dismissed H-1B Case: Software Engineering

(b)(6)
JUN 3 0 2015 
DATE: 
IN RE : Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizen ship and Immigration Services 
Administrativ e Appeals Oftice 
20 Massachu setts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION : Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act , 8 U.S.C. § 110l(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case , you may file a motion requesting us to reconsid er our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103 .5. 
Motions must be filed on a Notic e of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form 1-2908 web page (www.uscis .gov/i-290b) contains the latest information on fee , filing 
location, and other requirements. Please do not mail any motions directly to the AAO . 
Thank you , 
Ron Rosenberg 
Chief , Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. PROCEDURALBACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
300-employee "Retail Merchandising Service" firm established in In order to continue to 
employ the beneficiary in what it designates as a "Software Engineer" position, the petitioner seeks 
to classify him as a nonimmigrant worker in a specialty occupation pursuant to section 
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 denied the petition, finding the evidence insufficient to establish that the proffered 
position qualifies for classification as a specialty occupation position. On appeal, the petitioner 
asserts that the Director's basis for denial was 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. 
1 
II. THE PROFFERED POSITION 
The petitioner claims in the Labor Condition Application submitted to support the visa petition that 
the proffered position corresponds to Standard Occupational Classification (SOC) code and title 15-
1133, Software Developers, Applications, from the Occupational Information Network (O*NET). 
In a letter dated July 17, 2013, who is identified elsewhere in the record as 
the petitioner's CFO, provided the following list of the duties ofthe proffered position: 
• Modifying existing software to correct errors, to adapt it to new hardware or to 
upgrade interfaces and improve performance . 
• Designing and developing software systems, using scientific analysis and 
mathematical models to predict and measure outcome and consequences of 
design. 
1 We conduct appellate review on a de novo basis. See Soltan e v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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• Consulting with engineering staff to evaluate between hardware and software, 
develop specifications and performance requirements and resolve customer 
problems. 
• Analyzing information to determine, recommend and plan installation of a new 
system or modification to an existing system. 
• Developing software system testing and validation procedures. 
• Directing software programming and development of documentation. 
• Consulting with customers or other departments on project status, proposals and 
technical issues such as software system design and maintenance. 
• Advising customer about, or performing maintenance of software system. 
• Coordinating 
installation of a software system . 
• Monitoring functioning of equipment to ensure system operates in conformance 
with specifications. 
Ms. stated that the proffered position requires a bachelor's degree in computer information 
systems or a related field and "3+ years" of experience. 
III. SPECIALTY OCCUPATION 
The issue is whether the evidence of record establishes that the petitioner will employ the 
beneficiary in a specialty occupation position. 
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 
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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.P.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 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.P.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.P.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. See K 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.P.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.P.R. § 214.2(h)(4)(iii)(A) but not the statutory 
or regulatory definition. See Defensor v. Meissner, 201 P.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.P.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.P.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.P.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. Cherto.IJ, 484 P.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement 
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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-lB 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 
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 find that despite the service center's request for additional evidence documenting the work to be 
performed by the beneficiary, the record is devoid of substantial documentary evidence as to the 
specific duties of the proffered position. Given the lack of detail and corroborating evidence, we 
cannot determine that the proffered position reflects the duties of a software engineer. 
The chief evidence of the duties the beneficiary would perform is the duty description provided by 
Ms. However, the evidence in the record, including that duty description, does not 
sufficiently establish the substantive nature of the duties of the proffered position. Many of the 
duties Ms. Bennett describes appear to have been copied, with only minor changes, from the 
O*NET description of the duties of "Software Developers , Applications" at 
http://www.onetonline.org/link/summary /15-1132.00, which states: 
Modify existing software to correct erJ'Qrs, allow it to adapt to new hardware, or to 
improve its performance . 
Develop and direct software system testing and validation procedures, programming , 
and documentation. 
Confer with systems analysts, engineers, programmers and others to design system 
and to obtain information on project limitations and capabilities , performance 
requirements and interfaces. 
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Analyze user needs and software requirements to determine feasibility of design 
within time and cost constraints. 
Design, develop and modify software systems, using scientific analysis and 
mathematical models to predict and measure outcome and consequences of design. 
Store, retrieve, and manipulate data for analysis of system capabilities and 
requirements. 
Consult with customers about software system design and maintenance. 
Supervise the work of programmers, technologists and technicians and other 
engineering and scientific personnel. 
Coordinate software system installation and monitor equipment functioning to ensure 
specifications are met. 
Obtain and evaluate information on factors such as reporting formats required, costs, 
and security needs to determine hardware configuration. 
Determine system performance standards. 
This type of generalized description may be appropriate when defining the range of duties that may 
be performed within an occupational category , but it does not adequately convey the substantive 
work that the beneficiary will perform within the petitioner's business operations and, thus, 
generally cannot be relied upon by a petitioner when discussing the duties attached to specific H-lB 
employment. In establishing a position as a specialty occupation , a petitioner must describe the 
specific duties and responsibilities to be performed by a beneficiary in the context of its business 
operations , as well as demonstrate a legitimate need for such an employee exists, and substantiate 
that it has H-lB caliber work for the beneficiary for the period of employment requested in the 
petition. The petitioner has not done so here. 
Moreover, the record contains insufficient evidence of the petitioner's business operations and the 
software services it provides. The petitioner has repeatedly stated that it "suppl[ies] software 
solutions in conjunction with in-store personnel to manage retail planograms for marketing services 
. . . [and] works to provide modern solutions to retail and marketing issues by creating GIS 
(Geographic Information Systems) software to map the layout of retail merchandise within a store." 
However, the petitioner has not provided any further explanation, corroborated by documentary 
evidence, detailing its GIS and other software solutions. 
In the RFE issued on January 28, 2014, the service center stated, inter alia: "You have indicated 
that the beneficiary will be working on a project at your location. However, the record does not 
contain evidence documenting the project to which the beneficiary will be assigned." The service 
center requested , inter alia: "Provide evidence that you have specialty occupation work available 
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for the entire requested H-1B validity period." While the petitioner responded with evidence such as 
a copy of its lease and a list of its employees, the response did not include evidence corroborating its 
claim that it has specialty occupation work for the beneficiary to perform throughout the period of 
requested employment. For instance, the petitioner did not provide evidence sufficient to show that 
it has contracts for the provision of software engineering services throughout the period ofrequested 
employment. The record contains insufficient indication that the petitioner has in-house projects 
that require the performance of those duties or that other companies have contracted with the 
petitioner for the performance of such duties. In addition, failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 
103.2(b)(14). 
Finally, the petitioner's job description lacks sufficient detail to establish the associated application of 
specialized knowledge that its actual performance would require within the context of the petitioner's 
particular business operations. Merely claiming that the position requires a bachelor's degree in 
computer information systems (or related fields), without more, is insufficient to establish that the 
position requires the "theoretical and practical application of a body of highly specialized 
knowledge" to perform these claimed duties. See INA § 214(i)( I). Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting · the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
Thus, the record, as presently constituted, precludes a determination that the duties of the proffered 
position are those of a software engineer. There is insufficient basis upon which it can be determined 
that the petitioner has demonstrated a need for a software engineer and that the beneficiary will be 
performing the claimed duties of a software engineer. 
USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.F.R. 103.2(b)(1) and 103.2(b)(l2). The failure to 
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 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. 
As the evidence of record is devoid of sufficient, credible evidence of the actual job duties the 
beneficiary will perform, it does not demonstrate that the proffered position more likely than not 
requires a bachelor's or higher degree in a specific specialty or its equivalent as a minimum for entry. 
See INA § 214(i)(l ). Thus, the petitioner has not met its burden of proof in this regard, and, therefore, 
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it cannot be found thatthe proffered position qualifies as a specialty occupation. The appeal will be 
dismissed and the petition denied for this reason. 
IV. CONCLUSION 
We recognize that this is an extension petition . The Director's decision does not indicate whether 
she reviewed the prior approvals of the previous nonimmigrant petitions filed on behalf of the 
beneficiary. If the previous nonimmigrant petitions were approved despite the same unsupported 
assertions and evidentiary deficiencies that are contained in the current record, those approvals 
would constitute material and gross error on the part of the Director. 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, e.g. Matter of Church Scientology International , 19 
I&N Dec. 593, 597 (Comm. 1988). It would be "absurd to suggest that [USCIS] or any agency must 
treat acknowledged errors as binding precedent." Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 
1090 (6th Cir. 1987), cert. denied , 485 U.S. 1008 (1988). A prior approval does not compel the 
approval of a subsequent petition or relieve the petitioner of its burden to provide sufficient 
documentation to establish current eligibility for the benefit sought. 55 Fed. Reg. 2606, 2612 (Jan. 
26, 1990). A prior approval also does not preclude USCIS from denying an extension of an original 
visa petition based on a reassessment of eligibility for the benefit sought. See Texas A&M Univ. v. 
Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Furthermore, our authority over 
the service centers is comparable to the relationship between a court of appeals and a district court. 
Even if a service center director had approved nonimmigrant petitions on behalf of a beneficiary, we 
would not be bound to follow the contradictory decision of a service center. Louisiana Philharmonic 
Orchestra v. INS, 2000 WL 282785 (E.D. La.), ajj'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 
S.Ct. 51 (2001). 
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 ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.