dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 6152097 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 3, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "programmer analyst" 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 California Service Center Director denied the petition, concluding that the record did not establish 
that: (1) the Petitioner had definite non-speculative employment in a specialty occupation available 
for the Beneficiary for the requested period of employment; and (2) an employer-employee 
relationship exists between the Petitioner and the Beneficiary. 
In these proceedings , it is the Petitioner 's burden to establish eligibility for the requested benefit. Upon 
de novo review , we will dismiss the appeal. 
I. SPECIAL TY OCCUPATION 
A. 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: 
(1) A baccalaureate or higher degree or its equivalent is nonnally 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). 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, the Petitioner has not 
demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the record 
lacks sufficient evidence of the actual work that the Beneficiary will perform for the end-client. 
We conclude first that the Petitioner has not established the existence of definitive, non-speculative 
employment for the Beneficiary. The Petitioner, a software solutions provider located in Washington, 
states that it will deploy the Beneficiary to an end-client location in Illinois pursuant to a contract 
between the Petitioner an~ k end-client). The Petitioner filed this petition in April 2018 for 
the Beneficiary's proposed employment beginning October 1, 2018 to September 20, 2021. To 
support this employment the Petitioner submitted its 2010 contract with the end-client to provide 
"services listed in the Service Schedule attached as Exhibit A ('Services')." The record also includes 
a 2012 amendment to the initial contract which defines the "Services" as those "listed in the Service 
Schedule attached as Exhibit A." Although the record includes Exhibit B, a data privacy and security 
requirements addendum, the record does not include the Exhibit A. The end-client's letter does not 
include sufficient information to fill the significant gap created by the lack of the Exhibit A. The 
record does not include sufficient information to establish the legal obligation for the end-client to 
provide specific services for this Beneficiary to perform. 
On appeal, the Petitioner provides a work order for the Beneficiary to perform the duties of a senior 
developer for the end-client offshore from September 2018 through December 2019. The record, 
however, does not include a work order for the Beneficiary to work at the end-client's facility in 
Illinois. We have reviewed work orders for five of the Petitioner's employees to work in various 
positions at the end-client's facility, but these work orders do not establish that the end-client has 
specific work for the Beneficiary to perform. The record is without the context of a specific project 
or projects that comprise the "services" that are required by the end-client. There is insufficient 
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evidence establishing the nature of and number of resources requested or needed by the end-client. 1 
As the record does not include the Exhibit A establishing at least the parameters of the work needed 
by the end-client, evidence of the stage or stages of the project or projects, and the end-client's 
obligation to use the Petitioner and specifically the Beneficiary's services to complete a project or 
projects, we cannot conclude that the proffered position actually exists. If we cannot determine 
whether the proffered position will actually exist, then we cannot ascertain its substantive nature so as 
to determine whether it is a specialty occupation. 2 Even ifwe were to set this foundational deficiency 
aside entirely we would still have significant questions as to the proffered position's actual, substantive 
nature due to the lack of evidence regarding the proposed position. 
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 (SOC) code 15-1132. The 
Petitioner also provided an overview of the proposed position indicating generally that the Beneficiary 
would design and develop data warehouse/data lake solution using SQL to load to different data marts, 
design unit test case, and provide technical documentation and support. 4 The end-client's letter also 
states generally that the Beneficiary will work on "Data Warehouse projects." The record does not 
include sufficient detail regarding the proposed duties so that we may adequately analyze whether the 
Petitioner has provided an LCA that supports the position so perfunctorily described. 5 We question 
whether the proffered position's duties correspond more closely to a "Data Warehousing Specialists" 
occupation, SOC code 15-1199.07, not the occupation designated on the certified LCA. Without 
additional detail explaining the proposed duties we cannot ascertain the nature of the proposed position 
which precludes a determination that the certified LCA supports the position and that the duties 
constitute the duties of a specialty occupation. 
We have reviewed the work product the Petitioner claims the Beneficiary worked on offshore for the 
ongoing data warehousing project for the end-client. First, the work product submitted does not name 
any author and does not reference the Petitioner or the end-client. Second, each work product outlines 
the purpose, the technical toolset used, and a data design flow. The work product is without specific 
context and does not include the necessary information to assess the level of complexity or 
specialization to produce the basic document. Lastly, the Beneficiary's role and tasks associated with 
the work product is not clearly connected to specific duties. 
1 The record does not include sufficient explanations and evidence of the processes in place between the Petitioner and the 
end-client to generate a legal obligation to provide ongoing specialty occupation caliber work for the Beneficiary to 
perform. 
2 Speculative employment is generally not permitted in the H-lB program. See, e.g., 63 Fed. Reg. 30419, 30419-20 
(proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). 
3 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-lB 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) 
ofthe Act; 20 C.F.R. § 655.73l(a). 
4 The Petitioner included additional narrative which we have reviewed in full. 
5 We observe, for example, that the work orders submitted for other individuals on the end-client's "project(s)" identify 
different positions with a wide range in their level of responsibility, such as project manager TT, business intelligence 
developer TIT, data analyst TIT, database developer TIT, and an offshore senior developer. However, as noted above, the 
record does not include evidence of the types or number ofresources the end-client requires for any specific project, thus 
we cannot asce1iain the necessity for a "programmer analyst" designated as a "Software Developer, Applications" on the 
ce1iified LCA, to perform data warehouse duties. 
3 
The Petitioner does not explain how the proposed duties it broadly describes are software application 
development duties or why the duties require a bachelor's degree in a specific specialty to perform them. 
The record does not include information establishing how a detailed course of study related to specific 
duties is required or why such a curriculum is necessary to perform the duties described. While a few 
related courses may be beneficial in performing certain duties of the position, the Petitioner has not 
demonstrated how an established curriculum of such courses leading to a baccalaureate or higher degree 
in a specific specialty, or its equivalent, is required to perform the duties of the proffered position. We 
understand that the proposed position is a technology position, however, the record is simply insufficient 
to establish that the duties as described require a bachelor's degree in a specific discipline, or its 
equivalent, rather than a few foundational courses or certifications in particular technology tools. 
The Petitioner in this matter has not provided evidence of the actual day-to-day duties of the proffered 
position so that those duties may be analyzed to determine if the duties require both the theoretical and 
practical application of a body of highly specialized knowledge and the attainment of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, as the minimum for entry into the 
occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty 
occupation). The Petitioner has described a technology occupation but has not provided enough 
information regarding the specific duties and level of responsibility in relation to a specific project to 
ascertain the substantive nature of the proposed position. 
Thus, the record when viewed in its totality does not establish the substantive nature of the work to be 
performed by the Beneficiary, which therefore 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. 
The Petitioner has not established the proffered position is a specialty occupation under the regulation 
at 8 C.F.R. § 214.2(h)(4)(iii)(A) or the relevant statute. 
II. EMPLOYER-EMPLOYEE 
We do not need to consider the issue of the employer-employee relationship, as our conclusion 
regarding the lack of definite non-speculative specialty occupation work available for the Beneficiary 
is dispositive of the appeal. We thus, reserve this issue for any future proceedings. We do note 
however that upon review of the four comers of this H-1 B petition, there is insufficient evidence to 
determine whether the Petitioner is acting as a supplier of personnel to temporarily supplement the 
end-client's staff or has contracted to provide specific deliverables to the end-client. In future filings, 
4 
the Petitioner must establish the nature of the services the end-client requires to help support the 
framework for the claimed employer-employee relationship. 6 
III. CONCLUSION 
The Petitioner has not presented probative evidence or argument sufficient to establish that it has definite, 
non-speculative H-lB caliber work available for the Beneficiary or that, more likely than not, the 
proffered position is a specialty occupation as defined by the regulations and the statute. 
ORDER: The appeal is dismissed. 
6 We understand that the Petitioner creates specialized software frameworks to accelerate software development and the 
implementation of business processes, however, we do not have evidence of the services the Petitioner will provide to the 
end-client. We again point out that the Petitioner does not include the Exhibit A to the contract with the end-client which 
apparently sets out the type of services the end-client requires. The Petitioner does not address or provide explanations 
regarding the lack of this document despite the Director raising this issue in their decision. 
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