dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY27,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer consulting firm, seeks to temporarily employ the Beneficiary as a 
"software engineer" under the H-lB nonimmigrant dassification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-lB 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 ofhighly 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 California Service Center denied the petition, conduding that the evidence of 
record does not establish that the proffered position is a specialty occupation. 
On appeal, the Petitioner asserts that the Director erred in the decision. Upon de novo review, we 
will dismiss the appeal. 
I. 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) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
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Matter of A-S-, Inc. 
(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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed 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 "); Defensor v. Meissner , 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H -1 B petition, the Petitioner stated that the Beneficiary will serve as a "software engineer." In 
addition, the Petitioner stated that the Beneficiary would work at m 
Florida. 
Thereafter , in response to the Director's request for evidence (RFE), the Petitioner stated that the 
Beneficiary "is assigned to work on a project for [hereinafter which will be 
performed at our office premises." In addition, the Petitioner provided the following job duties for 
the position: 
Analysis: 30% of the time 
• Determine operational feasibility by evaluating analysis , problem definition, 
requirements, solution development , and proposed solutions 
• Analyzing requirements 
• Determining technical approach and technical design 
• Determining effort and providing deliverable dates for projects and 
enhancement requests 
• Researching and prototyping new technologies and providing 
recommendations for application improvement 
• Documenting product functionality 
• Understand and implement the requirements without overshooting the 
deadlines 
• Identifying the limitations and analyze alternative ways to address 
requirements and recommend the most effective and efficient solution 
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Matter of A-S-, Inc. 
Development and Design: 50% of the time 
• Develop and Implement Backup rate improvement plan and help the team to 
achieve the Backup Success Rate of99.9% 
• Planning, scheduling and coordinating activities related to the system 
development project 
• Handle escalated and high priority issues related to backups and restore 
• Work on Git Hub to maintain the repository and use the Version Control to 
track checkins and rollback code 
• Supervise the TSM Housekeeping Task and sure they are working as per 
design 
• Consulting and monitoring technical resources concermng methods, 
procedures, and standards to be used during design, development, and unit 
testing phases of system development projects 
• Document and demonstrate solutions by developing documentation, 
flowcharts, layouts, diagrams, charts, code comments and clear code 
• Prepare and install solutions by determining and designing system 
applications, standards 
• Develop software solutions by studying information needs; conferring with 
users; studying systems flow, data usage, and work processes; investigating 
problem areas; following the software development lifecycle 
• Product specifications and determine operational feasibility 
• Integrate software components into a fully functional software system 
• Pevelop software verification plans and quality assurance procedures 
• Document and maintain software functionality 
• Tailor and deploy software tools, processes and metrics 
• Work from specifications drawn up by software developers or other IT 
professionals 
• Designing technical specifications, developing and maintain middle tier, 
analyzing and trouble shooting 
• Coordinate project deliverables with project team including requirements 
definition, application design, development and testing 
• Development and performance improvement through code fix and testing on 
existing applications 
Testing: 20% of the time 
• Conduct trail runs of programs and software applications to be sure they will 
produce the desired information and that the instructions are correct 
• Create, modify and test the code, forms and script that allow computer 
applications to run 
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Matter of A-S-, Inc. 
Miscellaneous: as needed 
• Supporting QA and deployment activities 
• Troubleshooting production defects 
According to the Petitioner, the position requires a bachelor's degree in computer science, 
engineering, computer information systems , infom1ation technology, technology , computer 
applications, or a related quantitative discipline. 
Ill. ANALYSIS 
For the reasons set out below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. Specifically, the record ( 1) does not describe 
the position's duties with sufficient detail; and (2) does not establish that the job duties require an 
educational background, or its equivalent, commensurate with a specialty occupation. 
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A. Job Location 
As a preliminary matter, we find that the Petitioner has provided inconsistent information regarding 
the Beneficiary's place of employment. For instance, the Petitioner provided the following 
information on the H-1 B petition: 2 
3. Adch·ess where the benetkiary(ies) will work if different tl-01n address in Part 1. 
Street Ntunber and Name Apr. Ste. Fir. c_N..,..· tu.:..-n_b~ei_· ~~~~-.,......, 
D fXl L_l · 
State 
4. Did you include an itinermy with the petition? 
5. Will the beneticiary(ies) work for you otT-site at another company or organization's location? 
1. The beneficiaty of this petition will be assigned 1.0 work at an off-silt> locariou for all or pan of the. 
period for which H-IB cbssificatiou sought. 
If no. do not complete Item Numbers 2. and 3. 
2. Placemenr of the beneficimy off-site during the period of employment will comply with the statutory 
and regu.latoty requirement s of the H-1 B nonimmigrant classification. 
3. The benei1cimy will be paid the higher of the prevailing or actual wage at any and all off-site locations. 
:....., ___ . 
ZIP Code 
[8] Yes i No 
[8] Yes 'i No 
[8' Yes [-] No 
[8] Yes 0No 
1 The Petitioner submitted documentation in support of the H-I B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
2 Although the Petitioner indicated that it included an itinerary with the initial filing, we observe the Petitioner did not 
include an itinerary until it responded to the RFE. 
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Matter of A-S-, Inc. 
As noted above, the Petitioner initially stated that the Beneficiary would work off-site in 
Florida .. 
The Petitioner also provided a labor condition application (LCA) with the H-1 B petition , which lists 
the Beneficiary ' s place of employment as m New Jersey (the 
Petitioner's business address), and Florida. 
In response 
to the RFE, the Petitioner stated the following: 
The Beneficiary is assigned to work on a project for [hereinafter 
which will be performed at our office premises. We included office location 
in the LCA in the rare event the Beneficiary needs to visit the Client for on-site 
implementation or on-site training of the program. 
As the submitted petition, the certified [LCA] ETA Form 9035 and the letter from the 
client , all state that the Beneficiary will be working at our office premises located at 
NJ As we have many of our 
employees assigned to this project, a decision was made by our Company and the 
client to have all the employees work from our office location. We did include the 
client's address as well in the [LCA] and the petition in the event the Beneficiary had 
to visit the client to do some on site implementation and train the client's employees 
on the new program. 
However, on appeal, the Petitioner provides the following explanation: 
At the time of filing, it was determined that the Petitioner's employees would be 
working at the location. However with the number of petitions which were 
accepted for processing and subsequently approved, the client and the Petitioner 
determined that it would be more beneficial for the Petitioner to have all of this 
employees assigned to this project work from the Petitioner ' s office instead of the 
location. 
The Petitioner did not provide an explanation for the reason its response in the RFE is inconsistent 
with its statement on appeal as to the Beneficiary ' s work site location. 
B. Job Description 
In addition , a crucial aspect of this matter is whether the Petitioner has sufliciently described the 
duties of the proffered position such that we may discern the nature of the position and whether the 
position actually requires the theoretical and practical application of a body of highly specialized 
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Matter of A-S-, Inc. 
knowledge attained through at least a baccalaureate degree in a specific discipline. We find that the 
Petitioner has not done so. 
For example, the Petitioner's job description submitted in response to the RFE is recited virtually 
verbatim from Occupational Information Network (O*NET) OnLine Summary Report's list of 
duties associated with a computer programmer 3 and job postings found on the Internet for java 
developers. Providing job duties for a profiered position from O*NET or other Internet source is 
generally not sufficient for establishing H-1 B eligibility. That is, while this type of description may 
be appropriate when defining the range of duties that may be performed within an occupational 
category, it cannot be relied upon by the Petitioner when discussing the duties attached to specific 
employment for H-1B approval as this type of generic description fails to adequately convey the 
substantive work that the Beneficiary will perform on a day-to-day basis. In establishing a position 
as qualifying 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, 
demonstrate that a legitimate need for an employee exists, and substantiate that it has H-1B caliber 
work for the beneficiary for the period of employment requested in the petition. 
Furthermore, although the Petitioner provides a number of service agreements and statements of 
work (SOWs) between itself and various clients. the Petitioner has not specifically explained the 
duties and role of the proffered position in the context of any of these projects. That is, the 
Beneficiary's name and job title are not mentioned in these documents. We must review the actual 
duties the Beneficiary will be expected to perform to ascertain whether those duties require at least a 
baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a 
specialty occupation. To accomplish that task in this matter, we must analyze the actual duties in 
conjunction with the specific project(s) to which the Beneficiary will be assigned. To allow 
otherwise, results in generic descriptions of duties that, while they may appear (in some instances) to 
comprise the duties of a specialty occupation, are not related to any actual services the Beneficiary is 
expected to provide. 
Moreover, the SOWs indicate that the services will end prior to the end of the requested H-1 B 
validity period. A petition must be filed for non-speculative work for the Beneficiary, for the entire 
period requested, that existed as of the time of the petition's filing. Our regulations affirmatively 
require a petitioner to establish eligibility for the benefit it is seeking at the time the petition is tiled. 
See 8 C.F .R. § 103 .2(b )(1 ). A visa petition may not be approved based on speculation of future 
eligibility or after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter 
of Michelin Tire Corp., 17 I&N Dec. 248. 
Here, the Petitioner has not provided sufficient details regarding the nature and scope of the 
Beneficiary's employment or substantive evidence regarding the actual work that the Beneficiary 
would perform. Without a meaningful job description, the record lacks evidence sufficiently 
3 
For additional information, see O*NET OnLine, available at https://www.onetonline.org/link/summary/15-1131.00 
· (last visited July 26, 20 17). 
Matter of A-S-, Inc. 
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 or specialization of 
the tasks; or (3) the correlation between that work and a need for a particular level of knowledge in a 
specific specialty. 
As the Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, this 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 ( 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. 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
IV. BENEFICIARY'S QUALIFICATIONS 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need 
not fully address other issues evident in the record. That said, we wish to identify an additional issue 
to inform the Petitioner that this matter should be addressed in any future proceedings. 5 
Specifically, the Petitioner did not submit an evaluation of the Beneficiary's foreign degree or 
sufficient evidence to establish that her degree is equivalent tci a U.S. bachelor's degree in a specific 
specialty. As such, since evidence was not presented that the Beneficiary has at least a U.S. 
4 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels) in the 
LCA. The "Prevailing Wage Determination Policy Guidance" issued by the U.S. Department of Labor provides a 
description of the wage levels. A Levell wage rate is generally appropriate for positions for which the Petitioner expects 
the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that the Beneficiary will 
be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she will be closely 
supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive specific instructions 
on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination 
Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http:/ ltlcdatacenter.com/down load/NPWHC _ Guidance_ Revised _II_ 2009 .pdf 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. /d. 
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In reviewing a matter de novo, we may identifY additional issues not addressed in the Director's decision. See Spencer 
Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003) 
("The AAO may deny an application or petition on a ground not identified by the Service Center."). 
Matter of A-S-, Inc. 
bachelor's degree in a specific specialty, or its equivalent, the petition could not be approved even if 
eligibility for the benefit sought had been otherwise established. 
V. CONCLUSION 
For the reasons discussed above, the Petitioner has not established eligibility for the benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-S-, Inc., ID# 547251 (AAO July 27, 2017) 
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