dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 8772524 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 27, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "software developer" under the H-lB 
nonirnmigrant 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 California Service Center Director denied the petition, concluding that the record did not establish 
that: (1) the proffered position qualifies as a specialty occupation and that the Beneficiary would 
perform services in a specialty occupation for the duration of the requested employment period; and 
(2) an employer-employee relationship exists between the Petitioner and the Beneficiary . 
The petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 1 
The Administrative Appeals Office (AAO) reviews the questions in this matter de nova. 2 Upon de 
nova review, we will dismiss the appeal. 
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 . 
1 Section 291 of the Act; Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
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: 
( I) 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. Chertojf, 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. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. In particular, we conclude that the Petitioner 
has not established the substantive nature of the position, which precludes a conclusion 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)(l)-(4). 
On the labor condition application (LCA) 3 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Software Developers, 
Applications" corresponding to the Standard Occupational Classification (SOC) code 15-1132 at a 
Level I wage. On the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner identifies itself 
as an information technology services business located inl I Texas, which will deploy the 
Beneficiary to work offsite. It states in its letter in support of the petition that it connects technology 
and people and that it requires the Beneficiary's services to meet the needs of its clientele. 
3 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-IB worker the higher of either 
the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the employer 
to other employees with similar experience and qualifications who are performing the same services. Section 2 l 2(n)(l) 
ofthe Act; 20 C.F.R. § 655.73l(a). 
2 
The initial record includes a master supplier services agreement (MSSA) between the Petitioner and 
I I (vendor) and a letter from the vendor indicating that the Beneficiary will provide 
full-time technical services to its client, I tend-client). 4 The initial record also 
includes a letter from the end-client indicating that the Petitioner will provide professional information 
technology services to it pursuant to its agreement with the vendor. Thus, the contractual chain appears 
to flow as follows: Petitioner ➔ vendor ➔ end-client. 
Each of the letters submitted from the Petitioner, the vendor, and the end-client, initially and in 
response to the Director's request for evidence (RFE), include the same broad position description. 
We have reviewed the description in full 5 and although we recognize that the Beneficiary will perform 
technology duties, the description is insufficient to establish the substantive nature of the position and 
to demonstrate that the certified LCA corresponds to and supports the petition. For example, the 
Petitioner asserts that the Beneficiary in this position will design and develop rest-based web services 
to analyze and handle client information efficiently and then identifies the programming and 
technology to be used for this task. The Petitioner also indicates that the Beneficiary will analyze 
requirements and come up with a design decision to tackle problems including gap analysis and 
clarifications and will provide day-to-day status updates to the team and track milestone targets. The 
Petitioner also notes that the Beneficiary will perform unit, system, and regression testing, creating 
test plans and designing testing procedures for web-based development and services. Similarly, the 
Petitioner states the duties involve working with different teams to configure and maintain message 
queues, work with the Oracle server and use different third-party applications and tools to handle data, 
write queries, and integrate databases, as well as configure pipelines. 
The description does not purport to explain what the Beneficiary will do on a day-to-day basis in 
relation to particular projects but instead describe duties of "typical" positions located within 
technology occupational categories. The Petitioner does not provide any information regarding what 
the end-client requires and is attempting to accomplish with the use of the Beneficiary's services. As 
noted, the agreements showing the contractual chain for the use of the Beneficiary's services do not 
identify the role, level ofresponsibility, project(s), or the Beneficiary's services within a project team 
or department. The purchase order attached to the agreement between the Petitioner and the vendor 
is for staffing services and identifies the Beneficiary and an estimated time for the use of the 
Beneficiary's services. The work order listing the end-client as the buyer identifies the Beneficiary 
but does not identify the Beneficiary's proposed position, any project(s), or the role he will play while 
working at the end-client's facility. 
The issue here is that the Petitioner provides such a broad description for the proposed position that 
the duties could encompass any number of technology occupations. We understand there may be 
4 The record in response to the Director's request for evidence includes a signature page for an agreement between the 
vendor and I I The Petitioner submits a redacted copy of this agreement on appeal. The redacted 
copy includes only headings, such as supplier activities and metrics but the narrative under the headings, as in the rest of 
the document, is totally redacted. 
5 Although we have paraphrased the duties referred to in these letters, the complete description does not include the 
necessary elaboration and clarifying information to identity the occupation or the knowledge necessary to perform the 
duties. 
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overlap between various technology occupations, 6 however, the information in the record is not 
sufficiently detailed so that we may ascertain the substantive nature of the proposed position and 
analyze whether the petition is supported by an LCA which corresponds with the petition. 7 That is, 
the duties are so broadly described we cannot ascertain either the application of knowledge needed to 
perform the position or the occupation and wage level required. 
Although we recognize that the Beneficiary will require some technological knowledge to perform the 
described tasks, the record does not include probative evidence 8 that this knowledge is gained through 
bachelor's-level study in a specific discipline rather than through certifications in third-party 
technology or experience in the industry. We also cannot determine from the record that the 
Beneficiary will perform the duties of the occupation designated on the LCA at the wage level 
certified. Without a detailed and more precise description as well as some context of the particular 
work the Beneficiary will perform at the end-client facility, the record does not establish that the 
proposed duties are the duties of a wage Level I "Software Developers, Applications" occupation. 9 
Despite the foundational deficiency of the lack of a substantive description of the proposed position, 
we reviewed the submitted position evaluation in an effort to understand the duties of the position and 
why the position should be considered a specialty occu:ation. I l a facjlty member 
in the College of Management and Technology at I I University in I Minnesota, 
provided a position evaluation for the proffered position. I I repeated the Petitioner's 
description of duties, repeated portions of the DO L's Occupational Outlook Handbook's (Handbook) 
chapter on software developers and the O*NET's summary report for the occupation of "Software 
Developers, Applications," and noted he had reviewed the Petitioner's website, and information 
relating to their offered services. I ~lso referred to several career and recruiting websites 
for their information on the duties of an application software developer and a wage website that lists 
generic backgrounds and undefined experience requirements for a generic applications software 
developer occupation. These references do not provide sufficient information: to conclude that the 
6 On appealj the Petitioner refers to the proffered position as a "Business System Consultant" and that the "service is being 
provided to. 0 !through a series of contracts between the [P]etitioner,I I (Vendor) andl i(Client)." 
These references add further ambiguity to the record and raise additional questions regarding the nature of the proposed 
position and the party that will use the Beneficiary's services. 
7 The duties described appear to relate to a number of occupations, such as web development (SOC code 15-1134), systems 
software development (SOC code 15-1133), systems analysis (SOC code 15-1121 ), and business intelligence analysis 
(SOC code 15-1199.08). Notably, it appears some of the duties fall within higher paying occupations and thus, would 
require that the higher-wage occupation be designated on the certified LCA. 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.flcdatacenter.com/pdf/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf. 
8 We will discuss the deficiencies in the submitted position evaluation below. 
9 The LCA serves as the critical mechanism for enforcing section 212(n)(l) of the Act, 8 U.S.C. § 1182(n)(l). See Labor 
Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB Visas in Specialty Occupations 
and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United States, 65 Fed. 
Reg. 80,110, 80, 110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that the wage 
protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring 
temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] with 
[DOL]."). While DOL is the agency that certifies LCA applications before they are submitted to USCTS, DOL regulations 
note that the Department of Homeland Security (DHS) (i.e., its immigration benefits branch, USCTS) is the department 
responsible for determining whether the content of an LCA filed for a particular Fom1 1-129 actually supports that 
petition. See 20 C.F.R. § 655.705(b). The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that "the 
petition is supported by an LCA which corresponds with the petition .... " 
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duties of the proposed position encompass the duties of a "Software Developers, Applications" 
occupation; or, to establish the minimum requirements needed to perform the duties of the Petitioner's 
particular position. The relevance of these websites in establishing the proffered position is a specialty 
occupation has not been established. 
~----~lalso refers to several of the duties of the particular position as core duties that fit within 
the topics covered in a computer science curriculum and then concludes that as such the position must 
be sufficiently specialized and complex as to require a bachelor's degree, or the equivalent, in a field 
such as computer science, information science, information technology, or another closely related 
field. However.I ldoes not offer an analysis of the proposed duties and a meaningful 
explanation of why the duties require a bachelor's degree in a specific specialty, rather than a general 
degree or experience and certifications in the third-party technology that will be used to perform the 
duties. We do not disagree that an individual may take one, two, or several courses and 
9
ain sufficient 
knowledge to perform the duties of the proposed position, but neither the Petitioner norl I 
have demonstrated how an established curriculum of courses leading to a baccalaureate or higher 
degree in a specific specialty, or its equivalent, is required to perform the duties of the proffered 
position. Overall, I ~s evaluation does not offer a cogent analysis of the duties of the 
Petitioner's particular position sufficient to demonstrate that the duties are specialized and complex or 
that they comprise the duties of a specialty occupation. 
As the record lacks a probative description demonstrating the actual duties the Beneficiary will 
perform at the end-client facility, the Petitioner has not established the substantive nature of the work 
to be performed by the Beneficiary, which therefore precludes a conclusion 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. Upon review of the totality of the evidence 
submitted, the Petitioner has not established that more likely than not, the proffered position is a 
specialty occupation under any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) or that the Petitioner 
satisfied the statutory and regulatory definitions of specialty occupation. The record also does not 
establish that the petition is supported by an LCA that corresponds to the petition. 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and 
hereby reserve the Petitioner's appellate arguments regarding its claim that it has sufficient specialty 
occupation work available for the Beneficiary throughout the requested employment period and that 
it has an employer-employee relationship with the Beneficiary. See INS v. Bagamasbad, 429 U.S. 24, 
25 (1976) ("courts and agencies are not required to make findings on issues the decision of which is 
5 
unnecessary to the results they reach"); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
ORDER: The appeal is dismissed. 
6