dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 19354502 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 21, 2021 
The Petitioner, a digital consulting and custom software development company, seeks to temporarily 
employ the Beneficiary as a "software engineer" under the H- lB 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-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 record did not 
establish that the Beneficiary is qualified to perform the duties of the proffered position. On appeal, 
the Petitioner submits a brief and additional evidence and asserts that the Director erred by denying 
the petition . The matter is now before us on appeal. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. 1 The Administrative Appeals Office reviews the questions in this 
matter de nova. 2 Upon de nova review, we will dismiss the appeal. 
I. ANALYSIS 
Upon review of the entire record and for the reasons set out below, the Petitioner has not established 
that the Beneficiary is qualified , under the H-lB statutory and regulatory requirements, to serve in 
what the Petitioner claims to be a specialty-occupation position. 
The Director thoroughly discussed the Petitioner's failure to establish that the Beneficiary is qualified 
to perform the duties of a specialty occupation. 3 Upon consideration of the entire record, including 
1 Section 291 of the Act; Matter ofChawathe , 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc ., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
3 We note that the Director mistakenly referenced the Petitioner's initial letter in support of the petition as not being in the 
record. As the Petitioner's initial letter was considered by the Director , and the Director's reasoning regarding the lack of 
information to establish the progressive nature of the Beneficiary's work experience was correct, we conclude the error is 
not outcome determinative. 
the evidence submitted and arguments made on appeal, we adopt and affirm the Director's decision 
with the comments below. See Matter of P. Singh, Attorney, 26 I&N Dec. 623 (BIA 2015) (citing 
Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994)); see also Chen v. INS, 87 F.3d 5, 7-8 (1st Cir. 
1996) ("[I]f a reviewing tribunal decides that the facts and evaluative judgments prescinding from 
them have been adequately confronted and correctly resolved by a trial judge or hearing officer, then 
the tribunal is free simply to adopt those findings" provided the tribunal's order reflects individualized 
attention to the case). 
First, where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been 
given an opportunity to respond to that deficiency, we will not accept evidence offered for the first 
time on appeal. 4 In the request for evidence (RFE) the Director provided the regulations, standards, 
and methodology used to demonstrate that a beneficiary's work experience was equivalent to 
bachelor's-level study in a specific field. The Petitioner did not provide the requested evidence and 
now offers the Beneficiary's resume describing his work experience, an updated letter from the 
Beneficiary's prior employer.I !regarding the Beneficiary's prior 
experience, as well as a first-time letter from the Petitioner's Indian affiliate describing the 
Beneficiary's prior work experience in India. As the Petitioner was provided an opportunity to provide 
this evidence for the Director's consideration and failed to exercise that opportunity this evidence will 
not be considered on appeal. 
Regarding the Director's discussion of the Beneficiary's qualifications, we also point out that in the 
initial letter in support of the petition, the Petitioner provided an overview of the Beneficiary's 
proposed duties and submitted a labor condition application (LCA) 5 for "Software Developers, 
Applications" standard occupational classification (SOC) code 15-1132. 6 The Petitioner indicated 
that the Beneficiary's duties involved responsibility "for data collection, business understanding by 
data exploration, data cleaning, data preprocessing, ML [ machine learning] model building and 
deploying the models for prediction as well as building pipelines that bind these processes." The 
Petitioner added that the Beneficiary "will build Machine Leaming applications using Python, 
Tensorflow, Apache Spark, SQL, Google Cloud Platform, Web Technologies (HTML, CSS, 
Javascript), etc." and listed 20 key job duties. Subsequent to the list of job duties the Petitioner noted 
the skills for the position as: 
Platform Google Cloud Platform, Web, A WS 
Languages Python, Unix Scripting, Julia 
Libraries Tensorflow, Keras, Apache Spark, Flask 
Database MySQL, PostgreSQL, MongoDB 
Big Data Apache Hadoop, Google BigQuery 
4 See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); see also Matter ofObaigbena, 19 I&N Dec. 533,537 (BIA 
1988). 
5 The Petitioner is required to submit a certified LCA 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 experience and qualifications who are perf01ming the same services. Section 212(n)(l) 
of the Act; 20 C.F.R. § 655.73l(a). 
6 The Occupational Information Network (O*NET) recently updated its occupational classifications. The "Software 
Developers, Applications" occupation is now identified as SOC code 15-1252. See Summary Report for: 15-1132.00 -
Software Developers. Applications, O*NET OnLine Archives (Nov. 17, 2020). 
https://www.onetonline.org/Archive _ ONET-SOC _ 20 IO_ Taxonomy_ 09 _ 2020/link/summary/15-1132.00. 
2 
OS Linus, Windows 
Tools Git, Docker, Jupyterlab 
The Petitioner did not specify an academic requirement to perform the duties of the proffered position. 7 
When discussing the Beneficiary's qualifications in a section subsequent to the broadly described 
position, the Petitioner indicated the Beneficiary had a foreign engineering degree 8 and work 
experience as a junior data scientist fo~ I from January 2018 to June 2019 and as 
a machine learning engineer for its foreign affiliate from June 2019 to present (June 29, 2020). 9 
Following this information, the Petitioner asserted that the Beneficiary "qualifies for the position by 
virtue of his educational qualification and relevant work experience" and that "[t]hese are the standard 
minimum requirements for the position in the industry as well as in our organization in particular." 
The Petitioner does not claim in the record and the evidence does not demonstrate that a bachelor's 
degree in mechanical engineering alone is sufficient to perform the duties of the proffered position it 
claims is a specialty occupation. 
Although the Petitioner, in its letter in support of the petition, provided a perfunctory description of 
the Beneficiary's 34 months of experience, the description did not include the necessary evidence to 
demonstrate that the Beneficiary had specialized training, and/or progressively responsible experience 
that is equivalent to completion of a United States baccalaureate or higher degree in the specialty 
occupation, and recognition of expertise in the specialty through progressively responsible positions 
directly related to the specialty. 10 
As the Director determined, the opinion prepared b~ 11 lschool of 
Business,! !University is not persuasive.I lnoted the Beneficiary's coursework 
taken at the foreign university included coursework in general studies and courses related to his major, 
mechanical engineering, but did not address if or how the Beneficiary's foreign coursework related to 
performing the duties of the proffered position. Rather, his discussion of the Beneficiary's 
qualifications to perform the work of the proffered position focused on the Beneficiary's work 
experience. I !listed the evidence he reviewed which included the Petitioner's initial 
support letter, the Beneficiary's academic degree certificate and transcript and the credential 
evaluation from the credentials evaluation service submitted for the record, and the Beneficiary's 
resume. 11 
7 We also question whether the proffered position as described is a specialty occupation. It is not clear that the duties 
described are the duties of an applications software developer, except in the broadest sense. Moreover, the proffered 
position, as described, although a technology occupation, appears to be a technology occupation that may be performed 
with a general degree ( either at the bachelor or associates level) and less than three years of technology experience. The 
record does not establish that performing such duties would require the theoretical and practical application of highly 
specialized knowledge and attainment of at least a bachelor's degree in a specific specialty or its equivalent. The 
Petitioner's lack of a specific degree requirement to perform the position also casts doubt on the specialty occupation 
nature of the proffered position. 
8 The Beneficiary's foreign degree has been evaluated by a credential evaluation service to be the equivalent of a U.S. 
bachelor's degree in mechanical engineering. 
9 As the Petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied from the 
time of the filing, we may only consider the Beneficiary's work experience up to the date of filing the petition. 8 C.F.R. 
§ 103.2(b)(l). In this matter, the filing date is June 29, 2020. 
10 See 8 C.F.R. § 214.2(h)(4)(iii)(C)(4). 
11 The record before the Director did not include the Beneficiaiy's resume. 
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.__ _____ _.I opined that a computer information systems bachelor's degree includes courses in 
computer programming, computer networks, software engineering, database management systems, 
computer languages, and related coursework. I I concluded, without analysis, that the 
brief information he reviewed regarding the Beneficiary's past work "directly corresponds to the 
university-level knowledge and training obtained by a student completing a bachelor's degree program 
in Computer Information Systems" and that over the course of his career the Beneficiary had 
accumulated skills equivalent to those taught in computer programming, software engineering, 
discrete structures, object-oriented programming, computer organization, and data structures courses, 
courses that are required in a computer information systems curriculum. I I does not 
discuss the Beneficiary's past work experience in terms of specialized training and/or progressively 
responsible experience as required by 8 C.F.R. § 214.2(h)(4)(iii)(C)(4). He does not discuss the 
content of courses he claims are part of a computer information systems bachelor's degree and he does 
not discuss how he applied objective standards, methodologies, or principles to reach his conclusion 
that the Beneficiary's work experience is equivalent to these courses. Additionally, although the 
Beneficiary's resume may have provided the professor insight on the duties the Beneficiary performed 
for his prior employers, the Beneficiary's resume was not available for the Director's review. 
Professor Fadel's evaluation does not assist in understanding the nature of the Beneficiary's past work 
experience and does not persuasively establish that the Beneficiary has a bachelor's degree in a 
specific specialty, or the equivalent, that is directly related to performing the duties of the proffered 
position. 
The record does not establish that the Beneficiary is qualified to perform the duties of the position the 
Petitioner claims is a specialty occupation. 
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 here, 
and the petition will remain denied. 
ORDER: The appeal is dismissed. 
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