dismissed H-1B Case: Software Development

(b)(6)
MATTER OF 0-IT , INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : OCT. 7, 2015 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a 59-employee software development and consulting company established in 
seeks to employ the Beneficiary in what it designates as a full-time "Programmer Analyst " position 
from July 25, 2014 to July 21 , 2017. The Petitioner seeks to classify her as a nonimmigrant worker 
in a specialty occupation. See 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
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 . 
The Director denied the petition, finding the evidence of record insufficient to establish that: (1) the 
proffered position qualifies as a specialty occupation position; and (2) the Beneficiary is qualified to 
perform the duties of the proffered position. On appeal , the Petitioner asserts that the Director ' s 
bases for denial were erroneous, and contends that the Petitioner satisfied all evidentiary 
requirements. 
The record of proceeding before us contains: (1) the Petitioner's Form I-129 and the supporting 
documentation filed with it; (2) the service center 's request for additional evidence (RFE) ; (3) the 
Petitioner's response to the RFE; (4) the Director ' s denial letter ; and (5) the Notice of Appeal or 
Motion (Form I-290B) and the Petitioner's submissions on appeal. We reviewed the record in its 
entirety before issuing our decision. 
For the reasons that will be discussed below, we agree with the Director that the Petitioner has not 
established eligibility for the benefit sought. 1 Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
I. THE PROFFERED POSITION 
The Petitioner claims in the Labor Condition Application (LCA) submitted to support the visa 
petition that the proffered position corresponds to Standard Occupational Classification (SOC) code 
and title 15-1131, "Computer Programmers ," from the Occupational Information Network (O*NET). 
1 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
(b)(6)
Matter of 0-IT, Inc. 
In a letter dated July 23, 2014, the Petitioner listed the specific job duties of the proffered position, 
as follows: 
• Be involved in complete software Development Life cycle (SDLQ process by analyzing 
business requirements and understanding the functional work flow information from 
source systems to destination systems. 
• Design and develop SSis package to import and export data from MS Excel, SQL server 
2005 and flat files. 
• Be involved in daily batch loads (Full & Incremental) into staging and DOS areas, 
troubleshooting process, issue 
and errors using SQL Server Integration Services (SSIS) 
2008. 
• Be involved in complete SSIS life cycle in creating SSIS packages, building, deploying 
and executing the packages in both environments (Development and Production). 
• Use various Transformations in SSIS Dataflow, Control Flow using for loop containers 
and Fuzzy lookups etc. 
• Be involved in ETL architecture enhancements to increase the performance using query 
optimizer. 
• Implement event handlers and Error Handling in SSIS packages. 
• Configure the loading of data into slowly changing dimensions using slowly changing 
Dimensions wizard. 
(Verbatim.) 
In the same letter, the Petitioner stated that "the position requires the individual to have a degree in 
Computer Science, or equivalent with related experience in the information technology field." The 
Petitioner stated that the Beneficiary is "very qualified" for the position by virtue of her Bachelor 's 
degree in Science from (India), Post-Graduate Diploma in Information Process 
from (India), and employment experience. 
In other documentation, the Petitioner explained that the Beneficiary would be assigned to its in­
house project, ' 
' which it described as the development of a new touch-based software 
application geared towards hotel and restaurant management. As evidence of its " 
project and product, the Petitioner submitted a "Project Plan," "Market Analysis," and other 
documentation outlining the developmental phases, timelines, resources, and other information 
pertinent to the project. 
In another letter dated September 19, 2014, the Petitioner confirmed that the Beneficiary "has been 
assigned as a Programmer Analyst on our In-House ' application development team at 
our head quarters [sic] in TX." The Petitioner further confirmed that the Beneficiary "will 
work 40 hours a week for the duration of the period requested and she will be directed in Installing, 
Configure, Developing , Integrating, Testing, Configuration, Deploying , Support, Maintain, and 
Administer applications during the term." The Petitioner then listed the same job duties for the 
proffered position as previously listed in its July 23, 2014 letter. In addition, the Petitioner attested 
that the proffered position requires the "attainment of a bachelor's degree in Science or Engineering 
2 
Matter of 0-IT, Inc. 
stream." The Petitioner stated that the Beneficiary is qualified for the position based on her 
education and "five years of professional work experience in Computer Science as a Computer 
Programmer." 
II. SPECIALTY OCCUPATION 
To meet its burden of proof in establishing the proffered position as a specialty occupation, the 
Petitioner must establish that the employment it is offering to the Beneficiary meets the following 
statutory and regulatory requirements. 
A. Legal Framework 
Section 214(i)(l) of the 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: 
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 
3 
Matter of 0-IT, Inc. 
(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. Federal Sav. and Loan Ins. 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 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 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 
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 -1 B petitions for qualified aliens 
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-lB 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 alien, 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 
4 
(b)(6)
Matter of 0-JT, Inc. 
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. Analysis 
We agree with the Director that the evidence of record does not demonstrate that the Petitioner has 
specialty occupation work available for the Beneficiary. That is, the Petitioner has not submitted 
sufficient, credible evidence to establish that ' ' is a bona fide in-house project of the 
Petitioner, and that the Beneficiary would be exclusively assigned to it. Thus, the evidence of record 
does not demonstrate that the duties of the proffered position are, in fact, associated with a specialty 
occupation. 
First, the Petitioner has presented the duties comprising the proffered position in relatively broad and 
vague terms. These job descriptions lack sufficient detail and concrete explanation to establish the 
substantive nature of the work within the context of the project, and the associated 
applications of specialized knowledge that their actual performance would require. For example, the 
Petitioner stated in its July 23, 2014 and September 19, 2014 letters that the Beneficiary would "[b ]e 
involved" in various activities. However, the Petitioner did not clarify what specific tasks the 
Beneficiary would "[b ]e involved" in, such that we could discern the nature and complexity of each 
specific task. Furthermore, the Petitioner did not explain how the listed job duties specifically relate to 
the project. We note that several of the listed job duties involve the design and 
development of "SSis" or "SSIS" packages, but the Petitioner has not further explained what these 
"SSis" or "SSIS" packages are, and how they relate to There are no specific references 
to "SSis" or "SSIS" packages in the "Project Plan" and "Market Analysis" documents. 
Throughout the "Project Plan" document, the Petitioner refers to an unidentified "system owner," 
" System Owner," "CIO/HCG /system owner," and "user point of contact," among other 
similar terms? It is unclear why the Petitioner would make separate references to a system 
owner/user, if is being developed internally by the Petitioner. There are also numerous 
undefined acronyms and references to other companies whose relationships to the Petitioner are 
unexplained. For example, section 4.2(a) lists "HCG" as a group within the "core project 
development team." Part 5.1(a) states that the project will deliver IT services to "DOE 
Headquarters customers. " Part 5.4(a) states that "two organizations, GC and NN, will not provide 
funding for the projects as anticipated." Part 11 states that "technical personnel will be trained by 
" The Petitioner has not explained what "HCG," "DOE," "GC," and "NN" stand 
for, what these entities and " ' are, and how they relate to the Petitioner and the 
project. 
2 For instance, the "Project Plan" states under part 5.4(a) that "[t]he system owner , user point of contact and Pilot Group 
POCs should be involved in the testing of early versions of screens , reports and process flow." It also states that "[t]he 
project team is dependent upon the availability of the system owner and Pilot Group members to review the deliverable 
documents. " 
5 
(b)(6)
Matter of 0-IT, Inc. 
Not only are the Petitioner 's descriptions of the proffered job duties vague, but they are internally 
inconsistent as well. For instance, the "Project Plan" document lists additional duties for the 
programmer analyst position that are not listed in the Petitioner's July 23, 2014 and September 19, 
2014 letters. More specifically, the "Project Plan" states that the programmer analyst position is 
responsible for duties including "[a]nalyze existing program and prepare cost analysis report for 
alternate solutions," "[p ]erforms audit on client system," and "[a ]ssist in client Training and 
deployment strategy." The Petitioner has not explained why these and other job duties found in the 
"Project Plan" are not listed in the July 23, 2014 and September 19, 2014letters . The Petitioner also 
has not explained why there would be job duties involving an "existing program," "client system" 
and "client Training," considering 
the Petitioner's claim that is a new software application 
being developed in-house by the Petitioner. 
The Petitioner's "Project Plan" indicates that the Petitioner has already completed the initial 
research, planning, systems integration, pilot installation, testing, and pilot deployment phases as of 
August 15, 2014, the date the instant petition was filed.3 The completed phases specifically include 
the activities of requirements specifications , market research, project planning, customization and 
integration, and data migration planning. In contrast, the Petitioner asserted in its July 23, 2014 and 
September 19, 2014 letters that the Beneficiary would "[b]e involved in complete software 
Development Life cycle," including performing the duties of "analyzing business requirements and 
understanding the functional work flow information." It is unclear how the Beneficiary could be 
involved in the "complete" software development life cycle and perform preliminary planningduties 
such as analyzing business requirements, when according to the "Project Plan," these and many 
other developmental activities and phases have already been completed by the Petitioner. 
In fact, it is not clear what work remains to be done by the Petitioner on the project, and 
how much of this work would be allocated to the Beneficiary. Notably, the "Project Plan" states that 
"a total project expenditure of 7,120 person hours [is] required to test, evaluate, plan, configure 
screen, query and report features, and install and deploy " The "Project Plan" then 
contains a "Resource Loading Chart" listing "the estimated hours required by month for each person 
on the project." However, this chart indicates that the Petitioner has already completed a total of 
7,112 hours ofwork as of March 2014; there is no explanation as to what additional resources will 
be allocated to the project after March 2014. Moreover , this chart represents that each programmer 
3 The Petitioner 's documents contain varying descriptions of the project 's phases and completion dates. For instance , a 
table entitled "Project Life Cycle and Estimated Completion Dates" in the "Project Plan" lists the following eight 
stages/milestones with their targeted completion dates : (1) Exit the Planning Stage , 01 /25/20 12; (2) Exit the System 
Integration Stage, 08/10 /20 12; (3) Exit the Pilot Installation and Testing Stage , 06/02/20 13; ( 4) Exit the Pilot 
Deployment and Acceptance Stage, 02110/2014; (5) Exit the Pilot Post-Implementation , 10118/2014; (6) Exit the 
Headquarters-wide Implementation Stage, 09/05/2016; (7) Re-engineering and Customization, 11/30/2016; and (8) 
Maintenance and Support, Ongoing. The Petitioner duplicated this table in its September 19, 2014 letter. 
Another table entitled "Master Schedule /Project Deliverables " lists the following stages and completion dates: (I) 
Research and Testing , 12/30/2011 ; (2) Planning , 01 /25/2012 ; (3) System Integration , 08/10/2012; (4) Pilot Installation 
and Testing , 06/02/2013; (5) Pilot Deployment , 02/ 10/2014; (6) Pilot Post Implementation Assessment, 06/22/2016 ; (7) 
Headquarters Wide Implementation , 09/05/2016; and (8) Customization and Enhancements , 11 /30/2016. 
(b)(6)
Matter ofO-IT, Inc. 
analyst position would work, for example, a total of 92 hours per month during the January- March 
2014 period, which is less than full-time employment. 4 Overall, the information found in the 
"Project Plan" raises additional questions as to whether the Beneficiary would be assigned to work 
on the project 
on a full-time basis until July 21,2017, as claimed. 
Finally, the record of proceeding lacks objective, credible documentation corroborating the 
developmental progress reported in the "Project Plan." For instance, the "Project Plan" indicates 
that frequent status reports, including project schedules and technical status reports, will be 
completed as part ofthe project's tracking and control mechanisms. However, no examples of these 
status reports were submitted for the record, despite the Petitioner's commencement of activities on 
the project since late 2011 or early 2012. 5 While the Petitioner submitted a "Market Analysis," this 
document is several years old (apparently having been prepared in 2011) and is not probative 
evidence that the Petitioner has begun substantial work on the project. 6 
Based upon a complete review of the record of proceeding, we find that the Petitioner has not 
sufficiently established that is a bona fide in-house project of the Petitioner, and that the 
Beneficiary would be exclusively assigned to this project, as claimed. Thus, the record of 
proceeding is insufficient to establish: (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. These material omissions preclude a determination that the Petitioner's proffered position 
qualifies as a specialty occupation under the pertinent statutory and regulatory provisions. There is a 
lack of evidence substantiating the Petitioner's claims with regard to the duties, responsibilities and 
requirements of the proffered position. 
For these reasons, the evidence of record does not demonstrate the substantive nature of the duties 
the Beneficiary would perform on that project. That the Petitioner did not establish the substantive 
nature of the work to be performed by the Beneficiary precludes a finding that the proffered position 
is a specialty occupation under any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the 
substantive nature ofthat 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 
4 In its September 19, 2014 document, the Petitioner specifically stated that the Beneficiary would work 40 hours per 
week. 
5 According to the "Resource Loading Chart" and "Master Schedule/Project Deliverables" chart, the Petitioner started 
expending resources on the project in October 2011, and completed the "Research and Testing" phase on December 30, 
2011. 
6 The "Market Analysis" lists the "current year" as 20 II . In addition, contrary to the "Project Plan" indicating that the 
initial research , planning , systems integration, pilot installation , testing , and pilot deployment phases have already been 
completed , the "Market Analysis" states that the product is currently "undergoing market research and initial 
phases of human resource planning and technical design engineering ." 
(b)(6)
Matter ofO-IT, Inc. 
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 Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it 
cannot be found that the proffered position qualifies for classification as a specialty occupation. The 
appeal will be dismissed and the petition denied for this reason. 
III. BENEFICIARY QUALIFICATIONS 
The Director also found that the Beneficiary would not be qualified to perform the duties of the 
proffered position if the job had been determined to be a specialty occupation. 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 evidence of record does not establish that the 
proffered position qualifies for classification as a specialty occupation. Therefore, we need not and 
will not address the Beneficiary's qualifications further, except to briefly note additional deficiencies 
with respect to the submitted evaluations. 
The evaluation from . concludes that the Beneficiary has the 
equivalent of a "Bachelor of Science in General Sciences with a second major in Computer 
Sciences" based on a combination of her education and work experience. However, in accordance 
with the provision at 8 C.F.R. § 214.2(h)(4)(iii)(D) (allowing for "[a]n evaluation of education by a 
reliable credentials evaluation service which specializes in evaluating foreign educational 
credentials"), we accept a credential evaluation service's evaluation of education only, not training 
and/or work experience. 
In addition, the evaluation from Professor , does not 
sufficiently explain the factual basis for his ultimate conclusion that the Beneficiary has the 
equivalent of "at least a Bachelor of Science degree in Computer Information Systems." For 
instance, Professor asserts that the Beneficiary "served in progressively sophisticated and 
responsible positions, together with peers, in both non-managerial and managerial capacities, at a 
level of work experience equal to a Bachelor's-level training" for a period of five years. However, 
Professor does not sufficiently explain and document the source of his information. We 
note that none of the experience letters from or 
contain any information about the educational requirements of the positions in question, or about the 
educational qualifications of the Beneficiary's peers, supervisors, or subordinates. 7 See 8 C.F.R. 
§ 214.2(h)(4)(iii)(D)(5). Moreover, Professor does not sufficiently explain how the 
Beneficiary's work experience, particularly her position as a Process Specialist with duties such as 
"[p]urchasing Launch Coordinator (Change Management) for and 
7 The evidence of record does not support the Petitioner's conclusion that the Beneficiary has "five years of professional 
work experience in Computer Science as a Computer Programmer. " We note that none of the work experience letters 
mention any programming duties . 
(b)(6)
Matter ofO-IT, Inc. 
"[c]ommunicates Cost and Timing Information," amounts to a bachelor's-level training in Computer 
Information Systems. As such, Professor letter contains conclusory statements that are of 
limited evidentiary value. 
We may, in our discretion, use as advisory opmwn statements submitted as expert testimony. 
However, where an opinion is not in accord with other infmmation or is in any way questionable , we 
are not required to accept or may give less weight to that evidence. Matter of Caron International , 
19 I&N Dec. 791 (Comm'r 1988). 
IV. CONCLUSION 
Based upon a complete review of the record of proceeding, we find that the evidence does not 
establish that the proffered position, as described, more likely than not constitutes a specialty 
occupation.8 We also observe deficiencies with respect to the Beneficiary's qualifications to 
perform the duties of the proffered position. Accordingly, the appeal will be dismissed and the 
petition will be denied. 
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; Matter ofOti ende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofO-IT, Inc., ID# 13682 (AAO Oct. 7, 2015) 
8 As this ground of ineligibility is dispositive of the Petitioner 's appeal , we need not addres s any additional issues or 
deficiencies we have noted in the record of proceedin g. 
9