dismissed H-1B Case: Software Development

MATTER OF B-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 14,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting firm, seeks to temporarily employ the 
Beneficiary as a "programmer analyst" under the H-1B nonimmigrant classification for specialty 
occupations. See section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 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 California Service Center denied the petition, concluding that the Petitioner had 
not demonstrated that the proffered position qualifies as a specialty occupation position. 
On appeal, the Petitioner submits a brief and additional evidence and asserts that the Director's 
decision was erroneous. 
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(hX4)(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: 
Matter of B-, Inc. 
(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 ainong 
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" 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. THE PROFFERED POSITION 
The Petitioner identified the proffered position as that of a "programmer analyst," and stated on the 
certified labor condition application (LCA) that the proffered position falls under the "Software 
Developers, Applications" occupational category corresponding to Standard Occupational 
Classification (SOC) code 15-1132. 
In a letter submitted in response to the Director's first request for evidence, the Petitioner provided 
the following description of the duties of the proffered position: 
• Identifies requirements by establishing personal rapport with potential and actual 
clients and with other persons in a position to understand the service requirements. 
Based on these discussions, come up with detailed specification documents that 
must be used by the development team during development phase 30% 
• Write programs by encoding project requirements in computer language; enter 
coded information into the computer 40% 
• Collaborate with stakeholders such as Business team, and QA team to create an 
exhaustive testing strategy and test plan. Confirm program operation by conducting 
tests; modify program sequence and/or codes 10% 
• Provide reference for use of prime and personal computers by writing and 
maintaining user documentation; maintain help desk 5% 
• Maintain computer systems and programming guidelines by writing and updating 
policies and procedures 5% 
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Matter of B-, Inc. 
• Develop and maintain. reporting applications and databases by evaluating client 
needs; analyzing requirements; developing software systems 10% 
The Petitioner stated that the position requires a bachelor's degree in computer science, engineering 
or a related field. 
Regarding the Beneficiary's work assignment, 
the Petitioner stated that the Beneficiary 
would work 
as a programmer analyst in Illinois at the location of its client, D-F-S- (end-client), and 
would report to the Petitioner's headquarters in Illinois, as needed for meetings. In 
support of this assertion, the Petitioner submitted a copy of a Consulting and Services Agreement 
(CSA) with the end-client, as well as an addendum (#4) to the CSA, a Task Order, and a letter from 
an end client's representative. 
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 the proffered position qualifies as a specialty occupation. 1 
Specifically, the record as constituted d~es not adequately establish the substantive nature of the 
proffered position, such that we can determine whether the position qualifies as a specialty 
occupation. 
Preliminarily, we concur with the Petitioner's assertion that the Director evaluated the proffered 
position as that of a computer systems analyst, which falls under a separate and distinct occupational 
classification and SOC code 15-1121. As mentioned, the Petitioner designated the proffered 
position as "Software Developers, Applications" under SOC code 15-1132. Upon review, however, 
we find that the Petitioner did not sufficiently demonstrate that the designated occupational 
classification corresponds to the proffered position. 
As recognized by the court in Defensor, where the work is to be performed for entities other than the 
petitioner, evidence of the client companies' job requirements is critical. See Defensor, 201 F.3d at 
387-388. 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 at 384. 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. 
Here, the Petitioner asserts that the Beneficiary will be employed offsite at its end-client's location. 
The record of proceedings, however, is devoid of sufficient information from the end-client 
1 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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Matter of B-, Inc. 
regarding the nature of the Beneficiary's proposed position and the duties associated therewith. 
While the record contains a copy of the Petitioner's CSA with the end-client, which it asserts has 
been renewed continually since 2004, the record does not contain sufficient evidence outlining the 
nature of the Beneficiary's proposed assignment on the end-client's premises for the requested 
validity period. For example, the task order submitted with the petition only covers the period from 
January 2015 through December 2016, and does not identify the Beneficiary as personnel assigned 
to any particular project at the client site. 
In addition, although the Petitioner provides a vague overview of the duties to be performed by the 
Beneficiary, there is no independent evidence from the end-client verifying the exact nature of the 
duties. The Petitioner relies on the letter from the end-client as corroborative evidence of the 
contractual agreement between the parties. However, the letter from the end-client was executed in 
2010, and simply provides a generic overview of its agreement with the Petitioner. The letter is not 
contemporaneous to the petition, and does not provide information regarding any current or intended 
project for the Beneficiary, the duties required for such project(s), or the educatil.mal requirements 
for the position. 
Consistent with Defensor, where the work is to be performed for entities other than the Petitioner, 
evidence of the client companies' job requirements is critical. Here, the Petitioner asserts that the 
Beneficiary will be assigned to work at the end-client's location, with occasional trips to the Petitioner's 
headquarters for meetings. Under these circumstances, evidence of the work that the end-client would 
assign to the Beneficiary and evidence of the educational requirement it imposes for the performance of 
that work are indispensable. 
Likewise, the Petitioner does not provide sufficient details regarding the nature and scope of the 
Beneficiary's employment. The Petitioner stated that the Beneficiary will "maintain help desk" and 
"collaborate with stakeholders," both of which are generic IT duties that are not project specific. 
Moreover, the Petitioner claims that the Beneficiary "identifies requirements by establishing 
personal rapport with potential and actual clients .... " This duty alone suggests a generic service 
provided on an as-needed basis to any clients in n~ed of computer/IT services, and sheds little light 
on what the Beneficiary would be doing for the requested 35-month period at the end-client's 
location. That is, rather than identifying a project-specific task to be performed its IT professionals, 
this duty simply provides a synopsis of the type of service the Petitioner's personnel can provide to 
clients. It seems unlikely, after continuous renewals of the CSA since 2004, that the end-client 
would solicit the Petitioner for the services of a programmer analyst without identifying a specific 
need for a project, along with its intended duration. 
Moreover, the Petitioner has not established that it has definite, non-speculative work for the 
Beneficiary for the entire validity period requested. The Petitioner requested approval for the 
Beneficiary to work in H-lB status from October 2016 to August 2019. Even if the task order had 
identified the Beneficiary as a contractor assigned to work on a project for the end-client, the task 
order, at best, would cover only three months out of the 35-month period for which the petition was 
filed. 
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Matter of B-, Inc. 
Without documentary evidence from the end-client that covers the duration of the period of 
employment requested, we are not able to ascertain what the Beneficiary would do, where the 
Beneficiary would work, as well as how this would impact circumstances of his relationship with the 
Petitioner. A petition must be filed for non-speculative work for the Beneficiary, for the entire period 
requested, that existed as of the time of the petition's filing? 
Overall, the deficiencies in the record preclude us from understanding such aspects as ( 1) the actual 
work that the Beneficiary will perform on a daily basis; (2) the complexity, uniqueness or 
\ specialization of the tasks; and (3) the correlation between that work and a need for a particular level 
education of highly specialized knowledge in a specific specialty, or its equivalent. 
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 (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 fa9tual 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. 
2 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 
individual 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 individual 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 individual has the appropriate degree for the occupation. In 
the case of speculative employment, the Service is unable to perfonn 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 individual 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). 
3 The Beneficiary provided evidence that might ordinarily be relevant to various criteria of 8 C.F.R. § 214.2(h)( 4)(iii)(A). 
For instance, the Petitioner provided vacancy announcements placed by other companies for programmer analysts and 
software developers. These might ordinarily be relevant to the second criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). In 
this case, however, because the Petitioner has not demonstrated the substantive nature of the duties the Beneficiary 
would perform if the visa petition were approved, it has not demonstrated that the Beneficiary would work as a 
programmer analyst or a software developer, and those vacancy announcements have not been shown to be relevant. 
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Matter of B-, Inc. 
Taken as a whole, the record of proceedings does not contain sufficient, reliable evidence 
demonstrating the substantive nature of the proffered position and its constituent duties.4 
IV. CONCLUSION 
The Petitioner has not established that the proffered position qualifies as a specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter of B-, Inc., ID# 366194 (AAO July 14, 20 17) 
4 Further, without full disclosure, we are unable to detennine whether the requisite employer-employee relationship with 
exist between the Petitioner and Beneficiary.