dismissed H-1B Case: Software Development

MATTER OF E-S- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 7. 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting company, seeks to temporarily employ the 
Beneficiary as a .. software developer" under the H-1 B nonimmigrant classification for specialty 
occupations. See section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act). 
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 ofhighly specialized knowledge and (b) the attainment of a bachelor"s or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite tor entry into the position. 
The Director, California Service Center. denied the petition. The Director concluded that the 
Petitioner had not demonstrated that the proffered position qualities for treatment as a specialty 
occupation position. 
The matter is now before us on appeal. In its appeaL the Petitioner submits additional evidence and 
asserts that the evidence submitted is sufficient to demonstrate eligibility. 
Upon de novo review. we will dismiss the appeal. 
I. LAW 
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: 
(b)(6)
Maller of E-S- Inc. 
(/) 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 
( .J.) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perf01m the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term ·'degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii )(A) to mean not just any 
baccalaureate or higher degree, but one in a specitic specialty that is directly related to the proposed 
position. See Ro_JYtl 5)iam Cmp. v. Cherlr?/f; 484 F.3d 139. 147 (1st Cir. 2007) (describing .. a degree 
requirement in a specitic specialty"' as '"one that relates directly to the duties and responsibiliti es of a 
particular position") ; Defensor v. ,Heissner, 201 F.3d 384,387 (5th Cir. 2000). 
ll. PROFF ERED POSITION 
In the H-1 B petition. the Petitioner stated that the Beneficiary will serve as a '"software developer." 1 
On the labor condition application (LC A) 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 15-1132.2 
In the H-1 B petition, the Petitioner stated that the Beneficiary would \Vork at 
California from October 1, 2015, to September 2, 2018. Evidence in the 
1 
The Petitioner suhmitred documentation to support the H-1 B petition . includin g evidence regarding the profte red 
position and its business operations. While we may not discu ss every document submitted. we have rev iewed and 
considered each one . 
~ The Petitioner classi fied the proffered position at a Level I wage (the lowest of four ass ignab le wage levels). The 
·' Prevailing Wage Determination Policy Guidance" issued by the DOL provide s a description of the wage level s. 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 pertorm routine 
tasks that require limited , if any, exercise of judgment; (2) that he will be closely supervised and his work clo sely 
monitored and reviewed for accuracy; and (3) that he will receive specific instruction s on required tasks and expected 
results. U.S. Dep"t of Labor. Emp"t & Training Admin .. PrevailinK JVaKe Determinati on PoliCJ• Guidance. Nonagric. 
Immigration Programs (rev. Nov . 2009) . available at http:i!flcdatacenter.com idownload t' 
NPWHC _Guidancc _Revi sed_ II _2009.pdf A prevailing wage detennination starts with an entry level wage and 
progre sses to a high er wage level after considering the experience, education. and skill requirements of the Petitioner's 
job opportunity. ld 
2 
(b)(6)
Matter £~/'E-S- Inc. 
record indicates that address is a location of 1, the claimed end-client. The LCA 
was certified for employment there and at the Petitioner's own location in California. 
The Petitioner submitted the follmving description of the duties of the proffered position when it 
filed the petition: 
• Converting business requirements into functional and application system design 
documents: 
• Constructing software applications using object-oriented language and development 
tools~ 
• Developing and implementing test validations of the applications: 
• Analyzing test results and recommending modifications to the applications to meet 
project specification; 
• Deploying the applications into existing systems and databases: 
• Researching and analyzing existing systems for new systems and/or enhancements to 
existing systems; and 
• Documenting modifications and enhancements made to the applications. systems and 
databases as required by the project. 
The evidence of record indicates the path of contractual successiOn as follows: Petitioner -7 
-7 -7 
Ill. 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 qualities as a specialty occupation. 
Specifically, the record (1) does not describe the position's duties with sutlicient detail: and (2) does 
not establish that the job duties require an educational background, or its equivalent. commensurate 
with a specialty occupation. 3 
W c find that the Petitioner has not established the substantive nature of the duties the Beneticiary 
would perform if the H-18 petition were approved. For example, a letter from contains the 
fol!O\ving description of the services the Beneficiary would provide: 
• Developing testing framework and test suites using Java (J-Units for JBehave) to test 
new and existing gateways (Both country specific and merchant specilic) 
• Creating test data and test plans for retail merchants for internet and point of sale 
transactions 
' The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 
(b)(6)
Afatter r?lE-S- Inc. 
• Collaborate with developers and test leads to improve test efficiency. automation and 
tools 
• Work with development and operations to improve etliciency and effectiveness of 
automation 
• Involved in developing and implementation of transaction logic for gate\vays 
• Present technical and business solutions both internally and externally across multiple 
organization levels 
• Maintain and/or update documentation (both internal and external I.e. 
merchant/customer specific) that communicates the standards and procedures 
• Contributing to the team who is responsible in developing impact testing framework 
for · transactions 
• Working very closely with Data Scientists to understand data requirements and also 
help with data 
mining and unscrambling. 
• Tools used: Java 7. J-Behave. J-Units, Spring, Eclipse IDE. Bamboo. JIRA Perl. 
Shell Scripting, JAXB Parser. XML, JSON 
The duties are presented in abstract and generalized terms such as ·•work \vith development and 
operations.'' ·'present technical and business solutions:· or •·contributing to the team'" that do not 
communicate what the Beneficiary \vould do on day-to-day basis or what bodies of knowledge arc 
required to perform these duties. Further, the letter also states. '·The project is expected to last 
through September 30, 2015.'' That statement does not indicate that the project would continue 
through any part of the period of requested employment. As to the educational requirement of the 
proffered position. it states: "BS or MS in Software Engineering, Computer Science. IS. or other 
related field ... 
A letter from submitted reiterates the duty-descriptions provided by but states that the 
proffered position is a "QA Analyse position. which differs from the proffered position. It also 
states... has informed us they require the QA Analyst to hold at least a bachelor's degree ... 
In her request tor evidence (RFE), the Director stated that ·'further evidence is still necessary such as 
recent statements of work (SO\V's) Masters service Agreement and end-client letters betVv'een 
and Acceptable SOWs and end-client letters should indicate the Beneticiary by name and 
the dates \vork will be provided tor the Beneficiary.'' In response, the Petitioner provided additional 
evidence. None of it came from 
In the decision of deniaL the Director stated: 
The entity ultimately employing the alien or using the alien's services must submit a 
description of conditions of employment. such as contractual agreements. statements 
of \vork, \Vork orders, service agreements, and/or letters from authorize officials of 
the ultimate client companies where the alien will work that describe. in detail, the 
duties that the alien will perform and the qualifications that are required to perform 
the job duties. 
4 
(b)(6)
Maller 4 E-S- Inc. 
On appeaL the Petitioner submits a letter. dated September 2. 2015. that it claims was prepared by 
On its face. the letter lists the duties proposed for the Beneficiary, indicates the percentages of 
time that \Vill be spent performing the various duties. and states a requirement for a bachelor's 
degree in computer science or a related field. While this letter is acknowledged. \Ve do not find it 
persuasive and will not discuss it further.4 
Although the Director made clear in the RFE that the Petitioner should provide evidence from 
showing the dates during which had agreed to utilize the Beneficiary's services. no such 
evidence has been provided. 5 The letter on appeal allegedly submitted by indicates that the 
Beneficiary was then \Vorking at but does not state whether intends to utilize the 
Beneficiary's sen,ices at any point during the period of employment requested in this petition or, if it 
does. the beginning and end dates of that employment. As the evidence from does not show 
that the Beneficiary would work at location during the period of requested employment. the 
Petitioner has not shown that the Beneficiary \vould \vork there during that period, and has not. 
therefore. sho\\n the substantive nature of the duties the Beneficiary would perform there during that 
period. 
As recognized in Defensor v. Meissner. 201 F.3d 384. 387-8 (5th Cir. 2000), it is necessary tor the 
end-client to provide sufficient information regarding the proposed job duties to be performed at its 
location in order to properly ascertain the minimum educational requirements necessary to perform 
those duties. In other words. as the nurses in that case would provide services to the end-client 
hospitals and not to the petitioning staffing company. the Petitioner-provided job duties and alleged 
requirements to perform those duties were irrelevant to a specialty occupation determination. See id. 
Further. the record lacks credible evidence that when the Petitioner filed the petition. the Petitioner 
had secured any other \Vork of any type for the Beneficiary to perform during the requested period of 
employment. The record contains a Sub-Vendor Agreement executed by and the Petitioner 
4 Our finding that this letter lacks persuasive authority rests on several observations. First, the letterhead does not 
contain the end-client's address, telephone number, or any other contact infonnation. The margins, line spacing. and 
justitication are inconsistent and the bullet-points are different sizes. Also. the end-client's logo is blurry, and the·'@" 
symbol is blurry and nearly illegible. 
The content of the letter contains similar deficiencies. As noted, the letter indicated the percentages of time the 
Beneficiary would spend perfonning the position's various duties. However, when added together those duties comprise 
more than I 00% of the Beneficiary's time. Further. rather than provide dates of engagement. or even estimate. the letter 
states only that the end-client had contracted with ·for a long period of time." Such a vague statement does not 
demonstrate the existence of non-speculative work. Finally, we note that while the end-client addresses its agreement 
with it does not address its agreement with (in its letter dated March 23, 2015. referenced a master 
services agreement executed bet\veen itself and the end-client). 
Finally. there is no explanation as to why this letter was not submitted in response to the Director's RFE. 
5 
As indicated. this deticiency would exist even if we considered the letter submitted on appeal. '"For a long period of 
time" is too vague of a statement to establish the Petitioner's claim. 
5 
(b)(6)
Matter c~lE-S- Inc. 
that sets out general terms pursuant to which the Petitioner might provide workers to pursuant 
to the terms of work orders to be issued subsequently. A work order provided shmvs that 
proposed that the Petitioner might assign the Beneficiary to it for assignment to the 
California location of from June 14,2014, to June 16,2015. The Petitioner also provided a 
list of companies for whom the Petitioner claims to be developing in-house projects. to \Vhich it 
claims it could assign the Beneficiary if no work ~--as available at the location. However. it 
provided insuflicient evidence to corroborate the existence of those projects, or the substantive 
nature ofthe particular duties that their development would require. 6 
Further, the Petitioner made explicit in the employment agreement between it and the Beneficiary 
that it could assign the Beneficiary to a different, unidentified, project or projects and assign other, 
unidentified. duties to the Beneficiary as it deems appropriate. Even if had stated that it 
intended to utilize the Beneficiary's services during all or part of the period of intended employment 
that statement \Vould not demonstrate that the Petitioner could not assign the Beneficiary else\vhere 
to perf()rm other duties. 7 For this additional reason, the Petitioner has not established the substantive 
nature of the duties the Beneficiary would pert<.1rm if the visa petition were approved. 
That the Petitioner did not establish the substantive nature of the \Vork to be pertom1ed by the 
Beneficiary precludes a finding that the proffered position is a specialty occupation under any 
criterion at 8 
C .F.R. § 214.2(h)( 4)(iii)(A), because it is the substantive nature of that \vork that 
determines ( 1) the nom1al minimum educational requirement for the particular position. which is the 
focus of criterion 1: (2) industry positions which are parallel to the proffered position and thus 
6 
The agency made clear long ago that speculative employment is not permitted in the H-18 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 
undetennined, 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 perfonn either part of this tvvo-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. 
\998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
7 
Although we will not discuss these issues in depth, the Petitioner's assertion that it may assign the Beneficiary to 
projects elsewhere raises the issue of whether the Beneficiary would work at a location tor which the LC A is approved 
and whether. pursuant to the terms of the Beneficiary's placement on those other projects, the Petitioner would then 
exercise an employer-employee relationship with the Beneficiary. 
6 
Matter (?f E-S- Inc. 
appropriate for review for a common degree requirement, under the first alternate prong of criterion 
2:8 (3) the level of complexity or uniqueness of the protlered 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. 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation.
9 
IV. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act. 8 U.S.C. § 1361: Matter l~(Otiende. 26 I&N Dec. 127, 128 (BIA 2013). Here. that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ldE-S- Inc., 10# 16424 (AAO June 7. 2016) 
8 The Beneficiary provided evidence that might ordinarily be relevant to various criteria of 8 C.F.R. § 214.2(h)( 4 )(iii)(A). 
For instance, the Petitioner provided vacancy announcements placed by other companies for software engineers and 
software developers. These might ordinarily be relevant to the first criterion at 8 C.F.R. § 214.2(h)( 4 )(iii)(A)(2). In this 
case. however, because the Petitioner has not demonstrated the substantive nature of the duties the Beneficiary would 
perform if the visa petition were approved. it has not demonstrated that the Beneficiary would \'vOrk as a software 
engineer or a software developer. and those vacancv announcements have not been shown to be relevant. 
9 
As this issue precludes approval of the petition, \~e need not and will not address any of the additional issues we have 
observed in our de nm·o review of this matter.