dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 9456571 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT . 22, 2020 
The Petitioner, a help desk software developer, seeks to temporarily employ the Beneficiary under the 
H-lB nonirnrnigrant classification for specialty occupations . See Immigration and Nationality Act 
(the Act) section 10l(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 California Service Center Director denied the petition , concluding that the Petitioner had not 
established that the proffered position is a specialty occupation. On appeal, the Petitioner asserts that the 
Director erred in denying the petition, and contends that the petition should be approved . 
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 I&N Dec . 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&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-lB nonirnrnigrant 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)(l) of the Act, 8 U.S.C. § 1184(i)(l), 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)(l) 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. § 2 l 4.2(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 tenn "degree" to mean not just any 
8 C.F.R. § 214.2(h)(4)(i)(A)(I) states that an H-lB 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)(l) 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)(l). 
II. PROFERRED POSITION 
The Petitioner indicates that the Beneficiary will be employed as an "operations center engineer," 
providing services as an in-house member of the Petitioner's 'I I team," and submits a certified 
labor condition application (LCA) for the "Software Developers, Systems Software" occupational 
category corresponding to the Standard Occupational Classification (SOC) code 15-1133 with a Level 
II wage. 2 The Petitioner provides various descriptions of the duties of the proffered position. For the 
sake of brevity, we will not quote the descriptions in full; however, we note that we have closely 
reviewed and considered the duties. For instance, in response to the Director's request for evidence 
(RFE), the Petitioner presented job duties, and provided the relative percentage amount of time that 
the Beneficiary would devote to each duty, which we will provide in part, below: 
1. Monitoring, troubleshooting & correcting server and network problems along with 
otherl I Engineers and members of our Global Engineering Teams. (35%) 
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 most recently employed the Beneficiary through STEM-related post-completion optional practical 
training. 8 C.F.R. § 274.a.12(c)(3)(i)(B); 8 C.F.R 214.2(f)(10)(ii)(C). 
2 
• Systems monitoring. The Operations Center Engineer and thel lteam are 
responsible for 15,000 production hosts across our platform. These produce 
between 400 and 2200 alerts per week. ... 
• The Operations Center Engineer will work on call shifts. During these shifts [he] 
will be responsible for acting as the first responder on alerts or emergencies within 
the infrastructure. [He] will triage complex breakages and escalate to the correct 
teams for product-level remediation. This may be an immediate escalation or 
require detailed ticket creation for future fixes. 
• The Operations Center Engineer will document Service Incidents (breakages 
affecting customers) and assist the incident team by applying production hot-fixes 
and log analysis. [He] will also provide real-time system status updates, ensuring 
accurate time recording and customer feedback. 
2. Directly impact availability and performance of the [Petitioner's] platform for the 
119,000+ companies that we have as customers. (7%) 
• Contribute to a new code base (written in the Ruby computer language) developed 
to move our primary alerting to a new tool, Datadog. This change will assure 
consistency in alerting, metric output from our tooling, and the scalability of our 
processes to all teams across [the platform]. 
• Monitor improvements - create new customer alert metrics .... 
• Alert Automation - Use the Travis automation service to automate deployment of 
new alerts and tools. 
3. Monitor, testing, status, and metric tools that report on activities across the[] platform. 
(3%) 
• Provide metrics to both engineering and management teams throughout [the 
platform]. Every 5 weeks as part of our rotating responsibilities, the Operations 
Center Engineer is tasked with answering tickets and providing clarifications 
around these metrics should any arise. 
4. Responsible for ensuring that [the platform's] services run efficiently without 
interruption by alerting teams about major performance risks and disruptions. (15%) 
• The Operations Center Engineer will take a primary role in our alert refactoring. 
This will allow more teams to rely on thd lteam for incident prevention and 
triage. 
5. Identify improvements and upgrades to [the platform] architecture, and collaborate 
with other teams to get them into production as requested. ( 6%) 
• The Operations Center Engineer will work on the SPLUNK Heavy Forwarder 
project requiring familiarity with various A WS cloud features. [He] will take on a 
larger role with our utilization of 3rd party cloud providers and offer training to 
teammates so they may contribute as well. 
3 
6. Contribute to documentation review and updates. (4%) 
• Because the Operations Center Engineer will use so many tools created by other 
teams, he routinely gives feedback and updates to these documentation sets. 
• [He] will bring new deploying techniques into the team's toolbox. 
• [He] will create tickets for other teams when the information in our I I tool is 
stale. 
7. Participate in incident response and coordinate with other groups as requested. (6%) 
• While assigned to alert monitoring in Pagerduty, the Operations Center Engineer 
is the primary responder for any and all issues that arise. While most of these are 
remediated by an Operations Center Engineer, occasionally the decision to call a 
formal service incident is needed. 
• If a formal incident is called, the I I team is responsible for contacting the 
appropriate responders, communicating the impacted services to those responders, 
and monitoring for resolution. 
8. Keep abreast of latest [Petitioner] product offerings and architecture. (4%) 
• The Operations Center Engineer will work closely with engineering, support, sales, 
and management teams around the world. AS theD is the only team at [] that 
requires a functioning knowledge of all of our products' infrastructure, collecting 
and collating data for our team's use is a large and ongoing task. 
9. Utilize skills and experience in Linux system management. (20%) 
• Perform security assessment and patching for an assigned subset of our host 
machines. 
• [He] will create AMI configurations, test it in our staging environment, and 
automate the updates. 
• [He] will create and debug A WS userdata libcloud scripts, and training others to 
assist in the adoption of new automation techniques as new ideas are adopted. 
III. ANALYSIS 
For the reasons set out below, we determine that the proffered position does not qualify as a specialty 
occupation. Specifically, the record provides inconsistent and insufficient information regarding the 
proffered position, which in tum precludes us from understanding the position's substantive nature 
and determining whether the proffered position qualifies as a specialty occupation. 3 
3 The Petitioner submitted documentation to suppmt the H-lB 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. 
4 
As a preliminary matter, we conclude that the Petitioner provides inconsistent statements regarding 
the minimum requirements for the proffered position. At first, it states the position requires a 
bachelor's degree in computer science, electrical engineering or a related field. Later, in response to 
the Director's request for evidence (RFE) it provides an analysis of the duties of the proffered position 
asserting that a master of science degree provides "the necessary [ c ]omputer [ s ]cience and [ e ]lectrical 
[e]ngineering courses" needed to perform those job duties. 4 On appeal, the Petitioner maintains: 
[The Petitioner] requires all professionals in Operations Center Engineer positions to 
hold at least a bachelor's degree in Computer Science, Electrical Engineering, closely 
related computer technical field, or equivalent. All employees working as Operations 
Center Engineer[]s hold a qualifying, relevant degree or possess equivalent experience. 
(Emphasis added.) 
Notably, the Director specifically requested evidence of the Petitioner's past recruiting and hiring 
practices for the proffered position and for similar positions, including an organizational chart showing 
its organizational hierarchy and staffing levels, the Beneficiary's role within, corresponding 
experience requirements for the positions, and copies of present and past job postings or 
announcements for such positions to demonstrate the Petitioner's assertion that it requires job 
applicants to have a minimum of a bachelor's degree or higher degree in a specific specialty, or its 
equivalent. Other than submitting brief statements like the one quoted above, the Petitioner has not 
addressed this aspect. 5 As the Petitioner has not provided an explanation for the variances in its 
minimum position requirements, it must resolve these inconsistencies and ambiguities in the record 
with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
582, 591-92 (BIA 1988). 
The Petitioner also provides an opinion letter from Professor S-. In his letter, the professor (1) 
describes the credentials that he asserts qualify him to opine upon the nature of the proffered position; 
(2) references the duties proposed for the Beneficiary; and (3) reiterates the Petitioner's initial 
statement that those duties require a bachelor's degree in computer science, electrical engineering, or 
a related field. We carefully evaluated the professor's assertions in support of the instant petition but, 
for the following reasons, determined his letter is not persuasive. 
Importantly, the professor does not discuss the Petitioner's business operations in a manner sufficient 
to establish the scope and complexity of the Beneficiary's job duties within the Petitioner's 
information technology cohort. He indicates that his conclusions are based "on the job duties provided 
by [the Petitioner]," but does not identify other research he may have conducted, if any, to gain a level 
of familiarity with the proffered position in the context of the Petitioner's information technology 
4 The Petitioner discussed the Beneficiary's coursework for the purpose of conelating the need for the Beneficiary's 
master's degree education with the associated job duties of the position. However, we are required to follow long-standing 
legal standards and determine first, whether the proffered position qualifies for classification as a specialty occupation, 
and second, whether the Beneficiary was qualified for the position at the time the nonimmigrant visa petition was filed. Cf 
Matter of Michael Hertz Assocs., 19 T&N Dec. 558, 560 (Comm'r 1988) ("The facts of a beneficiary's background only 
come at issue after it is found that the position in which the petitioner intends to employ him falls within [a specialty 
occupation]."). 
5 "Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the 
[petition]." 8 C.F.R. § 103.2(b)(l4). 
5 
endeavors, which undermines his conclusion regarding the degree requirement of the position. While he 
directly quotes some of the duties provided in response to the Director's RFE, he also does not discuss 
the Petitioner's analysis therein which asserts that a master's degree are required for their performance, 
( even though this analysis was contained within the same Petitioner letter). Id. 
The professor acknowledges "reading and writing programs in given programming languages .... can 
be absorbed in "boot-camp" style programming crash-courses, or through self-teaching using cheaply 
available C++ textbooks and the like." He claims that the Petitioner "mandates Bachelor-level 
competence because of the programming practices students learn outside of this bare subject matter 
expertise." Notably, neither the Petitioner nor the professor sufficiently establish that the Petitioner's 
initially stated degree requirements is not a matter of preference for high-caliber candidates but is 
necessitated instead by the performance requirements of the position. See Defensor v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000), at 387-88. 
Were we limited solely to reviewing a petitioner's claimed self-imposed requirements, an organization 
could bring any individual with a bachelor's degree to the United States to perform any occupation as 
long as the petitioning entity created a token degree requirement. Id. The evidence to overcome this 
proposition might include, but is not limited to, documentation regarding the Petitioner's past 
recruitment and hiring practices, as well as information regarding employees who previously held the 
position. As discussed, the Petitioner has not submitted corroborative documentary evidence of its 
past recruitment and hiring practices, but instead has put forth inconsistent position requirements that 
range from work experience alone to a master's degree. 6 
Setting aside the inconsistencies in the record regarding the Petitioner's position requirements, the 
professor's analysis does not sufficiently distinguish the difference between (1) obtaining computer 
systems knowledge involving the use of programming languages such as C++ or Ruby through 
attending software bootcamps or earning software certifications, or (2) obtaining such knowledge 
through a program of study leading to a bachelor's degree in a specific specialty. While the professor 
generally ties attaining a bachelor's degree to concepts one might employ while engaged in the 
proffered position, his account lacks a sufficient analysis of the specific curriculum necessary to 
perform in the position that is allegedly so specialized, unique, or complex that attaining a degree in a 
specific specialty is a prerequisite for entry into the position. 
For instance, the professor observes in his position analysis that "[r]esponsiblity for the security of the 
system also falls to individuals in systems-related positions such as the Operations Center Engineer role 
with [the Petitioner]." He then opines that the skills needed for security-related tasks are "covered in 
Bachelor-level Computer Science (and related) programs, under the "Information Assurance and 
Security" knowledge area, which includes knowledge of "Security Policy and Governance." The 
professor cites to the IS 2013 Curriculum Guidelines for Undergraduate Degree Programs in 
Computer Sciences, published by the Association for Computing Machinery (ACM), and asserts that 
academic programs in computer science and related fields model their curricula to impart skills in such 
6 Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted 
in support of the requested immigration benefit. Matter of Ho, Dec. at 591-92. 
6 
"knowledge areas."7 While we acknowledge that the professor may be attempting to demonstrate how 
an established curriculum of courses leading to a bachelor's degree in a specific specialty is required 
to perform the duties of the proffered position, we cannot agree with his analysis. 
Here, the professor confuses the ability of a degreed computer science person to perform the duties of 
the proffered position with a degree requirement in order to perform the duties. While the professor 
may draw inferences that computer science related courses may be beneficial in performing certain 
duties of the position, we disagree with his inference that such a degree is required in order to perform 
the duties of the proffered position. Put simply, stating that a person with a bachelor's degree in 
computer science could perform the duties of the proffered position is not the same as stating that such 
a degree is required to perform those duties. As such, the professor's analysis misconstrues the 
statutory and regulatory requirements of a specialty occupation. For these reasons, we conclude the 
Petitioner's reliance on the professor's opinion letter is misplaced. 
We may, in our discretion, use advisory opinion statements submitted as expert testimony. 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. Matter of Caron International, 19 I&N 
Dec. 791 (Comm'r 1988). As a reasonable exercise of our discretion we discount the advisory opinion 
letters as not probative to the matter at hand. For the sake of brevity, we will not address other 
deficiencies within the professor's analyses of the proffered position. 
Considered together, the material in the record specifies different types of degrees ( either a bachelor's 
or a master's degree) in computer science, electrical engineering, or a related field, or that work 
experience alone would suffice for entry into the position. 8 It is the Petitioner's burden to prove by a 
preponderance of evidence that it is qualified for the benefit sought. Matter of Chawathe, 25 I&N 
Dec. at 376. In evaluating the evidence, eligibility is to be determined not by the quantity of evidence 
alone but by its quality. Id. Here, the Petitioner's inconsistent requirements for the proffered position 
is sufficient to preclude the petition's approval, as the Petitioner has not demonstrated that the offered 
position satisfies the definition of a specialty occupation found at section 2 l 4(i)(l) of the Act. 
Moreover, a crucial aspect of this matter is whether the Petitioner has sufficiently described the duties 
of the proffered position such that we may discern the nature of the position and whether the position 
actually requires the theoretical and practical application of a body of highly specialized knowledge 
attained through at least a baccalaureate degree in a specific discipline. When determining whether a 
position is a specialty occupation, we look at the nature of the business offering the employment and 
7 These guidelines used for potential curriculums are far too broad to establish that a particular position requires a body of 
highly specialized knowledge resulting from study at a bachelor's-degree level in a specific specialty, or its equivalent, in 
order to perform the duties of the position. Neither the Petitioner nor the professor provide a comprehensible analysis of 
the relevance of such guidelines, if any, to establish the particular position proffered here is a specialty occupation. 
8 We also take notice that the Petitioner has posted job announcements on its own website for positions that facially appear 
to be similar or more senior to the proffered position, for which it does not specify any particular education requirements 
for the position, let alone a bachelor's degree in a specific specialty. See, e.g., the "site reliability engineer" job posting 
which specifies that applicants must have "experience in a Software, Infrastructure, Systems, or Site Reliability 
Engineering role," and a "successful track record of troubleshooting distributed systems during service incidents while 
remaining level-headed." Matter of Ho, Dec. at 591-92. https:/ ________ _,_ ___ _,,Site-Reliability-
Engineer; https:/,!r--------~-----'Senior-Operations-Engineer-Edge-Infrastructure, (last visited Sep. 
18, 2020). 
7 
the description of the specific duties of the position as it relates to the performance of those duties 
within the context of that particular employer's business operations. According to the Petitioner, it 
"provides a customer service platform designed to bring organizations and their customers closer 
together." Specifically, the company develops and markets "a cloud-based customer service 
platform," which "includes ticketing, self-service options, and customer support features." 
On appeal, the Petitioner reiterates that the Beneficiary will be part of the [Petitioner's] Operation 
Center team [the team], and explains the role of this team within its business operations, as follows: 
[The team] provides 24/7 monitoring of our critical software systems at [the 
Petitioner's] and mitigates issues that could potentially impact our customers. [The 
Petitioner's] products run on individual infrastructure but have to communicate with 
each other to function as a suite. A secure infrastructure is the backbone for smooth 
and uninterrupted working of all of the services and products .... Therefore, all of the 
software infrastructure has to be kept updated to avoid any security vulnerability. [The 
Beneficiary] is involved with security patching efforts such as upgrading the 
infrastructure operating systems like Ubuntu, automatic rolling of the hosts running 
services, upgrading versions of the tools, upgrading the libraries used, automating the 
processes and hence avoiding exposing the critical data to the world. . . . [The 
Beneficiary] and [ the team] will also work on automation and intelligent alert handling 
so that [ the platform] can continue to scale. The team upgrades or patch all of these 
hosts to latest version releases. This involves using or removing the third-party 
services, designing the system with new changes, testing the system in staging 
environment, tweaking the configuration if necessary, automating most of the boot 
process and successfully deploying in production environment. 
As discussed, the Director specifically requested evidence in her RFE that would delineate the 
Petitioner's divisional organization, and staffing hierarchy. But the Petitioner did not sufficiently 
address this aspect. The Director also requested an explanation of how the Beneficiary's specific job 
duties relate to the Petitioner's products and services in her request for RFE. While the Petitioner 
notes that the Beneficiary will report to a network operations center team lead, it did not provide 
evidence of its organizational hierarchy, or other material sufficient to illustrate the scope and nature 
of the Beneficiary's role as an operations center engineer within the context of his work team. 9 For 
instance, the Petitioner does not discuss the varying levels of the operations center engineer positions, 
if any, within the Petitioner's business operations and to which level the proposed duties correspond. 
The Petitioner also notes that "the Beneficiary and [the team] will also work on automation and 
intelligent alert handling so that [the platform] can continue to scale," but it has provided insufficient 
evidence about the various positions within the team to establish the uniqueness and complexity of the 
Beneficiary specific work assignments therein. Without more, the submitted job duties do not serve 
to demonstrate the claimed complexity, uniqueness, or specialization of the work performed by the 
Beneficiary. 
9 8 C.F.R. § 103.2(b)(l4). 
8 
The Petitioner emphasizes throughout the proceedings that the Beneficiary will liaise or interact with 
various personnel and stakeholder groups, to include: 
• 
• 
• 
• 
• 
• 
• 
[ A ]cting as the first responder on alerts or emergencies within the infrastructure . 
Provide metrics to both engineering and management teams throughout [the 
platform]. 
[W]ork[ing] closely with engineering, support, sales, and management teams 
around the world. 
[T]raining others to assist in the adoption of new automation techniques as new 
ideas are adopted. 
[B]ring new deploying techniques into the team's toolbox . 
[C]reat[ing] tickets for other teams when the information in our I I tool is 
stale. 
Participat[ing] in incident response and coordinate with other groups as requested . 
The Petitioner provides narrative about the job duties of the position, but the evidence does not show 
the operational structure within this multi-faceted cohort in a manner that would establish the 
Beneficiary's claimed specialized, complex role as an operations center engineer. For example, the 
Petitioner states that the Beneficiary "will work on call shifts" and will be "responsible for acting as 
the first responder on alerts or emergencies within the infrastructure," and in that role will "triage 
complex breakages and escalate to the correct teams for product-level remediations." The Petitioner 
provides a printout of an internet webpage addressing the topic of "computer security incident 
management." 10 This document indicates that a first responder in this information technology 
construct "is the first person on the scene or [to] receive notification of an event," while the "second 
tier" in this response chain involves "senior technical resources assigned to resolve an escalated 
event," and an "incident coordinator" is responsible for "drafting a senior management report," if 
needed. The Petitioner has not provided forth er explanation about how the Beneficiary's performance 
in "a first responder role" for computer security incidents requires an associated application of 
specialized knowledge sufficient to demonstrate that these tasks constitute H-lB caliber work. 
Further, in determining the nature of a proffered position, the critical element is not the title of the 
position, but the duties of the underlying position. As part of our analysis, we review the duties of the 
proffered position to assess the duties and determine whether the described duties correspond to the 
duties and tasks listed in the Department of Labor's (DOL) Occupational Information Network 
(O*NET) summary report for the occupation designated in the labor condition application (LCA). 11 
The Petitioner submitted an LCA for the "Software Developers, Systems" occupational category 
corresponding to the Standard Occupational Classification (SOC) code 15-1133. According to the 
10 The document appears to have been printed from a website called "Wikipedia." We note that Wikipedia is an online, 
open source, collaborative encyclopedia that explicitly states it cannot guarantee the validity of its content. See General 
Disclaimer, Wikipedia (July 27. 2020) https://en.wikipedia.org/wiki/Wikipedia: General disclaimer; Badasa v. Mukasey, 
540 F.3d 909 (8th Cir. 2008). 
11 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 experience and qualifications who are performing the same services. Section 212(n)(l) 
of the Act; 20 C.F.R. § 655.731(a). 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA supports the H-IB 
petition filed on behalf of the Beneficiary. 
9 
O*NET summary report for "Software Developers, Systems," those employed within this occupation 
typically: 12 
Research, design, develop, and test operating systems-level software, compilers, and 
network distribution software for medical, industrial, military, communications, 
aerospace, business, scientific, and general computing applications. Set operational 
specifications and formulate and analyze software requirements. May design 
embedded systems software. 
The Petitioner provided job duties for the proffered position which may comport, in part, with the 
tasks described in the "Software Developers, Systems Software" occupational category. However, the 
petition also contains considerable narrative that references job duties that appear to be more in 
keeping with the occupational category "Network and Computer Systems Administrators" 
corresponding to the Standard Occupational Classification (SOC) code 15-1142. According to the 
O*NET summary report for "Network and Computer Systems Administrators," those employed within 
this occupation typically: 13 
Install, configure, and support an organization's local area network (LAN), wide area 
network (WAN), and Internet systems or a segment of a network system. Monitor 
network to ensure network availability to all system users and may perform necessary 
maintenance to support network availability. May monitor and test Web site 
performance to ensure Web sites operate correctly and without interruption. May assist 
in network modeling, analysis, planning, and coordination between network and data 
communications hardware and software. May supervise computer user support 
specialists and computer network support specialists. May administer network security 
measures. 
The Petitioner submitted an LCA designating the "Software Developers, Systems Software" 
occupational category for the proffered position, but the Petitioner has not sufficiently established that 
the position duties and responsibilities are consistent with the predominant tasks of the occupation. 
The Director observed in her denial of that the Petitioner's job duties did not appear to comport with 
those of a systems software developer. We agree. The Petitioner indicates that the Beneficiary will 
collectively dedicate approximately 79% of his worktime to duties which appear akin with those 
typically performed by individuals employed in the "Network and Computer Systems Administrators" 
occupational category, 14 including: 
• Monitoring, troubleshooting & correcting server and network problems; 
• Monitor[ing], testing, status, and metric tools that report on activities across the [] platform; 
• [E]nsuring that [the platform's] services run efficiently without interruption by alerting 
teams about major performance risks and disruptions; 
• Participat[ing] in incident response and coordinate with other groups as requested; and, 
• Perform[ing] security assessment and patching for an assigned subset of our host machines. 
12 The O*NET summary report for this occupational category may be viewed at 
https://www.onetonline.org/link/summary/15-l 133.00. (Last visited Sep. 18, 2020.) 
13 See https://www.onetonline.org/link/summary/15-l 142.00. (Last visited Sep. 18, 2020.) 
14 See job duties numbered one, three, four, seven, and nine which we quoted, in pertinent part, above. 
10 
The Petitioner submits material describing the duties of the proffered position, but it is insufficient to 
demonstrate that the position falls solely within the "Software Developers, Systems Software" 
occupational category. We therefore conclude that the Petitioner has provided inconsistent evidence 
regarding whether the proffered position properly falls within the "Software Developers, Systems 
Software" under SOC 15-1133 or under the "Network and Computer Systems Administrators" 
occupational category corresponding to SOC code 15-1142. The Petitioner must also resolve these 
inconsistencies with independent, objective evidence pointing to where the truth lies. 15 
When considered collectively, we conclude that the inconsistencies, discrepancies, and lack of 
probative documentation in the record raise questions as to the substantive nature of the proffered 
position. 16 The Petitioner has not submitted consistent, corroborative evidence to adequately 
communicate (1) the nature of the actual work that the Beneficiary would perform, (2) the complexity, 
uniqueness, 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. Accordingly, the 
Petitioner has not established that the proffered position is a specialty occupation. 17 
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. 
15 Matter of Ho, Dec. at591-92. 
16 Chawathe, 25 l&N Dec. at 376. 
17 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal. 
11