dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 17000327 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimrnigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 4, 2021 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonirnrnigrant 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 petition, concluding that the Petitioner did not 
establish that the proffered position is a specialty occupation. In these proceedings , it is the Petitioner's 
burden to establish eligibility for the requested benefit by a preponderance of the evidence. 2 
Upon de novo review, we will dismiss the appeal. 3 
I. LEGAL FRAMEWORK 
According to the filing requirements for applications and petitions found at 8 C.F.R. § 103.2(b)(l) , 
... [ a ]n applicant or petitioner must establish that he or she is eligible for the requested 
benefit at the time of filing the benefit request and must continue to be eligible through 
adjudication. Each benefit request must be properly completed and filed with all initial 
evidence required by applicable regulations and other USCIS instructions . Any 
evidence submitted in connection with a benefit request is incorporated into and 
considered part of the request. 
The regulations require that before filing a Form 1-129, Petition for a N onimrnigrant Worker , a 
petitioner obtain a certified labor condition application (LCA) from the Department of Labor (DOL) 
in the occupational specialty in which the H-lB worker will be employed. 4 Additionally, a petitioner 
submits the LCA to the DOL to demonstrate that it will pay an H-lB worker the higher of either the 
1 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(l5)(H)(i)(b). 
2 See section 291 of the Act; Matter ofChawathe , 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
4 See 8 C.F.R. § 214.2(h)(4)(i)(B). 
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. 5 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-lB nonirnrnigrant as a foreign national "who is 
corning 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. 6 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(J) states that an H-IB 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 is 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. 7 
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 The Director may request additional evidence 
in the course of making this determination. 9 Where, as here, a petitioner has been put on notice of a 
deficiency in the evidence and has been given an opportunity to respond to that deficiency, we will 
5 See section 212(n)(l) of the Act, 8 U.S.C. § l 182(n)(l)(A); 20 C.F.R. § 655.73 l(a). 
6 8 C.F.R. § 214.2(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 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 particular position"). 
7 See 8 C.F.R. § 214.2(h)(4)(iii)(A). 
8 See 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
9 See 8 C.F.R. § 103.2(b)(8). 
2 
not accept evidence 10 offered for the first time on appeal. 11 The appeal will be adjudicated based on 
the record of proceeding before the Director. 
TI. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not established the services 
the Beneficiary will perform, 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). 12 
A. Substantive Nature 
The Petitioner, a software development and consulting company, states the Beneficiary will be 
employed as a "systems analyst" and describes the job duties as follows 13 (bullet points and 
punctuation added): 
• Analyze user requirements, procedure and problems to improve existing system -
5% 
• Write High Level Design Documents - 10% 
• Analyze, design, develop and implement customized business software 
applications using technologies like Oracle/Sybase/MS SQL Server, SQL 
Backup/Restore replication, clustering, performance tuning, Data 
Modeling/Warehousing, Cognos, Impromptu, Powerplay, Transformer, ETL 
Tools, Cubes, BO, OLAP, OLTP-40% 
• Prepare work flow charts and diagrams to specify in detail operations to be 
performed - 10% 
• Conduct studies pertaining to development of new information systems to meet 
current and projected needs - 15% 
• Write complex stored procedures for Oracle and SQL Server databases - 10% 
• Review upgrade, logic, coding and corrections - 10%. 
To determine whether a particular job qualifies as a specialty occupation, we do not simply rely on a 
position's title. The specific duties of the proffered position, combined with the nature of the 
petitioning entity's business operations, are factors to be considered. We must examine the ultimate 
employment of the individual and determine whether the position qualifies as a specialty 
occupation. 14 In this matter the Petitioner provides a copy of a project report and claims that the 
10 On appeal, the Petitioner provides information previously submitted as well as the senior vice president/ chief technical 
officer's affidavit regarding the project to which the Beneficiary will be assigned. 
11 See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 
1988). 
12 The Petitioner submitted documentation in the underlying record to support 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. 
13 The Petitioner also notes that the Beneficiary's duties are not limited to these generally described tasks but again does 
not further elaborate on what other potential tasks might be included in the Beneficiary's duties and whether such tasks 
would fall within the parameters of the "Computer Systems Analysts" occupation. 
14 See generally Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000). 
3 
Beneficiary will be assigned to perform services for this project. However, the undated project report 
lists numerous positions and duties for the proposed project team but does not include a systems 
analyst occupation. 15 Similarly, the proposed structure for the team identifies developers and 
designers but does not list systems analyst(s) positions. The Petitioner does not explain or describe 
how the proposed position correlates to any of the positions described in the project report. Moreover, 
the Petitioner does not provide comprehensible updates or information on the stage or phase of the 
project. The record does not include probative evidence of the Beneficiary's proposed role and level 
of responsibility within the project. 
Nor does the Petitioner elaborate on or explain what tasks are involved in analyzing, designing, 
developing, and implementing customized business software applications, other than noting these 
tasks involve using different technologies. The record does not include sufficient evidence 
establishing that any of these technologies require a bachelor's degree in a specific specialty to use 
them. Additionally, it is unclear whether this broadly stated duty is a computer systems analyst duty 
or would more appropriately fall within other occupations 16 which require a higher paying wage. That 
is, the Petitioner does not provide sufficient context for the Beneficiary's proposed duties to ascertain 
whether the Beneficiary will perform systems analyst duties, application software developer duties, or 
duties of other technology occupations. Without detail and context, the generally described duties 
overlap with other technology occupations. Further, without more information regarding the 
Beneficiary's role within the project, which has not been substantiated in the record, we cannot 
ascertain the complexity, uniqueness, or specialization of the duties, or whether the position is 
appropriately designated as a "Computer Systems Analysts" occupation. 
The Petitioner also does not provide a consistent description of the academic and experience 
requirements to perform the duties of the position. Initially, the Petitioner stated that the position 
required a bachelor's degree in computer science, information technology, or related field. The 
Petitioner later adds that the position requires an undefined amount of experience in software 
applications and development. In response to the Director's request for evidence (RFE), the Petitioner 
enlarges the fields of study to include bachelor's degrees in computer applications or electronics. The 
Petitioner's president also notes that an individual with a bachelor's degree in the general field of 
business administration 17 as well as information technology, computer science, electronics or related 
15 The report lists positions and duties for associate director sales, vice president products, director marketing, product 
manager, solutions architect, QA lead, creative lead, project lead, big data engineer, A WS engineer, manual/automation 
QA engineer, UI designer, UX designer, copywriter, content writer, developer (Android, IOS, PHP, .Net, Angular, Node.js, 
React JS), data scientist, big data developer, ETL developer, and RPA developer. The Petitioner does not identify which 
of the positions, if any, correspond to the systems analyst position offered here. 
16 For example, if the position requires the Beneficiary to perform application software developer duties, this occupation 
should be the occupation designated on the certified labor condition application (LCA), as it is the higher paying 
occupation. 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/NPWHCGuidance_Revised_ll_2009.pdf. At the time the Petitioner's LCA was 
certified, the Level II prevailing wage in the area of intended employment for "Software Developers, Applications" was 
$96,595 per year, which is higher than the prevailing wage for "Computer Systems Analysts" which was $92,435 per year. 
See https://flcdatacenter.com/OESWizardStart.aspx. 
17 A bachelor's degree in business administration is inadequate to establish that a position qualifies as a specialty 
occupation. We have consistently stated that, although a general-purpose bachelor's degree, such as a degree in business 
administration, may be a legitimate prerequisite for a particular position, requiring such a degree, without more, will not 
4 
are acceptable fields of study for a systems analyst. He later adds that the proposed work demands a 
bachelor's degree in computer science or a related engineering field. The Petitioner's March 15, 2020 
advertisement for the position states that the minimum requirement is a bachelor's degree in computer 
science, electronics and communication, a related field or relevant experience. These varied 
acceptable and general fields of study farther undermine the substantive nature of the position. It is 
not possible to identify and analyze the focus of the position beyond concluding that it is a general 
technology position. 18 The Petitioner must resolve ambiguities in the record with independent, 
objective evidence pointing to where the truth lies. 19 Similarly, the Petitioner's acceptance of 
"relevant experience" to perform the position, as set out in its job posting, without standards 
identifying the amount of experience raise further questions regarding the nature of the proposed 
position. The Petitioner does not clarify or elaborate on the amount and type of experience the position 
requires. 20 The Petitioner's indefinite, inconsistent requirements suggests that a general degree with 
some undefined experience would be sufficient to perform the duties by the Petitioner's own standards. 
Without sufficient evidence regarding the duties the Beneficiary will perform or the minimum degree 
required for entry into the occupation, 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 is a position that also satisfies at least one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). Further, 
we cannot determine whether the certified LCA corresponds to and supports the position generally 
described in the petition. 
B. Beneficiary's Qualifications 
The Petitioner asserts that the Beneficiary is qualified to perform the duties of the position based on 
her foreign degree and her experience. 21 However, a beneficiary's credentials to perform a particular 
job are relevant only when the job is found to be a specialty occupation. As discussed in this decision, 
the Petitioner has not established that the proffered position requires the "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." Therefore, we need not and will not address the Beneficiary's qualifications further except to 
note that the record does not include an evaluation of the Beneficiary's foreign degree by a credential 
justify a conclusion that a particular position qualifies for classification as a specialty occupation. Royal Siam Corp., 484 
F.3d at 147. 
18 There are a number of technology positions and such positions have different academic and experience requirements, as 
well as requiring different rates of pay. Without an understanding of the Beneficiary's specific duties within the context 
of the Petitioner's business operations and the Beneficiary's proposed assignment, we cannot ascertain the substantive 
nature of the position and conclude that the proposed position is a specialty occupation. 
19 See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
20 The Petitioner appears to rely on the Beneficiary's claimed six (per the Petitioner's president) or ten (per the senior vice 
president/chief technical officer) years of technological experience to perform the duties of the position. However, the test 
to establish a position as a specialty occupation is not the skill set or education of a proposed beneficiary, but whether the 
position itself qualifies as a specialty occupation. 
21 The Petitioner's president indicates that the Beneficiary's foreign degree and six years of experience qualify her to 
perform the duties of the position. The Petitioner's senior vice president/chief technical officer notes that the Beneficiary 
is well qualified and has experience of more than ten years in the United States and India in required technologies. It is 
not clear whether the Petitioner is relying on the Beneficiary's experience or a combination of her experience and her 
foreign degree to perform the duties of the position. 
5 
evaluation service as required by the regulation. 22 The record also does not include the Beneficiary's 
complete transcript. 23 Thus, even if the position was considered to be a specialty occupation, which 
has not been established, the record does not include sufficient evidence to establish the Beneficiary's 
qualifications to perform the services of a specialty occupation. 
III. CONCLUSION 
Upon review of the totality of the evidence submitted, the Petitioner has not provided sufficient 
substantive detail regarding the duties the Beneficiary will perform or established the minimum degree 
requirements of the occupation. Therefore, we are unable to determine the substantive nature of the work 
and whether the Beneficiary will be employed in a position that satisfies at least one of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A) and is an occupation that meets the statutory and regulatory definitions of 
a specialty occupation as defined by section 2 l 4(i)(l) of the Act, 8 U.S.C. § l l 84(i)(l ), 8 C.F.R. 
§ 214.2(h)(4)(ii), and (iii)(A). In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. 24 The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
22 8 C.F.R. § 214.2(h)(4)(iii)(D)(3). We note that the record does not show tha~ _I is employed by a 
credential evaluation service. 
23 The record includes the Beneficiary's statement of marks but does not include descriptions of courses taken. 
24 See Section 291 of the Act, 8 U.S.C. § 1361. 
6