dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 8771116 
Appeal of California 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 "programmer analyst" under the H-IB 
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-IB 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 California Service Center Director denied the petition, concluding that the record did not establish 
that: (1) the proffered position qualifies as a specialty occupation and that the Beneficiary will perform 
services in a specialty occupation for the requested period of intended employment; and (2) an 
employer-employee relationship exists between the Petitioner and the Beneficiary. 
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. 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. 
1 Section 291 of the Act; Matter ofChawathe, 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). 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, the Petitioner has not 
demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the record 
does not establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation. 
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. On the Form 
I-129, Petition for a Nonimmigrant Worker, the Petitioner identifies itself as a software solutions 
provider located inl I Washington, which will deploy the Beneficiary to work off site. In response 
to the Director's request for evidence (RFE), the Petitioner stated that it had assigned the Beneficiar, 
to work at an I I facility in Ohio through a series of agreements with._l ______ _J_. 
~id-vendor), who had contracted withl I (prime vendor) who had contracted with 
c=]( end-client). Thus, the contractual chain appears to flow as follows: Petitioner ➔ mid-vendor 
➔ prime vendor ➔ end-client. 
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. § 655.731(a). 
2 
To support the contractual chain and evidence of specialty occupation work, the initial record included 
a statement of work (SOW), executed in January 2019, between the Petitioner and the mid-vendor for 
the Beneficiary's services at the end-client's facility in New Jersey.4 The Petitioner also provided its 
master services agreement (MSA) with the mid-vendor. 
In its letter in res onse to the Director's RFE, the Petitioner noted that the Beneficiary will work on 
theL..._ __________________ __,----,,__ _ _Jproject and that the Beneficiary 
has been assigned to multiple projects to assist with the~-~rnodule. The Petitioner indicates that 
the Beneficiary's duties will be allocated as follows: 
• Analyze system and application issues in order to implement solutions - 20%; 
• Provide application designs in various technologies including JavaScript, Angular JS, Node 
JS, HTML 6, and MySQL - 40%; 
• Develop architecture and software solutions by using requirements and providing necessary 
documentation and reviews - 30%; and 
• Develop POC and implement software quality standards and best practices - 10%. 
The Petitioner also included additional narrative to each of the above categories and listed the 
technologies required of the position. 
We reviewed the description in full, including the additional narrative, and although we recognize that 
the Beneficiary will perform technology duties, the description is insufficient to establish the 
substantive nature of the position and to demonstrate that the certified LCA corresponds to and 
supports the petition. For example, the Petitioner asserts that the Beneficiary in this position will: 
design and create solution architecture for graphical user interface, design and developLJcode, 
and build the orchestration service using different third-party technologies and code; participate in 
daily standup, backlog refinement, sprint planning and prioritization of tasks as well as particirte inl 
program increment planning, and developing mock screens; provide availability for 
orchestration application support by fixing issues, deploying and fixing grap~er interface, and 
deploying build to Kubemates environment; and create various POCs using L__J Metrics, support 
GUI and rniddleware team, and provide regular progress updates. 
The Petitioner, however, does not provide the context for the actual day-to-day duties the Beneficiary 
will perform as those duties relate to the I I module at the end-client. Although the Petitioner 
provides what it identifies as work product from the end-client demonstrating the multiple phases of 
the project, the Beneficiary's role is limited to code and testing, dev testing, test support, config, and 
eventual deployment. We also reviewed what appears to be a PowerPoint presentation prepared 
primarily by the I I architect which lists the phases and tirneline of the project. This document 
provides a broad overview of the project but does not include sufficient information to identify the 
roles of any of thd ~earn members, including the Beneficiary. The Petitioner does not offer any 
information or analysis as to how the proposed duties, the Beneficiary's role, and level of 
responsibility at the end-client's facility comport with the information set out in the project documents. 
4 In response to the Director's RFE, the Petitioner provided a revised SOW, executed in July 2019, and explained that the 
wrong work location had been inadvertently listed on the initial SOW. 
3 
We must review and analyze the actual duties the Beneficiary will be expected to perform in 
conjunction with the specific project(s) to which the Beneficiary will be assigned. To allow otherwise, 
results in generic descriptions of duties that, while they may appear (in some instances) to comprise 
the duties of a specialty occupation, are not related to any actual services the Beneficiary is expected 
to provide. The Petitioner has not provided sufficient details regarding the nature and scope of the 
Beneficiary's employment or any substantive evidence regarding the actual work that the Beneficiary 
would perform. Without a meaningful job description, the record lacks evidence sufficiently 
informative to demonstrate that the proffered position requires a specialty occupation's level of 
knowledge in a specific specialty. 
We also conclude that in this matter, the Petitioner provides such a broad description for the proposed 
position that the duties could encompass any number of technology occupations. We understand that 
there may be overlap between various technology occupations, however, the information in the record 
is not sufficiently detailed so that we may ascertain the substantive nature of the proposed position 
and analyze whether the petition is supported by an LCA which corresponds with the petition. That 
is, the duties are so broadly described we cannot ascertain either the application of knowledge needed 
to perform the position, or the occupation and wage level required. 
We also reviewed the documents submitted to establish the contractual chain for the use of the 
Beneficiary's services for insight into the Beneficiary's actual daily duties. The SOW between the 
Petitioner and mid-vendor does not identify the proposed project to which the Beneficiary will be 
assigned and does not identify the Beneficiary's proposed role within any project or project team. In 
an August 26, 2019 letter from the mid-vendor, the mid-vendor indicates that its contract with the 
Petitioner to use the Beneficiary's services is to assist in fulfilling its responsibilities with its client, 
the prime vendor. The mid-vendor indicates, generally, that the Beneficiary's job duties will include 
application design, development, and integration, comparing and contrasting alternative design 
approaches, communicating with technical and non-technical staff: and working with various 
third-party software applications in at least two technical environments. Again, such a general 
description does not adequately convey the substantive work to be performed by the Beneficiary. 
The prime vendor, in a letter dated March 26, 2019, confirms its contractual arrangement with the 
mid-vendor and states that the mid-vendor has assigned the Beneficiary to work as a software engineer 
and that the Beneficiary is physically working at one of its client's locations. The prime vendor does 
not describe the Beneficiary's proposed work with the end-client. The record also includes a work 
order (WO) between the prime vendor-end-client as the buyer organization and the mid-vendor as the 
supplier organization. However, the WO does not include any information regarding the proposed 
project, or the Beneficiary's services as it relates to the project or a project team. 
On appeal, the Petitioner submits two letters from the claimed end-client. In the letter dated September 
24, 2019, the senior business manager, global supply chain for the end-client, confirms that the 
end-client and the prime vendor have entered into a specific agreement and that the Beneficiary 
performs services under this agreement for the end-client. In a letter dated October 1, 2019, an "area 
manager" for the end-client lists the contractual chain and asserts that the proposed position is a "Level 
II Specialty Occupation Level Position" and provides a description for the Beneficiary's primary job 
duties that is a verbatim copy of the Petitioner's description provided in response to the Director's 
RFE. The "area manager" in a paragraph on the tools/skills/technologies required indicates that the 
4 
"performance of these duties requires a qualified candidate who has attained either through education 
or experience, a good understanding of the technical occupation ( emphasis in original)" and that the 
"[i]ncumbent is expected to perform moderately complex tasks that require limited judgment." In the 
next sentence the "area manager" opines on the requirements for a software developer occupation, not 
a particular position. The paragraph concludes with the "area manager" referring to another individual 
(not the Beneficiary) who will be required to apply theoretical and practical application of a body of 
specialized knowledge obtained through his education and experience. 
We have significant concerns regarding the validity of the end-client's October 1, 2019 letter. We 
first question whether the individual who prepared this letter is an authorized official of the end-client 
who would be involved in the Beneficiary's placement. We also question whether the signatory of 
this letter actually prepared and authored the letter. The end-client is a large, well-known company 
which we assume has various reporting requirements to multiple federal agencies. Given this letter's 
grammar, awkward tum of phrase, repetition of the Petitioner's version of the proposed duties, and 
reference to the Beneficiary by another name, the letter's validity is questionable. Even if considering 
the letter, the letter does not clearly state the requirements for the proposed position. For example, the 
letter repeats language taken from the Department of Labor's (DOL) wage policy guidance for Level 
II wages 5 but does not clearly state the level of education or the amount of experience necessary to 
perform the duties. 6 The claimed requirements only create farther ambiguity in the record. 
Although we recognize that the Beneficiary will require some technological knowledge to perform the 
duties of the position, the record does not include probative evidence that this knowledge is gained 
through bachelor's-level study in a specific discipline rather than through certifications in third-party 
technology or experience in the industry. We also cannot determine from the record that the 
Beneficiary will actually perform the duties of the occupation designated on the LCA at the wage level 
certified. Without a detailed and more precise description as well as some context of the particular 
work the Beneficiary will perform at the end-client facility, the record does not establish that the 
proposed duties are the duties of a wage Level II "Software Developers, Applications" occupation. 7 
5 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://flcdatacenter.com/ download/NPWH C _Guidance_ Revised_ 11 _ 2009 .pdf. 
6 Although the signatory states that a software developer position requires at least a bachelor's or master's degree in 
computer science, software engineering or related field, it is unclear whether the signatory is discussing the occupation's 
requirements or the requirements of the particular position of programmer analyst offered here. Similarly, it is not clear 
whether a master's degree or a bachelor's degree is required, and the number of years of experience required, if any. 
7 The LCA serves as the critical mechanism for enforcing section 212(n)(l) of the Act, 8 U.S.C. § 1182(n)(l). See Labor 
Condition Applications and Requirements for Employers Using Nonimmigrants on H-1 B Visas in Specialty Occupations 
and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United States, 65 Fed. 
Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that the wage 
protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring 
temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] with 
[DOL]."). 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 T-129 actually supports that 
petition. Sec 20 C.F.R. § 655.705(b). The regulation at 20 C.F.R. § 655.705(b) requires that USCTS ensure that "the 
petition is supported by an LCA which corresponds with the petition .... " 
5 
Also, without the full chain of contracts in this case, we cannot determine whether there is any legal 
obligation on the part of the end-client to provide the position described in this petition. Though 
acknowledged, the letters from the Petitioner, the vendors, and the end-client do not fill this gap, as 
they are not evidence of an obligation on the part of the end-client to provide the position the Petitioner 
describes. 8 If we cannot determine whether the proffered position will actually exist, then we cannot 
ascertain its substantive nature so as to determine whether it is a specialty occupation. 9 
The record does not include sufficient probative evidence demonstrating the work to be performed is 
H-lB caliber work. The contractual chain agreements including the Petitioner's agreement and SOW 
with the mid-vendor, and the WO between the mid-vendor and the prime vendor/end-client do not 
identify the actual role, level ofresponsibility, project(s), or the Beneficiary's services within a project 
team or department. Without consistent, probative evidence of the proposed duties the Beneficiary 
will perform at the end-client facility, 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) or that the Petitioner satisfied the statutory and regulatory definitions of specialty 
occupation. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and 
hereby reserve the Petitioner's appellate arguments regarding its claim that it has an 
employer-employee relationship with the Beneficiary. See INS v. Bagamasbad, 429 U.S. 24, 25 
(1976) ("courts and agencies are not required to make findings on issues the decision of which is 
unnecessary to the results they reach"); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
ORDER: The appeal is dismissed. 
8 We emphasize that our concerns regarding the validity of the October 1, 2019 end-client letter submitted on appeal 
remam. 
9 Speculative employment is generally not permitted in the H-lB program. See, e.g., 63 Fed. Reg. 30419, 30419-20 
(proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). 
6