dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 8797452 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUNE 11, 2020 
The Petitioner, a software development and consulting firm, seeks employ the Beneficiary temporarily 
under the H-lB nonimmigrant classification for specialty occupations .1 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 Vermont Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified 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 . 2 We review the questions in this matter 
de nova . 3 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. 4 Lastly, 
1 See Immigration and Nationality Act (the Act) section 10l( a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). 
2 Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christa 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
4 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 
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 Corp. v. Chertojf, 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 responsibiliti es of a particular position"). 
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 one; (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 two; (3) the level of complexity or 
uniqueness of the proffered position, which is the focus of the second alternate prong of criterion two; 
( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, when that is 
an issue under criterion three; and ( 5) the degree of specialization and complexity of the specific duties, 
which is the focus of criterion four. 5 
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.6 The Director may request additional evidence 
in the course of making this determination. 7 In addition, a petitioner must establish eligibility at the 
time of filing the petition and must continue to be eligible through adjudication. 8 
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 10l(a)(l5)(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). 9 
The Petitioner initially provided the position's description in several paragraphs followed by a separate 
account within several bullet points. The Petitioner adjusted those duties in response to the Director's 
request for evidence (RFE). Based on a lack of sufficient evidence, we conclude that the Petitioner 
has not established the availability of specialty occupation work, or the actual work the Beneficiary 
would perform. Individually, each of these shortcomings preclude a determination that the proffered 
5 8 C.F.R. § 214.2(h)(4)(iii)(A). 
6 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
7 8 C.F.R. § 103 .2(b )(8). 
8 8 C.F.R. § 103.2(b)(l). 
9 The Petitioner submitted documentation to suppmt the H-lB 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 
position qualifies as a specialty occupation under any of the regulatory criteria enumerated at 8 e.F.R. 
§ 214.2(h)( 4)(iii)(A)(l)-( 4). 
What the law requires, and employers must demonstrate to users, is the nature of the specialty 
occupation. Aligning with that authority, users may require the offered position's job duties to be 
sufficiently detailed such that it can determine that those daily assignments will be in the specialty 
occupation. In other words, if the duties are not sufficiently detailed to convey the substantive nature 
of the position, then a petitioner has not demonstrated that a beneficiary would occupy a qualifying 
position. 
The regulation at 8 e.F.R. § 214.2(h)(4)(i)(A)(l) requires that a foreign worker "[w]ill perform 
services in a specialty occupation which requires theoretical and practical application of a body of 
highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as 
a minimum requirement for entry into the occupation in the United States ... " Stated differently, 
petitioners must demonstrate the nature of the specialty occupation through sufficiently detailed job 
duties, responsibilities, or functions. A crucial aspect of this matter is whether the Petitioner has 
sufficiently described the proffered position's duties such that we may discern the nature of the 
position, and whether the position actually requires the theoretical and practical application of a body 
of highly specialized knowledge attained through at least a baccalaureate degree in a specific 
discipline. We conclude that the Petitioner has not done so. 
The Petitioner initially described the proposed duties in terms of general functions that did not 
sufficiently convey substantive information to establish the relative complexity, uniqueness, and/or 
specialization of the proffered position or its duties. The abstract level of information provided about 
the proffered position and its constituent duties is exemplified by the fact that a significant amount of 
the duties the Petitioner initially provided were either copied verbatim or copied in large part from 
several resources to include the Department of Labor's (DOL) Occupational Information Network 
(O*NET), the Dictionary of Occupational Titles (DOT), or other publicly available Internet sources. 
In fact, the Petitioner copied some of the duties more than one time. The following represents the 
duties the Petitioner provided juxtaposed with the existing content from which they copied or 
appropriated those functions: 
Duties the Petitioner Presented Functions Originating from a Public Source 
" ... using scientific analysis and mathematical using scientific analysis and mathematical 
models to predict and measure outcome and models to predict and measure outcome and 
consequences of design" consequences of design 10 
" ... evaluate user request for new or modified Evaluates user request for new or modified 
programs to determine feasibility, cost and time program ... to determine feasibility, cost and 
required, compatibility with current systems, time required, compatibility with current 
and computer capabilities." system, and computer capabilities. 11 
10 Details Report for: 15-1133.00 - Software Developers, Systems Software, O*NET OnLine (May 5, 2020), 
https://www.onetonline.org/link/details/15-1133.00. The Petitioner utilized markedly similar version of this function 
twice within its paragraph description of the job. 
11 PROGRAMMER-ANALYST (profess. & kin.) alternate titles: applications programmer-analyst, Dictionary of 
Occupational Titles (May 5, 2020), https://www.occupationalinfo.org/03/030162014.html. The Petitioner utilized 
markedly similar version of this function twice within its paragraph description of the job. 
3 
• Developed custom java classes in order to • Developed Customjava classes in order to 
fetch custom Tasks in IIQ fetch custom Tasks in IIQ 
• Worked on various Certifications, • Worked on various Certifications, task and 
developed custom tasks and reports reports 
• Extensively worked with SailPoint API' s to • Extensively worked with SailPoint API to 
develop custom functionalities to suit develop custom functionalities 
Business requirements 
• Provided production support for existing • Provided production support for existing 
applications apart from configuring new application 
ones 
• Configuration of Roles, Policies and • Configuration of Roles, Policies and 
Certifications for governance compliance Certifications for governance compliance 12 
and also configure business 
• Working closely with architects, • Working closely with architects, 
development managers and developers development managers and developers 
across client accounts in creating, educating, across client accounts in creating, educating, 
creating awareness & building momentum creating awareness & building momentum 
around MS development tools & the .NET around software applications 
platform frameworks 
• Providing Platform Leadership to technical • Providing technical leadership to technical 
resources to meet project deadlines and resources to meet project deadlines and 
ensure project objectives are met ensure project objectives are met 
• Planning, scheduling and coordinating • Planning, scheduling and coordinating 
activities related to system development activities related to system development 
project project 
• Consulting with and mentoring technical • Consulting with and mentoring technical 
resources concerning methods, procedures, resources concerning methods, procedures, 
and standards to be used during design, and standards to be used during design, 
development, and unit testing phases of development, and unit testing phases of 
system development projects system development projects 
• Providing systems or technical development • Providing systems or technical development 
expertise to the technical resource team expertise to the technical resource team 
• Communicating issues and status • Communicating issues and status 
information to the Program Manager and information to the Program Manager and 
Practice Manager concerning system Practice Manager concerning system 
development activities development activities 13 
We identified additional lengthy passages from several other public websites. However, based on our 
above findings, it is unnecessary that we expend the time and space here to recount them, as we have 
sufficiently demonstrated the Petitioner's propensity to utilize existing material to represent its own 
proposed work. The copied duties we discussed above were not only provided initially with the 
12 Sailpoint consultant Resume, Hire TT People (May 5, 2020), https://www.hireitpeople.com/resume-database/64-java­
developers-architects-resumes/97483-sailpoint-consultant-resume-kansas-city-mo. 
13 Careers QA Trainer, GLOBAL TEK SYSTEMS (May 5, 2020), http://globalteksystems.com/careers.html. 
4 
petition, but all subsequently amended sets of duties the Beneficiary would purportedly perform 
contained some form of the appropriated content. 
Providing generic job duties for a proffered position from O*NET, the DOT, or another Internet 
source, however, is generally insufficient to establish H-lB eligibility. 14 The duties themselves 
provide the nature of the employment. 15 While this type of description may be appropriate when 
defining the range of duties that may be performed within an occupational category, it does not 
adequately convey the substantive work that the Beneficiary will perform in the job in the petition. 16 
Here, the job descriptions from the Petitioner do not sufficiently communicate: (1) the actual work 
that the Beneficiary would perform; (2) the complexity, uniqueness and/or specialization of the tasks; 
and/or (3) the correlation between that work and a need for a particular level of knowledge in a specific 
specialty. Based on the appropriated job functions, we conclude that the remaining evidence in the 
record does not overcome the adverse nature of the copied duties. 
We further note that the Petitioner has provided inconsistent information regarding the minimum 
requirements for the proffered position. Namely, when it filed the petition the Petitioner required a 
bachelor's degree in a specific field "with additional experience in practical application or theoretical 
knowledge of computer science or a specialized field of study with substantial training and/or 
experience in designing and implementing computer based models and solutions to practical and 
technical problems .... " However, within its response to the Director's RFE, it only required a 
bachelor's degree or the equivalent. Consequently, the Petitioner has offered inconsistent position 
prerequisites, it failed to offer the job advertisement or similar material for the proffered position, and 
we are unable to determine its actual position requirements. The Petitioner must ameliorate this 
discordant information in the record. Such a correction must be demonstrated through the submission 
of relevant, independent, and objective evidence that illustrates which information is the truth. 17 
We further note that the Petitioner submitted six job advertisements it claims are sufficiently similar 
to the position in this petition. All six of those job advertisements required a bachelor's degree and 
work experience (up to eight plus years of experience). This appears to indicate that the Petitioner's 
initial account of its position requirements may have been the most accurate as each of these 
advertisements require experience and it appears more likely than not that an information technology 
project leader would necessitate experience in the industry. As a result, the Petitioner has failed to 
establish its actual position requirements. The Petitioner did not provide an explanation for the variances 
in its position requirements, and it therefore has not satisfied its burden of proof 
We observe additional shortcomings within the record. For instance, the Petitioner initially provided a 
Statement of Work that was supposed to be executed between the petitioning organization and 
14 Cf Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990) (stating 
specifics are an important indication of the nature of a beneficiary's duties, otherwise meeting the requirements would 
simply be a matter of providing a job title or reiterating the regulations.) 
1s Id. 
16 DOL guidance states that for a wage level determination, it is important that the job description include "sufficient 
information to determine the complexity of the job duties, the level of judgment, the amount and level of supervision, and 
the level of understanding required to perform the job duties." 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 
17 Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
5 
~-----~!relating to the contractual relationship that would facilitate the work the Beneficiary 
would perform. While the cover page of this Statement of Work reflected the agreement was between 
the Petitioner and I ~ , I, the signature page was not only unsigned by one of the parties, but 
it also did not list the petitioning organization as a party to that contract. Instead, it liste~ I 
c=Jas the company that failed to sign that Statement of Work. 
However, within the RFE response the Petitioner provided the same cover page for this Statement of 
Work, but replaced the signature page and failed to elucidate (1) why it initially offered material that was 
unrelated to the petitioning organization, and (2) why it replaced that material without offering an 
explanation. An additional shortcoming within both versions of the Statement of Work was that it only 
included two of the Beneficiary's first names but omitted his third first name and failed to reflect either 
of his last names. As a result, the Petitioner has not sufficiently demonstrated that this Statement of Work 
included the Beneficiary as a resource on the project. 
III. CONCLUSION 
We conclude that the Petitioner has not demonstrated the reliability of its job description and, 
consequently, has not established the substantive nature of the proffered position and its constituent 
duties. Absent that foundational showing, we cannot determine whether the proffered position is a 
specialty occupation. 
Therefore, based upon our review of the record, we conclude that the Petitioner has not established 
the substantive nature of the work the Beneficiary will perform. 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 one; (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 two; (3) the level of complexity or uniqueness of the proffered 
position, which is the focus of the second alternate prong of criterion two; (4) the factual justification 
for a petitioner normally requiring a degree or its equivalent, when that is an issue under criterion 
three; and ( 5) the degree of specialization and complexity of the specific duties, which is the focus of 
criterion four. 
Based on the foregoing, we cannot conclude that the proffered position qualifies as a specialty 
occupation, and we will dismiss the appeal. 18 
ORDER: The appeal is dismissed. 
18 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not discuss the Petitioner's assertions on appeal. 
6