dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 8493897 
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 "Java software developer" under the 
H-lB nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the 
Act) section 10l(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 petition, concluding that the record did not establish 
that the proffered position qualifies as a specialty occupation and that the Beneficiary will perform 
services in a specialty occupation for the requested period of intended employment. 
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. § l 184(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 ofChawathe, 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. Chertoff, 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 Petitioner has not established the substantive nature of the work that the Beneficiary 
will perform, which precludes a conclusion that the proffered position satisfies any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
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 code 15-1132. On the Form 
I-129, Petition for a Nonimmigrant Worker the Petitioner identified itself as an information 
technology solutions business located in c:J California, that will deploy the Beneficiary to work 
offsite inl !North Carolina. 
The initial record includes the Petitioner's master services agreement withl I, a staffing 
company (vendor), and a purchase order (PO) wherein the Petitioner agrees to provide the 
Beneficiary's services tol l the end-client. The agreement between the Petitioner and 
the vendor states that the "[ c ]lient shall prepare the entire direction, scope, control and interpretation 
3 The Petitioner is required to submit a certified LCA 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. Section 212(n)(l) 
of the Act; 20 C.F.R. § 655.73l(a). 
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of any systems work to be performed by the [Petitioner]." The record also includes a staffing 
agreement between the vendor and an additional party,,__ ______ _,(supplier), who has 
contracted with the end-client in this matter. The agreement between the supplier and the vendor states 
that: the end-client desires to retain the vendor's personnel; the existing terms between the supplier 
and the end-client supersedes all other agreements; and the vendor acknowledges that the end-client 
will determine the scope and acceptance of services rendered. 4 
Preliminarily, we observe that without the foll chain of contracts in this case, we cannot determine 
whether there is any legal obligation on the part of the end-client to provide or continue to provide the 
position described in this petition. 5 As noted above, the supplier refers to the end-client's desire to 
retain the vendor's personnel but the record does not include the actual contractual agreement 
obligating the end-client to provide a position. 6 Additionally, the agreement between the vendor and 
the supplier refers to the end-client agreement as superseding all other agreements and to the 
end-client's determination of the scope of the work. This appears to restrict the Petitioner's ability to 
direct and control the nature of the Beneficiary's work. 7 
We have reviewed the work authorization, signed by the supplier and the end-client, identifying the 
Beneficiary to perform work on the pharmacy team beginning January 7, 2019 and ending February 
7, 2020. 8 The work authorization provides a generic description of the Beneficiary's proposed duties 
as a Java Developer - Level 2 as follows: 
• Build partnerships across the application, business and infrastructure teams. 
• Develop programming specifications. Design, code and unit test application code 
using Software Development Life Cycle (SDLC) best practices. 
• Complete estimates and work plans with the assistance of more senior team 
members as appropriate for design, development, implementation and rollout tasks. 
• Create technical system documentation and ensure that this documentation remains 
current throughout all phases of the SDLC. 
4 The record in
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)udes the Petitioner's master services agreement witH I (vendor) and the agreement between 
the vendor and! I (supplier). The supplier I I claims it has a staffing agreement with The 
~----'I( end-client). Thus, the contractual cham appears to flow as follows: Petitioner ➔ vendor ➔ supplier ➔ 
end-client. 
5 We also reviewed the statements of the end-client's employees who indicate that the Beneficiary is working with them 
at the end-client facility; however, these statements are insufficient to establish any legal obligation on the part of the 
end-client to continue to employ the Beneficiary, or to engage any sub-contractor to augment its staff. 
6 Without an agreement obligating the end-client to provide the work, we cannot determine whether the proffered position 
will actually exist and conclude that the Petitioner has actual work for the Beneficiary to perform. Speculative employment 
is generally not permitted in the H-IB program. See, e.g., 63 Fed. Reg. 30419, 30419-20 (proposed June 4, 1998) (to be 
codified at 8 C.F.R. pt. 214). 
7 The limited information in the agreement between the supplier and the vendor also impacts the Petitioner's claimed 
employer-employee relationship with the Beneficiary and diminishes the probative value of the Petitioner's descriptions 
and control of the proposed work. 
8 We also reviewed the end-client letter submitted on appeal which indicates that the project is expected to last until 
February 2021. However, such a letter does not legally obligate the end-client to continue the Beneficiary's assignment at 
its facility. The Petitioner does not provide additional work authorizations or other probative evidence of the end-client's 
continuation and scope ofrequested services. 
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• Actively participate in sprint planning sessions, PI planning sessions, and Agile 
ceremomes. 
• Communicate with the appropriate teams to ensure that assignments are managed 
appropriately and that completed assignments are of the highest quality. 
• Support and maintain applications, utilizing required tools and technologies. 
Provide support for applications, including involvement with the Support Center, 
NOC, infrastructure teams, and vendors as appropriate. Provide off-hours support 
(24 x 7) as required. 
• May assist other personnel on assignments including mentoring or providing 
on-the-job training to more junior associates. 
• Must be able to perform the essential functions of this position with or without 
reasonable accommodations. 9 
This generic job description does not adequately convey the substantive work to be performed by the 
Beneficiary. That is, the proffered position has been described in terms of generalized and generic 
functions that do not convey sufficient substantive information to establish the nature of the position. 
Moreover, the description does not purport to explain what the Beneficiary would actually do but 
instead describe duties of "typical" positions located within the occupational category. For example, 
stating that the Beneficiary will be involved in developing programming specifications, designing code 
and unit test application code using SDLC best practices and supporting and maintaining applications 
utilizing required tools and technologies, does little to assist in understanding how such duties relate 
to the end-client's specific project(s). The description does not include the necessary detail to establish 
what the Beneficiary will be expected to accomplish in relation to specific business operations. 10 
Similarly, the Beneficiary's proposed duties include building partnerships across the application, 
business, and infrastructure teams and participating in sprint and PI planning sessions and Agile 
ceremonies. However, the record does not include any information regarding the end-client's teams 
or how the various teams interrelate with the Beneficiary's specific assignment. The description also 
indicates that the Beneficiary will communicate with appropriate teams to ensure assignments are 
managed appropriately and that the completed assignments are of the highest quality. However, the 
record does not identify the teams involved in projects or the roles and responsibilities of the team 
members. The record lacks information regarding the "assignments" and what those assignments 
entail. The description also indicates that the Beneficiary may assist other personnel on assignments 
but will also require assistance of more senior team members. The broad and generic description 
including what appears to be a range of responsibility is insufficient to establish the Beneficiary's 
actual role and level ofresponsibility as it relates to a project or a project team. We again observe that 
these team interactions do not detail the substantive nature of the work the Beneficiary will be expected 
9 In the end-client's letter submitted on appeal, the end-client deletes the last bullet point of the work authorization's list 
of duties. 
10 We have reviewed the workflow documents relating to the easy fill pharmacy retail network project. It appears that this 
product may be complete and deployed. For example, the Beneficiary is tasked with providing support for applications. 
including off hours support and involvement with the Support Center, NOC, infrastructure teams, and vendors, which 
when viewed without the context of the stage of a particular project appears to involve technical support for applications 
already designed and deployed. Neither the Petitioner nor the other parties involved in the Beneficiary's claimed 
assignment provide evidence of the stage of the product/project or otherwise demonstrate where the Beneficiary will fit 
within this particular project or within the end-client's business operations as a whole. 
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to perform and the associated applications of specialized knowledge that their actual performance will 
reqmre. 
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, we must analyze the actual 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 (in some instances) to 
comprise the duties of a specialty occupation, are not related to any actual services the Beneficiary is 
expected to provide. Here, the Petitioner has not provided sufficient details regarding the nature and 
scope of the Beneficiary's employment or any substantive evidence regarding the actual work that the 
Beneficiary would perform. Without a meaningful job description, the record lacks evidence 
sufficiently probative and informative to demonstrate that the proffered position requires a specialty 
occupation's level of knowledge in a specific specialty. 
In sum, the record contains insufficient evidence from the end-client to establish that specialty 
occupation work exists for the Beneficiary. We are not able to folly ascertain what the Beneficiary is 
expected to do and the substantive nature of the proffered position. Given this specific lack of evidence 
and the insufficient job descriptions contained in the record, we cannot determine the substantive 
nature of the work to be performed by the Beneficiary, which 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) and that the Beneficiary will perform specialty occupation work for the intended 
employment period. Moreover, the record also does not demonstrate that performing the duties 
described would require the theoretical and practical application of highly specialized knowledge and 
attainment of at least a bachelor's degree in a specific specialty or its equivalent. See section 214(i)(l) 
of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation). 
ORDER: The appeal is dismissed. 
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