dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-S- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 11, 2017 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting company, seeks to temporarily employ the 
Beneficiary as a "programmer analyst" under the H -1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(l5)(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 had not 
established the proffered position is a specialty occupation. 
On appeal, the Petitioner submits a brief and additional evidence and asserts that the Director erred 
when determining the proffered position is not a specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
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. 
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: 
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Matter of S-S- Inc. 
(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.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In a statement submitted in response to the Director's request for evidence (RFE), the Petitioner 
provided the following overview of the duties ofthe proffered position: 
[The Beneficiary] is responsible to design and develop and customize various 
modules of our in house application, utilizing VB.Net, VB, HTML, XML, 
JavaScript, jQuery, JSON, CSS, RESTon .Net Framework in Windows client server 
environment; design and develop graphical user interface utilizing JavaScript, 
VB.net, MS Visual Studio.Net 2008/201 0; 
[The· Beneficiary] is responsible in designing and developing and customizing the 
relational database management system modules of our in house application, 
utiiizing MS SQL Server; designing the data warehouse and core Database for 
the system including tables, Stored Procedures, Indexes, UDF and triggers; fine­
tuning queries and stored procedures and providing consultation to other developers; 
analyzing and improving the architecture of databases, creation & indexing of the 
tables; implementing SSIS to extract and transform data from RDBMS and Flat files 
CSV, SQL Server instances and to load into staging and then to DW for further Data 
Analysis and Reporting by using multiple transformations provided by SSIS such as 
Data Conversion, Conditional Split, Bulk Insert, merge and union all; scheduling and 
maintained nightly and weekly loads of data by creating the corresponding job tasks; 
creating views to facilitate easy user interface implementation, and triggers on them 
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Matter of S-S- Inc. 
to facilitate consistent data entry into the database; generating parall)eterized reports, 
sub reports, tabular reports using SSRS; 
[The Beneficiary] is also responsible to analyze, review, and alter programs from time 
to time to optimize the performance of the applications; formulate plan-outlining 
steps required to develop the applications; prepare flowcharts and diagram to 
illustrate sequence of steps program must follow and to describe logical operations 
utilizing MS Project, MS Visio; 
[The Beneficiary] is also responsible to direct and participate in various aspects oflife 
cycle of a system (SDLC) including analysis, design, programming, testing, 
maintenance, and support; and establish system requirements, client operating 
systems, s.oftware, network operating systems, system security, back-up schedules 
and recov,ery plans; document and map existing processes and suggest process 
optimization; 
[The Beneficiary], further, is responsible to test the developed applications for 
software quality assurance utilizing HP Quality Center; responsible to develop Test 
cases for Unit Testing of the mappings, and involve in the Integration Testing; 
involve in fallout analysis and fixing the issues; utilize Apex unit test methods/classes 
to verify error free coding; implement version controls for the developed applications 
and modifications utilizing VSS, SVN, TFS, Subversion; and develop user manual to 
describe steps to be followed for installation and system requirements, trouble­
shooting techniques. 
On the labor condition application (LCA) 1 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? 
1 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). . 
2 The Petitione~ classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the U.S. Department of Labor (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 perfonn routine tasks that require 
limited, if any, exercise of judgment; (2) that the Beneficiary will be closely supervised and his work closely monitored 
and reviewed for accuracy; and (3) that the Beneficiary will receive specific instructions on required tasks and expected 
results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://tlcdatacenter.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 opportunity. !d. 
3 
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Matter of S-S- Inc. 
The Petitioner stated that "our minimum requirement for the position of Programmer Analyst is a 
bachelor's level academic training in computers or its equivalent." 
According to the documentation submitted by the Petitioner, the Beneficiary will be working onsite 
at the Petitioner's offices developing a product identified as' 
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.3 
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;
4 
and (2) the 
job duties require an educational background, or its equivalent, commensurate with a specialty 
occupation. 5 
The Petitioner stated that it wishes to employ the Beneficiary for a 34-month period; however, the 
record lacks documentation regarding the work that the Beneficiary would perform to sufficiently 
substantiate that it has H-lB caliber work for the requested period. For instance, the Petitioner stated 
its intention to create a vendor-management tool, which is described as a "Web-Based 
application to manage resources." In support of this contention, the Petitioner submitted a 
"Functional Specification" document, a 39-page document which provides an overview of the 
project. 
3 We hereby withdraw the Director's statement that the position of programmer analyst is traditionally considered a 
specialty occupation. The Director does not cite to any authoritative or objective source to support this statement. 
4 Speculative employment is not permitted in the H-1 B program. For example, a 1998 proposed rule documented this 
position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B 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 B 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) of the 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 B 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). 
5 
The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and the Petitioner's business operations. While we may not discuss every document submitted, we have 
reviewed and considered each one. 
4 
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Matter of S-S- Inc. 
The Petitioner, however, did not submit documentation demonstrating that it has the capacity and 
resources to develop such a product. We note that the Petitioner submitted a "Project Budget" for 
Phase I of the project. According to this document, the Petitioner will require the services 
of a project manager, a project leader, a system analyst/business analyst, an undefined number of 
programmers, an undefined number of system testers, and an undefined numbers of vendor 
consultants. The document also allows for additional team resources (i.e., contractors, temporary 
staff, and other consultants) as necessary. 
At the time of filing, however, the Petitioner stated on the Form I -129, Petition for a Nonimmigrant 
Worker, that it currently has only one employee, who we presume is the Petitioner's president and 
signatory. There is no indication that the Petitioner has since hired the additional resources 
identified in the budget report, nor does it appear, based on the financial documents included in the 
record, that the Petitioner has the available funds to employ the number of staff it deems necessary 
for work on the proposed project. As noted by the Director, the Petitioner's 2015 tax 
return indicates that the Petitioner had approximately $41,000 in gross receipts or sales, paid no 
salaries or wages to employe.es, and had a negative ordinary business income. Although the 
Petitioner claims on appeal that these low figures are the result of the Petitioner's relatively short 
time doing business, they nevertheless present a recent financial snapshot of the Petitioner's 
operations. 
The Petitioner also submitted an internal market analysis report, which estimates the total cost of the 
project in Phase I to be $175,000. The plan further indicates that it will be targeting small and 
mid-sized financial and health care organizations as potential prospects for the project, 
thereby suggesting that it has not secured any customers. Therefore, despite the submission of the 
functional specification document and the marketing plan, which provide an overview of this 
proposed project, there is no evidence in the record to establish that the Petitioner has initiated such a 
project, or has the resources and funding to do so. The record lacks supporting evidence such as: 
(1) a business plan; (2) competitive and/or cost analysis; (3) evidence substantiating investments or 
revenue sources; ( 4) documentation regarding its sales, costs, and income projections; ( 5) contracts; 
or ( 6) its timeline for developing the product. 6 
Further, the terms and conditions of the Beneficiary's employment, as described in the offer of 
employment letter submitted in response to the RFE, indicate that the term of the Beneficiary's 
employment is 24 months. This statement contradicts the Petitioner's attestation on the Form 1-129 
that it will employ the Beneficiary for a 34-month period. Regardless, the record as currently 
constituted does not establish that a legitimate project is available for any part of the requested 
validity period. 
6 
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. at 30,419- 20. 
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Matter ofS-S- Inc. 
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. 
While a generalized description may be appropriate when defining the range of duties that are 
performed within an occupation, such generic descriptions generally cannot be relied upon by the 
Petitioner when discussing the duties attached to specific employment for H-1 B approval. In 
establishing such a position as a specialty occupation, the description of the proffered position must 
include sufficient details to substantiate that the Petitioner has H-1 B caliber work for the 
Beneficiary. 
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 perform; (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. 
IV. ADDITIONAL ISSUES 
We also find that the Petitioner has not offered the Beneficiary a wage equal to or greater than that 
required by law, and submitted an LCA that corresponds to the petition. 
Section 212(n)(l)(A) of the Act, 8 U.S.C. § 1182(n)(l)(A), states in pertinent part that the Petitioner 
must offer wages that are at least the actual wage paid by the employer to 
all other individuals with 
similar experience and qualifications for the specific employment in question or the prevailing wage 
for the position in the area of employment, whichever is greater. Here, an independent review of the 
FLC Data Center's Online Wage Library indicates that the prevailing wage for the proffered position 
in the Petitioner's Metropolitan Statistical Area at the time of certification was $67,787. 7 The 
7 
For more information, please see Foreign Labor Certification Data Center's Online Wage Library, on the Internet at 
http://www. tlcdatacenter.com/OesQuickResults.aspx?code= 17-2141 &area= &year= 15&source= I, (last visited 
Matter of S-S- Inc. 
Petitioner attested on the Form I-129 petition, however, that it would only pay the Beneficiary an 
annual salary of $65,000. Therefore, the Petitioner has not offered a wage that is equal to or greater 
than the prevailing wage. 
In addition, the Petitioner has not submitted a valid LCA that corresponds to the petition. 
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 I-129 actually supports that petition. See 20 C.F.R. § 655.705(b), which states, 
in pertinent part (emphasis added): 
For H-1B visas ... DHS accepts the employer's petition (DHS Form I-129) with the 
DOL-certified LCA attached. In doing so, the DHS determines whether the petition 
is supported by an LCA which corresponds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-1B visa classification. 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports 
the H-1 B petition filed on behalf of the Beneficiary. The Petitioner has not submitted a valid LCA 
for the correct wage, and the petition cannot be approved for these additional reasons. 
V. CONCLUSION 
The Petitioner has not (1) established that the proffered position is a specialty occupation; (2) 
established that it would pay the Beneficiary the prevailing wage; and (3) submitted an LCA that 
corresponds to the petition. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-S- Inc., ID# 456144 (AAO Aug. 11, 2017)