dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 5191164 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 11, 2020 
The Petitioner, a software engineering and consulting company, seeks to temporarily employ the 
Beneficiary as a "technical lead" under the H-lB nonimmigrant classification for specialty occupations. 
See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-IB program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that requires both (a) the theoretical and practical application of a body of 
highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the specific 
specialty ( or its equivalent) as a minimum prerequisite for entry into the position . 
The Director of the California Service Center denied the petition on two separate grounds, concluding 
that the record did not establish that: (1) the submitted labor condition application (LCA) corresponds 
to the H-IB petition; and (2) the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying 
the petition. Upon de nova review , we will dismiss the appeal. 1 
I. LABOR CONDITION APPLICATION 
For the reasons outlined below, we have determined that the Petitioner has not provided an LCA that 
corresponds to and supports the H-lB petition. Specifically, it has not established that it properly 
classified the proffered position as a Level II wage. 
The purpose of the LCA wage requirement is "to protect U.S. workers' wages and eliminate any 
economic incentive or advantage in hiring temporary foreign workers." 2 It also serves to protect H-IB 
workers from wage abuses. A petitioner submits the LCA to the Department of Labor (DOL) to 
demonstrate that it will pay an H-lB worker the higher of either the prevailing wage for the 
occupational classification in the area of employment or the actual wage paid by the employer to other 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
2 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-IB Visas in Specialty 
Occupations and as Fashion Models ; Labor Certification Process for Pe1manent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56). 
employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. 
§ 655.73l(a). While DOL certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) 
determines whether the LCA's content corresponds with the H-lB petition. See 20 C.F.R. 
§ 655.705(b) ("DHS determines whether the petition is supported by an LCA which corresponds with 
the petition, .... "). 
The Director originally denied the petition based, in part, on the LCA. However, while the Director 
based her decision on the physical location of the Beneficiary's employment, we find that basis 
incorrect. In her decision, the Director referenced the Petitioner's document, "Second Amendment to 
The Statement of Work #54," and stated that the document indicates that the address of the end-client 
has changed. On appeal, the Petitioner explains that the address referenced in the document is merely 
an update of the Petitioner's new address and does not change the Beneficiary's intended place of 
employment in the proffered position. In reviewing the documents, we agree with the Petitioner and 
conclude that this basis cited by the Director for the inconsistency in the LCA must be withdrawn. 
Nevertheless, we've determined that the Petitioner's LCA, submitted in support of the instant petition, 
does not correspond to the position proffered here for other reasons. Specifically, the issue is whether 
the Petitioner has selected the correct wage level for the proffered position. To assess whether the 
wage level listed on the LCA corresponds with the proffered position, we apply DOL's guidance, 
which provides a five step process for determining the appropriate wage level. U.S. Dep't of Labor, 
Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration 
Programs (rev. Nov. 2009), available at http://flcdatacenter.com/download/ 
NPWHC_ Guidance_Revised _l 1_2009.pdf. 
DOL guidance states that wage levels should be determined only after selecting the most relevant 
occupational code classification. Then, a prevailing wage determination is made by selecting one of 
four wage levels for an occupation based on a comparison of the employer's job requirements to the 
occupational requirements, including tasks, knowledge, skills, and specific vocational preparation 
( education, training and experience) generally required for acceptable performance in that 
occupation. Factors to be considered when determining the wage level for a position include education 
requirements, experience requirements, complexity of the job duties, as well as the levels of judgment, 
supervision, and understanding required to perform the job duties. 
On the LCA submitted in support of the H-1 B petition, the Petitioner designated the proffered position 
under the occupational category "Software Developers, Applications" corresponding to the Standard 
Occupational Classification (SOC) code 15-1132 at a Level II wage rate. DOL guidance states that a 
Level II ( qualified) wage rate is generally appropriate for positions for which the Petitioner expects 
the Beneficiary to have attained, either through education or experience, a good understanding of the 
occupation, but who will only perform moderately complex tasks that require limited judgment. 3 
In focusing on step 2 of the DOL guidance regarding experience, we note that while the Petitioner 
stated in the record that it requires at least a bachelor's degree, or equivalent, in computer science, 
3 Prevailing Wage Determination Policy Guidance, supra. 
2 
CIS, MIS, engineering (any), or related field, its own internal job advertisements for the position 4 also 
require significant work experience beyond the requirements for a Level II position. For instance, two 
of the "technical lead" job advertisements (one of which is located inl I Florida) require a 
bachelor's degree, or equivalent, in computer science, computer applications, IT, information systems, 
computer information systems, engineering (any), MIS, or any related field"+ 5 years of experience 
with the same or similar job duties but given another designation." The third "technical lead" job 
advertisement requires a master's degree, or equivalent, in computer science, computer applications, 
IT, information systems, computer information systems, engineering (any), MIS, or any related field 
"+ 1 year of experience with same or similar job duties but given another designation." 
First, we note that the Petitioner's requirements for the proffered position appear inconsistent in the 
record. While the Petitioner does not list an experience requirement in its statements, its own internal 
job advertisements clearly indicate there is a significant experience requirements. The Petitioner must 
resolve these inconsistencies with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies may lead 
us to reevaluate the reliability and sufficiency of other evidence submitted in support of the requested 
immigration benefit. Id. 
Next, the Occupational Information Network (O*NET) for "Software Developers, Applications" 
indicates that the occupation is a Job Zone 4, which has a specific vocational preparation (SVP) range 
of 7 < 8. 5 An experience requirement of five years is above the experience and SVP range and would 
result in a three-level increase in the wage level. Further, a requirement of a master's degree would 
also result in an increase in the wage level. Thus, the Petitioner's level II wage rate designation appears 
to have been incorrect. 
In view of the foregoing, the petition cannot be approved for this reason alone. Accordingly, we will 
not disturb the Director's denial of the petition. 
II. SPECIALTY OCCUPATION 
For the reasons set out below, we have determined that the proffered position also does not qualify as 
a specialty occupation. 6 Specifically, we find that two separate factors independently bar approval of 
this petition: (1) the Petitioner's lack of a requirement for a bachelor's degree in a specific specialty, 
or the equivalent; and (2) the Petitioner's failure to satisfy at least one of the four regulatory specialty­
occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). In particular, we find that the 
Petitioner has not established the substantive nature of the position, which precludes a determination 
4 The Petitioner included internal job advertisements for three "technical lead" positions at its company. While two of 
those positions listed a work location ot1 I. the third position listed a work location ofl ,!Florida, which 
is the same location as the position proffered here. We note that the Petitioner submitted these advertisements for our 
consideration under the third specialty-occupation criterion: whether the Petitioner normally requires a bachelor's degree 
in a specific specialty for "the" position. 8 C.F.R. § 214.2(h)(4)(iii)(A)(J). 
5 This SVP is defined as "[o]ver 2 years up to and including 4 years." https://www.onetonline.org/help/online/svp 
6 The Petitioner submitted documentation in support of the H-IB 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. 
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that the proffered position qualifies as a specialty occupation under at least one of the four regulatory 
specialty-occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
A. Lack of a Requirement for a Bachelor's Degree in a Specific Specialty, or the Equivalent 
First, the petition is not approvable because the Petitioner's claimed entry requirement of at least a 
bachelor's degree, or equivalent, in computer science, CIS, MIS, engineering ( any), or related field, 
without more, is inadequate to establish that the proposed position qualifies as a specialty occupation. 
A petitioner must demonstrate that the proffered position requires a precise and specific course of study 
that relates directly and closely to the position in question. According to the Petitioner's statements and 
internal job advertisements, the education requirements for the proffered position include a bachelor's 
degree in "any" field of engineering, with no specific specialty within engineering listed. However, the 
field of engineering is a broad category that covers numerous and various specialties, some of which are 
only related through the basic principles of science and mathematics, e.g., nuclear engineering and 
aerospace engineering. Therefore, it is not readily apparent that 1) a general degree in engineering or one 
of its other sub-specialties, such as chemical engineering or nuclear engineering, is closely related to the 
position of "technical lead" or 2) engineering or any and all engineering specialties are directly related to 
the duties and responsibilities of the particular position proffered in this matter. 
Without more, it cannot be found that the proffered position requires anything more than a general 
bachelor's degree and accordingly it does not qualify under the definition of a specialty occupation. 
B. The Specialty-Occupation Criteria Enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4) 
The Petitioner, which is located in California, states that it will deploy the Beneficiary to an end-client 
location in Florida pursuant to a series of contracts executed between the Petitioner andD 
I I ( end-client). 
We conclude first that the Petitioner has not established the existence of definitive, non-speculative 
employment for the Beneficiary. This is particularly important in a case such as this, where the very 
existence of the proffered position is dependent entirely upon the willingness of an end-client to 
provide it. And if we cannot determine whether the proffered position as described in this petition 
would actually exist then we cannot ascertain its substantive nature, let alone determine whether it is 
a specialty occupation. 
The Petitioner filed this petition in April 2018 and claimed that the Beneficiary would work at the end­
client's Florida location from October 2018 to September 2021. To support that claim the Petitioner 
submitted a contract it executed with the end-client in 2015 and two associated statements of work 
(SOW). The first SOW described a project that ended in December 2017, nearly a year prior to the 
start date requested in this petition. The second SOW, which was characterized as an amendment to 
the first SOW, extended the project's end-date to December 2018. In other words, despite requesting 
36 months of H-lB approval, when it filed this petition the Petitioner had secured, at most, three 
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months of work for the Beneficiary to perform. 7 Moreover, we observe that the initial SOW8 described 
only four roles to be filled at the end-client's worksite, none of which to be the position proffered here, 
and neither SOW mentions the Beneficiary. If we cannot determine whether the proffered position 
will actually exist, then we cannot ascertain its substantive nature so as to determine whether it is a 
specialty occupation. 9 
Even if we were to set the speculative nature of the Petitioner's offer of employment aside, we would 
still be unable to ascertain the substantive nature of the proffered position. For example, while we 
acknowledge the duty-descriptions contained in the letters from the Petitioner and the end-client, we 
observe inconsistencies that raise questions as to whether the two parties share the same understanding 
of the position, which in tum calls into question the actual, substantive nature of the position. For 
example, though the end-client stated that it required a "senior resource" with "strong experience" and 
"advanced skills in web application development," the Petitioner does not appear to have incorporated 
those requirements in the LCA's wage-level designation. If the Petitioner and the end-client do not 
share the same understanding of what is required to perform the duties of the proffered position, then 
we must question whether the Petitioner's H-lB submission accurately reflects what the Beneficiary 
would actually be doing at the end-client's worksite. We question whether the record as it currently 
exists adequately sets forth the position's actual, substantive nature for this reason as well. 
For all of these reasons, we conclude that the Petitioner has not established the substantive nature of 
the work to be performed by the Beneficiary, which therefore precludes a conclusion 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 one; (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 two; (3) the level of complexity or uniqueness of the proffered position, which is 
the focus of the second alternate prong of criterion two; (4) the factual justification for a petitioner 
normally requiring a degree or its equivalent, when that is an issue under criterion three; and ( 5) the 
degree of specialization and complexity of the specific duties, which is the focus of criterion four. 
Therefore, we cannot conclude that the proffered position qualifies for classification as a specialty 
occupation. 
7 Though acknowledged, the third SOW extending the project through December 2019 does not demonstrate the 
Petitioner's eligibility at the time of filing because it was executed in October 2018, nearly six months after this petition 
was filed. 
USCTS 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)(l ). 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 T&N 
Dec. 248, 249 (Reg'l Comm'r 1978). The third SOW executed between the Petitioner and the end-client therefore carries 
little evidentiary weight. 
8 The second SOW was an amendment to the first SOW and did not describe specific roles. 
9 Speculative employment is not permitted in the H-1B program. See, e.g., 63 Fed. Reg. 30419, 30419-20 (proposed June 
4, 1998) (to be codified at 8 C.F.R. pt. 214). 
5 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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