dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 11876134 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonirnrnigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 8, 2021 
The Petitioner seeks to temporarily employ the Beneficiary as a "software engineer" under the H-IB 
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-1B 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 record did not 
establish that the proffered position is a specialty occupation. 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.' We review the questions in this matter de novo. 2 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 . 3 Lastly, 
1 Section 291 of the Act; Matter ofChawathe , 25 I&N Dec. 369,375 (AAO 2010). 
2 Matte r of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015) . 
3 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions ofa specialty occupation under 
section 214(i)( l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii) . We construe the term "degree" to mean not just any 
baccalaur eate or higher degree, but one in a specific specialty that is directly related to the proposed position . See Royal 
8 C.F.R. § 214.2(h)(4)(i)(A)(]) 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). This is because the duties 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. PROFFERED POSITION 
The Petitioner describes itself on the Form I-129, Petition for a Nonimmigrant Worker, as a software 
development service company, established in 2005. In its initial letter in support of the petition, the 
Petitioner states that it "specializes in framework development and implementation." The Petitioner 
designates the proffered position on the labor condition application (LCA)4 as being located within 
the "Software Developers, Applications" occupational category, corresponding to the standard 
occupation classification (SOC) code 15-1132 at a Level II wage. The Petitioner initially identified 
the duties of the position as follows: 
• Provide software support for WorkFlowServer, Ndjango, and Bistro platforms (30% of 
time) 
• Develop software applications based on WorkFlowServer, Ndjango, and Bistro platforms 
(20% of time) 
• Perform software planning, analysis, and implementation (15% of time) 
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"). 
4 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 duties, experience and qualifications who are performing the same services. See Section 
212(n)(l) of the Act; 20 C.F.R. § 655.73l(a). 
2 
• Fulfill software maintenance requirements and oversee maintenance (15% of time) 
• Oversee troubleshooting, system backups, archiving, and disaster recovery (10% of time) 
• Implement internal systems (10% of time). 5 
In order to perform the above-described duties, the Petitioner initially states that it requires an 
individual with a bachelor's degree in computer science, computer engineering or a closely related 
field. Later, in response to the Director's request for additional evidence (RFE), the Petitioner adds a 
degree in information systems to the list of fields, which would qualify someone to perform the duties. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we conclude 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 
criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). Specifically, the record lacks sufficient 
information regarding the Beneficiary's duties and contains inconsistencies that undermine the 
Petitioner's claims as they relate to the proffered position. 
A. Nature of the Position 
The Petitioner seeks to employ the Beneficiary as a "software engineer" in its Illinois office. As stated 
above, the Petitioner designates the proffered position under the occupational category "Software 
Developers, Applications" corresponding to SOC code 15-1132, at a Level II wage on the LCA. 
On November 6, 2019, the Director issued an RFE requesting more information to determine if the 
proffered position is a specialty occupation. The purpose of an RFE is to elicit further information 
that clarifies whether eligibility for the benefit sought has been established. 8 C .F .R. § 103 .2(b )(8). 
When responding to an RFE, a petitioner cannot offer a new position to the Beneficiary, or materially 
change a position's title, its level of authority within the organizational hierarchy, its associated job 
responsibilities, or the requirements of the position. A petitioner must establish that the position 
offered to a beneficiary when the petition was filed merits classification for the benefit sought. See 
Matter o_f Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). If significant changes 
are made to the initial request for approval, a petitioner must file a new petition rather than seek 
approval of a petition that is not supported by the facts in the record. 
Here, the information provided by the Petitioner in its RFE response does not clarify or provide more 
specificity and detail to the original duties of the position, but rather significantly changes and expands 
the initially described duties of the proffered position. In its initial support letter, the Petitioner's 
description of the position is generic and describes typical duties of a software engineer without 
context or detail. 6 In its RFE response, the Petitioner's lengthier description also lacks context and 
5 The Petitioner revised the description of the proffered position's duties in response to the Director's request for additional 
evidence (RFE). We note that the RFE response's description of duties diverges significantly from the Petitioner's initial 
recitation of duties, an issue which will be discussed throughout the decision. 
6 We note that there are significant inconsistencies between the initial duties and the RFE duties. In the initial breakdown, 
30% of the Beneficiary's time will be spent providing software supp01i for WorkFlow Server, Ndjango, and Bistro 
platforms and 20% of the Beneficiary's time will be spent developing software applications based on WorkFlow Server, 
3 
conflicts with the overall description of the position, which the Petitioner describes is to "maintain and 
enhance Workflow Server, and to provide knowledge transfer, technical support and conduct training 
for U.S.-based Software Developers and future hires ... as well as customers in the United States who 
have purchased or consider purchasing Workflow Server ." One apparent conflict is that none of the 
listed duties in either version of the descriptions entails providing training or "knowledge transfer" for 
new hires. Thus, we cannot ascertain how much of the Beneficiary's time would be spent conducting 
trainings since the proposed duties do not include this task. Also, the Petitioner's RFE response 
describes providing technical guidance or support for development or troubleshoot of systems as an 
essential function of the position. This "essential function" however, is vaguely worded and generic 
and does not provide any context for understanding if the Beneficiary will be required to create training 
materials or simply answer questions and resolve issues as they arise. In its RFE response, the 
Petitioner notes that the Beneficiary will "make improvements and adaptations of this software 
product /application platform for the American market," however the Petitioner did not include 
sufficient information or a context in which we can ascertain what tasks the Beneficiary will perform 
to accomplish this vaguely worded duty. In addition, the Petitioner's suggestion that it will use the 
Beneficiary to help it adapt to a market it has been operating in since 2005 seems illogical and creates 
further ambiguity as to the substantive nature of the position . 
Additionally, the Petitioner indicates that several of the position's duties depend on the Beneficiary's 
knowledge of and experience using the Petitioner's self-described "proprietary software," Workflow 
Server. First, we question the Petitioner's claim that it has proprietary rights to sell Workflow Server 
because open source information shows that Workflow Server may be a platform owned by another 
company having no apparent connection to the Petitioner. 7 Second, while the Petitioner submitted 
several published manuals titled "Workflow Server Guide," they are not sufficient to establish that 
Workflow Server is a "proprietary" product as claimed. Furthermore, we reviewed these manuals to 
ascertain the substantive nature of the position, however the documents do not establish the duties of 
the proffered position. The manuals are dated from the years 2008, 2009, and 2013 and do not 
encompass work the Beneficiary might be required to perform. Finally, these manuals create further 
ambiguity regarding the substantive nature of the position because the RFE response lists 20% of the 
proposed position as involving the requirement to "[ d]esign, develop and implement Workflow Server 
component and integration solutions based on client needs and manage and upgrade existing versions 
of the Workflow Server platform .. . " However, the manuals show that the product was developed by 
2008. We question the nature and scope of this duty, as again, the Petitioner vaguely refers to 
designing and developing components and solutions, but does not provide adequate context regarding 
the claimed product or expand upon what it is actually selling to customers, i.e. the claimed product, 
services, or both. 
Ndjango, and Bistro platforms . In the RFE response, the Petitioner omits any mention of the Ndjango and Bistro platforms 
and does not provide any explanation for this change, which affects 50% of the Beneficiary's duties. 
7 The Petitioner does not provide sufficient evidence to establish that Workflow Server is its proprietary product or that it 
is authorized to sell or distribute this product , and publicly available information indicates otherwise. See, e.g., 
https://workflowengine.io /contacts/ (last visited March 4, 2021). The contact information on this page shows that the 
business entity, OptimaJet LLC, is responsible for sales ofWorkflow Server and at https://optimajet.corn/workflowserver /, 
WorkFlow Server is shown to be one of OptimaJet LLC's saleable products for which a license is provided. The record 
does not contain any information to establish a licensor-licensee relationship between the Petitioner and OptimaJet LLC. 
Furthermore , a review of the Petitioner 's website] I does not include Workflow Server as one of its saleable 
products . 
4 
Other duties of the position are also too vaguely worded to ascertain the substantive nature of the 
position. For example, 10% of the duties of the position require the Beneficiary to participate in new 
software development initiatives, such as "[ c ]arry[ing] out detailed analysis to understand 
requirements and creat[ing] code and/or build[ing] solutions as per requirements in 
development/maintenance projects in accordance with coding standards." The Petitioner adds that 
this requires "[u]sing programming languages such as JavaScript, C# and relational databases to 
achieve the solutions proposed" and "[ c ]onfiguring reports and dashboards for different teams to show 
the current state of progress made by their respective teams within an organization." The Petitioner 
does not identify the projects the Beneficiary will be involved in and does not provide sufficient detail 
regarding these generic tasks to understand his role and level of responsibility when performing them. 
In addition, the programming languages cited in this duty appear fairly basic and it is not apparent 
why they would require a college degree to learn or to perform them. 8 This duty also mentions the 
Beneficiary would work with "teams within an organization." However, it is unclear if the teams are 
internal or external to the Petitioner. All of these concerns raise yet more questions regarding the 
actual nature of the position and what work the Beneficiary will actually perform. 
The Petitioner's RFE response describes the position as one that will be used to greatly expand and 
increase sales of W orkflow Server and that the Beneficiary's training and experience are needed in 
order to realize this expansion. This description indicates that the duties of the proffered position will 
be dependent on the Petitioner's future sales, not work existing at the time the petition was filed. The 
Petitioner does not explain how it plans to execute the increased sales or how the proposed position 
will fit into its expansion plans. 9 Arguably, the duty described as "[ e ]nsure appropriate company 
resources are assigned to complete project tasks according to plan: Coordinate with internal 
development team(s) to identify priorities and update scope and delivery schedule" would support the 
Petitioner's expansion plans, however we note that this is not a duty typically associated with a 
"Software Developers, Applications" occupation as designated on the certified LCA. 10 
The Petitioner submitted a master services agreement (MSA) pertaining to work performed for an end­
client, along with corresponding statements of work (SOW) governing change orders for the 
agreement. A review of the MSA and SOWs provided does not appear relevant to the substantive 
nature of the position proffered because these documents do not provide sufficient evidence of the 
proposed work. The documents do not provide details relating to the duties the Beneficiary would 
carry out in the position or how the proposed duties relate to the Petitioner's current business 
operations or to a particular product that the Petitioner is selling. The Petitioner's contracts and work 
orders may be relevant to demonstrate that the Petitioner has a viable business, however the documents 
8 We take administrative notice of the fact that many online retailers offer certificate programs or online courses that teach 
C++ and JavaScript. 
9 The Petitioner's narrative regarding the position's level ofresponsibility within its operations suggests that it anticipates 
the position will help it increase sales. However, there is no mention in the position description of how the Beneficiary's 
duties relate to the Petitioner's goal of increasing sales. This conflict leads to further doubt as to the substantive nature of 
the position. 
10 This duty appears more aligned with what someone employed in a position located within the "Sales Managers" or 
"Information Technology Project Managers" occupational categories might do. See 
https://www.onetonline.org/link/summary/l l-2022.00; https://www.onetonline.org/link/summary/l 5-1199.09 (last 
visited March 4, 2021). Depending upon the centrality of this duty, it could raise questions as to whether the LCA 
corresponds to and supports the H-lB petition, as required. The Petitioner should be prepared to address this issue in any 
future H- lB filings. 
5 
do not outline or explain what role the Beneficiary would have under these contracts so they do not 
help us understand the substantive nature of the proffered position. In short, they do little to explain 
the substantive nature of the proffered position. 
The Petitioner also provided several months of invoices it had issued to three different customers. 11 
However, the Petitioner's invoices do not establish what duties the Beneficiary will perform in the 
United States as they only provide evidence of his past work. 12 Moreover, where the invoices show 
tasks performed by the Beneficiary in the past, none of the terms or technologies are defined or clearly 
understandable. 13 For all of these reasons, these invoices do not help us ascertain the substantive 
nature of the proffered position or that the proffered position would entail H-1 B caliber work. 
The Petitioner has not provided sufficient details regarding the nature and scope of the Beneficiary's 
employment or sufficient evidence to establish the actual work that the Beneficiary would perform. 
Without a meaningful job description, the record lacks evidence sufficiently informative to 
demonstrate that the proffered position requires the level of knowledge associated with a bachelor's 
degree in a specific specialty, or the equivalent. Furthermore, U.S. Citizenship and Immigration 
Services' (USCIS) records indicate that approximately two months prior to filing the instant petition, 
the Petitioner filed an L-lB visa petition on behalf of the Beneficiary to bring him to the United States 
to perform the services of a senior software architect. (Our records indicate that the L-lB petition was 
denied on May 24, 2019.) In that petition, the Petitioner indicated that the Beneficiary's 
"[ r] esponsibilities have included consulting, designing, implementation, configuration, customization, 
migration, troubleshooting, and performing updates of software products." While the L-lB petition 
was still pending, the Petitioner filed the instant H-lB petition, seeking to bring the Beneficiary to the 
United States under a different job title and what appear to be different job duties. While certainly not 
dispositive in terms of approving or denying this petition, these two very different iterations of the 
11 These invoices show that the Petitioner employs members of its domestic and overseas teams to satisfy work orders. 
The Beneficiary's name appears on the invoices for one client and a review of the invoices show that the Beneficiary 
performed nine discrete tasks for one of the Petitioner's clients. The Petitioner's assertions that it has employed the 
Beneficiary at its foreign subsidiary since January 2012, and that the Beneficiary is the most senior, most trained, most 
knowledgeable, and most experienced software engineer in the Petitioner's foreign subsidiary is not apparent from a review 
of these nine tasks, and this apparent inconsistency leads us to question the Beneficiary's qualifications for the position 
and the veracity of the Petitioner's claims. 
12 The invoices also raise questions regarding the Petitioner's credibility and the veracity of statements made regarding the 
Beneficiary's current role in its overseas operation. We note that the invoices indicate the Beneficiary's rate of pay is 
lower ($27 an hour) than the rate ffnav for oversras employees likd , 1($30 an hour) despite the Petitioner's 
organizational chart showing that .r holds a position ("'Senior Developer") more junior to the one proposed 
for the Beneficiary ("Lead Software Developer"). In fact, the Beneficiary's rate of pay is the same aJ I an 
individual who, according to the Petitioner's organizational chart, is supervised by the Beneficiary. The record does not 
contain any explanation for the Beneficiary's lower rate of pay, which leads to the appearance that the Petitioner's 
organizational chart does not reflect the Beneficiary's actual standing in the Petitioner's current overseas operations. The 
Beneficiary's lower rate of pay as compared to junior members on the Petitioner's organization chart also leads to questions 
regarding the veracity of the Petitioner's claim that the Beneficiary is the "most trained, most senior, most knowledgeable, 
and most experienced" software developer on its foreign team. These concerns lead us to question the overall credibility 
of this petition. 
13 The invoices show the Beneficiary performed the following tasks: "NT-447 - Handle multiple MSUs in a single S 1 AP 
PCAP;" "NT-462 - SCMG Point Code issues;" "NT-477 - ipmedia- technical debt;" "NT-484 - TPMedia and VLANs;" 
"NT-536 -ANSI-41 TC2 Diameter RXA not being labelled with proper Disposition in GCT Grid;" "NT-540 -ANSI-41 
TC2s not creating NDR output when being Global Call Traces;" "NT-543 - Add Shallow Indexing of AIN F9438 DN;" 
"NT-562 - INAP timeout parameters;" and "NT-579 - ipmedia sends matched packet to socket on 3rd attempt only." 
6 
Beneficiary's role and duties raise questions regarding the nature and scope of the Beneficiary's actual 
work and how the work actually fits into the Petitioner's business operations. 
Overall, we conclude that the Petitioner's statements regarding the Beneficiary's proposed position 
and its placement within the Petitioner's business are not supported by the evidence. A few errors or 
minor discrepancies are not reason to question the credibility of a beneficiary or a petitioner seeking 
immigration benefits. See, e.g., Spencer Enterprises, Inc. v. United States, 345 F.3d 683, 694 (9th Cir. 
2003). However, doubt cast on any aspect of a petitioner's proof may undermine the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N 
Dec. 582, 591 (BIA 1988). In this case, the issues catalogued above lead us to conclude that the 
Petitioner's assertions regarding the position are not reliably credible. Accordingly, the record does 
not include sufficient credible, consistent evidence to establish the substantive nature of the proffered 
position. 
The Petitioner noted that USCIS has approved an H-lB petition that had been previously filed on 
behalf of another employee. While that may be true, it is important to note that we are not required to 
approve applications or petitions where eligibility has not been demonstrated, merely because of prior 
approvals that may have been erroneous. See Matter of Church Scientology Int'!, 19 I&N Dec. 593, 
597 (Comm'r 1988); see also Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). 
Furthermore, we are not bound to follow a contradictory decision of a service center. La. 
Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *3 (E.D. La. 2000), affd, 248 F.3d 
113 9 ( 5th Cir. 2001 ). Furthermore, in this case the Petitioner's approved H-1 B petition for someone 
else in their organization does not provide us with evidence to establish this position's substantive 
nature. 
B. The Position's Minimum Qualifications 
The evidence suggests that the Petitioner's minimum qualifications for the proffered position may be 
a bachelor's degree plus four years or more of training and work experience. As stated above, the 
Petitioner initially states that the minimum requirements for the position are a bachelor's degree in 
computer science, computer engineering, or closely related field. In its RFE resP.onse, the Petitioner 
notes that the Beneficiary has been employed in Russia by the foreign subsidiary,! I since 
January 11, 2012 in the role of "Software Developer (Lead)" and that in addition to his educational 
background, the Beneficiary has had at "a minimum six months of training plus four years of training 
and experience learning the details of all use cases; no other employee at either the foreign or U.S. 
company has significant or comparable training and experience." The Petitioner implies this training 
and experience is necessary to perform the duties of the proffered position, and it repeats the argument 
on appeal. It appears as if the Petitioner is relying on the Beneficiary's experience and training and 
accordingly believes a bachelor's degree level of education plus four or more years of experience and 
training is required. If so, the Petitioner's required qualifications conflict with the Level II wage-level 
chosen on the LCA because a bachelor's degree plus four or more years of experience would require 
at least a two-level (if not a three-level) wage increase. 14 
14 As stated above, the Petitioner designated a Level TT wage in the LCA. The purpose of the LCA wage requirement is 
"to protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring temporary foreign workers." 
See, Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-IB Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
7 
We also note that the Petitioner's expanded duties create ambiguity about the minimum qualifications 
and thus the substantive nature of the position. In the Petitioner's expanded duties, several duties 
require the Beneficiary to work with the Workforce Server platform. 15 However, the same document 
omits any mention of Workforce Server in the section titled "Skills and Qualifications." Based on the 
Petitioner's numerous statements that the proffered position will be centrally focused on the use of 
Workforce Server, the omission is notable. Instead, the Petitioner lists other computer tools and 
technologies that do not appear as central to the proffered position's duties. An H-lB petition must 
be supported by a sufficient, consistent description of the proffered position's duties to demonstrate 
the substantive nature of the work in order to establish that the position is a specialty occupation and that 
the LCA corresponds to and supports the petition. Here, the inconsistency and ambiguity of the tasks, 
skills, and minimum qualifications needed to perform the job, cast further doubt on the substantive 
nature of the position and the duties the Beneficiary will be expected to perform within the Petitioner's 
business operations. 
As the Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, we cannot reach a conclusion as to 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 
States, 65 Fed. Reg. 80, 110, 80, 110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56). The LCA also 
serves to protect H-IB workers from wage abuses. See, Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a). 
While DOL certifies the LCA, USCIS determines whether the LCA's content corresponds with the H-lB petition. See 20 
C.F.R. § 655.705(b) ("OHS determines whether the petition is supported by an LCA which corresponds with the petition 
.... "). 
DOL guidance provides a five-step process for determining the proper wage level for the proffered position. A prevailing 
wage determination starts with an entry level wage and progresses to a higher wage level after considering the experience, 
education, and skill requirements of the Petitioner's job opportunity. Sec U.S. Dep't of Labor, Emp't & Training Admin., 
Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), 
https://www.flcdatacenter.com/download/NPWHC _Guidance_ Revised_ I I_ 2009 .pdf. Step two of this process compares 
the experience described in the Occupational Information Network (O*NET) Job Zone to the requirements for the proffered 
position. Here, "Software Developers, Applications" are classified in Job Zone 4 with a specialized vocational preparation 
(SVP) rating of"7.0 < 8.0." This SVP rating means that the occupation requires "over 2 years up to and including 4 years" 
of specific vocational training. A bachelor's degree expends two years, permitting the Petitioner to require up to and 
including two years of experience as the position's prerequisite before it must increase the wage level. Here, the Petitioner 
appears to suggest that the proffered position requires four years of additional training and work experience beyond the 
bachelor's degree, which would require a one- or two-level wage increase on the LCA. 
15 At Exhibit F, the Petitioner lists nine duties of the position and four of those duties specifically mention the Beneficiary 
working in the Workflow Server platfonn. For example, the first duty is to "design, develop [sic] and implement 
Workflow Server components ... "; the second duty is described as" ... Create/configure and maintain modules, workt1ows 
and interfaces to enhance the end user experience while using applications based on Workflow Server platform"; the 
fourth duty states the Beneficiary will " ... Analyze user needs to improve performance, reliability [sic] and security of 
applications, services and components integrated with the Workflow Server ... "; and the eighth duty states the Beneficiary 
will " ... [a]nalyze, design, build [sic] and test complex or high priority solutions using the Workflow Server platform and 
Web technologies (XML, HTML, JavaScript, Ajax, CSS, HTTP/S, AngularJS)." (Emphasis added.) 
8 
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. 
IV. CONCLUSION 
Upon review of the totality of the evidence submitted, the Petitioner has not established that more 
likely than not, the Beneficiary will provide services in a specialty occupation under any of the criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A). Moreover, the record does not establish that the Petitioner satisfied 
the statutory and regulatory definitions of specialty occupation. Further, the record does not establish 
the minimum qualifications for the position. 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. 
9