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 INew York, for the petition's entire employment period, September 2018 to August 2021. 
The Petitioner submitted a consulting agreement (CA) between the Petitioner and the end-client. Under 
the section entitled "Services", the agreement stated that the Petitioner "agreed to provide such consulting 
services" to the end-client 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 end-client under the CA's umbrella. In addition, the 
document does not commit the end-client 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 also submitted a document entitled, "Appendix A," signed by the end-client that 
provides a list of ten projects that will be assigned to the Petitioner. The list indicates projects to work 
with companies other than the end-client. For example, one project is to "provide Bloomberg 
Simulation Analysis, Development, Testing and Support fo~ I." In this example, it 
appears thatl ]is the end-client's customer and the Petitioner will assist on that project. 
The Petitioner also submitted several statements of work between the end-client and other clients that 
state the end-client will provide services to a different company. On appeal, the Petitioner stated that 
"FTS-Automate is a (Testing-as-a-Service) product designed by [the end-client] and being implemented 
for various clients of [the end-client]. The Petitioner further stated that [the end-client] would deploy its 
own resources and its contract resources at its client sites for the project execution purposes for temporary 
period of time." It is not clear if the end-client in this case is actually a vendor that will place the 
Beneficiary on a project with a different end-client. Thus, it appears that although the Beneficiary is 
working for the end-client, he may in fact work for a different end-client. The Petitioner did not provide 
sufficient evidence of the Beneficiary's work when working for clients of the end-client. 
On appeal, the Petitioner submitted a statement of work (SOW) signed by the Petitioner and the end­
client The SOW indicated that the Beneficiary will work as a software developer from October 2018 
until October 2021. However, the SOW does not indicate where the Beneficiary will be located, or 
specifically state the project the Beneficiary will be working on, or provide any detail on his duties and 
responsibilities with the end-client project. Although the documentation shows a working relationship 
between the Petitioner and the end-client, 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. Furthermore, 
the SOW was signed on August 9, 2018, nearly four months after the instant petition was filed. The 
Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must 
continue to be eligible for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition 
may not be approved at a future date 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). 
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 
The Petitioner also submitted letters from the end-client 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 
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 end-client letter did not sufficiently detail or convey what exactly the Beneficiary would 
do for the end-client. For example, the end-client 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. 
In addition, the end-client letter dated, March 28, 2018, indicated that the minimum requirement for the 
position is a Bachelor's degree in Computers Science, Engineering, Math or related field. The issue here 
is that the field of engineering is a broad category that covers numerous and various specialties, some 
of which are only related through the basic principles of science and mathematics, e.g., nuclear 
engineering and aerospace engineering. Therefore, besides a degree in electrical engineering, it is not 
readily apparent that a general degree in engineering or one of its other sub-specialties, such as 
chemical engineering or nuclear engineering, is closely related to computer science or that engineering 
or any and all engineering specialties are directly related to the duties and responsibilities of the 
particular position proffered in this matter. 
Here and as indicated above, the Petitioner, who bears the burden of proof in this proceeding, has not 
established either (1) that computer science and engineering in general are closely related fields or (2) 
that engineering or any and all engineering specialties are directly related to the duties and 
responsibilities of the proffered position. Absent this evidence, it cannot be found that the particular 
position proffered in this matter has a normal minimum entry requirement of a bachelor's or higher 
degree in a specific specialty or its equivalent under the Petitioner's own standards. 
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. 
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Matter ofN-IT- Inc 
ORDER: The appeal is dismissed. 
Cite as Matter of N-IT- Inc, ID# 4698551 (AAO Oct. 31, 2019) 
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