dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 16,2015 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software developer, seeks to employ the Beneficiary as a software application 
developer under the H-1B nonimmigrant classification. See Immigration and Nationality Act (the 
Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, Vermont Service 
Center, denied the petition. The matter is now before us on appeal. The appeal will be dismissed. 
I. ISSUE 
The issue before us is whether the proffered position qualifies as a specialty occupation m 
accordance with the applicable statutory and regulatory provisions. 1 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) ofthe Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
1 
We conduct appellate review on a de novo basis. Matter of Simeio Solutions, LLC, 26 l&N Dec. 542 (AAO 20 15); 
see also 5 U .S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it 
would have in making the initial decision except as it may limit the issues on notice or by rule."); Dar v. INS, 
891 F.2d 997, 1002 n.9 (2d Cir. 1989). We follow the preponderance of the evidence standard as specified in Matter 
ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 20 I 0). 
Matter of M-, 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: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions 
among similar organizations or, in the alternative, an employer may show 
that its particular position is so complex or unique that it can be performed 
only by an individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; 
or 
(4) The nature of the specific duties [is] so specialized and complex that 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)(1) 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. Federal Sav. And Loan Ins. Corp., 489 
U.S. 561 (1989); Matter of W-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 
sufficient 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 387. 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)(1) 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 
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Matter of M-, Inc. 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered 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"). Applying this standard, USCIS regularly approves H-1B petitions for qualified foreign 
nationals 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. users must examine the 
ultimate employment of the foreign national, 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 nor 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 
In its support letter, the Petitioner provided the following information regarding the duties of the 
proffered position (verbatim): 
Specifically, the position requires that the incumbent: work the entire 
Software development life cycle. Work with a team of developers to create a 
system user interface using html5 spec, J Query mobile, JQuery, C sharp, Dev 
Express, i.e. whatever cutting edge technology is out there, and the middleware 
with efficiently communicates with the database. Build and create think client 
based interfaces to incorporate business logics for specialized software application 
relating to cash management and cash movement for the A TM, bank and transport 
industries. These interfaces communicate with other systems and integrate with 
our primary software application system. Carry out technical and business testing 
and create technical documentation to roll it out. Keep central 1 repository of 
software codes to share with others. Create database views, stored procedures and 
tables to communicate with the think client and to pass data back and forth using 
SQL server dbms. 
The Petitioner also stated that it requires a minimum of a "Bachelor's Degree (or its equivalent) in 
Computer Science, or Computer Engineering, or Computer Information Systems." 
3 
(b)(6)
Matter of M-, Inc. 
The Director found the duties as stated by the Petitioner vague and requested a more detailed 
description of the duties. In response to the Director's RFE, the Petitioner submitted a document 
entitled "Position Description," 2 which listed the following duties (verbatim): 
Duties and Responsibilities: 
• a) Analysis b) design c) development d) testing e) implementation activities 
f) debugging and other technical issues 
• Ensure corporate and IT processes are supported at all times 
• Maintain expertise in the core business and integration points to the business 
systems 
• Assist with the management of defects, issues, design changes , reporting and 
resolution of vendor defects 
• Participate in code reviews 
• Demonstrate a commitment to core values of safety, integrity , process 
improvement, and customer satisfaction 
• Create, design and architect database based upon business and user 
requirements 
• Perform both logical and physical modeling of database objects for optimal 
performance 
• Design persistent data storage to be used by the system 
• Assist with implementation of software at customer location: 
• Travel to assigned customers as needed 
• Customer relationship management: 
Assist customers on how to better use 
software . In the process come up with new development ideas to 
communicate to the Development team 
• Develop queries to provide user view of data 
• Development of functional and technical requirement documentation 
• Development of functional and technical design documentation 
• Develop testing scenarios and required testing environment of procedures 
• Translate end-user requirements and specifications into efficient executable 
programs 
• Analyze customer's business process flow and needs ; assist with creating a 
better process 
• Assist with project management of new implementations , as well as other 
internal projects 
• Work with other members of the development team to continue positive 
evolution of software 
• Take direction from upper management, keeping management personnel 
advised on pertinent items or details 
2 This document indicates a requisition date of April 2006. 
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Matter of M-, Inc. 
• Develop project plans and timelines when requested to meet critical deliver 
dates Accountable for meeting delivery dates on assigned projects and tasks 
• Work in a fast paced, sometimes stressful, time critical environment, 
prioritizing workflow and meeting deadlines as directed 
• Communicate effectively and courteously during daily interaction with 
customers and coworkers, offering exemplary customer service and handling 
situations promptly 
• Must work as a team player, presenting a polished, professional image 
• Maintain a clean, safe workplace 
In this document, the Petitioner indicated a "Bachelor's degree in Computer Information Systems 
or equivalent related experience and l-2 years [of] experience in Software development" as one of 
the qualifications for the position. Other qualification requirements involved experience with 
various computer programming and software. 
The Labor Condition Application (LCA) submitted by the Petitioner in support of the petition was 
certified for use with a job prospect within the "Software Developers, Application" occupational 
classification, SOC (O*NET/OES) Code 15-1132, and a Level I (entry-level) prevailing wage rate, 
the lowest of the four assignable wage-levels. 
C. Analysis 
For H -1 B approval, the Petitioner must demonstrate a legitimate need for an employee exists and 
to substantiate that it has H-1B caliber work for the Beneficiary for the period of employment 
requested in the petition. It is incumbent upon the Petitioner to demonstrate it has sufficient work 
to require the services of a person with at least a bachelor's degree in a specific specialty, or its 
equivalent, to perform duties at a level that requires the theoretical and practical application of at 
least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for 
the period specified in the petition. 
In this matter, the Petitioner indicated that the Beneficiary will be employed in-house as a 
"Software Application Developer." However, upon review of the record of proceeding, we find 
that the Petitioner did not provide sufficient, credible evidence to establish in-house employment 
for the Beneficiary for the validity of the requested H-1B employment period. Specifically, the 
Petitioner did not submit a job description to adequately convey the substantive work to be 
performed by the Beneficiary. 
Considering the totality of all of the Petitioner's duty descriptions, we find that the evidence of record 
does not establish the depth, complexity, or level of specialization, or substantive aspects of the 
matters upon which the Petitioner claims that the Beneficiary will engage. Rather, the duties of the 
proffered position, and the position itself, are described in relatively generalized and abstract terms 
that do not relate substantial details about either the position or its constituent duties. For example, 
the Petitioner states that the Beneficiary will "[ e ]nsure corporate and IT processes are supported at all 
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Matter of M-, Inc. 
times" without providing details regarding the Beneficiary's specific duties. Nor does the Petitioner 
provide details as to the tasks involved in "[p ]articipat[ing] in code reviews." The abstract nature of 
the proposed duties is further illustrated by the Petitioner's statement that the Beneficiary will 
"[a]ssist with implementation" of software at customer locations. The Petitioner, however, does not 
explain the Beneficiary's actual tasks in the implementation process. Similarly, the Petitioner 
states that the Beneficiary will "[m]aintain a clean, safe workplace," but provides no details as to 
how the Beneficiary would accomplish such duty. Furthermore, the Petitioner states that the 
Beneficiary will "[t]ake direction from upper management," but provides no insight into the type 
of duties such management direction may involve. The Petitioner repeatedly uses words and 
phrases such as "ensure," "develop," "assist," "work with," and "maintain," which do not provide 
insight into the actual tasks the Beneficiary would perform on a day-to-day basis. 
Such generalized information does not in itself establish a correlation between any dimension of 
the proffered position and a need for a particular level of education, or educational equivalency, in 
a body of highly specialized knowledge in a specific specialty. Therefore, it is not evident that the 
proposed duties as described in this record of proceeding, and the position that they comprise, 
merit recognition of the proffered position as a specialty occupation. Thus, as so generally 
described, we find that the descriptions do not illuminate the substantive application of knowledge 
involved or any particular educational attainment associated with such application. The duties as 
described give very little insight to actual tasks that the Beneficiary would perform on a day-to-day 
basis. Furthermore, we find that the Petitioner has not supplemented the job and duty descriptions 
with documentary evidence establishing the substantive nature of the work that the Beneficiary would 
perform, whatever practical and theoretical applications of highly specialized knowledge in a specific 
specialty would be required to perform such substantive work, and whatever correlation may exist 
between such work and associated performance-required knowledge and attainment of a particular 
level of education, or educational equivalency, in a specific specialty. 
In this case, the Petitioner has not described the proffered position with sufficient detail to 
determine that the minimum requirements are a bachelor's degree in a specialized field of study. 
It is incumbent on the Petitioner to provide sufficient evidence to establish that the particular 
position that it proffers would necessitate services at a level requiring both the theoretical and 
practical application of a body of highly specialized knowledge and the attainment of at least a 
bachelor's degree in a specific specialty, or its equivalent. When "any person makes an 
application for a visa or any other document required for entry, or makes an application for 
admission, [ ... ] the burden of proof shall be upon such person to establish that he is eligible" for 
such benefit. Section 291 of the Act; see also Matter of Treasure Craft of California, 14 I&N 
Dec. 190 (Reg'l Comm'r 1972). 
Moreover, the Petitioner did not provide any information with regard to the order of importance 
and/or frequency of occurrence with which the Beneficiary will perform these functions and 
tasks. Thus, the Petitioner did not specify which tasks were major functions of the proffered 
position, and it did not establish the frequency with which each of the duties would be performed 
Matter of M-, Inc. 
(e.g., regularly, periodically or at irregular intervals). As a result, the Petitioner did not establish 
the primary and essential functions of the proffered position. 
Without a meaningful job description, the record lacks evidence sufficiently concrete and 
informative to demonstrate that the proffered position requires a specialty occupation's level of 
knowledge in a specific specialty. The tasks as described do not communicate (1) the actual work 
that the Beneficiary would perform, (2) the complexity, uniqueness and/or specialization of the 
tasks, and/or (3) the correlation between that work and a need for a particular level education of 
highly specialized knowledge in a specific specialty. The Petitioner's assertion with regard to the 
educational requirement for the position is conclusory and unpersuasive, as it is not supported by 
the job description or probative evidence. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Sojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of 
Cal(fornia, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Further, we note that there are inconsistencies in the record of proceeding that undermine that 
Petitioner's credibility with regard to the services the Beneficiary will perform, as well as the 
actual nature and requirements of the proffered position. For example, in response to the RFE, the 
Petitioner indicated that the proffered position "will be a one person development shop." 
However, the Petitioner also stated that the position "requires technical leadership skills as well as 
the ability to lead other developers on projects." The Petitioner did not submit an organization 
chart to demonstrate the organizational structure of the company. 
The Petitioner further indicated that the Beneficiary "will lead development of [the Petitioner's] 
systems and services." The Petitioner also stated that in addition to a Bachelor's degree in 
Computer Information Systems or equivalent related experience, the proffered position also 
requires "1-2 years experience in software development," "minimum 4 years programming using 
PLISQL, Oracle 9i, with a total of 5-7 years in database programming," and "1-3 years experience 
in Application Integration development." 
However, we note that the Petitioner did not sufficiently develop relative complexity or 
uniqueness as an aspect of the proffered position. This is further evidenced by the LCA submitted 
by the Petitioner in support of the instant petition. The LCA indicates a wage level at a Level I 
(entry) wage, which is the lowest of four assignable wage levels.3 Without further evidence, the 
evidence does not demonstrate that the proffered position is complex or unique as such a position 
falling under this occupational category would likely be classified at a higher-level, such as a 
Level III (experienced) or Level IV (fully competent) position, requiring a significantly higher 
3 The wage-level of the proffered position indicates that (relative to other positions falling under this occupational 
category) the Beneficiary is only required to have a basic understanding of the occupation. That designation indicates 
further that the Beneficiary will only be expected to "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_ll_ 2009.pdf. 
7 
Matter of M-, Inc. 
prevailing wage.4 For example, a Level IV (fully competent) position is designated by DOL for 
employees who "use advanced skills and diversified knowledge to solve unusual and complex 
problems." 5 "[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. !d. at 591-92. 
The record does not establish the substantive nature of the work to be performed by the 
Beneficiary, which therefore precludes a 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. 
The record of proceeding does not demonstrate that the Petitioner will employ the Beneficiary in a 
specialty occupation. 
III. ADDITIONAL BASIS 
Next, we will briefly discuss whether the Petitioner complied with the itinerary requirement at 
8 C.F.R. § 214.2(h)(2)(i)(B). The regulation at 8 C.F.R. § 214.2(h)(2)(i)(B) provides as follows: 
Service or training in more than one location. A petition that requires services to 
be performed or training to be received in more than one location must include an 
itinerary with the dates and locations of the services or training and must be filed 
with USCIS as provided in the form instructions. The address that the Petitioner 
specifies as its location on the I -129 shall be where the Petitioner is located for 
purposes of this paragraph. 
4 
The issue here is that the Petitioner's designation of this position as a Level I, entry-level position undermines its 
claim that the position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered 
position from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an 
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 consideration but is not a substitute 
for a determination of whether a proffered position meets the requirements of section 214(i)( 1) of the Act. 
5 
For additional information regarding wage levels as defined by DOL, 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_ll_ 2009.pdf 
(b)(6)
Matter of M-, Inc. 
As noted above, the Petitioner indicated on the Form I-129 that the Beneficiary would be working 
only at the Petitioner's office in Texas, for the duration of the H-1B employment period. 
However, in response to the director's RFE, the Petitioner submitted a position description stating 
that the Beneficiary would travel to assigned customers' locations and assist with the 
implementation of software. The Petitioner, however, did not specify a customer and the length of 
time the Beneficiary would spend at a particular customer's location. 6 Furthermore, in this 
position description, the Petitioner stated under "Special Requirements" that the Beneficiary "must 
provide personal transportation," which suggests that the Beneficiary's duties would include 
travel. 
The petition must list the locations where the Beneficiary would be employed and be accompanied 
by an itinerary with the dates the Beneficiary will provide services at each location. Both 
conditions were not satisfied in this proceeding. Again, a petitioner must establish eligibility at 
the time of filing a nonimmigrant visa petition. 8 C.F .R. § 103 .2(b )(1 ). A visa petition may not be 
approved at a future date after the Petitioner or beneficiary becomes eligible under a new set of 
facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). 
In view of the foregoing, the record of proceeding has not overcome the Director's basis for 
denying the petition, and it has also not met the itinerary requirement at 8 C.F.R. 
§ 214.2(h)(2)(i)(B). For these reasons, the petition may not be approved. 7 
IV. CONCLUSION AND ORDER 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility 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. 
6 Documents the Petitioner submitted on appeal indicate that its customers may be located in states other than where 
the Petitioner is located. For example, is located in Wisconsin; 
is located in California; and . is located in , Ohio. 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an H-1 B petition is filed with a "DOL­
certified LCA attached" that actually supports and corresponds with the petition on the petition's filing, this regulation 
inherently necessitates the filing of an amended H-1 B petition to permit USC IS to perform its regulatory duty to 
ensure that a certified LCA actually supports and corresponds with an H-1 B petition as of the date of that petition's 
filing. In addition, as 8 C.F.R. § 103.2(b)(l) requires eligibility to be established at the time of filing, it is factually 
impossible for an LCA certified by DOL after the filing of an initial H-1 B petition to establish eligibility at the time 
the initial petition was filed. Therefore, in order for a petitioner to comply with 8 C.F.R. § 103.2(b)(l) and USCIS to 
perform its regulatory duties under 20 C.F.R. § 655.705(b), a petitioner must file an amended or new petition, with 
fee, whenever a beneficiary's job location changes such that a new LCA is required to be filed with DOL. 
7 
As the grounds discussed above are dispositive of the Petitioner's eligibility for the benefit sought in this matter, we 
will not address and will instead reserve our determination on the additional issues and deficiencies that 
we observe in 
the record of proceeding with regard to the approval of the H-1 B petition. 
9 
Matter of M-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter ofM-, Inc., ID# 14416 (AAO Nov. 16, 2015) 
10