dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 9477154 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 14, 2020 
The Petitioner 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. § 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 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 Petitioner did 
not establish that (1) it had non-speculative specialty occupation work for the Beneficiary for the 
requested employment period; and (2) the proffered position is a specialty occupation. On appeal, the 
Petitioner disputes the Director's decision, arguing that the decision was not based on the facts and 
evidence in the record. 
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 101(a)(15)(H)(i)(b) of the Act defines an H-lB non immigrant as a foreign national "who is 
coming temporarily to the United States to perform services . .. in a specialty occupation described in 
section 214(i)(1) . .. "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(I) of the Act but adds a 
non-exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
1 Section 291 of the Act ; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 3 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(l) states that an H-lB classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " (emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The setvices the Beneficiary will perform in the position determine: (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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Further, as recognized by the court in Defensor v. Meissner, 201 F.3d 384, 87-88 (5th Cir 2000), where 
the work is to be performed for entities other than the petitioner, evidence of the client companies' job 
requirements is critical. The court held that the former Immigration and Naturalization Service had 
reasonably interpreted the statute and regulations as requiring the petitioner to produce evidence that 
a proffered position qualifies as a specialty occupation on the basis of the requirements imposed by 
the entities using the beneficiary's services. Id. Such evidence must be sufficiently detailed to 
demonstrate the type and educational level of highly specialized knowledge in a specific discipline 
that is necessary to perform that particular work. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
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 establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation. In particular, the Petitioner has not established the 
3 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 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"). 
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substantive nature of the position, which precludes a determination 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)(1)-(4). 
The record includes two statements of work (SOW) between the Petitioner and the end-client. The 
first SOW identifies the Beneficiary, the commencement date, and estimated timetable for the 
proposed work which is expected to end April 1, 2019 with possible extensions. The project which 
will engage the Beneficiary is identified as Jr. NodeJS Developer.4 This SOW incorporates a 
description of the proposed position within the body of the SOW. The second SOW dated September 
6, 2019, subsequent to the date of filing the petition, indicates the contract end date is "4/3/20 -
extendable." Thus, the record does not include evidence corroborating the Petitioner had services 
available for the Beneficiary to perform at the beginning of the requested employment period when 
the petition was filed. 5 Additionally, the second SOW does not include a description of the proposed 
duties within the body of the SOW, but appears to attach the description of proposed duties as an 
Exhibit "A" to the SOW. However, the body of the SOW does not refer to an attachment and the 
Exhibit "A" does not indicate it is part of a SOW. Thus, is not clear that the description provided on 
the Exhibit "A" is part of the second SOW. 
Setting aside these deficiencies, we reviewed both sows to ascertain the services the Petitioner 
claimed the Beneficiary would be expected to perform at the end-client. Both sows provide the same 
21 responsibilities to be performed on a "Jr. NodeJS Developer" project. The responsibilities 
described primarily list the experience in various third-party technology that is required of the position. 
However, the Petitioner does not explain why the third-party technology requires a bachelor's degree 
in a specific specialty, or its equivalent, in order to gain that experience. The 4 responsibilities that 
may involve actual duties are general. For example, working with the app development teams and 
QA, building out unit and other automated tests and restful endpoints and lightweight aggregation 
layers, and participating in code reviews and performance improvements are insufficiently developed 
to understand the substantive nature of the proposed position. We also observe that the Petitioner's 
itinerary for the proposed position and the end-client's letters provide different versions of the 
proposed duties and identify a project that appears basic and limited in nature. These descriptions 
again do not include sufficient information to ascertain the nature of the proposed position, the level 
of responsibility within the project, and the academic requirements that might be necessary to perform 
the general duties. 
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 meaningfu I job description, the record lacks evidence sufficiently probative and informative 
to demonstrate that the proffered position requires a specialty occupation's level of knowledge in a 
specific specialty. The record as presently constituted is insufficient to establish the substantive nature 
4 Although a petitioner is not required by existing regulation to submit contracts or legal agreements between the petitioner 
and third parties to establish an employer-employee relationship, "the petitioner must demonstrate eligibility for the benefit 
sought" and "if a petitioner provides contracts or legal agreements, [an] officer is not precluded from evaluating that 
evidence in the adjudication ofother eligibility criteria." USCIS Policy Memorandum PM-602-0114, Rescission of Policy 
Memoranda at 3. 
5 As noted above, a petitioner must establish eligibility at the time of filing the petition and must continue to be eligible 
through adjudication. 8 C.F.R. § 103.2(b)(1). 
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of the proffered position and demonstrate that performing the duties described would require the 
theoretical and practical application of highly specialized knowledge and the attainment of at least a 
bachelor's degree in a specific specialty or its equivalent. See section 214(i)(1) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(ii) (defining the term "specialty occupation). 
The Petitioner does not address these deficiencies on appeal. Rather, it claims that the record is 
sufficientto establish eligibility for this nonimmigrant visa classification. We disagree. The Petitioner 
provides such a vague description of the actual services the Beneficiary is expected to perform that 
the duties could encompass any number of technology occupations. We understand there may be 
overlap between various occupations, however, the information in the record is not sufficiently 
developed so that we may ascertain the substantive nature of the proposed position and analyze 
whether the petition is supported by an LCA which corresponds with the petition as well as identify 
the application of knowledge needed to perform the position. 
In sum, the Petitioner has not established that it had H-1B caliber work available for the Beneficiary 
to perform when the petition was filed and it has not established that it has satisfied any of the criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A). The record also does not demonstrate that performing the duties 
described would require the theoretical and practical application of highly specialized knowledge and 
attainment of at least a bachelor's degree in a specific specialty or its equivalent. See section 214(i)(1) 
of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation). Accordingly, we 
cannot conclude that, more likely than not, the proffered position qualifies for classification as a 
specialty occupation. 
ORDER: The appeal is dismissed. 
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