dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-I-T- CORP. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 27. 2017 
PETITION: FORM I-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and computer consulting firm. seeks to temporarily employ 
the Beneficiary as a ·'computer programmer'' 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. § 110l(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 Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish the existence of a project to which the Beneficiary would be assigned. and therefore. the 
nature of the proffered position and whether it qualities as a specialty occupation cannot be 
determined. 
On appeal, the Petitioner asserts that the Director· s decision was in error. 
Upon de novo review 1
• 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 
We follow the preponderance of the evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369. 375-76 
(AAO 2010). 
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A1atter qf A-1-T- Cm7J. 
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 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 shO\v 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 1 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 tenn "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 c·orp. v. Chert off~ 484 F.3d 139, 147 (l st 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. _;l,,feissner. 201 F.3d 384. 387 (5th Cir. 2000). 
II. ANALYSIS 
Upon review of the record m its totality and for the reasons set out below. we agree with the 
Director's decision. 2 
The record does not sutliciently establish the existence of a client project to \Vhich the Beneficiary 
would be assigned. On appeal, the Petitioner states that '·rtlhe Beneficiary will work on an in house 
project for the end client · and that the ·'project is performed 
for the end client at the Petitioner's location." While not specified by the Petitioner. it appears that 
the claimed contractual chain is as follows: the Petitioner contracted with a vendor. who in 
turn contracted with the end client. The Petitioner. 
however, has not provided sufficient evidence. such as a contract or statement of work from 
to support the assertion that the Beneficiary would be working on a 
project for them for the entire validity period requested. 
While we acknO\vledge that the "\;laster Subcontract Agreement" (MSA) and letter from the vendor 
demonstrate the Petitioner's 
relationship with the vendor. neither of these documents are sutlicient to 
2 
\Vhile we may not discuss every document submitted. we have reviewed and considered each one. 
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Matter o.fA-1-T- Corp. 
establish the Petitioner's relationship with the end client. The MSA is only a general agreement 
pursuant to which the Petitioner may provide various services to the vendor's unidentified ··client.'. 
The MSA is not speci tic to any particular client or client project. In fact, the MSA states that "[i]f a 
Consultant is placed with a Client, then Company and Consulting Firm shall sign a Purchase Order 
identifying the Consultant that has been placed , the job title, the special conditions requested by the 
Client , the start date of such placement, and the compensation due to Consulting Firm as a result of 
such placement.·' The record does not include any such purchase order. 
Instead, the record contains a document entitled "'Schedule A'' which includes the Beneficiary's 
name. hourly rate of pay, extendable two year term, and lists the "client'· as ' This 
document, however, is not sufficient to establish the Beneficiary's assignment. It does not contain 
information such as the Beneficiary's job title. More importantly. it is not signed and executed by 
both the Petitioner and the vendor. as required by the plain terms of the MSA. The "Schedule A'' is 
only signed by the Petitioner. Therefore, it appears to be of little probative value. 
Although the vendor·s letter states that the end client "utilizes [the Petitioner] in conjunction with 
[the vendor] to help provide professional IT solutions and services. from time to time ,'' it does not 
provide any evidence to substantiate its claims. In addition, the submission of the end client's 
"Business Design Document" and "Test Data Set-Up and Processing Guide .. do not establish the 
Beneficiary's proposed involvement in the project, or the nature of the Petitioner's relationship with 
the end client. 
As recognized by the court in Defensor, 201 F.3d at 387-88, 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 
qualities as a specialty occupation on the basis of the requirements imposed by the entities using the 
beneficiary's services. ld. Such evidence must be sutticiently detailed to demonstrate the type and 
educational level of highly specialized knowledge in a specific discipline that is necessary to 
perfom1 that particular work. Without reliable, otlicial documentation directly from the end client 
that provides pertinent information such as the Beneficiary's duties and responsibilities and the 
minimum education requirements, we cannot determine the substantive nature of the proHercd 
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positiOn: 
Even if we were to consider the Petitioner's descriptions of the proffered position, we would still be 
unable to understand the substantive nature of the proflered position. None of the Petitioner­
provided job duties describe what the Beneficiary would do within the context of the client project. 
The proposed job duties are stated in generalized terms such as ''( c ]reate , modify. and test the code, 
' Without more, we also cannot detennine the availability of non-speculative specialty occupation work for the period 
requested. The agency made clear long ago that speculative employment is not permitted in the H-1 B 
program. 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). 
Matter olA-1-T- Corp. 
forms, and scripts that allow computer applications to run:· and "[ w ]ork hom specifications drawn 
up by software architects or other individuals." Notably. these and other job duties initially stated by 
the Petitioner are virtually identical to the duties listed in the Occupational Information Network 
(O*NET) report for the ··computer Programmers"' occupation.-! This type of description may be 
appropriate when defining the range of duties that may be performed within an occupational 
category, but it does not adequately convey the substantive work that the Beneficiary would 
perform. 
Further, the Petitioner amends the protlered job duties in response to the Director's request for 
evidence (RFE). In response to the RFE. the Petitioner stated that the Beneficiary would perform 
duties such as ''[ e ]valuating user requests and analyzing current operational procedures to identify 
problems and input and output requirements'' and "[ d]eveloping. creating. modifying computer 
application software to increase operating efficiency, or adapt to new requirements."' Such duties 
appear to mirror the duties of ''Software Developers. Applications'" as listed in O*NET.=' The 
Petitioner has not explained how its latter description of duties is consistent with not only its initial 
job description, but also with the certified labor condition application (LCA) for a Level I (entry) 
position under the '·Computer Programmers" occupation.
6 
The Petitioner must resolve 
inconsistencies in the record with independent, objective evidence pointing to where the truth lies. 
Matter (~lHo, 19 I&N Dec. 582. 591-92 (BIA 1988). Unresolved material inconsistencies may lead 
us to reevaluate the reliability and sufficiency of other evidence submitted in support of the 
requested immigration benefit. !d. 
For all of these reasons, we find that the Petitioner has not demonstrated what client project, if any. 
the Beneficiary would be assigned to and what exactly the Beneficiary would do for that project. In 
other words, the Petitioner has not demonstrated the substantive nature of the proffered position. We 
are therefore precluded from determining that the protlered position satisfies any of the 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 I; (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 
~ O*NET Details Report for "Computer Programmers," https://www.onetonline.org!Jink/details/15-1131.00 (last visited 
Dec. 27, 20 17). 
5 O*NET Details Report for "Software Developers, Applications." https://www.onetonline.orgllink/details/15-1132.00 
(last visited Dec. 27. 2017). 
6 
The Petitioner is required to submit a certified LC A to demonstrate that it will pay an H-1 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 o(Simeio Solutions. LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). A Level I wage level is the lowest of four 
assignable wage levels, and is generally appropriate for an entry-level position for which the Petitioner expects the 
Beneficiary to have a basic understanding of the occupation. U.S. Dep't of Labor, Emp't & Training Admin .. Prevailing 
Wage Determination Polic)' Guidance. Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdt/NPWHC _Guidance_ Revised_ll_2009.pdf 
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Malter C<f A-1-T- Corp. 
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 has not established that the proffered position qualifies as a specially 
occupation. 
III. EMPLOYER-EMPLOYEE RELATfONSHIP 
The record also does not establish that the Petitioner would qualify as a United States employer with 
an employer-employee relationship with the Beneficiary. Section I 01 ( a)(l5)(H)(i)(b) of the Act: 
8 C.F.R. § 214.2(h)(4)(ii). 
As detailed above , the record of proceedings lacks sufficient documentation evidencing what exactly 
the Beneficiary would do for the period of time requested. 'fhe record also does not consistently 
demonstrate where the Beneficiary would provide his services , such that the Petitioner's claims 
about its control and supervision over the Beneficiary can be substantiated. For instance , on the 
H-1 B petition and itinerary submitted in support of the petition , the Petitioner listed only its address 
as 
the Beneficiary ' s work address, and indicated that the Beneficiary will not work off-site at another 
company or organization's location. On the certified LCA however, the Petitioner listed two work 
locations for the Beneficiary: its own office address and another address in Florida. In its response 
to the Director ' s RFE, the Petitioner clarified that the Beneficiary will be working "from our oftice 
location ... [and] might have to travel to client site in Florida and work there occasionally and that 
is the reason that client location is mentioned as second place of employment in the LCA... The 
Petitioner did not, however, indicate the duration and length of the Beneficiary's "travel'' to the 
client site in Florida. Then on appeal , the Petitioner states that the Beneficiary will work on the 
client project from the Petitioner ' s oftice , and does not mention the Florida worksite. It is therefore 
not evident whether the Beneficiary would only work at the Petitioner's office or whether he would 
also work at the client site in Florida, and if so, for how long. 
We note that the Petitioner ' s claims that the Beneficiary will be working at the Petitioner's location 
are undermined by the evidence in the record. For example, the document regarding the Petitioner's 
right to control the Beneficiary states that "he may be called upon to assist the employees of 
companies other than [the Petitionerf' and that it "will provide [the Beneficiary] with all 
instrumentalities and tools required for this position , including [a] computer, if not alread y available 
at the work site. " Moreover, according to the MSA between the Petitioner and the vendor. the 
vendor places the Petitioner's consultants with its clients "on a contractual or permanent placement 
basis.'' 
Finally , we note other discrepancies regarding the Beneficiary ' s supervisor. The Petitioner initially 
identified the Beneficiary ' s supervisor as who is the Petitioner's vice president. On 
appeal the Petitioner changed the Beneficiary's supervisor to who is the 
Petitioner's human resources manager , without further explanation. Additionally, the Petitioner's 
Malter of A-1-T- Corp. 
"'project team charf' depicts the computer programmer position as being directly overseen by an 
unidentified project manager who in turn is directly overseen by the vice president, while the 
"performance review process'" chart depicts the computer programmer position as being directly 
overseen by an unidentified manager who in turn is overseen by the president. Again, the Petitioner 
must resolve inconsistencies in the record with independent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. 
Without knowing where the Beneficiary would provide his services and who would supervise him, 
the Petitioner's claims about its control and supervision over the Beneficiary cannot be substantiated. 
IV. CONCLUSION 
The Petitioner has not established that the protiered position qualities as a specialty occupation and 
that the Petitioner would have an employer-employee relationship with the Beneficiary. 
ORDER: The appeal is dismissed. 
Cite as Matter ofA-1-T- Corp., ID# 879892 (AAO Dec. 27, 2017)