dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re : 9140653 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 2, 2020 
The Petitioner, a software development and consulting services provider, 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 record did not 
establish that the proffered position qualifies as a specialty occupation. The matter is now before us 
on appeal. 
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 I&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 2 l 4(i)(l) of the Act, 8 U.S.C. § l l 84(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). 
As recognized by the court in Defensor, 201 F.3d at 387-88, 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. 
II. THE PROFFERED POSITION 
The Petitioner, which is located in Texas, stated that the Beneficiary will perform his duties at an 
offsite location in Michigan forl l(end-client). The path of contractual succession 
for the offsite work flows from the Petitioner to the mid-vendor and concludes with the end-client. 
III. ANALYSIS 
For the reasons set out below, we have determined that the proffered position does not qualify as a 
specialty occupation. Specifically, the record does not: (1) describe the proffered position in sufficient 
detail; and (2) establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation. 1 
1 The Petitioner submitted documentation in support of 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. 
2 
As recognized in Defensor, 201 F.3d at 387-88, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location in order to properly 
ascertain the minimum educational requirements necessary to perform those duties. Here, the record 
of proceedings does not provide sufficient information from the end-client regarding the specific job 
duties to be performed by the Beneficiary. 
The Petitioner submitted a letter from the end-client confirming that the Beneficiary will be working 
for them as a software engineer assigned to thel I project. The 
letter, however, describes the Beneficiary's job duties in brief: generalized terms that fail to convey 
the substantive nature of the proffered position and its constituent duties. For example, the end-client's 
letter stated that the Beneficiary would perform duties such as, participate in code reviews; participate 
in requirements document reviews; and participate in software architecture and design document 
reviews, without providing any additional explanation regarding the level of participation. Similarly, 
the letter includes language about systems and performing work in those systems, but the information 
is not clear and the context cannot be discerned. Such duties do not include a sufficient explanation 
regarding the demands, level of responsibilities, complexity, or requirements necessary for their 
performance. 
The Petitioner's brief list of job duties and percentage of time the Beneficiary would devote to overall 
functions similarly fails to convey the substantive nature of the proffered position and its constituent 
duties. Of additional concern, the percentages of time allocated to the listed duties amount to 120% 
of the Beneficiary's time in the proffered position. The Petitioner did not provide any explanation for 
this inconsistency. 
Neither the Petitioner's statements, nor the end-client's letter, provide sufficient insight into the 
Beneficiary's actual duties, nor do they include details regarding the specific tasks that the Beneficiary 
will perform as they relate to an assigned project. The provided information does 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. 
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 sufficiently 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. 
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 
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of criterion two; (4) the factual justification for a petitioner normally requiring a degree or its 
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. 
IV. CONCLUSION 
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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