dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 9731376 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-18) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 24, 2020 
The Petitioner, a company engaged in software development and testing, seeks to temporarily employ 
the Beneficiary as a software developer under the H-18 nonimmigrant classification for specialty 
occupations. 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-18 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 record did 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 bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-18 nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services .. . in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(I) of the Act, but adds a non­
exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position.1 Lastly, 
1 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe the term "degree" to mean not just any 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... "(emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position determine: (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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(1). 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the services in a specialty occupation that the Beneficiary would perform during the requested period 
of employment, which precludes a determination of whether the proffered position qualifies as a 
specialty occupation under sections 101(a)(15)(H)(i)(b), 214(i)(1) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(1), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 2 
The Petitioner asserts the Beneficiary will work in-house on a project with 
I I However, the Petitioner did not provide sufficient, cred~i-b-le_e_v-id_e_n-ce-to-es-ta_b_l-is~h 
in-house employment for the Beneficiary for the validity of the requested H-1B employment period. 
For example, the Petitioner submitted documentation under the description of "actual work 
assignment/work product" that included a presentation entitled "[The Petitioner] I I Extension 
for HCM." However, the power point presentation was prepared in 2008 by a different company, 
D and it is not clear how this project is related to the work the Beneficiary will perform currently 
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"). 
2 The Petitioner submitted documentation to support the H-1B 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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with the Petitioner. The Petitioner also submitted documentation that appears to be samples of work 
with the Petitioner's name on it, but it is not clear how this work is relevant to this petition and the 
duties that will be performed by the Beneficiary. In addition, the Petitioner did not explain how these 
work tasks require specialized knowledge to perform. 
Further, the Petitioner provided a documentation entitled ' that 
is dated March 26, 2018. While this document appears to provide a general overview of how~-~ 
works and how it can be utilized by clients, it did not provide any specific information on a current 
project in which the Beneficiary will be working on as a software developer. Given that this document 
was prepared in 2018, it is not clear if the Petitioner is still working on this project and whether the 
project goals, mission and milestones are the same as when the document was created. 
The Petitioner did not provide documentation of the in-house work that the Beneficiary will perform. 
For example, the Petitioner did not explain in detail the scope of the project, the number and type of 
resources needed for the particular project, a timeline, milestone tables, technical documentation, 
budget, or other evidence to establish the existence and ongoing nature of the project. The Petitioner 
also did not submit any contracts or corroborating evidence that this project will continue, and that 
there is a need for a software developer for the requested employment dates. Without consistent, 
probative evidence of the proposed duties detailed in the context of a specific project, the record does 
not communicate (1) the actual work that the Beneficiary will perform on a day-to-day basis; (2) the 
complexity, uniqueness and/or specialization of the tasks; and, (3) the correlation between that work 
and a need for a particular level education of highly specialized knowledge in a specific specialty. 
Further, the Petitioner did not submit any statement of works that lists the project details or the need 
for the Beneficiary's services. Without additional information and documentation establishing what 
projects have been secured, and accordingly, the specific duties the Beneficiary will perform on these 
projects and the knowledge required to perform these duties, we are unable to discern the substantive 
nature of the position and whether the position indeed qualifies as a specialty occupation. 
On appeal, the Petitioner submits a letter froml I Dean and Professor of the College 
of Computing and Technology ai I University. I I focuses the bulk of his opinion 
on how the knowledge to perform the duties of the position are taught in bachelor's degree programs 
in the qualifying field, rather than providing analysis of (1) why the education would be required to 
perform the duties and (2) why the duties would be considered specialized, unique or complex. As 
such, his opinion offers little insight into the substantive nature of the position. The lack of cogent 
analysis strongly suggests that I I was asked to confirm a preconceived notion as to the 
required degrees, not objectively assess the proffered position and opine on the minimum bachelor's 
degree required, if any. While we will review the opinion presented, it has little probative value as it 
does not include specific analysis of the duties of the particular position that is the subject of this 
petition. We may, in our discretion, use opinion statements submitted by the Petitioner as advisory.3 
3 Matter of Caron lnt'I, Inc., 19 l&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not in accord with 
other information or is in any way questionable, we are not required to accept or may give less weight to that evidence. Id. 
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We further note that the Petitioner provided inconsistent information concerning the minimum 
qualifications required to perform the duties of the position. In the letter of support, the Petitioner 
stated that the "minimum level of education required by our company and by general current industry 
standards is a Bachelor Degree (or equivalent) in a related specialty field and preferably relevant 
experience." In response to the RFE, the Petitioner provided a document detailing the Beneficiary's 
duties and stated under "education" a "Master of Science degree in Information Technology or 
equivalent." Further, on appeal, the Petitioner states the "minimum level of education required by the 
petitioner is a Bachelor Degree (or equivalent) in a related field to the specialty occupation." It appears 
that the Petitioner provided inconsistent information regarding the educational requirements. In 
addition, several instances throughout the petition, the Petitioner does not directly identify what 
field(s) it requires. 
A petitioner must demonstrate that the proffered position requires a precise and specific course of 
study that relates directly to the position in question. Since there must be a close correlation between 
the required specialized studies and the position, the requirement of a bachelor's degree without further 
specification, does not establish the position as a specialty occupation. Cf. Matter of Michael Hertz 
Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988). To prove that a job requires the theoretical and 
practical application of a body of highly specialized knowledge as required by section 214(i)(1) of the 
Act, a petitioner must establish that the position requires the attainment of a bachelor's or higher 
degree in a specialized field of study or its equivalent. We interpret the degree requirement at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed 
position. 
The Petitioner has not established the substantive nature of the work that the Beneficiary will perform 
due to a lack of specificity in the duties to be performed. The failure to establish the substantive nature 
of the position precludes us from determining whether it satisfies any of the regulatory specialty­
occupation criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1)-(4). 
111. 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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