dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 6024714 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 23, 2020 
The Petitioner, a company engaged in mobile application development, seeks to 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 evidence of 
record does not establish that: (1) the proffered position qualifies as a specialty occupation; and, (2) 
the Beneficiary is qualified to perform the duties of a specialty occupation. On appeal, the Petitioner 
asserts that the Director e1Ted in the decision. 
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 of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
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. ANALYSIS 
The Petitioner identified the proffered position on the Form I-129, Petition for a Nonimmigrant 
Worker, as a software developer. On the labor condition application (LCA)2 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. 
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. 3 
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 
2 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). 
3 The Petitioner submitted documentation to support the H- IB 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. 
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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. 
In the support letter, the Petitioner indicated that it has a total of eight employees in administration 
and professional roles, and it specializes in "iOS and Android App development, Marketing, Business 
and Technical Strategy and Solutions, Virtual and Augmented Reality, and Artificial Intelligence 
Engine." The Petitioner also explained that the software developer will be "responsible for successful 
and timely design, implementation, testing, and ongoing maintenance of technical solutions for our 
clients." 
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 "participating in 
all phases of the system development lifecycle (SDLC) including creating technical designs, program 
code, test plans, and verifying test results." On appeal, the Petitioner farther elaborated this duty by 
explaining that the lifecycle consists of planning, implementation, testing, documentation, deployment 
and maintenance, and maintaining. Although the Petitioner explained the general concepts of the 
duties of the software developer, it did not provide any information of the specific mobile applications 
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 20 
percent of this time to "apply reusable code design and design patterns in a test-driven development 
environment." The Petitioner did not provide sufficient explanation of the reusable codes 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 did not submit documentary evidence to demonstrate that specific clients 
had actually requested the mobile applications developed by the Petitioner for their business needs. 
The Petitioner did not submit any documentation such as contracts, agreements, purchase orders or 
invoices from customers that have engaged the Petitioner to use its software. 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 
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(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 
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. 4 
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. ADDITIONAL GROUNDS OF DENIAL 
Because the specialty occupation issue is dispositive of the appeal, we need not address any other 
issues raised by the Director. We note, however, that if the Petitioner were to overcome the Director's 
4 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 tempormy 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). 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). 
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basis for denying the petition (which it has not), the Petitioner would be required to address all 
additional issues raised by the Director. 
IV. 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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