dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-IT-INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT . 31, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a company engaged in software development and information consulting services, 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)(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 it has established eligibility for the benefit sought. 
Upon de nova review, we will dismiss the appeal. 
I. SPECIAL TY OCCUPTION 
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. 
Matter ofN-IT- 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: 
(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 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). 
As recognized by the court inDefensor, 201 F.3d at 387-88, where, as here, the work is to be performed 
for entities other than the petitioner, evidence of the client company's job requirements is critical. 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. 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. 
B. Analysis 
Upon review of the record in its totality, we conclude that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation because the record lacks sufficient evidence of the 
actual work that the Beneficiary will perform for the end-client. 1 We find that the Petitioner has not 
established the substantive nature of the position, which precludes a determination that the proffered 
position qualifies as a specialty occupation under at least one of the four regulatory specialty­
occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
1 The Petitioner submitted documentation to support the H-1 B 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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Matter ofN-IT- Inc 
The Petitioner stated on the Form I-129, Petition for a Nonimmigrant Worker, and on the certified labor 
condition application (LCA) 2, that the Beneficiary would work as a software developer for an end-client 
inl I Massachusetts, for the petition's entire employment period, September 2018 to August 
2021. The Petitioner indicated the relationship with the end-client as follows: 
(Vendor) 
The Petitioner submitted a consulting agreement (CA) between the Petitioner and the vendor. Under the 
section entitled "Services", the agreement stated that the Petitioner "agreed to provide such consulting 
services" to the vendor which are described in a statement of work. The terms under the "Services" 
section contains contractual terms and conditions to be automatically incorporated into any follow-on 
contracts executed by the Petitioner and the vendor under the CA's umbrella. In addition, the 
document does not commit the vendor to any contract with the Petitioner for any particular services during 
any period or at any location. In sum, the CA has little probative weight towards establishing actual 
work to be performed by the Beneficiary for the end-client for any specific period or location. 
The Petitioner submitted a master service agreement (MSA) between the vendor and the end-client, dated 
July 7, 2009. The MSA stated that the vendor shall "provide [the end-client] with the Services, as 
described in one or more Requisitions in accordance with the terms and timeframes set forth therein." 
The MSA defines a requisition as an "electronic work authorization generated by the [end-client's] 
Vendor Management System, or at [the end-client's] option, a paper-based project work authorization, 
either of which to be issues by [the end-client]. ... " Upon review of the documentation, the Petitioner 
did not submit a requisition between the vendor and the end-client that establishes that the Beneficiary 
would work for the end-client in a specific project. It is the Petitioner's burden to establish eligibility 
for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Skirball 
Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 
The Petitioner submitted a statement of work (SOW) signed by the Petitioner and the vendor. The SOW 
indicated that the Beneficiary will "provide work and relevant expertise 
associated with the project for our client I I" However, the SOW does not specifically state the 
project the Beneficiary will be working on, or provide any detail on her duties and responsibilities with 
the end-client project. Although the documentation shows a working relationship between the Petitioner 
and the vendor, it has little probative weight towards establishing actual work to be performed by the 
Beneficiary for the end-client for any specific period or location. 
The Petitioner also submitted a letter from the vendor confirming that the Beneficiary has been assigned 
to work as a Software Developer to support the end-client. The letter from the end-client provided a brief 
description of the Beneficiary's responsibilities on this assignment. The description was made up of ten 
2 A petitioner submits the LCA to the U.S. Department of Labor (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). 
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Matter ofN-IT- Inc 
responsibilities that are general in nature such as the Beneficiary will "develop and direct software system 
testing and validation procedures, programming and documentation;" "analyze user needs and software 
requirements;" "design, develop and modify software systems;" and "build system using various software 
tools." The vendor letter did not sufficiently detail or convey what exactly the Beneficiary would do 
for the end-client. For example, the vendor did not provide sufficient information regarding the 
project, or a description of the Beneficiary's role within any particular project team at the end-client's 
location. Further, the Petitioner did not provide documentation from the end-client to farther explain 
the Beneficiary's duties while working for the end-client. 
In addition, we are not clear as to the project's duration. The itinerary submitted by the Petitioner stated 
that the Beneficiary will work for the end-client from October 1, 2018 to August 31, 2021. However, the 
SOW between the Petitioner and the vendor stated that the term of the SOW will commence on January 
22, 2018 "for a period of twelve months with the option to extend." The Petitioner did not explain the 
inconsistencies in the record regarding the duration of the project for the end-client. The Petitioner did 
not submit sufficient evidence such as contracts or similar corroborating evidence that the project with 
the end-client will continue until September 2021, and will require the services of the Beneficiary as 
a software developer for that entire period. 3 
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 )(1 ). 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). The 
agency made clear long ago that speculative employment is not permitted in the H-lB program. See, 
e.g., 63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). 
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-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) 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 Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 1998) 
(to be codified at 8 C.F.R. pt. 214). 
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Matter ofN-IT- Inc 
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. 
II. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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 N-IT- Inc, ID# 4691421 (AAO Oct. 31, 2019) 
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