dismissed H-1B Case: Software Development

MATTER OF N-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 31,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer company, seeks to temporarily employ the Beneficiary as a "senior 
software engineer" under the H-lB nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act)§ 10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b). The 
H-1 B 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, California Service Center, denied the petition. The Director concluded that the 
evidence of record is insufficient to establish that: (1) the proffered position qualities as a specialty 
occupation; and (2) the Beneficiary is qualified to serve in a specialty occupation position in 
accordance with the applicable statutory and regulatory provisions. 
The matter is now before us on appeal. In its. appeal, the Petitioner asserts that the Director's 
conclusions are erroneous. Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), detines 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) states, in pertinent part, the following: 
Matter of N-, Inc. 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualifY as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent IS normally the m1mmum 
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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281,291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan[ns. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sutlicient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), ·U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
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Matter of N-, Inc. 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Cherto.ff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "adegree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-1B petitions for qualified 
individuals who are 
to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H -1 B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. The Proffered Position 
On the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner described itself as a 
22-employee company that engages in the business of "Software Services and Application 
Development for proprietary The Petitioner seeks to employ the Beneficiary as a 
"senior software engineer" from October 1, 2015, to July 29, 2018, at a salary of$67,000 per year. 
The labor condition application (LCA) submitted to support the visa petition states that the proffered 
.position corresponds to Standard Occupational Classification (SOC) code and occupation title 
15-1131, "Computer Programmers," from the Occupational Information Network (O*NET). The 
LCA further states that the proffered position is a Level I, entry-level, position. 
In its cover letter, the Petitioner explained that it "has built a multi-channel digital ordering 
(Software as a Service - SaaS) platform - .. [that] is an online food ordering 
service." The Petitioner stated that" the Beneficiary "will be designated to primarily work at the 
[Petitioner's] business premises in CA, on [its] internal software p_roduct suite -
The Petitioner then described the duties of the proffered position as follows 
(verbatim): 
[The Beneficiary] will be responsible for developing software solutions by studying 
information needs, conferring with users, studying systems flow, data usage, and 
work processes; investigating problem areas;, and following the software 
development lifecycle for Responsibilities will include 
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Matter of N-, Inc. 
determining operational feasibility by evaluating problem definition, requirements, 
solution development, and proposed solutions for documenting and 
demonstrating solutions by developing flowcharts, layouts, diagrams, charts, 
code comments and clear code; preparing and installing solutions by 
determining and designing system specifications, standards, and programming for 
improving operations by conducting systems analysis; 
recommending changes in policies and procedures of keeping 
abreast with state-of-the-art development tools, programming techniques, and 
computing equipment; providing information by collecting, analyzing, and 
summarizing development and service issues for clients; and 
supporting junior software engineers. 
In response to the Director's request for evidence (RFE), the Petitioner elaborated upon the duties of 
the proffered position, as well as the time spent on each duty, as follows: 
Tasks Difficulty %Time 
Level to be 
Spent 
1. Develops information systems by studying operations; designing, 
developing, and installing software solutions; supports and develops 5 25% 
software team. Develops software solutions by studying information 
needs; conferring with users; studying systems flow, data usage, and 
work processes; investigating problem areas; following the software 
development lifecycle. 
2. Determines operational feasibility by evaluating analysis, problem 
definition, requirements, solution development, and proposed 4 10% 
solutions. Documents and demonstrates solutions by developing 
documentation, flowcharts, layouts, diagrams, charts, code comments 
and clear code. 
3. Prepares and installs solutions by determining and designing system 4 15% 
specifications, standards, and programming. Improves operations by 
conducting systems analysis; recommending changes in policies and 
procedures. 
4. Updates job knowledge by studying state-of-the-art development 4 10% 
tools, programming techniques, and computing. equipment; 
participating Ill educational opportunities; reading , professional 
publications; maintaining personal networks; participating Ill 
professional organizations. 
5. Preparing and installing solutions by determining and designing 4 20% 
system specifications, standards. Protects operations by keeping 
information confidential. 
6. Provides information by collecting, analyzing, and summar1zmg 3 5% 
development and service issues. 
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Matter of N-, Inc. 
7. Keeping abreast with state-of-the-art development tools, programming 4 5% 
techniques, and computing equipment. 
8. Supports and develops software eng meers by providing advice, 3 5% 
coaching and educational opportunities. Accomplishes engineering 
and organization mission by completing related results as needed. 
9. Supporting junior software engineers 5 5% 
Notes on Difficulty Level 
1 Novice 
2 Some Exposure 
3 Familiarity with Computers 
4 Bachelor's 
5 Master's 
The Petitioner stated that the proffered position requires a bachelor's degree in computer science, 
electronics engineering, computer information systems, or a related field, plus a minimum of two to 
four years of related experience. 
In support of the petition, the Petitioner submitted two Employment Agreements with the 
Beneficiary which provide the following description of duties (verbatim):
1 
[The Beneficiary] will be responsible for Installing the MS-SQL 2008/2008 R2 and 
upgrading from 2005 to 2008/2008 R2,Implementation of policy management and 
Data collection features in MS-SQL 2008 R2,Providing the Best Backup/Restore 
policy based on the criticality of the client business, Effectively managing the DR to 
minimize the outages,Appling the Service packs /Hot fixes ,Co-coordinating with 
Application to fix the issues from the application end, Implementing the Security 
Health check of the server on quarterly basis,Validating the user id's on quarterly 
basis, Implementing the cluster set up on Windows server 2008 with MS-SQL 2005 
Setup. 
C. Analysis 
We find that the Petitioner has not credibly and sufficiently demonstrated what work its company or 
the Beneficiary will perform on the product. Accordingly, we cannot determine 
whether the proffered position qualifies as a specialty occupation. 
As duly noted by the Director, is a product that belongs to the corporation 
The evidence of record contains, for example , the '"Terms ofUser Agreement" which· 
authorizes the use of the product by a corporation, 
1 
The Petitioner submitted an "amended" Employment Agreement in response to the Director 's RFE which had noted 
several impermissible provisions relating to the LCA in the original Employment Agreement. Both Employment 
Agreements contain the same description of duties. · 
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(b)(6)
Matter of N-, Inc. 
incorporated under the laws of the State of Delaware." The U.S. Patent and Trademark Office 
application to trademark the mark also identifies as the 
applicant. Other evidence in the record, such as marketing documents, invoices, and bank 
statements, similarly reference as the corporate entity which owns 
However, the Petitioner has not sufficiently explained the nature of its relationship to 
That is, the Petitioner has not explained the roles, responsibilities, division of labor, 
and other salient aspects of the relationship between these two companies with respect to the 
product. 2 The Petitioner also has not submitted contracts or other evidence establishing the 
actual terms of agreement, if any, between and the Petitioner. Without 
additional information and evidence, we cannot determine whether the Petitioner has actual work 
available on the project, and can make a bona .fide offer of employment for such 
work on the project. 3 While the Petitioner and may share a 
common owner, a corporation is nevertheless a separate and distinct legal entity from its owners or 
stockholders. See Matter of M-, 8 I&N Dec. 24, 50-51 (A. G., BIA 1958); Matter of Aphrodite lnvs. 
Ltd., 17 I&N Dec. 530 (Comm'r 1980); and Matter ofTessel, Inc., 17 I&N Dec. 631 (Act..Assoc. 
Comm'r 1980). 
Nevertheless, assuming arguendo that is a product of the Petitioner or that the 
Petitioner is otherwise authorized to perform work on the Petitioner has not 
submitted sufficient evidence to demonstrate exactly what work the Petitioner has available and will 
perform on the project. 
The Petitioner provided generalized, broad descriptions of the work to be performed on the 
project. The "milestones" described in the "Product Overview with Milestone Development 
Plan" document are broadly termed and do not explain the actual work to be performed, and by 
whom. For example, the "milestones" to be completed include a "Private-Label and POS integration 
release" in May 2016 and release" in December 2016. However, there is 
no further explanation of what specific tasks are needed to achieve these broad milestones, who will 
perform these specific tasks, how many work hours are needed to accomplish each task, or any other 
pertinent information about the work to the completed. The Petitioner likewise provided a "Detailed 
2 The Petitioner initially signed the Attorney-Client Agreement for attorney services to trademark the 
mark. Subsequently, however, the actual trademark application was filed by not the Petitioner. 
We also ntlte that the website states that was copyrighted by The 
website also states that is "A Product of and is "Brought to you by [the Petitioner]." 
Furthermore, and the Petitioner share the same address. Overall, while it is evident that 
the Petitioner and are related, the specific relationship between the two companies is unclear. 
' The California Secretary of State website indicates that the Petitioner's corporate status has been suspended. That is, 
the Petitioner's powers, rights and privileges, including the right to use its corporate name in California, were suspended. 
See attached print-outs. The Petitioner's corporate status raises additional questions regarding its ability to make a bona 
fide offer of employment. 
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Matter of N-. Inc. 
Work streams" chart which lists the positions, wages by hour, location of work, and number of hours 
per month, but does not describe in detail the actual work to be performed. 
In addition, the product overview lists the "Core Team" as: (1) the Petitioner's CEO/Founder; (2) an 
individual in "Engineering"; (3) an individual in "Marketing & Operations"; and (4) an individual in 
"Business Development." However, there is insufficient evidence establishing that these "Core 
Team" members 
were actively working for the Peti"tioner as of the time of filing. There is 
insufficient evidence that the Petitioner employs or has employed the individuals in "Engineering" 
and "Business Development " within the past several years, as neither individual appears on the 
Petitioner's organizational chart, 2013 and 2014 W-2 forms, or 2015 payroll information, among 
other documents. While the individual in "Marketing & Operations" appears to have been a former 
employee, she was not actively working for the Petitioner at the time of filing, according the 
Petitioner's organizational chart, 20·15 Quarter 1 Form 941, and 2015 payroll records.4 Even the 
Petitioner's CEO/Founder was not listed in the Petitioner's payroll records for all months in 2015. 
In the five months of 2015 that he appeared on the payroll, he was listed as having worked zero 
hours. The Petitioner has not explained and documented who constitutes actual, 
current "Core T earn." 
The Petitioner also has not specifically identified which of its other employees are actively working 
on the product. For example, the Petitioner's organizational chart does not 
specifically identify which employees have been assigned to the team. 
5 
In fact, the 
organizational chart- which lists 36 different positions (not including contracted positions) - does 
not contain any of the 11 positions the Petitioner listed in a separate chart depicting the required 
labor or "Detailed Work streams" for the project (i.e., an Engagement Manager, 
Onsite - Manager, Project Manager, Sr. Architect, Test Manager, Android Developer, iOS 
Developer, Windows Mobile Developer, Web Developer, Manual Tester, and Ul Designer).6 
Notably, none ofthe 11 positions listed on the "Detailed Work streams" chart will perform full-time 
work. To illustrate, for the entire month of April 2015, the Engagement Manager will work zero 
hours, the Onsite - Manager and Sr. Architect will work a total of 0.5 hours each, and six other 
positions will work only one hour each. The position having the most hours as of the end of Phase 
II, which ends in June 2017, is the Manual Tester position, which will have worked a total of 27 
hours for the three-month period of April to June, 2017. Overall, the Petitioner has not sufficiently 
explained and documented its actual need for additional, full-time staffing on the 
project. 
4 
This individual was listed as a paid employee on the Petitioner's March, April, May, and June payroll records. 
However, she was listed as having worked zero hours in each of these months. She was no longer on the Petitioner's 
July and subsequent payroll records. 
5 The organizational chart does, however, specifically identii)' two of the Petitioner's contractors that are on the 
team (i.e., the Ul Architect and Ul Designer, both identified as a' '). 
6 The Petitioner listed an on-site Ul Designer as one of the required personnel on this chart. It is not clear whether this 
position is the same as the contracted Ul Designer position depicted on the organizational chart. 
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(b)(6)
Matter of N-, Inc. 
"[I]t is incumbent upon the Petitioner to resolve the inconsistencies by independent objective 
evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the Petitioner submits competent objective evidence 
pointing to where the truth lies. Id. at 591-92. '"Doubt cast on any aspect of the Petitioner's proof 
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition." Id at 591. 
It is important to note the Director's finding that the Petitioner had previously obtained approvals for 
at least 20 H -1 B beneficiaries to work on the project. The Director also found that 
the Petitioner filed at least 15 new H-lB petitions to employ additional workers on the 
project starting from October 1, 2015. The record therefore indicates that the Petitioner has 
requested to employ at least 35 individuals on the project. In contrast, the Petitioner 
stated that it "will employ approximately 11 people to work out of [its] 2 office premises," and listed 
only 11 positions on the "Detailed Work streams" chart as required for the project. 
Moreover, the Director found that four of the Petitioner's H-1 B beneficiaries who were supposed to 
have been assigned to the project were actually assigned to work in states far from 
California. The Petitioner has not provided an explanation, corroborated by objective evidence, 
reconciling its various claims regarding the required personnel for the project. 7 
Again, it is incumbent upon the P~titioner to resolve inconsistencies in the record, and doubt cast on 
any aspect of the Petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support ofthe visa petition." Id at 591-2. 
Regarding the sufficiency of the Petitioner's work space, the Petitioner initially indicated that the 
Beneficiary will work on the project from its office located in 
California. The Director also found that the 35 H-1 B beneficiaries whom the Petitioner claimed 
were to work on the project were also supposed to be working from the same 
office. However, the lease for this particular office address reflects that these premises consist 
of only 250 square feet. The Petitioner has not sufficiently explained and documented how its office 
premises were sufficient to house the entire team, even at the time it entered into the 
lease on September 11, 2014. While the Petitioner has subsequently leased a substantially larger 
office located in California, this new lease nevertheless does not overcome the 
'Petitioner's initial lack of office space. A petitioner may not make material changes to a petition in 
an effort to make a deficient petition conform to USCIS requirements. See Mauer of Izummi, 
22 l&N Dec. 169, 176 (Assoc. Comm 'r 1998). 
Considering all of the above factors- including the Petitioner's vague descriptions of the work to be 
done on the inconsistent levels of staffing claimed, as well as the lack of adequate 
office space - we cannot find that the Petitioner has sufficiently demonstrated what work it has 
available and will actually perform on the project. 
7 
On appeal, the Petitioner does not directly contest the Director's findings. Instead, the Petitioner vaguely states that the 
Service erred in "any and all other and/or relating issues raised in the denial or in this appeal." 
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Matter of N-, Inc. 
Moreover, the Petitioner has not consistently and credibly demonstrated what work, if any, the 
Beneficiary will actually perform for the project. 
For instance, there is no specific mention of the Beneficiary or the role of the Senior Software 
Engineer in the "Product Vision/Business Plan," "Product Overview with Milestone Development 
Plan," "Detailed Work streams" chart, or 
any other project document about The 
Petitioner has not specifically explained how the Beneficiary's duties correlate to the "milestones" 
described in the project overview, or how the Beneficiary's role fits in within the 11 other positions 
listed in the "Detailed Work streams" chart. 
The Petitioner's descriptions of the proffered duties are inconsistent. For example, the job duties 
described in the Petitioner's Employment Agreements with the Beneficiary are different from those 
provided in the cover letter and in response to the Director's RFE. The Petitioner has not explained 
how all of the stated job duties are consistent with each other. Moreover, the Employment 
Agreements list duties such as "Installing the MS-SQL 2008/2008 R2 and upgrading from 2005 to 
2008/2008 R2." They also list the duty of "Providing the Best Backup/Restore policy based on the 
criticality of the client business." The Petitioner also has not explained what the job duties involving 
"MS-SQL 2008/2008 R2" and providing backup/restore services based on "client businesses" are, 
and how these duties are related to 
The Petitioner's other job descriptions are insufficient as well, as they are vague and duplicative. 
For example, the Petitioner stated that the Beneficiary will spend 15% of his time on duties such as 
"[p ]repares and installs solutions by determining and designing system specifications, standards, and 
programming." The Petitioner then stated that the Beneficiary will spend another 20% of his time 
on the nearly identical duties of "[p ]reparing and installing solutions by determining and designing 
system specifications, standards." The Petitioner also listed a separate set of job duties involving 
"designing, developing, and installing software solutions" which account for another 25% of his 
time. The Petitioner also indicated that the Beneficiary will spend separate percentages of time to 
perform the duty of keeping updated with "state-of-the-art development tools, programming 
techniques, and computing equipment." The Petitioner has not adequately distinguished each of the 
stated job duties from one another, even though they account for separate percentages of time. 
Also, despite the proffered title of "senior software engineer," the Petitioner designated the proffered 
position as a Level I (entry) position. 8 In designating the proffered position at a Level 1 wage rate, 
8 A Level I wage rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a 
basic understanding of the occupation. These employees perform routine tasks that require limited, if 
any, exercise of judgment. The tasks provide experience and familiarization with the employer's 
methods, practices, and programs. The employees may perform higher level work for training and 
developmental purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored and reviewed for 
accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship 
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Matter of N-, Inc. 
the Petitioner has indicated that the proffered position is a comparatively low, entry-level position 
relative to others within the occupation.9 That is, in accordance with the relevant DOL explanatory 
information on wage levels, this wage rate indicates that the Beneficiary is only required to have a 
basic understanding of the occupation and will perform routine tasks that require limited, if any, 
exercise of judgment. See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf The 
Petitioner's designation of the proffered position as a Level I, entry-level position is inconsistent 
with this purportedly senior-level position with job duties such as "[supporting] and [developing] 
software engineers by providing advice, coaching and educational opportunities" and "[s]upporting 
junior software engineers." 
Furthermore, the Petitioner indicated that some of the proffered duties are a "Difficulty Level" 5, 
which requires a master's degree. However, the Petitioner has never claimed that the proffered 
position requires a master's degree.10 Nor has the Petitioner claimed that positions within the 
"Computer Programmers" occupational classification normally require a master's degree. Rather, 
the Petitioner repeatedly states that a bachelor's degree is the normal minimum requirement for this 
as well as other positions within the "Computer Programmers" occupational classification. 11 Again, 
we observe thilt the Petitioner designated the proffered position as a Level I position, which indicates 
that it is a comparatively low, entry-level position relative to others within the occupation. These 
inconsistencies further undermine the credibility of the position descriptions, as well as the 
Petitioner's overall credibility. 
Finally, we note the Petitioner's statement that the Beneficiary "will be designated to primarily work 
at the [Petitioner's] business premises in CA on [its] internal software product suite -
The use of the word "primarily" denotes that the Beneficiary may also be 
assigned to perform work other than at the Petitioner's business premises and/or on the 
are indicators that a Level I wage should be considered. 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov /pdf/NPWHC _Guidance_ Revised _II_ 2009.pdf 
9 The Petitioner's designation ofthis position as a Level I, entry-level position undermines its claim that the position is a 
senior position compared to other positions within the same occupation. Nevertheless, a Level I wage-designation does 
not preclude a proffered position from classification as a specialty occupation, just as a Level IV wage-designation does 
not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers), a Level I, entry-level 
position would still require a minimum of a bachelor's degree .in a specific specialty, or its equivalent, for 
entry. Similarly, however , a Level IV wage-designation would not reflect that an occupation qualifies as a specialty 
occupation if that higher-level position does not have an entry requirement of at least a bachelor 's degree in a specific 
specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not itself 
conclusive evidence that a proffered position meets the requirements of section 214(i)(l) of the Act. 
10 
The Petitioner also does not claim that the Beneficiary possesses a master's degree or its equivalent. 
11 
The Petitioner indicates that the job duty of "[s]upports and develops software engineers by providing advice, 
coaching and educational opportunities" is a Difficulty Level 3, requiring "Familiarity with Computers." This leads us 
to question whether the Petitioner requires at least a bachelor's degree for its other software engineers: 
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Matter of N-, Inc. 
project. We also note the Petitioner's Employment Agreements with the Beneficiary which 
state that the Beneficiary "shall also perform such other duties in the ordinary course of business as 
performed by other persons in similar such positions, as well as such other reasonable duties as may 
be assigned from time to time by the [Petitioner]." These Employment Agreements further state that 
the Beneficiary's "duties shall be rendered at [Petitioner's] business premises or at such other places 
as the [Petitioner] may require." When considered as a whole, the evidence of record lacks a 
sufficient, detailed explanation of all the work the Beneficiary will be assigned to perform during the 
entire validity period requested, including the location(s) of such work and the specific job duties to 
be performed. 
For all of the above reasons, we find the evidence of record insufficient to demonstrate that the 
Petitioner has work available to perform on the project, and that the Petitioner will 
assign the Beneficiary to work on the project in the manner asserted. We are 
therefore precluded from understanding the substantive nature of the proffered position and its 
constituent duties. 
Consequently, we are precluded from finding that 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 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. 
Accordingly, as the evidence does not satisfy any of the criteria at 8 C.P.R.§ 214.2(h)(4)(iii)(A), it 
cannot be found that the proffered position qualifies as a specialty occupation. The appeal will be 
dismissed and the petition denied for this reason. 
II. BENEFICIARY QUALIFICATIONS 
The Director also found that the Beneficiary would not be qualified to perform the duties of the 
proffered position. However, a beneficiary's credentials to perform a particular job are relevant only 
when the job is found to be a specialty occupation. As discussed in this decision, the proffered 
position does not qualify as a specialty occupation. Therefore, we need not and will not address the 
Beneficiary's qualifications further. 
Ill. CONCLUSION 
The Petitioner has not established that the proffered 
position, more likely than not, qualifies as a 
specialty occupation. In visa petition proceedings, it is the Petitioner's burden to establish eligibility 
II 
Matter of N-, Inc. 
for the immigration benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 
I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of N-, Inc., ID# 16763 (AAO May 31, 20 16) 
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