dismissed H-1B Case: Software Engineering

(b)(6)
U.S. Department of Homeland Se(urity 
U.S. Citizenship and Immigration S..:rvicc 
Administrative Appeals Oftice (AAO) 
20 Massachuscl!s Ave .. N.W .. MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: MAR 1 6 2015 OFFICE: VERMONT SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOI(a)(IS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. §I lOI(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent dec ision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion 
(Form I-2908) within 33 days of the date of this decision. Please review the Form 1-2908 instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
·�-8 
Ron osenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The service center director denied the nonimmigrant visa petition, and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petition will be denied. 
I. INTRODUCTION 
On the Form 1-129 visa petition, the petitioner describes itself as an 11-employee "IT Solutions & 
Ser vices" company1 established in In order to employ the beneficiary in what it designates as 
a "Software Engineer" position at a salary of $62, 000 per year,2 the petitioner seeks to classify her 
as a nonimmigrant worker in a specialty occupation pursuant to section 10l(a)(I5)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 110l(a) (l5)( H)(i)(b). 
The director denied the petition, concluding that the evidence of record does not establish that the 
proffered position is a specialty occupation position. On February 19, 2014, counsel for the 
petitioner filed a motion to reopen. The director granted the motion and affirmed her previous 
decision in a letter dated May 22, 2014. On June 23, 2014, counsel filed the instant appeal. 
The record of proceeding before us contains the following: (1) the Form I-129 and supporting 
documentation; (2) the director's request for additional evidence (RFE); (3) the petitioner's response 
to the RFE; ( 4) the director's Jetter denying the petition; (5) the Form I-2908, Notice of Appeal or 
Motion, and supporting documentation submitted by the petitioner as a motion to reopen; (6) the 
director's decision on the motion, affirming her denial of the petition; and (7) the Form I-2908 and 
supporting documentation submitted in conjunction with the instant appeal. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the director's basis for denying this petition. Accordingly, the appeal will be dismissed, and the petition 
will be denied. 
II. STANDARD OF REVIEW 
In the exercise of our administrative review in this matter, as in all matters that come within our 
purview, we follow the preponderance of the evidence standard as specified in the controlling 
precedent decision, Matter of Chawathe, 25 I&N Dec. 369 (AAO 201 0), unless the law specifically 
provides that a different standard applies. In pertinent part, that decision states the following: 
1 The petitioner provided a North American Industry Classification System (NAICS) Code of 541511, 
"Custom Computer Programming Services." U.S . Dep't of Commerce, U.S . Census Bureau, North American 
Industry Classification System, 2012 NAICS Def inition, "541511 Custom Computer Programming 
Services, " http://www.census.gov/cgi-bin/sssd/naics/naicsrch (last visited March 13, 20 15). 
2 The Labor Condition Application (LCA) submitted by the petitioner in support of the petition was certified 
for use with a job prospect within the "Software Develop ers, Applications" occupational classification, 
SOC (O*NET/OES) Code 15-1132, and a Level I (entry-level) prevailing wage rate, the lowest of the four 
assignable wage-levels. 
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NON-PRECEDENT DECISION 
Except where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of evidence 
that he or she is eligible for the benefit sought. 
* * * 
The "preponderance of the evidence" of "truth" ts made based on the factual 
circumstances of each individual case. 
* * * 
Thus, in adjudicating the application pursuant to the preponderance of the evidence 
standard, the director must examine each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, 
probative, and credible evidence that leads the director to believe that the claim is 
"more likely than not" or "probably" true, the applicant or petitioner has satisfied the 
standard of proof. See INS v. Cardoza -Foncesca, 480 U.S. 421, 431 (1987) 
(discussing "more likely than not" as a greater than 50 % chance of an occurrence 
taking place). If the director can articulate a material doubt, it is appropriate for the 
director to either request additional evidence or, if that doubt leads the director to 
believe that the claim is probably not true, deny the application or petition. 
Id. at 375-76. 
We conduct our review of service center decisions on a de novo basis. See Soltane v. DOJ, 381 
F.3d at 145. In doing so, as noted above, we apply the preponderance of the evidence standard as 
outlined in Matter of Chawathe. Upon our review of the present matter pursuant to that standard, 
however, we find that the evidence in the record of proceeding does not support counsel's 
contentions that the evidence of record requires that the petition at issue be approved. Applying the 
preponderance of the evidence standard as stated in Matter ofChawathe, we find that the director's 
ground for denial was correct. Upon our review of the entire record of proceeding, and with close 
attention and due regard to all of the evidence, separately and in the aggregate, submitted in support 
of this petition, we find that the petitioner has not established that its claims are "more likely than 
not" or "probably" true. As the evidentiary analysis of this decision will reflect, the petitioner has 
not submitted relevant, probative, and credible evidence that leads us to believe that its claims are 
"more likely than not" or "probably" true. 
III. LAW 
The sole issue before us on appeal is whether the proffered position is a specialty occupation. To 
meet the petitioner's burden of proof for establishing the proffered position as a specialty 
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occupation, the evidence of record must establish that the employment the petitioner is offering to 
the beneficiary meets the following statutory and regulatory requirements. 
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 [( l )] 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. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must also meet one of the following criteria: 
(1) 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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
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COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp. , 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. 
§ 214 .2(h)( 4 )(iii)(A) should logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To otherwise interpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition under 8 C.F.R. 
§ 214. 2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 
F.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.F.R. § 214. 2(h)(4)(iii)(A) must therefore be 
read as providing supplemental criteria that must be met in accordance with, and not as alternatives 
to, the statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)( l) of the Act and the regulation at 8 C.F.R. 
§ 214. 2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Ro yal 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"). Applying this standard, USCIS regularly approves H-1B petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly 
been able to establish a minimum entry requirement in the United States of a baccalaureate or 
higher degree in a specific specialty or its equivalent directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS 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. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry 
into the occupation, as required by the Act. 
IV. DISCUSSION 
A. The Proffered Position and its Constituent Duties 
In its April 1, 2013 letter of support,3 the petitioner stated that the beneficiary will be responsible for 
3 It is noted that the petitioner ref erred to the beneficiary as both a male and a female throughout this letter, 
and certain grammatical and syntax errors indicate that large portions of the letter were "cut and pasted" from 
other letters. These issues diminish the probative value of this letter. 
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the following duties: 
• She will modify existing software to correct errors, allow it to adapt to new 
hardware, or to improve its performance. 
• She will develop and direct software system testing and validation procedures, 
programming, and documentation. 
• Confer with systems analysts, engineers, programmers and others to design 
system and to obtain information on project limitations and capabilities, 
performance requirements and interfaces. 
• She will analyze user needs and software requirements to determine feasibility of 
design within time and cost constraints. 
• She will design, develop and modify software systems, using scientific analysis 
and mathematical models to predict and measure outcome and consequences of 
design. 
• Further, she will store, retrieve, and manipulate data for analysis of system 
capabilities and requirements. 
• Consult with customers about software system design and maintenance. 
• Supervise the work of programmers, technologists and technicians and other 
engineering and scientific personnel. 
• Will coordinate software system installation and monitor equipment functioning 
to ensure specifications are met. 
• Will obtain and evaluate information on factors such as reporting formats 
required, costs, and security needs to determine hardware configuration. 
B. Inconsistencies 
As a preliminary matter, we find that the record of proceeding contains conflicting information 
regardin'g where, and for whom, the beneficiary would provide her services if the petition were 
approved. For example, although the petitioner stated on the Form I-129 that the beneficiary would 
not work off-site, when it filed the petition the petitioner also submitted a letter emphasizing that it 
would engage the beneficiary in an employer-employee relationship. In part, the letter asserted that 
the petitioner places its employees at its clients' facilities to develop and maintain assigned projects, 
and the letter also described the methods by which the petitioner controls their work while they are 
placed at such locations. 
In its RFE response, the petitioner claimed that the beneficiary would work on an in-house project. 
On motion, the petitioner submitted a Statement of Work (SOW) which called for the beneficiary to 
provide her services in either "or" _� Texas.4 
4 This calls into question the applicability of the LCA, which was not certified for employment in 
Texas. 
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These inconsistencies undermine the credibility of the petitioner's assertions made in support of this 
petition. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
C. The LCA Submitted in Support of the Petition 
We also find that the LCA submitted by the petitioner in support of this petitiOn does not 
correspond to the petition, and does not establish that the petitioner will pay the beneficiary an 
adequate salary.6 
As noted, the LCA submitted by the petitioner in support of the instant position was certified for use 
with a job prospect falling within the "Software Developers, Applications" occupational 
classification, SOC (O*NET/OES) Code 15-1132, and a Level I (entry-level) prevailing-wage rate, 
the lowest of the four assignable wage-levels. Wage levels should be determined only after 
selecting the most relevant O*NET code classification. A prevailing wage determination is then 
made by selecting one of four wage levels for an occupation based upon a comparison of the 
employer's job requirements to the occupational requirements, including tasks, knowledge, skills, 
and specific vocational preparation (education, training and experience) generally required for 
acceptable performance in that occupation. 7 
Prevailing-wage determinations start at Level I (entry) and progress to a wage that is commensurate 
with that of Level II (qualified), Level III (experienced), or Level IV (fully competent) after 
considering the job requirements, experience, education, special skills/other requirements and 
supervisory duties. Factors to be considered when determining the prevailing-wage level for a 
6 To promote the U.S. worker protection goals of a statutory and regulatory scheme that allocates 
responsibilities sequentially between DOL and the U.S. Department of Homeland Sec urity (DHS), a 
prospective employer must file an LCA and receive certification from DOL before an H-1 B petition may be 
submitted to the U.S. Citizenship and Immigration Services (USCIS). 8 C.F.R. § 214.2(h)(4)(i)(8)(1); 20 
C.F.R. § 655.700(b)(2). Up on receiving DOL's certification, the prospective employer then submits the 
certified LCA to US CIS with an H-1 8 petition on behalf of a specific worker. 8 C.F.R. § 214.2(h)(2)(i)(A), 
(2)(i)(E), (4)(iii)(8)(1). DOL reviews LCAs "for completeness and obvious inaccuracies," and will certify 
the LCA absent a determination that the application is incomplete or obviously inaccurate. Section 
212(n)( I )(G)(ii) of the Act. In contrast, USC IS must determine whether the attestations and content of an 
LCA correspond to and support the H-1 8 visa petition. 20 C.F.R. § 655. 705(b ); see generally 8 C.F.R. 
§ 214.2( h)(4)(i)(8). 
7 For additional information on wage levels, see U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.f oreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _II_ 2009.pdf (last visited 
March 13, 2015). 
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position include th� complexity of the job duties, the level of judgment, the amount and level of 
supervision, and the level of understanding required to perform the job duties.8 DOL emphasizes 
that these guidelines should not be implemented in a mechanical fashion and that the wage level 
should be commensurate with the complexity of the tasks, independent judgment required, and 
amount of close supervision received as indicated by the job description. 
The Prevailing Wage Determination Policy Guidance issued by DOL states the following with 
regard to Level I wage rates: 
Level I (entry) wage rates are assigned to job offers for beginning level employees 
who have only a basic understanding of the occupation. These employees perform 
routine tasks that require limited, if any, exercise of judgment. The tasks provide 
experience and familiarization with the employer's methods, practices, and programs. 
The employees may perform higher level work for training and developmental 
purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored 
and reviewed for accuracy. Statements that the job offer is for a research fellow, a 
worker in training, or an internship are indicators that a Level I wage should be 
considered. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Non agric. Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta. 
gov/pdf/NPW HC_Guidance_Revised_11_2009 .pdf (last visited March 13, 2015). 
The petitioner has classified the proffered position at a Level I wage, which is only appropriate for a 
position requiring only "a basic understanding of the occupation" expected of a "worker in training" 
or an individual performing an "internship." That designation indicates further that the beneficiary 
will only be expected to "perform routine tasks that require limited, if any, exercise of judgment." 
However, we find that many of the duties described by the petitioner exceed this threshold. 
The petitioner has repeatedly emphasized the complexity of its operations as well as those of the 
position and its constituent duties, throughout the pendency of this petition. The petitioner has also 
stated that the beneficiary will play a supervisory role in its operations. It has emphasized the 
specialization of the beneficiary's background in the same fashion. These assertions indicate that 
8 A point system is used to assess the complexity of the job and assign the wage level. Step I requires a "I" 
to represent the job's requirements. Step 2 addresses experience and must contain a "0" (for at or below the 
level of experience and SYP range), a "I" (low end of experience and SVP), a "2" (high end), or "3" (greater 
than range). Step 3 considers education required to perform the job duties, a 11 I 11 (more than the usual 
education by one category) or "2" (more than the usual education by more than one category). Step 4 
accounts for Spe cial Skills req uirements that indicate a higher level of complexity or decision-making with a 
"I "or a 112" entered as appropriate. Finally, Step 5 addresses Su pervisory Duties, with a "I" entered unless 
superv ision is generally required by the occupation. 
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the beneficiary will be required to exercise extensive independent judgment m the proffered 
position, which conflicts with the Level I wage-rate designation. 
This characterization of the proffered position and the claimed duties and responsibilities as 
described by the petitioner conflict with the wage-rate element of the LCA whjch the petitioner 
submitted into the record, which, as reflected in the discussion above, is indicative of an entry-level, 
comparatively low-level position relative to others within the occupation. In accordance with the 
relevant DOL explanatory information on wage levels, the selected wage rate indicates that the 
beneficiary is only required to have a basic understanding of the occupation; that she will be 
expected to perform routine tasks that require limited, if any, exercise of judgment; that she will be 
closely supervised and her work closely monitored and reviewed for accuracy; and that she will 
receive specific instructions on required tasks and expected results. 
We therefore question the level of complexity, independent judgment and understanding actually 
required for the proffered position, as the LCA was certified for a Level I entry-level position. This 
characterization of the position and the claimed duties and responsibilities as described by the 
petitioner conflict with the wage-rate element of the LCA selected by the petitioner, which, as 
reflected in the discussion above, is indicative of a comparatively low (entry-level) position relative 
to others within the occupation. 
Under the H -1 B program, a petitioner must offer a beneficiary wages that are at I east the actual 
wage level paid by the petitioner to all other individuals with similar experience and qualifications 
for the specific employment in question, or the prevailing-wage level for the occupational 
classification in the area of employment, whichever is greater, based on the best information 
available as of the time of filing the application. See section 212(n)( 1 )(A) of the Act, 
8 U.S.C. § 1182(n)( l )(A); Patel v. Boghra, 369 Fed. Appx. 722, 723 (ih Cir. 2010). The LCA 
serves as the critical mechanism for enforcing section 212(n)(l) of the Act, 8 U.S.C. § 1182(n)( l) . 
See 65 Fed. Reg. 80110, 80110-801 11 (indicating that the wage protections in the Act seek "to 
protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring temporary 
foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an 
LCA] with [DOL]"). 
It is noted that the petitioner would have been required to offer a significantly higher wage to the 
beneficiary in order to employ her at a Level II (qualified), a Level III (experienced), or a Level IV 
(fully competent) level. Again, the petitioner has offered the beneficiary a wage of $62,000 per 
year, which satisfied the Level I (entry level) prevailing wage for a position located within the 
"Software Developers, Applications" occupational category in the 
_ _ 
Texas Metropolitan Division at the time the LCA was certified.9 However, in order to offer 
employment to the beneficiary at a Level II (qualified) wage-level, which would involve only 
9 U.S. Oep't of Labor, Foreign Labor Certification Data Center, Online Wage Library, FLC Quick Search, 
"Software Developers, Applications," http://www.ficdatacenter.com/OesQuickResults.aspx?code= 15-
1132& year= 13&source= I (last visited March 13, 20 15). 
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"moderately complex tasks that require limited judgment," the petitioner would have been required 
to raise the beneficiary's salary to at least $76,586 per year. The Level III (experienced) prevailing 
wage was $92,726 per year, and the Level IV (fully competent) prevailing wage was $108,867 per 
year.10 
The petitioner was required to provide, at the time of filing the H-1 B petition, an LCA certified for 
the correct wage level in order for it to be found to correspond to the petition. To permit otherwise 
would result in a petitioner paying a wage lower than that required by section 212(n)( 1 )(A) of the 
Act, by allowing that petitioner to simply submit an LCA for a different wage level at a lower 
prevailing wage than the one that it claims it is offering to the beneficiary. Therefore, the petitioner 
has failed to establish that it would pay an adequate salary for the beneficiary's work, as required 
under the Act, if the petition were granted for a higher-level and more complex position as claimed 
elsewhere in the petition. 
This aspect of the LCA undermines the credibility of the petition, and, in particular, the credibility 
of the petitioner's assertions regarding the demands, level of responsibilities and requirements of 
the proffered position. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the rel iability and sufficiency of the remaining evidence offered in support of the 
visa petition. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
A1atter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
DOL has stated clearly that its LCA certification process is cursory, that it does not involve 
substantive review, and that it makes the petitioner responsible for the accuracy of the information 
entered in the LCA. With regard to LCA certification, the regulation at 20 C.F.R. § 655.715 states 
the following: 
Certification means the determination by a certifying officer that a labor condition 
application is not incomplete and does not contain obvious inaccuracies. 
Likewise, the regulation at 20 C.F.R. § 655.735(b) states, in pertinent part, that "[i]t is the 
employer's responsibility to ensure that ETA [(the DOL's Employment and Training 
Administration)] receives a complete and accurate LCA." 
The regulation at 8 C.F.R. § 214.2(h)(4)(i)(B)(2) specifies that certification of an LCA does not 
constitute a determination that an occupation is a specialty occupation: 
10 
!d. 
Certification by the Department of Labor [DOL] of a labor condition application in 
an occupational classification does not constitute a determination by that agency that 
the occupation in question is a specialty occupation. The director shall determine if 
the application involves a specialty occupation as defined in section 214(i)(I) of the 
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Act. The director shall also determine whether the particular alien for whom H-1 B 
classification is sought qualifies to perform services in the specialty occupation as 
prescribed in section 214(i)(2) of the Act. 11 
While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL 
regulations note that the Department of Homeland Security (DHS) (i.e., its immigration benefits 
branch, USCIS) is the department responsible for determining whether an LCA filed for a pmticular 
Form 1-129 actually supports that petition. See 20 C.F.R. § 655.705(b), which states, in pertinent 
part (emphasis added): 
For H-lB visas ... DHS accepts the employer's petition (DHS Form 1-129) with the 
DOL certified LCA attached. In doing so, the DHS determines whether the petition 
is supported by an LCA which corre sponds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements of H-1 B visa classification. 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports 
the H-IB petition filed on behalf of the beneficiary. Here, provided the proffered position was in 
fact found to be a higher-level and more complex position as claimed elsewhere in the petition, the 
petitioner would have failed to submit an LCA that corresponds to the claimed duties and 
requirements of the proffered position; that is, specifically, the LCA submitted in support of the 
petition would then fail to correspond to the level of work, responsibilities and requirements that the 
petitioner ascribed to the proffered position and to the wage-level corresponding to such a level of 
work, responsibilities and requirements in accordance with section 212(n)( l )(A) of the Act and the 
pertinent LCA regulations. 
The statements regarding the claimed level of complexity, independent judgment and understanding 
required for the proffered position are materially inconsistent with the certification of the LCA for a 
Level I, entry-level position. This conflict undermines the overall credibility of the petition. We 
find that, fully considered in the context of the entire record of proceedings, the petitioner failed to 
establish the nature of the proffered position and in what capacity the beneficiary will actually be 
employed. 
As such, a review of the LCA submitted by the petitioner indicates that the information provided 
therein does not correspond to the level of work and requirements that the petitioner ascribed to the 
proffered position and to the wage-level corresponding to such higher level work and 
responsibilities, which if accepted as accurate would result in the beneficiary being offered a salary 
below that required by law. Thus, even if it were determined that the petitioner had overcome the 
director's ground for denying this petition (which it has not), the petition could still not be 
approved. 
11 
See also 56 Fed. Reg. 61111, 6 I I 12 (Dec. 2, 1991) ("An approved labor condition appl ication is not a 
factor in determining whether a position is a specialty occupation"). 
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D. The Letter from Dr. Submitted as Expert Testimony 
We will next address the position evaluation from Dr. __J who stated that "the duties 
of [the] position of Software Engineer, as described are quite complex and it is my professional 
opinion that the requirement of a Bachelor's degree or equivalent with relevant professional 
experience is appropriate." At the outset, we note that Dr. did not attach his 
credentials, such as his resume or curriculum vitae to convey the particular grounds upon which we 
should ascribe probative value to his opinion of the proffered position. Furthermore, his letter is not 
accompanied by, and does not expressly state the full content of, whatever documentation, personal 
observations, and/or oral transmissions upon which he may have been based his opinion. For 
example, Dr. does not indicate whether he visited the petitioner's business premises or 
spoke with anyone affiliated with the petitioner, so as to ascertain and base his opinion upon the 
substantive nature and educational requirements of the proposed duties as they would be actually 
performed. Nor did he specify and discuss any studies, surveys, or other authoritative publications, 
and, significantly, he did not discuss the pertinent occupational information provided in the U.S. 
Department of Labor's (DOL) Occupational Ou!look Handbook (the Handbook). 14 It appears as 
though Dr. did not base his opinion on any objective evidence, but instead simply 
restated the duties of the proffered position as provided by the petitioner. We find that, for these 
reasons alone, and independent of the other material deficiencies to be noted below, Dr. 
letter is not probative evidence of the proffered position satisfying any of the criteria 
described at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Also, it is noted that Dr. did not discuss the duties of the proffered position in any 
substantive detail. To the contrary, he simply listed the duties of the software developer position. 
The extent of meaningful analysis involved in the formulation of his letter, therefore, is not 
apparent. 
Furthermore, Dr. does not indicate whether he considered, or was even aware of, the fact 
that the petitioner submitted an LCA certified for a wage-level that is only appropriate for a 
comparatively low (entry-level) position relative to others within its occupation which, as discussed 
above, signifies that the beneficiary is only expected to possess a basic understanding of the 
occupation. In any event, Dr. nowhere discusses this aspect of the proffered position. 
We consider this a significant omission, in that it suggests an incomplete review of the position in 
question and a faulty factual basis for his ultimate conclusion as to the educational requirements of 
the position upon which he opines. 
Finally, it is noted that Dr. indicates that a wide spectrum of degrees would provide 
sufficient preparation for the position proffered here. At page 2 of his evaluation, he states that the 
following bachelor's degrees would suffice: (1) Engineering; (2) Sciences; (3) Computer Sciences; 
( 4) Computer Applications; and (5) Information Technology. 
14 Although the author lists the Handbook under "References," he does not discuss or otherwise reference the 
Handbook in his evaluation. 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
Dr. findings that a generalized "science" degree or a generalized "engineering" 
degree would provide adequate preparation for the proffered position undermines the claim that it is 
a specialty occupation. 
The requirement of a bachelor's degree in "science" is inadequate to establish that a positiOn 
qual ifies as a specialty occupation. A petitioner must demonstrate that the proffered position 
requires a precise and specific course of study that relates directly to the position in question. Since 
there must be a close correlation between the required specialized studies and the position, the 
requirement of a degree with a generalized title, such as "science," without further specification, 
does not establish the position as a specialty occupation. Cf Matter of Michael Hertz Associates, 19 
I&N Dec. 558 (Comm'r 1988). To prove that a job requires the theoretical and practical application 
of a body of highly specialized knowledge as required by section 214(i)( 1) of the Act, a petitioner 
must establish that the position requires the attainment of a bachelor's or higher degree in a 
specialized field of study or its equivalent. As explained above, USCIS interprets the degree 
requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is 
directly related to the proposed position. users has consistently stated that, although a general­
purpose bachelor's degree, such as a degree in business administration, may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not justify a 
finding that a particular position qualifies for classification as a specialty occupation. See Ro yal 
Siam Corp. v. Cherto.f{, 484 F.3d 139, 147 (1st Cir. 2007). 
With regard to a degree in engineering, we note that the field of engineering is a broad category that 
covers numerous and various specialties, some of which are only related through the basic 
principles of science and mathematics, e.g., nuclear engineering and aerospace engineering. 
Therefore, besides a degree in electrical engineering, it is not readily apparent that a general degree 
in engineering or one of its other sub-specialties, such as chemical engineering or nuclear 
engineering, is closely related to computer science or that engineering or any and all engineering 
specialties are directly related to the duties and responsibilities of the particular position proffered in 
this matter. 
Here and as indicated above, the petitioner, who bears the burden of proof in this proceeding, has 
not established either (1) that computer science and engineering in general are closely related fields 
or (2) that engineering or any and all engineering specialties are directly related to the duties and 
responsibilities of the proffered position. Absent this evidence, it cannot be found that the particular 
position proffered in this matter has a normal minimum entry requirement of a bachelor's or higher 
degree in a specific specialty or its equivalent under the petitioner's own standards. Accordingly, as 
the evidence of record does not establish a standard, minimum requirement of at least a bachelor's 
degree in a specific specialty or its equivalent for entry into the particular position, it does not 
support the proffered position as being a specialty occupation and, in fact, supports the opposite 
conclusion. 
Therefore, absent evidence of a direct relationship between the claimed degrees required and the 
duties and responsibilities of the position, it cannot be found that the proffered position requires 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
anything more than a general bachelor's degree. As explained above, USCIS interprets the degree 
requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is 
directly related to the proposed position. USCIS has consistently stated that, although a general­
purpose bachelor's degree, such as a degree in business administration, may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not justify a 
finding that a particular position qualifies for classification as a specialty occupation. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (lst Cir. 2007). 
For all of these reasons, we find that the letter from Dr. is not probative evidence 
towards satisfying any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). We may, in our discretion, use as 
advisory opinion statements submitted as expert testimony. However, where an opinion is not in 
accord with other information or is in any way questionable, we are not required to accept or may give 
less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm'r 1988). 
E. Further Application of Specialty Occu pation Criteria 
We will now address the central question on appeal: whether the proffered position is a specialty 
occup ation. For the sake of efficiency, we incorporate here by reference our previous comments 
regarding the lack of clarity as to where, and for whom, the beneficiary would provide her services, 
and emphasize again that this lack of certainty undermines the credibility of this entire petition. In 
similar fashion, we incorporate by reference our discussions of the LCA's wage-level and Dr. 
evaluation. All three matters- the uncertainty regarding the work location, the LCA 
wage-le vel, and the position evaluation - undermine a finding that the proffered position is a 
specialty occupation. 
However, even we set these issues aside the petition would still not be approvable, as the evidence 
of record does not adequately describe what the beneficiary will actually be doing, that is, by 
conveying both substantial details about the substantive work that the beneficiary would actually 
perform and also persuasive explanation of why such work would require the practical and 
theoretical application of at least a bachelor's degree level of a body of highly specialized 
knowledge in a specific specialty. 
First, we note that the duties provided by the petitioner are verbatim of the duties listed in the 
O*Net OnLine Summ ary Report for Software Developers (Code 15� 1132). 16 This type of 
generalized description may be appropriate when defining the range of duties that may be 
performed within an occupational category, but it fails to adequately convey the substantive work 
that the beneficiary will perform within the petitioner's business operations and, thus, cannot be 
relied upon by a petitioner when discussing the duties attached to specific employment. In 
establishing a position as a specialty occupation, a petitioner must describe the specific duties and 
responsibilities to be performed by a beneficiary in the context of the petitioner's business 
operations, demonstrate that a legitimate need for an employee exists, and substantiate that it hasH-
16 
See http://www.onetonline.org/link/summary/15-1132.00 (last visited March 13, 20 15). 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
1 B caliber work for the beneficiary for the period of employment requested in the petition. This 
issue also undermines a finding that the proffered position is a specialty occupation. 
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 tasks as described fail to 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 educational level of 
highly specialized knowledge in a specific specialty. 
As evident in the job description quoted above, the record of proceeding presents the duties comprising 
the proffered position in terms of relatively abstract and generalized functions. More specifically, they 
lack sufficient detail and concrete explanation to establish the substantive nature of the work and 
associated applications of specialized knowledge that their actual performance would require within 
the context of the petitioner's particular business operations. While the information submitted by the 
petitioner with regard to the claimed in-house project, as well as the SOW indicating the duties the 
beneficiary would perform for the petitioner's clients at an otT-site location are acknowledged, they 
do not remedy this deficiency. The information regarding the claimed in-house project is also 
presented primarily in general terms, and it does not adequately explain the beneficiary's role on the 
project. Nor does the SOW explain the beneficiary's duties for the off-site end-client in any 
meaningful detail. 17 
The petitioner's failure to establish the substantive nature of the work to be performed by the 
beneficiary precludes a finding that the proffered position is a specialty occupation under 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 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. 
As the petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. § 
214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty occupation. 
The appeal will be dismissed and the petition denied for this reason. 
V. CONCLUSION AND ORDER 
17 Moreover, if we are to accept that the beneficiary will now be working pursuant to the SOW instead of the 
claimed in-house project, it is unclear how the duties proposed for the beneficiary on the claimed in-house 
project will now be performed. 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
As set forth above, we agree with the director's findings that the evidence of record does not 
demonstrate that the proffered position qualifies for classification as a specialty occupation. 
Accor dingly, the director's decision will not be disturbed?4 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 29 1 of the Act, 8 U.S .C. § 13 61; Matter ofOtiende, 26 I&N Dec. 12 7, 12 8 
(BIA 20 1 3). Here, that burden has not been met. 
OR DER: The appeal is dismissed. The petition is denied. 
24 As the issues discussed above prec lude approval of this petition, we will not discuss any of the many 
additional deficiencies we have observed in our de novo review of the record of proceeding, except to note 
that in the event the petitioner is able to overcome the issues discussed above, the following issues would 
have to be explored and resolved before the petition could be approved: ( 1) whether the petitioner obtained 
an LCA certified for the work location prior to the filing of the petition; (2) whether the petition was filed for 
specu lative employment; (3) whether the petitioner would maintain an employer-employee relationship with 
the beneficiary; and ( 4) whether the petitioner has work for the benef iciary to perform during the entire 
period of employment requested in the petition. US CIS would also need to explore, and the petitioner would 
need to resolve, the numerous additional inconsistencies and discrepancies that we have observed but not 
discussed.