dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
InRe : 6551160 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 23, 2020 
The Petitioner , a crowdsourcing services company, seeks to temporarily employ the Beneficiary as a 
"software engineer" 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. § l 10l(a)(l5)(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 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, concluding that the evidence of 
record does not establish that the proffered position qualifies as a specialty occupation. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § l 184(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: 
( 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 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 construe 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"). 
II. PROFFERED POSITION 
The Petitioner, a crowdsourcing services company, stated that the Beneficiary will serve as an in-house 
"software engineer." The Petitioner initially described the duties of the proffered position as follows: 
• Develop, implement, and maintain software solutions 
• Actively participate in every aspect of the software development process from 
ideation to launch; 
• Frequently communicate and cooperate with cross-functional teams to ensure 
that all stages run smoothly until the product is launched; 
• Develop a high-quality, maintainable, and well-tested software; 
• Keep up with the latest technology and information; 
• Analyze user requirements, define problems, review software requirements, 
and propose technical solutions; 
• Document and demonstrate solutions by developing technical documentation, 
flowcharts, layouts, diagrams, charts, code comments and clear code 
• Conduct code review; 
• Work collaboratively on new software features and product offerings; and Use 
best practices at every stage of the software development cycle; emphasis on 
good test coverage, code review, continuous integration and rapid deployment. 
In response to the Director's request for evidence (RFE), the Petitioner repeated those duties, and 
provided additional details as well as comments regarding the educational coursework that related to 
each stated duty. For the sake of brevity, we will not quote the description; however, we note that we 
have closely reviewed and considered the duties. According to the Petitioner, the proffered position 
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requires at least a bachelor's degree in computer science, computer engineering, or a closely related 
field. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 1 
For H-lB approval, the Petitioner must demonstrate a legitimate need for an employee exists and 
substantiate that it has H-lB 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 
engineer. However, 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-lB employment period. 
In a letter in support of the petition, the Petitioner stated that it is the creator ofl I an innovative 
online platform for providing employee placement services for technology workers worldwide, and 
noted that "prominent technology startup companies have used the platform to meet their hiring 
needs." The Petitioner described the proposed position in broad and general terms and stated that the 
Beneficiary "will develop software solutions by studying information needs." It did not, however, 
explain whether the Beneficiary's duties would encompass work on thel I platform. 
In response to the RFE, the Petitioner stated that it "recently pivoted its business direction to a 
revolutionary mobile app,I I which allows users to take photos of their food adventures .... " 
The Petitioner indicated that its software engineers were working "on projects to build software 
features" for the I I app. However, no further mention of this application, and the Beneficiary's 
role in its development, was provided. Moreover, there was no discussion of any other projects upon 
which the Beneficiary would work, and there was no further reference to the I I platform 
discussed in the initial support letter. The Petitioner did not specifically correlate the listed duties to 
these projects or any other specific project. 
Furthermore, the Petitioner described the position in terms of generic functions that do not convey 
sufficient substantive information to establish the relative complexity, uniqueness, and/or specialization 
of the proffered position or its duties. The abstract level of information provided about the proffered 
position and its constituent duties does not provide sufficient insight into the Beneficiary's actual duties, 
1 The Petitioner submitted documentation to suppmt the H-lB 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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nor does it include details regarding the specific tasks that the Beneficiary will perform as they relate to 
any particular project. The statements also do not demonstrate how the performance of these duties, as 
described in the record, would require the attainment of a bachelor's or higher degree in a specific 
specialty, or its equivalent. 
Further, the Petitioner does not discuss the nature of the proposed position on appeal. The Petitioner 
identified the proffered position on the Form I-129, Petition for a Nonimmigrant Worker, as a software 
engineer. On the labor condition application (LCA) 2 submitted in support of the H-lB petition, the 
Petitioner designated the proffered position under the occupational category "Software Developers, 
Applications," corresponding to the Standard Occupational Classification code 15-1132. On appeal, 
the Petitioner simply maintains that this occupation generally qualifies as a specialty occupation, and 
provides no further insight on the nature of the Beneficiary's specific role within the Petitioner's 
organization as it relates to any current or future projects. The duties as described are so general that 
they provide little insight into the Beneficiary's day-to-day tasks. This, we are unable to ascertain the 
nature and level of responsibility of the proposed position, including whether the duties as generally 
described correspond to the occupation designated on the LCA. 
Overall, 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 sufiiciently concrete and 
informative to demonstrate that the proffered position requires a specialty occupation's level of 
knowledge in a specific specialty. The position as described does 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 of knowledge in a specific 
specialty. 
The expert opinion letter authored bli I I Associate Professor of Computer Science and 
lnformalon Systr a~University, does not satisfy the Petitioner's burden, either. In his 
letter, Dr (1) describes the credentials that he asserts qualify him to opine upon the nature of the 
proffered position; (2) lists the duties proposed for the Beneficiary; and (3) states that these duties require 
at least a bachelor's degree, or its equivalent, in computer science, compute! engineying, computer 
information systems, or a closely related field. We carefully evaluated Dr. s assertions in 
support of the instant petition but find them insufficient. 
First, Dr.I I states that his assessment is basld upon j description provided by the Petitioner of 
the company and the proffered position. While Dr. provides a brief: general description of the 
Petitioner's business activities, he does not demonstrate in-depth knowledge of its operations or how 
the duties of the position would actually be performed in the context of its business enterprise. 
Second, Dr. I I states that he reviewed the duties of the proffered position provided by the 
Petitioner and concluded that that "it would be impractical to employ a candidate who lacks a suitable 
quantitative educational background in computer science, computer engineering, computer information 
2 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B 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 employees with similar duties, experience and qualifications who are performing the same services. See Section 
212(n)(l) of the Act; 20 C.F.R. § 655.73l(a). 
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systems, or related." However, while Dr.I I listed the duties provided by the Petitioner in his 
letter, he did not discuss the specifics of the particular tasks upon which the Beneficiary would work 
in meaningful detail. For example, while we appreciate his discussion of the generic duties provided 
by the Petitioner and the academic courses completed by the Beneficiary, that description still falls 
short of providing a meaningful discussion of what the Beneficiary would actually do in the proffered 
position and how those duties actually require the theoretical and practical application of a body of 
highly specialized knowledge. In addition, Dr.c::==J.g_oes not discuss the duties of the position as 
they would relate to the I I platform, the L__j application, or any other existing project 
requiring the services of the Beneficia1 as a software engineer. As such, we conclude that the 
Petitioner has not demonstrated that Dr. !adequately assessed the nature of the position and 
appropriately determined parallel positions based upon the job duties and level of responsibilities. 
We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of 
Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not in accord 
with other information or is in any way questionable, we are not required to accept or may give less 
weight to that evidence. Id. For the reasons discussed, we find that Dr.I ts opinion letter lends 
little probative value to the matter here. 
The record contains no evidence of a definitive project upon which the Beneficiary would work. The 
Petitioner's desrption1 0 f the proposed duties are not described within the context of thtj I 
platform or the application, and there is no evidence that additional software products are 
being developed for which the Petitioner has a market for any future applications or platforms. 3 The 
Petitioner does not submit any other evidence corroborating that it has actual work for the Beneficiary 
to perform. Accordingly, the record does not establish that the Petitioner had secured work for the 
Beneficiary at the time of filing the petition. 4 The Petitioner must establish eligibility at the time of 
filing the 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 the 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). 
As a result, the Petitioner has not established the substantive nature of the work that the Beneficiary will 
perform. 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 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 
3 We note the Petitioner's submission of documents from the U.S. Patent and Trademark Office (USPTO) evidencing its 
filing of trademark applications for I I as well as the associated design mark. However, a review of USPTO 
records demonstrates that the Petitioner assigned the ownership of those registered trademarks tol , June 
2019. See https://assignment.uspto.gov/trademark/index.html#/trademark/search/resultAssignment'A (last 
visited Apr. 17, 2020). It is unclear if the Petitioner is related or affiliated to I I Nevertheless, it appears that the 
Petitioner has assigned its rights, title and interest in thel laprcatio1 to a separate legal entity, thus raising additional 
questions regarding the proposed work for the Beneficiary on the application. 
4 Speculative employment is not permitted in the H-lB program. See, e.g., 63 Fed. Reg. 30,419, 30,419-20 (proposed 
June 4, 1998)(to be codified at 8 C.F.R. pt. 214). 
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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. 
Upon review of the totality of the evidence submitted, the Petitioner has not established that more likely 
than not, the proffered position is a specialty occupation under any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). Moreover, the record does not establish that the Petitioner satisfied the statutory or 
regulatory definition of specialty occupation. 
IV. CONCLUSION 
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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