dismissed H-1B Case: Software Development

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MATTER OF 0-S-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 14,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer firm, seeks to temporarily employ the Beneficiary . as a "sottware 
developer" under the H-1B nonimmigrant classification for specialty occupations. See Immigration 
and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 110l(a)(15)(H)(i)(b). The H-IB 
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 California Service Center denied the petition, concluding that the evidence of 
record does not establish that: (1) the proffered position qualifies as a specialty occupation; and (2) 
the Beneficiary is qualified for a specialty occupation. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in the 
decision. Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
We will first determine whether the record of proceedings establishes that the protiered position 
qualifies as a specialty occupation. 
A. 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. 
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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) A baccalaureate or higher degree or its equivalent is nonnally 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 have consistently interpreted 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. Cherto_[f, 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). 
B. Proffered Position 
In the H-IB petition, the Petitioner stated that the Beneficiary will serve as an in-house "software 
developer." In its letter of support, 1 the Petitioner provided the following job duties for the position: 
• Develop customized applications using the best technology ; 
• Design and develop the APis for each service contract and work with application 
teams and other 
service team members to render the projects; 
• Identify business case to build data warehouse; 
• Study the existence of data warehouse of SAP BI and Informatics with respective 
to SAP HANA; 
• Develop and analyze new cloud computing technologies ; 
• Work with operations and QA to build in fault tolerance and maintain and 
respond to failures; 
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The Petitioner mistakenly and repeatedly references the Beneficiary in the masculine pronoun case in its letter of 
support, its response to the Director's request for evidence (RFE), and on appeal. The record provides no explanation for 
this inconsistency. Thus, we must question the accuracy of the letters and whether the information provided is correctly 
attributed to this particular Beneficiary and position . 
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Matter of 0-S-S-
• Write and implement algorithms which make most of the cloud architectures; 
• Build cloud native application development platform based on automated 
infrastructure; 
• Design a hybrid I multi cloud platform to enable application developers working 
on the cloud native applications; 
• Use best practices in the entire life cycle including test coverage, feature/bug fix, 
branches, etc.; and 
• Provide training and tech support. 
In response to the Director's request for evidence (RFE), the Petitioner stated that it has a contract 
with the and that the 
Beneficiary would be assigned to the project. The Petitioner also provided the following 
additional job duties for the proffered position: 2 
• Oracle Fusion Middleware Consultant Provide functional consulting services by 
acting as a subject matter expert and leading clients through the entire systems 
development lifecycle; 
• Identify business requirements and map them to the Oracle Cloud functionality; 
• Identify functionality gaps and develop solutions for them; 
• Advise client on options, risks, and 
any impacts on other processes or systems; 
• Configure the Oracle Cloud Applications to meet client requirements and 
document application set-ups ; 
• Write business requirement documents for reports, interfaces, data conversions 
and application extensions; 
• Define testing scenarios and develop test scripts; 
• Support clients with the execution of test scripts; 
• Develop end-user documentation and training materials ; 
• Deliver end-user training; 
• Effectively communicate and drive project deliverables; 
• Complete 
tasks efficiently and in a timely manner; 
• Interact with the project team members responsible for developing reports , 
interfaces, data conversion programs, and application extensions; 
• Provide status and issue reports to the Project Manager/Client on a regular basis; 
and 
• Share knowledge to continually improve implementation methodology. 
In addition, the Petitioner stated that "the Beneficiary will also work on one of several contracts 
procured by [the Petitioner], on an in-house basis. The Beneficiary will work on development and 
2 
We observe that the wording of the duties provided by the Petitioner in response to the RFE is taken virtually verbatim 
from job postings found on the Internet for Oracle consultant positions. 
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Matter of 0-S-S-
handling of critical support and maintenance issues that is carried out strictly from the company's 
corporate office .... " 
According to the Petitioner, the position requires a bachelor's degree m computer science, 
information systems, engineering, or a related field. 
C. Analysis 
For the reasons set out below, we have determined 
that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. Specifically, the record (1) does not describe 
the position's duties with sufficient detail; and (2) does not establish that the job duties require an 
educational background, or its equivalent, commensurate with a specialty occupation. 3 
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. We find that the Petitioner 
has not done so. 
For example, the Petitioner did not provide sufficient information with regard to the order of 
importance or frequency of occurrence (e.g., regularly, periodically, or at irregular intervals) with 
which the Beneficiary will perform the functions and tasks. Thus, the record does not specify which 
tasks are major functions of the proffered position. 
In addition, the Petitioner described the proposed duties in terms of generic functions that did 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 "[ d]evelop customized applications using the best technology" and "[i]dentify 
Business case to build Data warehouse." However, the statements did not provide sufficient insight 
into the Beneficiary's actual duties, nor do they include further details regarding the specific tasks 
that the Beneficiary will perform. 
Further, the Petitioner claimed in pertinent part that the Beneficiary will "[i]dentify business 
requirements and map them to the Oracle Cloud functionality" and "[i]dentify functionality gaps and 
develop solutions for them." Notably, the Petitioner did 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. 
3 
The Petitioner submitted documentation in support of 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. 
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Matter of 0-S-S-
The Petitioner also claimed the Beneficiary .will "[ d]eliver end-user training" and "[ e ]±Iectively 
communicate and drive project deliverables. " The Petitioner's statements do not convey sufficient 
pertinent details as to the actual work involved in these tasks. The Petitioner did not convey how a 
baccalaureate level of education (or higher) in a specific specialty, or its equivalent, would be 
required to perform these tasks. Thus, the overall responsibilities for the proffered position 
contained general functions without providing sufficient information regarding the particular work 
and the associated educational requirements into which the duties would manifest themselves in their 
day-to-'day performance within the Petitioner 's business operations . 
Such generalized information does not in itself establish a necessary correlation between any 
dimension of the proffered position and a need for a particular level of education, or educational 
equivalency, in a body of highly specialized knowledge in a specific specialty. It is not evident that 
the proposed duties as described in this record of proceeding, and the position that they compris e, 
merit recognition of the proffered position as a specialty occupation. To the extent that they were 
described , the proposed duties did not provide a sufficient factual basis for conveying the substantive 
matters that would engage the Beneficiary in the actual performance of the proffered position for the 
entire three-year period requested, so as to persuasively support the claim that the position ' s actual 
work would require the theoretical and practical application of any particular educational level of 
highly specialized knowledge in a specific specialty directly related to the duties and responsibilities 
of the proffered position . 
Furthermore , as previously noted, the Beneficiary will be assigned to the project. On 
appeal, the Petitioner submits a copy of the service contract between itself and Notably , the 
service contract was executed after the Director 's RFE. Thus , the contract does not establish that the 
Petitioner had secured this work assignment as of the time of filing the petition. The Petitioner must 
establish eligibility at the time of filing the nonimmigrant visa petition . 8 C.F.R. § l03.2(b)(l) . A 
visa petition may not be approved at a future date after the Petitioner or the Beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg' ! 
Comm'r 1978). 
The Petitioner also stated that the Beneficiary will not only be working on the project, but 
she will also be assigned to "one of several contracts procured " by the Petitioner. Notably , the 
Petitioner did not identify which other contract she will be assigned to. Rather, the Petitioner 
provided a number of service agreements and statements of work (SOWs) between itself and various 
clients. However , the Petitioner has not specifically explained the duties and role of the proffered 
position in the context of any of these projects. For example, the Beneficiary's name and job title 
are not mentioned in these documents. 
We must review the actual duties the Beneficiary will be expected to perform 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 
analyze 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 
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(in some instances) to comprise the duties of a specialty occupation, are not related to any actual 
services the Beneficiary is expected to provide. 
Moreover, some of the SOWs indicate that the services will end prior to the end of the requested 
H-lB validity period. A petition must be filed for non-speculative work for the Beneficiary, for the 
entire period requested, that existed as of the time of the petition's filing. Our regulations 
affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the 
petition is filed. See 8 C.F .R. § 103 .2(b )(I). Again, a visa petition may not be approved based on 
speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under a new 
set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248. 
Here, the Petitioner has not provided sufficient details regarding the nature and scope of the 
Beneficiary's employment or substantive evidence ~egarding 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 tasks as described do not communicate: (I) the 
actual work that the Beneficiary would perform; (2) the complexity, uniqueness or specialization of 
the tasks; or (3) the correlation between that work and a need for a particular level of knowledge in a 
specific specialty. 
As the Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, 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 (I) the normal 
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 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 ( 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. 
4 The Petitioner classified the proffered position at a Level l wage (the lowest of four assignable wage levels). The 
"Prevailing Wage Determination Policy Guidance" issued by the U.S. Department of Labor provides a description of the 
wage levels. 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 that the Beneficiary: (I) will be expected to 
perform routine tasks that require limited, if any, exercise of judgment; (2) will be closely supervised and the work 
closely monitored and reviewed for accuracy; and (3) will receive specific instructions on required tasks and expected 
results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://tlcdatacenter.com/download/NPWHC 
Guidance_ Revised _II_ 2009.pdf A prevailing wage determination starts with an entry level wage and progresses to a 
higher wage level after considering the experience, education, and skill requirements of the Petitioner's job opportunity. 
!d. 
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Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) , it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
II. BENEFICIARY QUALIFICATIONS 
The Director also found that the Beneficiary would not be qualified to perform the duties of the 
proffered position if the job had been determined to be a specialty occupation. However, a 
beneficiary's credentials to perform a particular job are relevant only when the job is found to be a 
specialty occupation. Therefore , we need not and will not address the Beneficiary' s qualifications 
further. 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not established eligibility for the benefit sought. 
ORDER: The appeal is dismis~ed. 
Cite as Matter of 0-S-S- ID# 528444 (AAO Aug. 14, 20 17) 
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