dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-M-, INC. 
Non- Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 29,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a two-person business, seeks to temporarily employ the Beneficiary as a "software 
engineer" under the H-1B nonimmigrant classification. See Immigration and Nationality Act (the Act) 
§ 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, California Service Center, denied 
the petition. The matter is now before us on appeal. Upon de novo review, we will dismiss the appeal. 
I. ISSUE 
The issue before us is whether the proffered position qualifies as a specialty occupation m 
accordance with the applicable statutory and regulatory provisions. 
II. SPECIALTY OCCUPATION 
A. 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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
(b)(6)
Matter ofC-M- , Inc. 
Pursuant to 8 e.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(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. 
The degree must be in the specific specialty that is directly related to the H-IB position, unless the 
petitioner demonstrates that an alternative, closely related specialty degree applies to the position. 
See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st eir. 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 eir. 2000). 
To determine whether a particular job qualifies as a specialty occupation, users does not simply 
rely on a position 's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The regulation at 8 e.F.R. 
§ 214.2(h)(4)(iv) provides that "[a]n H-IB petition involving a specialty occupation shall be 
accompanied by [d]ocumentation ... or any other required evidence sufficient to establish ... that 
the services the beneficiary is to perform are in a specialty occupation." 
B. Proffered Position 
The Petitioner stated that it is a start-up company, and that the Beneficiary will work on its first 
project, which is called · According to the Petitioner, the Beneficiary will perform the 
following job duties in the proffered position: 
[The Beneficiary] will be responsible for developing, creating, implementing 
and testing software enhancements for our product. He will analyze users 
need and develop software solutions that maximize use engagement. He will 
determine product vision, develop product strategy and roadmap and produce 
business and technical requirements. He will analyze feature of our products and 
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(b)(6)
Matter ofC-M-, Inc. 
decide what is needed to stay competitive. He will translate concept into product 
requirements that meet user needs. He will be responsible for the life-cycle of our 
products. 
Using the latest web development technologies including ASP.Net. jQuery, 
Ajax, JavaScript and MSSQL with dynamic LINQ queries, he will develop a software 
solution to provide our customers with the best user experience. He will customize 
software for customer use with the aim of optimizing operational efficiency. He will 
formulate and design software that identifies key components to improve 
functionality. He will devise and create test data, test plans and benchmark measures 
of application performance. 
In addition, the Petitioner stated that it "normally requires at least a bachelor's degree in computer 
science, engineering, software engineering or a related field for the position of Software Engineer." 
In the letter of support, the Petitioner provided the following about its business operations 
(verbatim): 
Our mission is to create products and services that allows users to have a healthier, 
more independent and connected magical experience. [The Petitioner] is re-inventing 
mobility aid devices by making them: 
• SMART to help people to be healthier and more independent 
• STYLISH & ERGONOMICALLY DESIGNED to help people feel proud, 
comfortable and remove the stigma of using them. 
• AT YOUR SERVICE: concierge service with -like platform including 
for Nurses. 
The first product called , the cane reinvented. can make users: 
Healthier: by helping them prevent falls, tracking their daily activities & 
biometrics, and helping them to walk more 
Independent" by letting them stay independently at their own homes while getting 
the needed services at a press of a button. In addition, caregivers can monitor 
users' daily activities, biometrics and services remotely 
Comfortable: by using ergonomically designed devices with a rich user 
expenence 
Proud: by walking with stylish designed devices that have a better self expression 
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(b)(6)
Matter ofC-M-, Inc. 
The Petitioner submitted documentation regarding its corporate status in Delaware and California, 1 
an agreement to lease 478 square feet of office space, and several photographs. According to the 
Petitioner, it hopes to build devices "like 'Apple' with a service layer like 
C. Analysis 
The Petitioner stated that it wishes to employ the Beneficiary for a three year period; however, the 
record lacks documentation regarding the Petitioner's business activities and the work that the 
Beneficiary would perform to sufficiently substantiate that it has H-lB caliber work for the 
requested period. For instance, while the Petitioner provided a general description of its intention to 
create the product, it did not submit documentation demonstrating that it has the capacity 
and resources to develop such a product. It did not provide supporting evidence such as: (1) a 
business plan; (2) competitive, marketing and/or cost analysis; (3) a short- or long- term budget; (4) 
evidence substantiating investments or revenue sources; (5) documentation regarding its sales, costs, 
and income projections; (6) contracts; (7) its timeline and staffing requirements for developing 
products; and/or (8) marketing materials, company brochures, pamphlets, or other documentation 
describing in detail its products and services? 
Further, it is reasonable to assume that the size of an employer's business has or could have an 
impact on the duties of a particular position. See EG Enterprises, Inc. d/b/a/ Mexican Wholesale 
Grocery v. Department of Homeland Security, 467 F. Supp. 2d 728 (E.D. Mich. 2006). Thus, the 
size of a petitioner may be considered as a component of the nature of the petitioner's business, as 
the size impacts upon the duties of a particular position. For example, when a petitioner employs 
relatively few people, it may be necessary for the petitioner to establish how the beneficiary will be 
relieved from performing non-qualifying duties. 
In the instant case, the Petitioner stated that it has two employees. 3 The company appears to consist 
of Chief Financial Officer, and Chief Technology Officer/Chief 
Executive Officer. As the Petitioner employs relatively few people, without further evidence, it has 
not established how the Beneficiary will be relieved from performing non-qualifying duties. 
The Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, which therefore precludes a finding that the proffered position satisfies any criterion at 
1 In the petition, the Petitioner states that the Beneficiary will work in California. Notably, the Petitioner did 
not comply with the requirements of California law to conduct business in that state until after the H-1 B petition was 
filed. USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time 
the petition is filed. 8 C.F.R. § 1 03.2(b)(l). 
2 The H-1 B classification is not intended for companies to engage in speculative employment and hire foreign workers to 
meet possible workforce needs arising from potential business expansions, customers, or contracts. The agency made 
clear long ago that speculative employment is not permitted in the H-lB program. See, e.g., 63 Fed. Reg. 30419, 30419 -
30420 (June 4, 1998). 
3 On the Form I-129, the Petitioner stated that it does not have any gross annual income and net annual income. The 
Petitioner has not submitted documentation establishing that it has any assets or particular agreements for its services. 
Consequently, it has not been established who would pay the Beneficiary for his work. 
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Matter ofC-M-, Inc. 
8 C.P.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 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. Accordingly, as the 
Petitioner has not established that it has satisfied any of the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A), 
it cannot be found that the proffered position qualifies for classification as a specialty occupation. 
III. CONCLUSION AND ORDER 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-M-, Inc., ID# 15378 (AAO Feb. 29, 2016) 
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