dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 9028691 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 22, 2020 
The Petitioner, a software development and consulting company, seeks to temporarily employ the 
Beneficiary as a software developer under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(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 of the California Service Center denied the petition, concluding that the Petitioner did 
not establish that the proffered position qualifies as a specialty occupation, and did not establish the 
Beneficiary will perform services in a specialty occupation for the requested period of employment. 
On appeal, the Petitioner asserts that the Director erred in the decision . 
The Petitioner must establish eligibility by a preponderance of the evidence. Matter of Chawathe, 
25 I&N Dec. 369, 375-76 (AAO 2010). Upon de nova 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: 
( 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"). 
II. ANALYSIS 
The Petitioner identified the proffered position on the Form 1-129, Petition for a Nonimmigrant 
Worker, as a software developer. On the labor condition application (LCA) 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 
(SOC) code 15-1132. 1 
To establish eligibility, the Petitioner must establish that the proffered position qualifies as a specialty 
occupation, demonstrate that a legitimate need for an employee exists, and substantiate that it has 
H-lB caliber work for the Beneficiary for the duration of the employment period requested in the 
petition.2 
Upon review of the record of proceedings, we find that the Petitioner did not provide sufficient, 
credible evidence to establish in-house employment for the Beneficiary for the validity of the requested 
H-lB employment period. Specifically, the Petitioner did not provide sufficient documentation of the 
projects in which the Beneficiary will be part of and his duties on these specific projects to adequately 
convey the substantive work to be performed by the Beneficiary. 
1 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 duties, experience and qualifications who are performing the same services. See Section 
212(n)(l) ofthe Act; 20 C.F.R. ~ 655.73 l(a). 
2 The Petitioner submitted documentation to suppmt the H-lB 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. 
2 
In response to the Director's request for evidence (RFE), the Petitioner stated that their services range 
from "IT Advisory Services, Project Management and Execution, and Technical and Subscription 
services." In addition, the Petitioner explained that it has "agreements with multiple clients ag 
ongoing in-house projects for many majr clients such asl I, 
c=:JI 11 . I,~----~[ I L 
L_J, an~ I, etc." 
As reflected in the description of the position, the proffered position has been described in terms of 
generalized and generic functions that do not convey sufficient substantive information to establish 
the relative complexity, uniqueness and/or specialization of the proffered position or its duties. For 
example, the Petitioner stated that the Beneficiary will spend 30 percent of his time to "work with 
team members to formulate and design software systems, using scientific analysis and mathematical 
model to predict and measure outcome and consequences of design." In addition, the Beneficiary will 
spend 25 percent of his time, in part, to analyze "software requirements to determine feasibility and 
security of design and implementation with time and cost considerations of scalable solutions." 
Although the Petitioner explained the general concepts of the duties of the software developer, it did 
not provide any information of the specific software systems that the Beneficiary will develop, or the 
specific projects that the Beneficiary will work on during his employment. This is again noted when 
the Petitioner explained that the Beneficiary will spend 15 percent of his time to "develop and direct 
software system testing procedures, programming and documentation," The Petitioner did not 
provide sufficient explanation of the programming and documentation utilized by the Beneficiary and 
whether it is something specifically designed by the Petitioner, or provide information regarding 
specific projects in which the Beneficiary will be responsible for this duty. The Petitioner does not 
provide a detailed understanding of the Petitioner's development of a particular software, or the 
Beneficiary's responsibilities with working on this product. The responsibilities for the proffered 
position contain generalized functions without providing sufficient information regarding the 
particular work, and associated educational requirements, into which the duties would manifest 
themselves in their day-to-day performance. 
Although the Petitioner indicated that it develops software, it did not provide sufficient corroborating 
evidence of this activity such as a business plan for software development, or a project outline, or 
information regarding the budget and personnel needed to develop the new software. 
In addition, the Petitioner explained that the Beneficiary will work in-house but on projects for clients. 
The Petitioner submitted projects and agreements for three clients but as noted by the Director, they 
were all prepared after the current petition was filed. United States Citizenship and Immigration 
Services (USCIS) regulations affirmatively require a petitioner to establish eligibility for the benefit 
it is seeking at the time the petition is filed. See 8 C.F.R. § 103.2(b)(l). A visa petition may not be 
approved based on speculation of future eligibility or after the Petitioner or Beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l 
Comm'r 1978). A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 
(Assoc. Comm'r 1998). In other words, eligibility for the benefit sought must be assessed and weighed 
based on the facts as they existed at the time the instant petition was filed and not based on what were 
merely speculative facts not then in existence. As such, the Petitioner has not sufficiently established 
3 
that the petition was filed for non-speculative specialty occupation work for the Beneficiary that 
existed as of the time of the petition's filing. 3 
On appeal, the Petitioner explains that the reason it submitted the "recent client agreements for the 
beneficiary, not because of unavailability of projects at the time of petition filing, but due to the fact 
that these are coming up at the time of expected joining of employment." The Petitioner goes on to 
state that it has "many projects and clients for whom they are providing specialty service continuously 
for many years." However, while these documents show that the Petitioner has agreements in place 
with clients, it is not clear if the Beneficiary will work on these projects as the Beneficiary is not listed 
in any of the documentation. For example, the Petitioner submitted a statement of work withl I I I but the work requires an A TG Senior Developer and an A TG Developer. It is not 
clear if the Beneficiary is qualified to fill these positions. Moreover, this statement of work only 
requires a total of 120 hours. 
Further, the Petitioner submitted proposals of work between the Petitioner and clients that are not 
signed by the P,arties, and it is not clear if the Petitioner obtained this work. For example, one proposal 
of work is forl I and the document stated thatl I has engaged the Petitioner to 
"provide an estimate and scope document," but it is not signed, and it is not clear if the client proceeded 
wit~ this work The same is tme Qr some of the submitted statement of work proposals for I I 
and.__ __________ __, that outline the work the Petitioner may provide to the client but 
they are not signed and it is not clear if the parties will go ahead with this work. Furthermore, even 
with the statements of work that were signed by the parties, none of them specifically list the 
Beneficiary specifically, or the position of software developer as a resource for the required work. 
On appeal, the Petitioner submits new agreements with clients that were prepared and signed prior to 
the filing of the current petition. The agreements do not specifically state the Beneficiary as a resource 
on these projects. Although the Petitioner submitted the agreements to evidence working relationships 
3 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-lB 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) of the 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 Non immigrant 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). 
4 
with clients, it does not provide sufficient information regarding the duties and responsibilities the 
Beneficiary will have as a software developer. 
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. The record lacks evidence sufficiently concrete and informative to demonstrate that the 
proffered position requires a specialty occupation's level of knowledge in a specific specialty. Because 
the Petitioner has not established the substantive nature of the Beneficiary's work, we are unable to 
evaluate whether 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. 
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 cannot be found that the proffered position qualifies as a specialty occupation. 
III. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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