dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-S-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 20, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development, testing, and support company, seeks to temporarily employ 
the Beneficiary as a "senior software test automation engineer" under the H-lB nonirnrnigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(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 Director of the Vermont Service Center denied the petition, concluding that the Petitioner did not 
establish that the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner asserts that the Director's decision was erroneous and that the petition should 
be approved. 
Upon de nova review, we will dismiss the appeal. 1 
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. 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter of E-S- Inc. 
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: 
(]) 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. Chertojf, 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. PROFFERED POSITION 
The Petitioner states that the Beneficiary will perform the services of a "lead software testing 
engineer." The record's Labor Condition Application (LCA)2 was certified with for a position falling 
within the general Standard Occupation Classification (SOC) code and category 15-1199, "Computer 
Occupations, All Other." Specifically, the LCA indicates that the occupational sub-classification is 
that of "Software Quality Assurance Engineers and Testers" corresponding to the SOC sub-code of 
15-1199.01. 
The Petitioner described the duties of the proffered position in both its initial letter of support and in 
response to the Director's request for evidence (RFE). Specifically, the Petitioner emphasized that 
"Software Test Automation Engineers are software developers in their own right," and concluded that 
the Beneficiary, in the proffered position, will "develop software used to automate the testing of other 
software systems." The Petitioner claimed that the proffered position is that of a software developer, 
and in support of this assertion, the Petitioner submitted excerpts from the U.S. Department of Labor's 
(DOL's) Occupational Outlook Handbook (Handbook) and O*NET OnLine pertaining to the category 
of "Software Developers, Applications," SOC Code 15-1132. Moreover, the Petitioner incorrectly 
2 A petitioner submits the LCA to DOL 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 duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a). 
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Matter of E-S- Inc. 
claimed that the certified LCA submitted in support of the petition classifies the proffered position 
under SOC Code 15-1132 and thus corresponds to the petition. 
III. ANALYSIS 
A. Non-Corresponding LCA 
The purpose of the LCA wage requirement is "to protect U.S. workers' wages and eliminate any 
economic incentive or advantage in hiring temporary foreign workers." 3 It also serves to protect H-1B 
workers from wage abuses. A petitioner submits the LCA to the DOL 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. Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a). While DOL 
certifies the LCA, U.S. Citizen and Immigration Services (USCIS) determines whether the LCA's 
content corresponds with the H-1B petition. See 20 C.F.R. § 655.705(b) ("DHS determines whether 
the petition is supported by an LCA which corresponds with the petition, .... "). 
The LCA provided in support of the instant petition is certified for a position within the "Computer 
Occupations, All Other" category i~ I Pennsylvania at a Level II prevailing wage level. 
In response to the RFE and again on appeal, the Petitioner states that the proffered position is that of 
a software developer, and submits excerpts from the Handbook and O*NET pertaining to this 
occupational category in support of its assertions. Further, the Petitioner incorrectly maintains that it 
provided a certified LCA for the occupational category of "Software Developers, Applications," SOC 
Code 15-1132, in support of the petition, when in fact it did not. Upon review, it appears that most, if 
not all, of the stated duties correspond to those of a software developer as claimed by the Petitioner. 
The prevailing wage for the occupational category of"Software Developers, Applications," at a Level 
II wage in I I Pennsylvania, is significantly higher than the prevailing wage for the 
"Computer Occupations, All Other" category selected by the Petitioner. 4 Thus, according to DOL 
guidance, if the Petitioner believed its position was appropriately described as a software developer, 
or was a combination of both categories, it should have chosen the relevant occupational code for the 
highest-paying occupation. However, the Petitioner chose the occupational category for the lower 
paying occupation for the proffered position on the LCA. 
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 I-129 actually supports that petition. The regulations state, in pertinent part: 
3 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1 B 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). 
4 The annual prevailing wage for a Level II position under the "Computer Occupations, All Other" category in the 
Petitioner's Metropolitan Statistical Area (MSA) at the time the LCA was certified was $82,680. In contrast, the annual 
prevailing wage for a Level II software developer in the Petitioner's MSA at the same time was $87,235. 
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Matter of E-S- Inc. 
For H-lB 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 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements of H-1 B visa classification. 
20 C.F.R. § 655.705(b) (emphasis added). 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports 
the H-lB petition filed on behalf of the Beneficiary. Here, the Petitioner has not submitted a certified 
LCA that corresponds to the claimed duties of the proffered position. 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we need not address other 
grounds of ineligibility. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("As a general rule courts 
and agencies are not required to make findings on issues the decision of which is unnecessary to the 
results they reach."). Nevertheless, we will briefly address the Director's determination that the 
proffered position is not a specialty occupation. 
B. Substantive Nature of the Position 
The Director concluded that the proffered position was not a specialty occupation under 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The Director analyzed the proffered position under the occupational category 
of "Computer Occupations, All Other" as set forth on the LCA, and not under the "Software 
Developers, Applications" category asserted by the Petitioner. The Director determined that the 
Handbook does not demonstrate that this occupational category is one for which normally the 
minimum requirement for entry is a baccalaureate degree (or higher) in a specific specialty, or its 
equivalent, and that the Petitioner did not provide evidence from other objective, authoritative sources 
to establish that the proffered position qualifies as a specialty occupation. The Director also found the 
evidence submitted by the Petitioner under 8 C.F.R. §§ 214.2(h)(4)(iii)(A)(2)(3), and (4) to be 
insufficient. 
While we concur with the Director's ultimate conclusion on this issue, wet note that as currently 
constituted, the record does not establish the substantive nature of the work to be performed by the 
Beneficiary. It appears that the duties of the proffered position may change during the requested validity 
period. The Petitioner stated in its support letter that the Beneficiary "will initially work" at one of the 
Petitioner's offices. However, it continued by stating that "[i]n the future, the Beneficiary may be 
assigned to a project at a client site." The nature of the Petitioner's business, which is designing, 
developing, and delivering product development and software engineering solutions for its customers, is 
primarily client-driven based on the requirements of a particular project. Although the Petitioner asserts 
that the Beneficiary will always be based at one of its offices, the acknowledgement that she will likely 
be assigned to work at a client worksite raises additional questions regarding the actual duties she will 
ultimately perform. 
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Matter of E-S- Inc. 
Again, absent an LCA that corresponds to the petition, we cannot determine the true nature of the 
proffered position, and whether that position is a specialty occupation. Nevertheless, the contradictory 
statements regarding the correct occupational classification of the position, coupled with the 
uncertainty regarding the nature and location of the Beneficiary's work, precludes a finding 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. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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. 
Cite as Matter of E-S-, Inc., ID# 4668022 (AAO Sept. 20, 2019) 
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