dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 9688761 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 2, 2020 
The Petitioner, a software development staffing company, seeks to employ the Beneficiary temporarily 
under the H-lB nonimmigrant classification for specialty occupations . See Immigration and Nationality 
Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C . § l 10l(a)(l5)(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 Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified as a specialty 
occupation . The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec . 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 l&N Dec . 537, 537 n.2 (AAO 2015) . 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § l 184(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge , and 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 section 214(i)(l) of the Act, but adds a 
non-exhaustive list of fields of endeavor. 
In addition, 8 C.F .R. § 2 l 4.2(h)( 4 )(iii)(A) provides that the proffered position must meet one of four 
criteria to qualify as a specialty occupation position . 8 C.F.R . § 214.2(h)(4)(iii)(A) must be read with 
the statutory and regulatory definitions of a specialty occupation under section 214(i)(l) of the Act 
and 8 C.F.R. § 214.2(h)(4)(ii). 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"). Lastly, 8 C.F.R. § 214.2(h)(4)(i)(A)(]) states that an H-lB classification may be granted 
to a foreign national who "will perform services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
The services the Beneficiary will perform in the position determine: ( 1) the normal minimum educational 
requirement for entry into 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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Further, as recognized by the court in Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir 2000), 
where the work is to be performed for entities other than the petitioner, evidence of the client 
companies' job requirements is critical. The court held that the former Immigration and Naturalization 
Service had reasonably interpreted the statute and regulations as requiring the petitioner to produce 
evidence that a proffered position qualifies as a specialty occupation on the basis of the requirements 
imposed by the entities using the beneficiary's services. Id. Such evidence must be sufficiently 
detailed to demonstrate the type and educational level of highly specialized knowledge in a specific 
discipline that is necessary to perform that particular work. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b )(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
The regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that "[a]n H-lB petition involving a specialty 
occupation shall be accompanied by [ d]ocumentation ... or any other required evidence sufficient to 
establish ... that the services the beneficiary is to perform are in a specialty occupation." Moreover, 
when the remaining record is not sufficiently developed, the regulations at 8 C.F.R. §§ 103.2(b)(8) 
and 214.2(h)(9)(i) provide U.S. Citizenship and Immigration Services (USCIS) with broad 
discretionary authority to require additional probative evidence to establish that the services to be 
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performed by a beneficiary will be in a specialty occupation as requested in the petition. Finally, 
USCIS has the authority to administer the law that Congress enacted, and to determine whether an 
organization has sufficiently demonstrated that it would provide qualifying work through service in a 
specialty occupation. See Kollasoft Inc. v. Cuccinelli, No. CV-19-05642-PHX-JZB, 2020 WL 263618, 
at *7 (D. Ariz. Jan. 17, 2020) (generally finding that section 214(a)(l) of the Act; 8 U.S.C. § 1184 
(a)(l); 8 C.F.R. § 214.2(h)(9)(i) provide such authority). 
II. ANALYSIS 
A. Specialty Occupation 
The Petitioner is located in Texas and stated it has a contractual relationship withl 
I l(vendor one) who contracted with.__ ________ _. (vendor tw~o-).-B-as_e_d_o_n_t_h~is 
relationship, vendor two would place the petitioning organization's personnel to perform work at an 
offsite location in New Jersey forl !(end-client). 
Before the Director, the evidence of the prospective work consisted of assertions within 
correspondence from the Petitioner and the vendors, an email exchange from the Beneficiary to one 
of the end-client's human resources representatives, various contractual documents, and an 
Employment Offer Letter executed between the petitioning organization and the Beneficiary. On 
appeal, the Petitioner also offers affidavits from the Beneficiary's coworkers, and a new email 
exchange from the foreign worker to the end-client's human resources department. 1 
As a central holding, the Defensor court determined that USCIS acted appropriately in interpreting the 
statute and the regulations as requiring petitioning companies to provide probative evidence that the 
outside entities actually utilizing the foreign national's services (i.e. end-clients) required candidates to 
possess a qualifying degree. Defensor, 201 F.3d at 388. The Defensor court reasoned that the position 
requirements from the entity where the beneficiary would actually work-be it the required degree or the 
position's actual duties a candidate would perform-should serve as the more relevant characteristics we 
should consider under our specialty occupation determination. The court further concluded that absurd 
outcomes could result from giving greater credence to the position requirements for an outsourcing 
agency, rather than to the clients where a beneficiary would perform the work. Id. The scenario in 
Defensor has repeatedly been recognized by federal courts as appropriate in determining which entity 
should provide the requirements of an H-lB position and the actual duties a beneficiary would perform.2 
In this matter, the record lacks any documentation from ( or endorsed by) the end-client as it relates to 
the duties of the position and their requirements to properly qualify for the offered position. Here, the 
Petitioner entered into a business arrangement to provide staff augmentation services to an entity that 
normally employs personnel in similar positions as the one in this petition. As the Petitioner elected 
1 The Petitioner submitted documentation to suppmt the H-1 B 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. 
2 See Altimetrik Corp. v. USCIS, No. 2: 18-cv-11754, at *3 (E.D. Mich. Aug. 21, 2019); Valorem Consulting Grp. v. USCIS, 
No. 13-1209-CV-W-ODS, at *6 (W.D. Mo. Jan. 15, 2015); KPK Techs. v. Cuccinelli, No. 19-10342, 2019 WL 4416689, 
at *10 (E.D. Mich. Sep. 16, 20l 9);Altimetrik Co1p. v. Cissna, No. 18-10116, at *11 (E.D. Mich. Dec. 17, 2018); Sagarwala 
v. Cissna, 387 F. Supp. 3d 56. 69 n.5 (D.D.C. 2019). 
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to petition for a nonimmigrant H-lB foreign national to fill this position, the petitioning organization 
bears the responsibility of ascertaining whether it will be able to provide any relevant or required 
evidence to meet its burden of proof. This is especially the case in the present scenario in which there 
are at least two mid-vendors within the contractual chain between the Petitioner and the end-client. 
Additionally, this does not appear to be a scenario in which the Petitioner is assigning the Beneficiary 
to work at a business that does not normally engage in the type of work the foreign national would 
perform. Instead, it appears that the end-client is familiar with and normally employs personnel 
in-or very similar to-the proffered position ( e.g., the client needs supplemental contracted personnel 
to augment their regular staff). 3 As a result, the client likely possesses the knowledge of what duties 
the Beneficiary would engage in, and the requirements in which to perform those responsibilities. This 
is a scenario in which the duties and the qualifications to perform in the proffered position should 
originate from the entity for whom the Beneficiary would actually perform their work. Defensor, 
201 F.3d at 387-88. 
Without material from the end-client regarding the minimum requirements of the position and the 
actual duties the Beneficiary will perform, we cannot conclude that the position is a specialty 
occupation. In other words, without this information, the Petitioner has not established the substantive 
nature of the work the foreign worker will execute at the end-client worksite. 
As a result, we are precluded from a conclusion that that the proffered position satisfies any of the 
criteria 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 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. 4 
In light of the above, the petition is not approvable on this basis alone. 
B. Labor Condition Application 
In addition, the Petitioner has not demonstrated that the standard occupational classification (SOC) 
code it designated on the U.S. Department of Labor's (DOL) ETA Form 9035 & 9035E, Labor 
Condition Application for N onimmigrant Workers (LCA) sufficiently aligns with the actual duties the 
Beneficiary would perform for the end-client. 
While DOL certifies the LCA, USCIS determines whether the LCA's attestations and content 
corresponds with and supports the H-lB petition. See 20 C.F.R. § 655.705(b) ("DHS determines 
3 We observe that the end-client displays several information technology positions on its website. See~I -~ 
Opportunities.I IOuly 28, 2020), 
https://wwwl~-~-----------------------~ 
4 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not discuss the Petitioner's assertions on appeal. 
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whether the petition is supported by an LCA which corresponds with the petition .... "). See also 
Matter of Simeio Solutions, 26 I&N Dec. 542,546 n.6 (AAO 2015). When comparing the SOC code 
or the wage level indicated on the LCA to the claims associated with the petition, USCIS does not 
purport to supplant DOL's responsibility with respect to wage determinations. There may be some 
overlap in considerations, but USCIS' responsibility at its stage of adjudication is to ensure that the 
content of the DOL-certified LCA "corresponds with" the content of the H-lB petition. Furthermore, 
USCIS may consider DOL regulations when adjudicating H-lB petitions. See Int'! Internship 
Programs v. Napolitano, 853 F. Supp. 2d 86, 98 (D.D.C. 2012), aff'd sub nom. Int'! Internship 
Program v. Napolitano, 718 F.3d 986 (D.C. Cir. 2013). 
The Petitioner designated the position on the LCA under the Software Developers, Applications SOC 
code. However, this appears inconsistent with other information in the record. For example, the 
second email exchange from the Beneficiary to one of the end-client's human resources representatives 
indicated that she will: 
• [Be] responsible to develop web designs for my application. Using only HTML and CSS to 
create a page add functionality and to make it interactive with the help of JavaScript or other 
programming language 
• [C]reate Web application front end as per design comps and information architecture and 
integrate front-end application with the application business layer 
• Follow best practices and standards for accessibility and cross-browser compatibility and 
collect feedback from design and technical staff on Website development needs. 
These functions directly align with the responsibilities of the Web Developers SOC code within 
DOL's Occupational Information Network and that occupation has associated duties that are distinct 
from those of within the Software Developers, Applications occupation. Similarly, the Petitioner 
provided duties that also included some functions that are more aligned with the Web Developers 
occupation, and that appear atypical to the Software Developers, Applications SOC code. For 
instance, the Petitioner offered the following duties: 
• Design, develop, revise and improve UI (User Interfaces) of Web Applications; 
• Develop the interfaces for various applications ... for multi-tier Web-Based applications with 
strong emphasis on the user interface based on front end tools - Javascript, SQL, XML, and 
HTML/CSS; 
• Research, document and follow industry best practices and standards for User Accessibility 
and Cross-browser compatibility. 
Furthermore, we have noted some inconsistent uses of the proffered position's job title as follows: 
(1) the Petitioner stated the position title as a "Software Developer," (2) vendor two titled the position 
"as an Information Technology - Developer III," (3) within the Statement of Work executed between 
the Petitioner and vendor one in which they referred to the position as a Java Automation Developer; 
(4) within the first email from the Beneficiary to the end-client in which she described her position as 
a "web application developer"; and (5) in the second email in which she referred to her role as a 
"Software Developer (UI Developer)." The Petitioner must remedy this discordant information in the 
record. Such a resolution must be demonstrated through the submission of relevant, independent, and 
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objective evidence that illustrates which facts are the truth. Matter of Ho, 19 I&N Dec. 582, 591-92 
(BIA 1988). 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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