dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 5129052 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 30, 2020 
The Petitioner , a software development company , seeks to temporarily employ the Beneficiary as a 
"software developer, applications" under the H-lB 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-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 Director of the Vermont Service Center denied the petition, concluding that the Petitioner did not 
establish that the proffered position qualifies as a specialty occupation . 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying 
the petition . Upon de nova review, we will dismiss the appeal. 1 
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 : 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
(]) 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). 
II. THE PROFFERED POSITION 
The Petitioner indicated that the Beneficiary would be employed in-house "to design and develop the 
software required to provide products and solutions for [its] customers" and stated that it "has recently 
secured several new orders from existing and new customers to provide software solutions to meet 
their particular needs." The Petitioner described the job duties of the proffered position in its initial 
letter of support as follows: 
The Software Developer, Applications duties include: (1) Analyze and define end-user 
requirements for the system; (2) Participate in the design of the system using object 
oriented principles and implementation that involve the use of SQL, PL/SQL, and 
Oracle; (3) Perform user acceptance and integration testing, GUI testing and debugging 
using tools including HP Loadrunner and Site scope; (4) Document the design and 
implementation process; and (5) Train end-users of the application. 
Then, in response to the Director's request for evidence (RFE), the Petitioner allocated percentages of 
time the Beneficiary would devote to the listed duties as follows: 
Analyze and define end-user requirements for the system 15% 
Participate in the design of the system using object oriented principles and 20% 
implementation that involve the use of SQL, PL/SQL, and Oracle 
Develop performance scripts and support application performance 45% 
monitoring using LoadRunner, SiteScope, SQL & PL/SQL 
Test, analyze, and deploy 5% 
Document the process and supports end-users 15% 
2 
The Petitioner also included additional tasks the Beneficiary would perform in carrying out the listed 
duties. The Petitioner indicated that the minimum entry requirement for the proffered position is a 
bachelor's degree, or equivalent, in computer science or engineering. 
III. ANALYSIS 
For the reasons set out below, we have determined that the proffered position does not qualify as a 
specialty occupation. First, the record lacks sufficient evidence of the services the Beneficiary will 
perform. 2 See section 10l(a)(l5)(H)(i)(b) of the Act (classifying an H-lB nonimmigrant as a foreign 
national "who is coming temporarily to the United States to perform services ... in a specialty 
occupation") ( emphasis added). Second, the record does not: (1) describe the proffered position in 
sufficient detail; and (2) establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. Therefore, the Petitioner has not established 
the substantive nature of the position, which precludes a determination that the proffered position 
qualifies as a specialty occupation under at least one of the four regulatory specialty-occupation criteria 
enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(])-(4). 
As noted, the Petitioner states that the Beneficiary will perform services for clients. Notably, at the 
time of filing the H-lB petition, the Petitioner stated that it "recently secured several new orders from 
existing and new customers to provide software solutions to meet their particular needs," but did not 
provide any contractual agreements with clients. In response to the RFE, the Petitioner submitted 
evidence of its contractual relationship with P- ( client) including a Master Services Agreement (MSA), 
Statements of Work (SOW), and Purchase Orders (PO). However, the documents did not adequately 
establish that the Beneficiary will be assigned to a project for the client. 
For example, the MSA states that the "[Petitioner] agrees to provide [the client] services as are 
described in the statement of work .... " The MSA also states " ... [the Petitioner] shall not begin 
providing such services to [the client] until the applicable SOW has been executed by both parties and 
[the Petitioner] receives a purchase order for such services." The record contains SOWs and POs, but 
most of them expired prior to the Beneficiary's intended start date. While SOW #2017-07 Android 
Development is valid from November 2017 to December 2018 and covers three months of the 
Beneficiary's requested employment, there is no evidence that the Beneficiary will be assigned to this 
project. Notably, the SOW's "Acceptance Criteria" states "resources will be assigned to the project[,] 
meeting the job descriptions defined by [the client] for each role after review and approval of the 
individual's profile by [the client]." As pointed out by the Director, there is no evidence that the 
Beneficiary's profile was approved by the client. On appeal, the Petitioner asserts that it "cannot 
assign this Beneficiary to this project at this point because the Beneficiary is not [in] the U.S." and 
that it "does plan to assign this Beneficiary ... once this instant petition is approved." 
However, as noted, section 101 ( a)(l 5)(H)(i)(b) of the Act classifies an H- lB nonimmigrant as a foreign 
national "who is coming temporarily to the United States to perform services ... in a specialty 
occupation." See 8 C.F.R. § 214.2(h)(l)(i) (defining an H-lB nonimmigrant as a foreign national "who 
2 The Petitioner submitted documentation 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. 
3 
is coming to perform services in a specialty occupation"). In addition, a petitioner must establish 
eligibility at the time of filing the petition. 8 C.F.R. § 103.2(b )(1 ). A petition may not be approved at 
a future date after a petitioner or beneficiary becomes eligible under a new set of facts. Matter of 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978). Without knowing what work has actually 
been secured for a beneficiary at the time of filing, we cannot determine that the services to be performed 
would qualify as a specialty occupation. 
Assuming arguendo that the record sufficiently established the services the Beneficiary would 
perform, a crucial aspect of this matter is whether the Petitioner has sufficiently described the duties 
of the proffered position 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. However, the record does not: 
(1) describe the proffered position in sufficient detail; and (2) establish that the job duties require an 
educational background, or its equivalent, commensurate with a specialty occupation. 
While the Petitioner provided a list of job duties, along with the percentage of time the Beneficiary would 
devote to each, this information fails to convey the substantive nature of the proffered position and its 
constituent duties. For example, the Petitioner's description of the proffered position, provided in 
response to the RFE, lists duties, such as, analyze and define end-user requirements for the system; 
define the scope for performance and non-functional requirements; upgrade/migrate existing 
applications, review the existing application code, dependencies, application servers, database, and batch 
jobs and prepare the requirement documents to help business user create user stories; participate in agile 
planning and product backlog refinement meetings; participate in formulating design of system and 
socializing the design with architects and other technical stakeholders; prepare low-level design 
documents; design application workflows and integration flows with existing systems; prepare 
deployment instructions and rollback plan in documents; create change management requests to initiate 
deployment process; and back up the project code, scripts, metrics, and implementations future 
reference. 
This list of duties3 does not adequately demonstrate what particular tasks the Beneficiary will perform 
on a day-to-day basis for the client or its project. The Petitioner provided a vague description of the 
position, and did not provide a detailed explanation regarding the demands, level of responsibilities, or 
complexity of these duties. 
Further, although the Petitioner identified the project and provided a description, the record does not 
outline the duties and role of the proffered position in the context of this project. 4 For example, the 
Petitioner did not provide any documentation specifically outlining the Beneficiary's name and job title 
3 While the Petitioner provided numerous duties and tasks for the proffered position, we will not list each one. We note 
that this is not an exhaustive list of all tasks for which the Petitioner has not explained the requirement for the theoretical 
and practical application of a body of highly specialized knowledge. The Petitioner should not assume that any duties or 
tasks not listed here are otherwise persuasive. 
4 We must review the actual duties the Beneficiary will be expected to perfonn to ascertain whether those duties require at 
least a baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a specialty occupation. 
To accomplish that task in this matter, we review the duties 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. 
4 
on particular tasks. Nor did the Petitioner specifically correlate the listed duties to the project identified 
for the client. 
Furthermore, the Petitioner described the position in terms of generic functions that do not convey 
sufficient 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 Petitioner's assertion that the Beneficiary will 
"design and develop the software required to provide products and solutions for [its] customers." 
However, the Petitioner's statements do not provide sufficient insight into the Beneficiary's actual 
duties, nor do they include details regarding the specific tasks that the Beneficiary will perform as they 
relate to the assigned project. The statements also do not demonstrate how the performance of these 
duties, as described in the record, would require the attainment of a bachelor's or higher degree in a 
specific specialty, or its equivalent. 
Overall, 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 position as described does not 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. 
The expert opinion letter authored by I L Professor in the School of Electrical 
Engineerin] and Computer Science atLJUniversity, does not satisfy the Petitioner's burden, either. 
In his letter, I( 1) describes the credentials that he asserts qualify him to opine upon the nature 
of the proffered position; (2) lists the duties proposed for the Beneficiary; and (3) states that these duties 
require at least a bachelor's degree, or its equivalent, in computer science, computer information 
systems, information technology, or closely related fields. We carefully evaluated I l's 
assertions in support of the instant petition but find them insufficient. 
First, I lstates that his assessment is based upon a description provided by the Petitioner of 
the company and the proffered position. Whilel I provides a brief: general description of 
the Petitioner's business activities, he does not demonstrate in-depth knowledge of its operations or 
how the duties of the position would actually be performed in the context of its business enterprise. 
Second, I I states that he reviewed the duties of the proffered position provided by the 
Petitioner and concluded that that the "position of software developer has responsibilities and authority 
commensurate with professional standing" that require skills acquired through a bachelor's degree in 
~r information systems, information technology, or closely related fields. However, whileO 
L___Jlisted the duties provided by the Petitioner in his letter, he did not discuss the specifics of the 
particular tasks upon which the Beneficiary would work in meaningful detail. For example, while we 
appreciate his brief discussion of the generic duties provided by the Petitioner and the academic 
courses completed by the Beneficiary, that description still falls short of providing a meaningful 
discussion of what the Beneficiary would actually do in the proffered position and how those duties 
actually require the theoretical and practical application of a body of highly specialized knowledge. 
5 
In addition, the record does not indicate whether I I was aware that the Beneficiary would 
work on projects for the Petitioner's clients. As such, we conclude that the Petitioner has not 
demonstrated that I I adequately assessed the nature of the position and appropriately 
determined parallel positions based upon the job duties and level of responsibilities. 
We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of 
Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not in accord 
with other information or is in any way questionable, we are not required to accept or may give less 
weight to that evidence. Id. For the reasons discussed, we find thafl Is opinion letter lends 
little probative value to the matter here. 
As a result, the Petitioner has not established the substantive nature of the work that the Beneficiary will 
perform. This 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 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. Therefore, we cannot conclude 
that the proffered position qualifies for classification as a specialty occupation. 
IV. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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