dismissed H-1B Case: Software Development

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 28, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development company, seeks to temporarily employ the Beneficiary as a 
"software engineer" under the H -1 B nonimmigrant classification for specialty occupations. 
See Immigration and . Nationality Act (the Act) section 101(a)(l5)(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, Vermont Service Center, denied the petition, concluding that the Petitioner did not 
demonstrate that the proffered position is a specialty occupation. 
On appeal, the Petitioner submits additional evidence and contends that the evidence of record 
satisfies all evidentiary requirements. 
Upon de novo 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. 
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: 
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(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 have consistently interpreted 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 proposed 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"); Defensor v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-lB petition, the Petitioner stated that the Beneficiary will serve as a "software engineer." In 
its support letter, the Petitioner provided the following job duties for the proffered position: 
• Assist development of multiple mobile apps for purchase by tens of 
thousands of our customers 
• Prototype new app and feature ideas and research new technologies that 
are at the forefront of mobile technology. Report findings to supervisor. 
• Design and implement assigned tasks for new features, creating UI, 
debugging, data modeling 
• Testing all applications against software and hardware versions. Provide 
timely turnaround and documentation of bug fixes during test cycle. 
• Code backend applications and features 
• Work closely with our 
engineering team, particularly server-side 
• Work across disciplines with team members representing product, 
design, web development, and product marketing 
• Maintain apps, listen to community (online reviews) and fix issues that 
anse 
• Other similar professional responsibilities as assigned 
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The Petitioner claims that the Beneficiary will perform these duties "in-house," and that he will not 
be sent to a third-party worksite. 
According to the Petitioner, the position requires a bachelor's degree in computer science or a 
related field. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that it is an entity in good standing, and that there is a bona fide job 
offer for the Beneficiary. Therefore, the Petitioner has not established that it has specialty 
occupation work available for the Beneficiary. 
The Petitioner filed this petition on April 3, 2015, and identified the Beneficiary's place of 
employment as Texas. However, during the initial review on appeal, we were unable to 
determine that the Petitioner is a business in good standing in Texas. As such, we issued a request 
for evidence (RFE) in order to clarify the matter. The Petitioner responded by stating that it filed 
documents with the Texas Secretary of State to reinstate its business, and submitted a copy of its 
request for a "tax clearance letter for reinstatement" as evidence. 
However, a petitioner must 
establish that it is eligible for the benefit request at the time of filing and 
must continue to be eligible through adjudication. 8 C.F .R. § 103 .2(b ). The issue of whether the 
Petitioner is a business in good standing is material to its eligibility, for the requested benefit. An 
H-1B petition may be approved only for the period of intended employment for which the 
petitioning entity wouid be doing business as described in the petition. If a petitioner is not actually 
in business, it cannot qualify as an entity with standing to file an H -1 B petition. See generally 
8 C.F.R. § 214.2(h)(l)(i) and 8 C.F.R. §§ 214.2(h)(2)(i)(A)-(D). 
Here, the Petitioner's RFE response did not sufficiently demonstrate that it was a business in good 
standing in Texas at the time of filing and continuing through adjudication. Moreover, the Texas 
Comptroller of Public Accounts website still does not indicate that the Petitioner has the right to 
transact business in Texas. See the Texas Comptroller of Public Accounts on the Internet at 
https://mycpa.cpa.state.tx.us/coa/coaSearch.do (last visited February 22, 2017). 
Nor are we persuaded by other evidence in the record that it is conducting business and therefore, 
there is work for the Beneficiary to perform. For example, the "deposit account balance summary" 
letter issued by the Petitioner's bank provides the Petitioner's current balance and an average 
balance in a 12-month period. However, this does not demonstrate business activities or that the 
Petitioner was in good standing at the time of filing. The phone bill, which states that the Petitioner 
was charged $11.43 during a 1-month period in 2015, does not indicate that anyone actually utilized 
the line during that period. Nor is the service agreement with a "virtual office" provider signed in 
2010. The Petitioner submitted only page 1 of the agreement which appears to indicate that the 
contracted service is for "mail service," and the end of the term was March 2011. The Petitioner 
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also submitted general photos of the facility, but there are no photos that establish a connection 
between the Petitioner and the facility. The single outsourcing agreement was executed in 2011, and 
it has apparently not been renewed. While the documents pertaining to the Petitioner's business 
plans are acknowledged, it is unclear whether they have been aCted upon. For all of these reasons, 
we are not persuaded that the Petitioner has been conducting business, as claimed, which raises 
questions as to whether there is B-IB-caliber work available for the Beneficiary.
1 
However, even if 
we were to set this deficiency aside, we would still not find that the proffered position is 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. 2 Though we have given due consideration 
to the job description above, we note that many of the Petitioner's assertions regarding the position 
conflict with the evidence of record. For example, the Petitioner stated that the Beneficiary would 
be part of a "collaborative team." However, the Petitioner claimed that it has "no employees," and 
stated in the H-1 B petition that it has one employee. Based on these assertions, it is unclear with 
whom the Beneficiary would collaborate, and this inconsistency raises questions regarding the 
reliability of the Petitioner's job description. On appeal, the Petitioner complicates matters further 
by providing an organization chart naming four employees and submitting printouts from its website 
referencing multiple "talent acquisition specialists." We observe further that Petitioner has 
submitted evidence indicating it has received at least two H -1 B approvals for other workers. 
1 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) ofthe Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
2 
The Petitioner submitted documentation to support 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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We requested copies of the Petitioner's Forms 941, Employer's Quarterly Federal Tax Returns for 
the previous five quarters, as well as all Forms W-2 issued in 2015, in our RFE dated November 7, 
2016. The Petitioner, however, elected not to respond to this portion of our RFE. Nor did it explain 
why it had elected not to respond or otherwise submit comparable evidence regarding its actual 
number of employees. As the record currently stands, we do not know which of the Petitioner's 
statements regarding the size of its labor force is true.3 The Petitioner must resolve inconsistencies 
with independent, objective evidence pointing to where the truth lies. See Matter of Ho, 19 I&N 
Dec. 582, 591 (BIA 1988). 
The Petitioner's attestations on the labor condition application (LCA) raise additional questions 
regarding the reliability of the Petitioner's job description. On the LCA 4 submitted in support of the 
H-1B petition, the Petitioner designated the proffered position under the occupational category 
"Software Developers, Applications" corresponding to the Standard Occupational Classification 
code 15-1132.5 In designating the proffered position at a Level I wage, the Petitioner claimed, 
among other things, that the Beneficiary would be "closely supervised" and his work "closely 
monitored," and that he would "receive specific instructions" as he performs routine tasks that 
"require limited, if any, exercise of judgment." The DOL guidance referenced below also states that 
an employer should consider a Level I wage designation when the job offer is for a research fellow, 
a worker in training, or an internship. 
The Petitioner has identified as the Beneficiary's supervisor. According to the 
Petitioner, lives in New Jersey and will supervise the Beneficiary in Texas via emails, 
phone calls, and video conferencing. However, the record does not contain sufficient evidence to 
establish that will be able to perfonn the type of scrutiny of the Beneficiary's work 
inherent to a Level I wage-level designation from this distance. 
3 "Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the 
[petition]." 8 C.F.R. § 103.2(b)(l4). 
4 The Petitioner is required to submit a certified LCA to USC IS to demonstrate that it will pay an H-I B 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. See Matter ofSimeio Solutions, LLC, 261&N Dec. 542,545-546 (AAO 2015). 
5 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Levell 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: ( 1) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he 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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Further discrepancies raise additional questions regarding the reliability of the Petitioner's job 
description. For example, the Petitioner states that the proffered position requires "intense 
concentration with no distractions." However, it is unclear how the Beneficiary will be able to do 
this in a virtual office space shared with so many other companies. 6 In addition, we observe that the 
Petitioner stated more than once that the Beneficiary would perform other duties in addition to those 
described. Although the Petitioner described those additional duties as "professional," that 
description is not sufficient to demonstrate their substantive nature. 
Again, the Petitioner must resolve inconsistencies in the record with independent, objective 
evidence. Ho, 19 I&N Dec. at 591. For all of these reasons, we find that the Petitioner's job 
description is not reliable. 
Absent a reliable job description, we cannot ascertain the substantive nature of the work proposed 
for the Beneficiary. That the Petitioner did not establish the substantive nature of the work to be 
performed by the Beneficiary precludes a finding that the proffered position is a specialty occupation 
under 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 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 protiered 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. 
Because the Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
. demonstrated that the proffered position is a specialty occupation. 
IV. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of ID# 138791 (AAO Feb. 28, 2017) 
6 
An online search indicates that many companies will share the Beneficiary's work space, including several law firms, a 
staffing firm, and a medical billing company. 
6