I&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&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-lB 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)(l) of the Act, 8 U.S.C. § 1184(i)(l), 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)(l) 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, 
1 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
8 C.F.R. § 214.2(h)(4)(i)(A)(I) states that an H-lB 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 services 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)(l) 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)(l). 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the services in a specialty occupation that the Beneficiary would perform during the requested period 
of employment, which precludes a determination of whether the proffered position qualifies as a 
specialty occupation under sections 101(a)(15)(H)(i)(b), 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A).2 
A crucial aspect of this matter is whether the duties of the proffered position are described in such a 
way that we may discern the actual, substantive nature of the position. When determining whether a 
position is a specialty occupation, we look at the nature of the business offering the employment and 
the description of the specific duties of the position as it relates to the performance of those duties 
within the context of that particular employer's business operations. 
section 214(i)(l) 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 COip. 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 paiticular position"). 
2 The Petitioner submitted documentation to suppmt the H-1 B 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 
On a fundamental level, we conclude that the Petitioner has not sufficiently delineated the substantive 
nature of the Beneficiary's proposed duties within its operations. According to the Petitioner, the 
Beneficiary will be employed for in-house projects as a "computer networks architect." 3 On appeal, 
the Petitioner "reiterates that the Beneficiary will be working internally as a Computer Network 
Architect, this is alike an internal accounting or marketing position" and that the Petitioner "still 
requires personnel who will work internally for them, so that internal work is completed, so that there 
is no impact to the operation of the Petitioner's business." 
The Petitioner initially summarized the nature of its operations as a "leading provider of software 
solutions" and stated that it "offers a variety of services including product development, software 
solutions and IT services." The Petitioner farther stated that it has "started designing and developing 
[their] very own products" and listed three software solutions services: 
1. Application Development: This includes web[-]based, client/server application 
development, migration of legacy applications, ERP application customizations. 
2. Migration and Customization: This includes version upgrade services, database 
migration, re-engineering, functionality upgrades and porting. 
3. Maintenance and Support: Web applications and websites require maintenance and 
support as business needs change and grow. [The Petitioner] provides 
cost-effective application support and website maintenance services, avoiding 
additional expenses to companies in having to hire in-house support staff 
(Emphasis omitted.). 
In the RFE, the Director requested an explanation of how the Beneficiary's specific job duties relate 
to the Petitioner's products and services. In response to the RFE, the Petitioner revised the 
Beneficiary's duties and submitted photographs depicting its workspaces and computer hardware. On 
appeal, the Petitioner states that "[t]he reason why the photographs of the servers were included was 
for the purpose of showing how the Beneficiary's work as a Computer Network Architect at the 
Petitioner's office would require the use of the servers." However, these photographs do not 
sufficiently identify a specific project, demonstrate the stage of the project, and the remaining work, 
if any, to be performed to complete the project. The Petitioner listed "project management" amongst 
the Beneficiary's duties and stated that he will support "over 350 users of various SAS technologies." 
However, the Petitioner did not provide sufficient details of the projects and did not explain whether 
the Beneficiary's network support responsibilities will include individuals other than its own 
employees, and if so, who the other 125 users are. 4 The photographs, without more, do not sufficiently 
establish the scope and nature of the Beneficiary's proposed position. 
3 The Petitioner submitted a certified labor condition application (LCA) for the occupational category "Computer Network 
Architects" corresponding to Standard Occupational Classification (SOC) code 15-1143, with a Level TT wage. A petitioner 
submits the LCA to the Department of Labor (DOL) 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 duties, experience, and qualifications. Section 2 l 2(n)(l) of the Act; 20 C.F.R. 
§ 655.731 (a). 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. U.S. Dep't of Labor, 
Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 
2009); http://flcdatacenter.com/download/NPWHCGuidance _Revised_ 11 _ 2009.pdf. 
4 On the petition, the Petitioner stated that it employs 225 employees. 
3 
Furthermore, the record does not contain a sufficiently detailed description of the Beneficiary's duties 
to establish 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 the specific specialty, 
or its equivalent. For example, the Petitioner states that the Beneficiary will be responsible for 
upgrading existing network components without stating what networking systems currently in use in 
its business operations and what components need upgrading. Generally described duties do not 
illuminate the substantive application of knowledge involved or any particular educational 
requirement associated with such duties. Notably, the Petitioner does not describe the proffered duties 
in relation to a specific project despite stating that the project management is one of the Beneficiary's 
duties. Such a generalized description does not establish a necessary correlation between the proffered 
position and a need for a particular level of education, or its equivalency, in a body of highly 
specialized knowledge in a specific specialty. 
The Petitioner also states that the Beneficiary will "[ m ]onitor communications systems - wireless, 
mobile applications and telecommunications systems on constant intervals." The Petitioner did not 
explain what exactly the Beneficiary will be doing to "monitor communications systems" and did not 
establish how these duties require an individual with a bachelor's or higher degree in a specific 
specialty, or its equivalent. While the position may require that the Beneficiary possess some skills and 
technical knowledge in order to perform these duties, the Petitioner has not sufficiently explained how 
these tasks require the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a 
minimum for entry into the occupation. 
With the broadly described duties, and the lack of evidence regarding work specific to a particular 
project, the record lacks sufficient information to understand the nature of the actual proffered position 
and to determine that the duties require the theoretical and practical application of a body of highly 
specialized knowledge attained by a bachelor's degree, or higher, in a specific discipline. 
The Petitioner asserted that the position requires someone with "a Bachelor's Degree in Computer 
Science, Computer Applications, CIS, Information Technology, Electrical or Electronics Engineering 
or a related field of study." The Petitioner claims that the Beneficiary is well qualified for the position 
and references his qualifications. However, the test to establish a position as a specialty occupation is 
not the credentials of a proposed beneficiary, but whether the position itself requires at least a 
bachelor's degree in a specific specialty, or its equivalent. Here, the Petitioner has not established the 
substantive nature of the Beneficiary's work. 
The Petitioner submitted an opinion letter authored byl I a professor at~I --~ 
University. In his letter, the professor (1) described the credentials that he asserts qualify him to opine 
upon the nature of the proffered position; (2) described aspects of the previously discussed job duties 
proposed for the Beneficiary; and (3) stated that these duties require at least a bachelor's degree in 
computer science, computer information systems, electronics engineering or another closely related 
field. We carefully evaluated the professor's assertions in support of the instant petition but find them 
insufficient. 
The professor stated that he reviewed the Petitioner's "support letter regarding [its] business and 
operations, and labor condition application information including the beneficiary's qualifications." He 
4 
also stated that he reviewed "[ a ]dditional resources, including a review of company website ... to 
further understand [the Petitioner's] business model, as well as the details of the proffered position." 
He quoted the duties provided in the Petitioner's RFE response but did not provide sufficient analysis 
of the requirements of the proffered position within the context of the Petitioner's on-going projects. 
The professor identified "requirement gathering and analysis," "coding and unit/integrated testing," 
"installation and configuration testing," and "reporting" as "core duties" of the proffered position. The 
professor stated that "[b ]ecause most if not all of the position's duties are within the scope of the topics 
taught in a University level Bachelor degree, or the equivalent ... the position must be considered 
sufficiently specialized and complex .... " However, the professor's analysis falls short of providing 
a meaningful discussion of what the Beneficiary will actually do in the proffered position and how 
those duties require the theoretical and practical application of a body of highly specialized knowledge. 
While we appreciate the professor's discussion of the proffered position, his conclusory statements do 
not sufficiently articulate how he was able to adequately assess the nature of the position and 
appropriately determine the educational requirements of the position based upon the general duties 
provided by the Petitioner. 
The professor also quoted the general duties listed in the Department of Labor's Occupational 
Information Network (O*NET) summary report for the "Computer Network Architects" occupational 
category and concluded that the "duties associated with industry standard position are within the scope 
of the specialized topics covered in a standard academic program in Bachelor degree, or the equivalent, 
in a field such as Computer Science, Computer Information Systems, Electronics Engineering or 
another loosely related field." 5 The professor, however, did not acknowledge that the O*NET also 
stated, "[m]ost of these occupations require a four-year bachelor's degree, but some do not." 6 He did 
not provide a meaningful discussion and analysis of the position to appropriately determine the 
educational requirements of the position. The professor's conclusory statements are insufficient to 
demonstrate that proffered position qualifies as a specialty occupation. Furthermore, while the 
professor asserted that he has "grown familiar with the role played by Network IT Architect 
specialists," there is no indication that he has conducted any research or studies pertinent to the 
educational requirements for such positions ( or parallel positions) and no indication of recognition by 
professional organizations that he is an authority on those specific requirements. 
In summary, we conclude that the Petitioner has not demonstrated through the professor's letter how 
an established curriculum of courses leading to a baccalaureate or higher degree in a specific specialty, 
5 The O*NET can be accessed at http://www.onetonline.org. 
6 The O*NET Summary Report provides general information regarding the occupation, but it does not support a conclusion 
that the proffered position requires a bachelor's degree in a specific specialty, or the equivalent. Instead, O*NET assigns 
these positions a "Job Zone Four" rating. which states "most of these occupations require a four-year bachelor's degree, 
but some do not." Moreover. the Job Zone Four designation does not indicate that any academic credentials for Job Zone 
Four occupations must be directly related to the duties performed. In addition, the specialized vocational preparation 
(SVP) rating designates this occupation as 7 < 8. An SVP rating of 7 to less than ("<") 8 indicates that the occupation 
requires "over 2 years up to and including 4 years" of training. While the SVP rating indicates the total number of years 
of vocational preparation required for a particular position, it is important to note that it does not describe how those years 
are to be divided among training, experience, and formal education. The SVP rating also does not specify the particular 
type of degree. if any, that a position would require. (For additional information, see the O*NET Online Help webpage 
available at http://www.onetonline.org/ help/online/svp.) For all of these reasons, O*NET does not establish the proffered 
position as a specialty occupation. See https://www.onetonline.org/link/summary/15-l 143.00 (last visited July 2, 2020). 
5 
or its equivalent, is required to successfully serve in the proffered position. For the reasons discussed, 
we find that the professor's opinion letter lends little probative value to the matter here. Matter of 
Caron Int'l, 19 I&N Dec. 791, 795 (Comm'r 1988) (The service is not required to accept or may give 
less weight to an advisory opinion when it is "not in accord with other information or is in any way 
questionable."). For the sake of brevity, we will not address other deficiencies within his analysis of 
the proffered position. 
The Petitioner has not established the substantive nature of the Beneficiary's work. Consequently, this 
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. 7 
The Petitioner has not established that the proffered position is a specialty occupation. 
ORDER: The appeal is dismissed. 
7 As the lack of probative evidence in the record precludes a conclusion that the proffered position is a specialty occupation 
and is dispositive of the appeal, we will not further discuss the Petitioner's asse1tions on appeal regarding the criteria under 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
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