dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 8048302 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : MAR . 26, 2020 
The Petitioner , a company engaged in software development and information technology services , 
seeks to employ the Beneficiary as a "software application 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. § l 10l(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 California Service Center denied the petition , concluding that the evidence of 
record does not establish that the proffered position qualifies as a specialty occupation . On appeal, 
the Petitioner asserts that the Director erred in the decision. 
The Petitioner must establish eligibility by a preponderance of the evidence. Matter of Chawathe, 
25 I&N Dec. 369, 375-76 (AAO 2010) . 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. § l 184(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: 
(I) 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 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. 
2 
The Petitioner stated on the Form I-129, Petition for a Nonimmigrant Worker, and on the certified labor 
condition application (LCA), that the Beneficiary would work as a software application developer for an 
end-client located inl I California, for the petition's entire employment period, September 
2019 to September 2022. 2 The Petitioner indicated the relationship with the end-client as follows: 
The Petitioner submitted a supplier master services agreement (SMSA) between the Petitioner and the 
managed service provider (MSP). The agreement explained that the managed service provider program 
is the "customer's staffing process and program for procuring, managing, and paying Staffing Agencies 
for Contingent Workers, which shall be managed by the Managed Service Provider." Thus, the 
agreement is between the Petitioner and the MSP to provide personnel for the end-client. The contract 
under the term "services" stated that [the Petitioner] shall perform the Services that are described in the 
Statement of Services attached to this Agreement at such time and place specified by [the MSP] or [the 
end-client]." In addition, it stated that additional statement of services may be negotiated from "time to 
time." Thus, this SMSA does not commit the end-client to any contract with the Petitioner for any 
particular services during any period or at any location. Further, the SMSA contains no terms indicating 
that it would exclusively seek to engage only the Petitioner for such services. In sum, the SMSA 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 website print-out entitled "Engagement." The website print-out indicated that 
the Beneficiary is working with the end-client, commencing on December 7, 2017 and will be "engaged 
through" December 31, 2019. According to the submitted SMSA, an "engagement" is defined as the 
"electronic request form generated by [the end-client] in the Application which described the activities 
and bill rates for Contingent Workers and describes in detail the services to be performed by the 
Contingent Workers, identifies the Contingent Worker performing the services, and designates the length 
of the assignment." It appears that the engagement was prepared through the system utilized by the 
managed service provider. The engagement provided very limited information regarding the 
Beneficiary's work with the end-client. For example, the engagement did not provide the job title or 
duties of the Beneficiary, the scope of the project, the phase of the project, the budget allotted for this 
project, or the team supporting the project. 
The Petitioner submitted a letter from the end-client confirming that it contracted with a managed services 
provider who in tum contracted with the Petitioner to "provide IT expertise for the Digital Experience 
Program." The letter also explained that the Beneficiary has been contracted to work as a software 
developer, applications, and the letter provided two sentences of information regarding the project. 
2 A petitioner submits the LCA to the U.S. Department of Labor (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). 
3 
Although the end-client letter confirms the working relationship with the Beneficiary, it does not 
sufficiently explain the duties to be performed by the Beneficiary, the scope and mission of the project, 
the team members on the project, how the responsibilities are delegated to the team members; the timeline 
of the project; or the complexity and milestones of the project. 
In addition, the record does not sufficiently establish the project's duration. The engagement between the 
Petitioner and the end-client stated the end date of the project as December 31, 2019. However, the end­
client letter stated that the Beneficiary will continue to work with the end-client until December 31, 2022 
"as long as the contract is renewed." 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 
2022 and will require the services of the Beneficiary as a software application 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). 
For the reasons discussed above, we conclude that the petition was filed for employment that was 
speculative, and, therefore for which the substantive nature of the associated duties had not been 
established. 
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 
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-lB 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-lB 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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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 
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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