dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 10319138 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 1 7, 2020 
The Petitioner, a fmancial software development company, seeks to employ the Beneficiary temporarily 
under the H-lB nonirnrnigrant classification for specialty occupations .1 The H-IB 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 Vermont Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that because the Petitioner did not establish the actual work the Beneficiary would perform, 
it had not demonstrated that (1) the Beneficiary will perform services in a specialty occupation or (2) 
that the proffered position qualifies as a specialty occupation . 2 
The matter is now before us on appeal. The Petitioner bears the burden of proof to demonstrate 
eligibility by a preponderance of the evidence. 3 We review the questions in this matter de novo.4 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 10l(a)(l5)(H)(i)(b) of the Act defines an H-lB nonimrnigrant as a foreign national "who is 
corning 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), defmes 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, and adds a non-
1 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) . 
2 The Director also informed the Petition that "[ a ]lthough not at issue in this denial notice, the evidence of record, at this 
time, does not demonstrate that the offered position as described qualifies as a specialty occupation in accordance with the 
four criteria enumerated in 8 C.F.R. § 214.2(h)(4)(iii)(A)." 
3 Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
4 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 5 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(I) 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 
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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
II. ANALYSIS 
Upon review of the record in its totality, we agree with the Director's conclusions. In this matter, the 
Petitioner has not sufficiently established the services in a specialty occupation that the Beneficiary 
would perform, which precludes a determination as to whether the proffered position qualifies as a 
specialty occupation under sections 10l(a)(15)(H)(i)(b), 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A).6 The record (1) does not describe the 
position's duties with sufficient detail and (2) does not establish that the job duties reqmre an 
educational background, or its equivalent, commensurate with a specialty occupation. 
The Petitioner provided a list of six duties as follows (note: errors are in original): 
• Acting as a trusted advisor to our prospects as well as newly-joined customers, helping them 
to understand how API-driven architectures, Cloud Computing and [the Petitioner] will help 
them to build or transform their business into an innovative, digital organization 
5 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions ofa 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. 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"). 
6 The Petitioner submitted documentation to suppmt the H-lB 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. 
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• Supporting our presales and delivery teams by architecting, engineering and demonstrating 
solutions 
• Engaging will all levels of customer representatives, from engineers to technology leaders and 
managing executives 
• Ensuring all client/customer concerns are satisfied and resolved 
• Working closely with [the Petitioner]'s Ecosystem & Product Engineering Teams team to 
make sure the end-solution proposed to the customer is providing a unique competitive 
advantage, and fulfils all the regional and market needs 
• Traveling will be an important part of [the] job as [the Beneficiary] will be covering the 
Americas region 
A crucial aspect of this matter is whether the Petitioner has sufficiently described the duties of the 
proffered position in such that we may discern the nature of the position. As explained by the Director, 
these duties are "general and vague." Not only do the provided duties not sufficiently communicate the 
actual work that the Beneficiary would perform, but the Petitioner has not explained the correlation 
between the work as described and the need for a particular level of knowledge in a specific specialty. On 
appeal, rather than address this issue, the Petitioner asserts that the position qualifies as a specialty 
occupation on the basis of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), without providing any 
additional information regarding the duties. 
Given the lack of detailed information from the Petitioner, the Petitioner has not sufficiently established 
the substantive nature of the work that the Beneficiary will perform. This precludes a finding 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 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. 
Because the Petitioner has not established the actual work the Beneficiary will perform, we cannot 
conclude that (1) the Beneficiary will perform services in a specialty occupation or (2) that the 
proffered position qualifies as a specialty occupation. 
In addition, we also note a serious inconsistency in the record. In the initial filing, the Petitioner 
submitted a labor condition application (LCA) for the position of solutions architect, corresponding to 
the standard occupational classification (SOC) code 15-1199 for "computer occupations, all other." 
However, the Petitioner also provided a copy of the portion of the Department of Labor's (DOL) 
Occupational Outlook Handbook (the Handbook) related to the occupation of computer systems 
analysts to establish that the position is a specialty occupation. The corresponding SOC code for a 
computer systems analyst is 15-1121. In addition, the accompanying opinion letter froml I 
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~--~I of I I University, discusses the "specialized nature of the pos1t10n of software 
engineer," provides an "industry analysis of the position of software engineer," and appears to consider 
"software engineers, solution architects, and software developers" to be very similar positions. 
In her request for evidence, the Director discussed the shortcomings in the evidence submitted and, 
when warranted, the computer systems analyst occupation. In response, the Petitioner submitted a 
copy of the relevant portion of the Handbook for the computer network architects occupation, 
corresponding to the SOC code 15-1143, stating that it is "a position directly related to a Solutions 
Architect," without explaining why it initially submitted information from the Handbook for the 
occupation of computer systems analyst or addressing the Director's RFE discussion of the computer 
systems analysts occupation. On appeal, the Petitioner states that "[t]he position of a Solutions 
Architect is closely related to that of a Computer Systems Analyst" and again references the Handbook 
entry for that occupation to establish that the proffered position "meet[ s] the statutory definition of a 
specialty occupation." The Petitioner must resolve these inconsistencies with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 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. Id. 
As a result of these inconsistencies and the general and vague duties the Petitioner provided, it is 
unclear under which occupation the proffered position falls. Therefore, the Petitioner has also not 
sufficiently established that it provided a certified LCA in the occupational specialty in which the H-
1B nonimmigrant will be employed before the filing of the Form I-129. 8 C.F.R. § 214.2(h)(4)(i)(B). 
See also Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015).7 
While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL 
regulations note that the Department of Homeland Security (DHS) (i.e., its immigration benefits 
branch, USCIS) is the department responsible for determining whether the content of an LCA filed for 
a particular Form 1-129 actually supports that petition. See 20 C.F.R. § 655.705(b), which states, in 
pertinent part ( emphasis added): 
For H-1B visas ... DHS accepts the employer's petition (DHS Form 1-129) with the 
DOL-certified LCA attached. In doing so, the DHS determines whether the petition is 
supported by an LCA which corresponds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
7 The LCA serves as the critical mechanism for enforcing section 212(n)(l) of the Act, 8 U.S.C. § 1182(n)(l). See Labor 
Condition Applications and Requirements for Employers Using Nonimmigrants on H-IB Visas in Specialty Occupations 
and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United States, 65 Fed. 
Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that the wage 
protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring 
temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] with 
[DOL]."). According to section 212(n)(l)(A) of the Act, an employer must attest that it will pay a holder ofan H-IB visa 
the higher of the prevailing wage in the "area of employment" or the amount paid to other employees with similar 
experience and qualifications who are performing the same services. Sec 20 C.F.R. § 655.731 ta); Vcnkatraman v. REI 
Sys., Inc., 417 F.3d 418,422 & n.3 (4th Cir. 2005); Patel v. Boghra, 369 F. App'x 722,723 (7th Cir. 2010); Michal 
Vojtisek-Lom & Adm 'r Wage & Hour Div. v. Clean Air Tech. Int'!, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of 
Labor Admin. Rev. Bd. July 30, 2009). 
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model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-1 B visa classification. 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports 
the H-1 B petition filed on behalf of the Beneficiary. Here, the Petitioner has not established that it 
submitted a valid LCA certified for the proper occupational classification, and the petition cannot be 
approved for this additional reason. 
II. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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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