dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 6254343 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 28, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "software engineer" under the H-IB 
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 California Service Center Director denied the petition, concluding that the record did not establish 
that the Petitioner will have specialty occupation work available for the Beneficiary throughout the 
intended employment period and 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. 1 
The Administrative Appeals Office (AAO) reviews the questions in this matter de nova. 2 Upon de 
nova 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; 
1 Section 291 of the Act; Matter ofChawathe, 25 I&N Dec. 369, 375 (AAO 2010) . 
2 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015) . 
(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. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, the Petitioner has not 
demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the record 
does not include sufficient consistent, probative evidence of the existence of specialty occupation work 
when the petition was filed. The Petitioner also has not demonstrated the substantive nature of the 
proffered position and has not established that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 
A. Availability of Specialty Occupation Work 
We conclude first that the Petitioner has not established the existence of definitive, non-speculative 
employment for the Beneficiary. The record lacks sufficient evidence of the services the Beneficiary 
will perform for the requested employment period. Section 10l(a)(l5)(H)(i)(b) of the Act, 8 U.S.C. 
§ 1101(a)(l5)(H)(i)(b), classifies an H-lB nonimmigrant as a foreign national "who is coming 
temporarily to the United States to perform services ... in a specialty occupation." See 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). Without establishing what work has actually been secured for a beneficiary at 
the time of filing, a petitioner is precluded from proving that those services would in fact be in a 
specialty occupation, as required. The Petitioner must establish that all eligibility requirements for the 
immigration benefit have been satisfied from the time of filing and continuing through adjudication. 
8 C.F .R. § 103 .2(b )( 1 ). A petition may not be approved at a future date after a petitioner or beneficiary 
becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Comm'r 1978). 
The Petitioner, an information technology (IT) consulting company, located in Minnesota, filed this 
petition in April 2018 for the Beneficiary to work as a software engineer from October 1, 2018 to 
September 20, 2021. The Petitioner indicated on the Form 1-129, Petition for a N onimmigrant Worker, 
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that the Beneficiary will work off site. On the labor condition application (LCA) 3 submitted in support 
of the H-lB petition, the Petitioner identified the Beneficiary's work location as inl I Texas. 4 
The Petitioner initially did not identify the end-client but provided information that appears to show a 
contractual chain__:r fo))ows· Petitioner ~I _ I (first vendor) ~I I 
(second vendor) .__ ______ ____.(end-client).) 
To support its claim of proposed work, the Petitioner submitted: (1) its June 30, 2017 sub supplier 
agreement with the first vendor; (2) a purchase order signed by the first and second vendors for the 
Beneficiary's services 6 for the end-client; and (3) a June 29, 2017 sub supplier agreement between the 
first and second vendors. 7 These documents do not establish that the Petitioner has work for the 
Beneficiary to perform during the requested employment period. Additionally, both the agreement 
between the Petitioner and the first vendor and the agreement between the first and second vendor 
state that the "[ s ]upplier will not under any circumstances permit their Personnel to start any 
assignment with Client without written Authorization from Vendor." The record does not include 
written authorization or any documentation from the first and second vendors other than the 
out-of-date purchase orders and the two sub supplier agreements submitted for the record. The record 
does not include any agreements currently connecting the Petitioner to the end-client and legally 
obligating the end-client or the vendors to provide work for the Beneficiary to perform during the 
requested employment period. 
The Petitioner also submitted two letters on the letterhead of the claimed end-client. 8 These letters 
also do not establish that the end-client is legally obligated to provide work for the Beneficiary to 
perform. The letter initially submitted is dated March 28, 2018 and indicates that the Beneficiary will 
assist with multiple projects and that the expected length of the project is until December 2018 with a 
high possibility of multi year extensions. The second letter, dated January 4, 2019 and submitted in 
response to the Director's request for evidence (RFE), provides the exact same information as the first 
letter except that it indicates that the expected length of the project is until December 2020 with a high 
possibility of extensions. Again, the record does not include documentary evidence corroborating the 
existence of this claimed work. Although both the letters include the same list of five undefined 
projects, the record does not include evidence of the stage of these projects, the resources needed to 
complete the projects, or any evidence substantiating the continuing nature of these projects. 
Moreover, these letters are signed by the "Manager IT Sys Analyst Service Level Owner -i I 
I I" The record does not include any evidence that this individual has authority to legally obligate 
3 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 experience and qualifications who are performing the same services. Section 2 l 2(n)(l) 
ofthe Act; 20 C.F.R. § 655.73l(a). 
4 The record includes information indicating that the Beneficiary will work at her home office ire=] Texas. 
5 The documentation submitted shows that this contractual chain existed at some point but it is not clear if the entities 
continue to have this contractual relationship. The record does not include current agreements, statements of work, or 
purchase orders to establish this contractual chain. 
6 The purchase order indicates the services would begin July 1, 2017 and end September 30, 2017. 
7 The record also included a purchase order signed by the first and second vendors for the Beneficiary's services for a 
two-month period in 2015. 
8 The end-client letter indicates that the Beneficiary's services will be used at one of its divisions ~I ~ located in 
I !Massachusetts. 
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the end-client to provide work for the Beneficiary. The complete lack of contractual evidence, such 
as an agreement, statement of work, or purchase order, corroborating the ongoing claimed projects 
undermines the credibility of the letters. Further, the lack of contractual documentation limits our 
review of the restrictions and obligations between the vendor(s) and the end-client regarding the 
augmentation of staff or provision of services and any effect on a legal obligation to provide work for 
the Beneficiary to perform. 
There is insufficient evidence of a binding obligation on the part of the end-client to provide work for 
the Beneficiary, let alone work of specialty occupation caliber, lasting through the end of the requested 
validity period. As the record does not include probative evidence corroborating the availability of 
work, the record does not establish the existence of a definite, non-speculative specialty occupation 
position for the Beneficiary. 9 
Setting aside this foundational deficiency, the record here also does not include probative evidence of 
the substantive nature of the claimed work and does not establish that any such work will be H-lB 
caliber work. 
B. Nature of the Position 
On the certified LCA, the Petitioner designated the proffered position under the occupational category 
"Software Developer, Applications" corresponding to the Standard Occupational Classification (SOC) 
code 15-1132, at a Level I wage. However, the Petitioner does not provide a description of the 
Beneficiary's proposed day-to-day duties but primarily describes the tools that would be used in a 
technology position. 1 ° For example, the Petitioner indicated that the Beneficiary, in part, would "[ u] se 
Oracle llg as backend Database, [u]se SQL statements and procedure [sic] fetch the data from the 
database," and had "[u]sed hibernate for accessing database and mapping the entities by using 
hibernate annotations," and was "[i]nvolved" in writing complex SQL query, in SQL performance 
tuning, in writing Spring Configuration XML using IOC pattern, in bug fixing of various modules, 
and in creating various Data Access Objects. 11 This jargon-laden description provides little insight 
into the actual position so that we may 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. 
The Petitioner does not detail the proposed duties in relation to any claimed project. 12 Without the 
context of a specific project, it is not clear whether the duties will be the duties of a wage Level I 
9 Cf Galaxy Software Solutions, Inc. v. USCIS, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30. 2019) 
( describing the petitioner's "fail[ ure] to provide all of the contracts governing the relationships between the corporate 
entities in the chain" as a "material gap"). See also Altair ProductDesign, Inc. v. DHS, No. 18-13493, 18-13967, 2019 
WL 5394998. at *4 (E.D. Mich. Oct.22.2019) (in the absence of contracts, service agreements, work orders. statements 
of work, etc., the record did not establish the actual work to be completed and that the beneficiaries would perform services 
in a specialty occupation). 
10 The end-client letters use the same bullet-point description of tasks. 
11 Many of the tasks and use of tools are described in the past tense suggesting that these tasks have already been performed. 
Past tasks are not evidence of what duties the Beneficiary will be expected to perform in the proposed position or in relation 
to any particular project(s). 
12 The end-client letters indicate that the Beneficiary will assist with providing a proven COTS-based functioning D 
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"Software Developer, Applications" position, as designated on the LCA, or will incorporate the duties 
of one or more other occupations. This is important because the duties and level of responsibility 
necessarily impact the choice of occupation and wage level designated on the LCA. It is the lack of 
context and incomprehensible description that prevent an analysis of the actual duties and level of 
responsibility that will be required and therefore precludes a determination that the certified LCA 
supports the position set forth in the petition. 
Neither the Petitioner nor the end-client adequately address the nature of the proposed position and 
describe why the duties described require a bachelor's degree in a specific specialty to perform them. 
The Petitioner must provide evidence of the actual day-to-day duties so that those duties may be 
analyzed to determine if the duties are the duties of an applications software developer and farther 
whether the duties as described require a bachelor's level degree in a specific discipline, or the 
equivalent to perform the duties. There are technology occupations that may be performed with a 
general degree ( either at the bachelor or associates level) and certifications or undefined experience in 
a particular program or third party software. There are also technology occupations that may require 
special skills, specific certifications, advanced knowledge, or that incorporate the duties of more than 
one occupation. Here, neither the Petitioner nor the end-client has provided sufficient evidence to 
establish the nature of the proffered position and the minimum requirements needed to perform the 
duties of the position. The Petitioner has not provided relevant corroborating evidence sufficient to 
support its testimonial claims. The record does not establish the substantive nature of the proffered 
position's duties or demonstrate that performing such duties would require both the theoretical and 
practical application of a body of highly specialized knowledge and the attainment of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, as the minimum for entry into the 
occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty 
occupation). 
Given the deficiencies in the record regarding the Beneficiary's assignment and duties, we cannot 
determine the substantive nature of the actual work to be performed by the Beneficiary. This precludes 
a conclusion that the proffered position satisfies any criterion at 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A), because 
it is the substantive nature of that work that determines (1) the normal minimum educational 
requirement for entry into 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. 
Upon review of the totality of the evidence submitted, the Petitioner has not established that the proffered 
position is a specialty occupation under any of the criteria at 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A). Moreover, 
the record does not establish that the Petitioner satisfied the statutory or regulatory definition of specialty 
occupation. 
platform, delivering an integrated solution for unique state wrap program, and compliance with health care reform 
requirements. However, the record does not include evidence of specific projects that will require particular resources to 
perform defined work in relation to definite deliverables. 
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III. CONCLUSION 
The Petitioner has not presented probative evidence or argument sufficient to establish that it has definite, 
non-speculative H-lB caliber work available for the Beneficiary or that, more likely than not, the 
proffered position qualifies as a specialty occupation. 
ORDER: The appeal is dismissed. 
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