dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 5, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a development and testing solutions business, seeks to temporarily employ the 
Beneficiary as a "software engineer" under the H -1 B nonimmigrant classification. See Immigration 
and Nationality Act (the Act)§ 10l(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, 
California Service Center, denied the petition. The matter is now before us on appeal. The appeal 
will be dismissed. 
I. ISSUE 
The issue before us is whether the proffered position qualifies as a specialty occupation m 
accordance with the applicable statutory and regulatory provisions. 1 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
To meet its burden of proof, the Petitioner must establish that the employment it is offering to the 
Beneficiary meets the following statutory and regulatory requirements. 
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. 
1 
We conduct appellate review on a de novo basis. Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 20 15); see 
also 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the issues on notice or by rule."); Dar v. INS, 891 F.2d 997, 
1002 n.9 (2d Cir. 1989). 
Matter of S-, Inc. 
The regulation at 8 C.F .R. § 214.2(h)( 4 )(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ ( 1)] requires theoretical and practical 
application of a body of highly specialized knowledge in fields of human endeavor 
including, but not limited to, architecture, engineering, mathematics, physical sciences, 
social sciences, medicine and health, education, business specialties, accounting, law, 
theology, and the arts, and which [(2)] requires the attainment of a bachelor's degree or 
higher in a specific specialty, or its equivalent, as a minimum for entry into the 
occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent 1s normally the m1mmum 
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. 
As a threshold issue, it is noted that 8 C.F .R. § 214.2(h)( 4 )(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.P.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
2 
Matter of S-, Inc. 
As such and consonant with section 214(i)( 1) of the Act and the regulation at 8 C.F .R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets 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 specific specialty that is directly related to the proffered 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"). Applying this standard, USCIS regularly approves H-1B petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty or its equivalent directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H -1 B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does 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. users must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. The Proffered Position 
The Petitioner identified the proffered position as a "Software Engineer" on the Form I-129, and 
attested on the required labor condition application (LCA) that the occupational classification for the 
position is "Software Developers, Applications," SOC (ONET/OES) Code 15-1132, at a Level I 
wage. 
In a letter submitted in support of the visa petition, the Petitioner stated that the Beneficiary in the 
software engineer position would perform the following duties: 
• Work with a Business Analyst and/or end users to understand and analyze business 
requirements, contribute to design, develop technical specifications, perform coding, 
assist with unit testing, and perform development of Java and Android components; 
• Handle conceptualization, interface design, and architecture of the web and native 
applications; 
• Integrate applications with backend databases; 
• Research, test, build and coordinate the integration of new products in accordance 
with production and client requirements; 
• Provide technical support and resolve defects; [and] 
3 
(b)(6)
Matter of S-, Inc. 
• Prototype new solutions and work with stakeholders to develop formal technical 
requirements[.] 
The Petitioner stated that it requires "a minimum of a B.S. in Computer Science, Mathematics, 
Electronics Engineering, or in related field" and also that it requires its "prospective candidate to 
possess some professional experience." 
In response to the Director's RFE, the Petitioner submitted a copy of its employment contract with 
the Beneficiary, a description for a software application project labeled a position 
description for a software engineer on the project, information regarding the Petitioner's 
operations, and the Petitioner's tax returns, among other documentation. 
C. Analysis 
In this matter, the Petitioner has provided a generalized description of the Beneficiary's proposed 
duties which does not convey sufficient substantive information to establish the relative complexity, 
uniqueness and/or specialization of the proffered position or its duties. Accordingly, we are unable 
to discern the nature of the actual position and whether the proffered position requires the theoretical 
and practical application of a body of highly specialized knowledge, and the attainment of a 
baccalaureate or higher degree in the specific specialty as the minimum for entry into the occupation. 
The Petitioner does not elaborate on the generalized description of duties so that we may ascertain 
the Beneficiary's exact tasks as those tasks relate to any actual project. We note that the Petitioner 
also states that the Beneficiary will "[h ]andle conceptualization, interface design, and architecture of 
the web and native applications," however, the Petitioner does not provide any insight into what 
these duties actually entail. Similarly, the Petitioner does not describe the Beneficiary's actual role 
in researching, testing, building, and coordinating the integration of new products in accordance with 
production and client requirements. Also, the Petitioner indicates that the Beneficiary will work 
with a Business Analyst and/or end users to understand and analyze business requirements and will 
contribute to design and development of technical specifications, as well as assist with unit testing. 
This language suggests that the Beneficiary will not actually design, test, and develop software but 
rather will perform entry-level duties consistent with the Petitioner's attestation on the LCA that the 
proffered position warrants a Level I wage. 2 
2 The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage rate is 
described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic 
understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of 
judgment. The tasks provide experience and familiarization with the employer's methods, practices, and 
programs. The employees may perform higher level work for training and developmental purposes. These 
employees work under close supervision and receive specific instructions on required tasks and results 
expected. Their work is closely monitored and reviewed for accuracy. Statements that the job offer is for a 
research fellow, a worker in training, or an internship are indicators that a Level I wage should be considered. 
4 
(b)(6)
Matter of S-, Inc . 
Further, the Petitioner does not explain how the Beneficiary will prototype new solutions and work 
with stakeholders to develop formal technical requirements. Although the Petitioner states that the 
Beneficiary will "[p ]rovide technical support and resolve defects," the Petitioner does not describe 
the form of technical support or the tangible measures the Beneficiary is expected to take to resolve 
defects. The Petitioner does not expressly describe the specific tasks the Beneficiary will perform in 
executing this generalized description of duties. The overview of the Beneficiary 's proposed tasks is 
insufficient to convey an understanding of the Beneficiary 's role and responsibility in working in the 
Petitioner 's business. Upon review, we are unable to ascertain the scope and complexity of the 
offered employment. The Petitioner does not sufficiently define how any of these tasks entail the 
need for a particular level of education, or educational equivalency, in a body of highly specialized 
knowledge in a specific specialty. 
Moreover, the record is unclear regarding how the proposed duties specifically relate to the 
Petitioner 's project and the Beneficiary 's role within the context of that project. In 
response to the Director 's RFE, and for the first time, the Petitioner notes that the Beneficiary will be 
involved in its project and that he will have to comply with the timelines set out for 
internal implementation and commercial roll out of this product. The Petitioner also adds that the 
software engineer on this project will be responsible for design, development, and implementation of 
code for new and existing applications and will also handle the integration of new features, add-ons, 
and enhancements to existing systems, researching and prototyping new technology solutions as well 
as providing post-production application support, and performing project/task estimation throughout 
the duration of the project. The Petitioner then repeats the initial description of the Beneficiary's 
proposed duties. The additional information regarding the duties of the software engineer is not 
specific and is applicable to any number of projects, internal or external. That is, there is insufficient 
information submitted to tie the Petitioner 's generalized description of duties to the Petitioner 's 
project or any particular project. The Petitioner does not further explain the Beneficiary 's 
role in the project or clarify whether the Beneficiary will assist in the project. The Petitioner does 
not indicate the number of software engineers that will be involved in the project or the number of 
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://www. foreign laborc ert.doleta .gov/pdf/NPWHC _Guidance _ Revised _11_ 2009 .pdf. 
Thus, in designating the proffered position at a Level I wage, the Petitioner has indicated that the proffered position is a 
comparatively low, entry-l evel position relative to others within the occupation. That is, in accordance with the relevant 
DOL explanatory inform ation on wage levels, this wage rate indicates that the Beneficiary is only required to have a 
basic understanding of the occupation and carries expectations that the Beneficiary perform routine tasks that require 
limited , if any, exercise of jud gment ; that he would be closely supervised; that his work would be closely monitored and 
reviewed for accuracy ; and that he would receive specific instructions on required tasks and expected results. As noted 
above , according to DOL guidance , a statement that the job offer is for a research fellow , worker in training or an 
intemship is indicativ e that a Level I wage should be considered . 
Matter of S-, Inc. 
other employees, if any, that will contribute to the internal implementation and commercial roll out 
of the product. 
Upon review of the totality of the record, it is not evident that the proposed duties as described, and 
the position that they comprise, merit recognition of the proffered position as qualifying as a 
specialty occupation. To the extent that they are described, the proposed duties do not provide a 
sufficient factual basis for conveying the substantive matters that would engage the Beneficiary in 
the performance of the proffered position for the entire period requested. The overall responsibilities 
for the proffered position contain generalized functions without providing sufficient information 
regarding the particular work, and associated educational requirements, into which the duties would 
manifest themselves in their day-to-day performance within the Petitioner's operations. Thus, the 
Petitioner has not demonstrated how the performance of the duties of the proffered position, as 
generally described by it, would require the attainment of a bachelor's or higher degree in a specific 
specialty, or its equivalent. As the Petitioner has not adequately described the specific duties of the 
proffered position, the Petitioner's assertions regarding the education required to perform the duties 
are not substantiated. 
The Petitioner 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. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. The appeal will be dismissed and the petition denied for this reason. 
III. 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; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-, Inc., ID# 15966 (AAO Feb. 5, 2016)