dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 8775728 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY. 1, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "software engineer, IOS" under the 
H-lB nonirnrnigrant classification for specialty occupations . See Immigration and Nationality Act 
(the Act) section 10l(a)(l5)(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. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 
2012). 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the Petitioner has not established the substantive nature of the work that the Beneficiary 
will perform, which precludes a finding that the proffered position satisfies any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 1 
The Petitioner stated that the Beneficiary would work at the end-client's location inl.__ ____ ___. 
California, pursuant to contracts executed between the Petitioner and the vendor, and between the 
vendor and the end-client. The path of contractual succession therefore appears to be as follows: 
Petitioner ➔ Vendor ➔ 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. 
1 The Petitioner submitted documentation to suppmt the H-1 B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 
The Petitioner filed this petition in April 2019 and claimed that the Beneficiary would work as a 
software engineer, IOS at the end-client's California location from October 2019 to August 2022. To 
support that claim, the Petitioner submitted two Sub-Vendor Agreements (SA) executed between itself 
and the vendor and a Fieldglass work order.2 Upon review of the SAs, we observe that they do not 
reference the Beneficiary; the job title of the proffered position; the job duties and tasks to be 
performed by a software engineer, IOS, the proffered position; or the end-client. While the Fieldglass 
work order references the Beneficiary, it states that the Beneficiary will be providing services as a 
"Developer" inl I California during "Period 11/04/2018." It does not indicate that the 
Beneficiary will serve as a software engineer, IOS (as stated in the H-lB petition) but rather as a 
"Developer." The work order does not describe the duties of the "Developer" in order to determine 
whether they are sufficiently similar to those of the proffered position. Moreover, the Fieldglass work 
order does not state that the Beneficiary's services will be needed for the duration the Petitioner 
requested on the H-1 B petition. 
In response to the Director's request for evidence, the Petitioner provided a Staff Augmentation and 
Services Agreement executed between the vendor and the end-client. The agreement states "[ v ]endor 
shall not perform any services for [end-client] unless and until the parties have executed a [ statement 
of work (SOW)] or other written agreement covering the services." However, the record does not 
contain such an SOW. Absent an executed SOW (or similar agreement such as a work order), the 
agreement alone creates no obligation on the part of the vendor- let alone the end-client - to provide 
the position described in the petition. The agreement alone is a general agreement for the vendor to 
provide personnel to the end-client. The agreement does not specify services for the Petitioner to 
provide; a job title to perform the services; the duties of a position with such a job title; academic 
requirements to perform such duties; or identify the Beneficiary or any other individual assigned to 
perform the duties. Thus, the referenced documents do not establish that the Beneficiary will serve as 
a software engineer, IOS inl I California for the duration of the requested H-lB period.3 
Again, 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. 4 
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. The Petitioner submitted 
letters from the vendor and the end-client. Upon review, we observe that the vendor's and the end­
client's job duty descriptions contain verbatim language. The verbatim language found in the duty 
descriptions in the letters from the end-client and the vendor raise questions regarding whether the 
end-client's signatory actually wrote the descriptions. 
Regardless of whether the end-client's signatory actually wrote the duty description, the duty 
description is too vague to determine whether the position actually requires a bachelor's or higher 
degree in a specific specialty, or its equivalent. For example, the end-client does not provide sufficient 
information with regard to the order of importance and/or frequency of occurrence ( e.g., regularly, 
2 The SA submitted with the H-1 B petition did not include the signature page executed by the authorized officials for the 
Petitioner and the vendor. 
3 Though acknowledged, the letters from the Petitioner, the vendor, and the end-client do not serve to fill this gap, as they 
are not evidence of an obligation on the part of the end-client to provide the position the Petitioner describes. 
4 Speculative employment is not permitted in the H-lB program. See, e.g., 63 Fed. Reg. 30419, 30419-20 (proposed June 
4, 1998) (to be codified at 8 C.F.R. pt. 214). 
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periodically, or at irregular intervals) with which the Beneficiary will perform the functions and tasks. 
Thus, the end-client does not specify which tasks are major functions of the proffered position. 
Moreover, the description does not provide sufficient information about the duties to determine their 
complexity. Below are some of the duties: 
• Work closely with the technical team, architect, systems analysts and product managers in 
coding out stories for features and enhancements. Also responsible for addressing bugs 
reported. 
• Using Swift and Objective C as a programming language for the development of [the end­
client's] application. 
• Consume web services using Apple's APl's and other third-party frameworks such as 
Alamo fire, AFN etworking, Adobe Analytics, RASM, Medallia, and Crittercism. 
• Complete all stories in a timely manner and document all updates in the appropriate system 
JIRA. 
• Work with Release Engineering Team in application and feature deployment activities. 
• Production support. 
• Support regular production release. 
• Debug and fix production defects. 
• Monitor production application running status. 
• Coordinate with other teams to troubleshoot production failure root cause and raise change 
ticket or JIRA tickets to other teams. 
In addition, the Beneficiary's proposed job duties include collaborations with "technical team," 
architect," "systems analysts," "product managers," "QA team," and "Release Engineering Team," 
but the end-client has not identified the individuals the Beneficiary would work with in the proffered 
position. 
Furthermore, as recognized in Defensor, 201 F.3d at 388, it is appropriate to require a petitioner to 
demonstrate that an end-client, or the entity where a beneficiary will actually perform the work, 
requires at least a bachelor's degree in the specialty, or an equivalent. However, the end-client does 
not state the educational requirements for this position in its letter. 
In sum, the record contains insufficient evidence from the end-client to establish that specialty 
occupation work exists for the Beneficiary. Without documents from the end-client that sufficiently 
provide pertinent information such as the Beneficiary's assigned project and detailed duties to 
demonstrate what he will actually do on a day-to-day basis, we cannot determine the substantive nature 
of the proffered position. As the Petitioner has not established the substantive nature of the work to 
be performed by the Beneficiary, this 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 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 
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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. 
III. CONCLUSION 
The Petitioner has not established that the proffered position qualifies as a specialty occupation. 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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