dismissed H-1B Case: Software Quality Assurance

U.S. Citizenship 
and Immigration 
Services 
In Re: 5878390 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 9, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "software quality assurance engineer" 
under the H-1 B 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 California Service Center Director denied the petition, concluding that the record did 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. Upon 
de novo 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. Chertojf, 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, we conclude that the Petitioner has not sufficiently established 
that there is specialty occupation work available for the Beneficiary. The Petitioner also has not 
demonstrated the substantive nature of the proffered position and has not established that the job duties 
require an educational background, or its equivalent, commensurate with a specialty occupation. 
On the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner stated that the Beneficiary will 
work offsite. On the labor condition application (LCA) 1 submitted in support of the H-1 B petition, 
the Petitioner designated the proffered position under the occupational category "Computer 
Occupations, All Other" corresponding to the Standard Occupational Classification (SOC) code 
15-1199, at a Level II wage. 2 The Petitioner claims that the Beneficiary will work for the end-client 
j I at the end-client's location in I I Minnesota for the requested employment period. 3 
The Petitioner included a letter signed by a mid-vendor indicating that the Beneficiary "will be 
engaged in a critical project at I I' and that the "engagement is expected to last through July 
2019 with the possibility of extension." Based on the initial record and the Petitioner's initial 
1 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-IB worker the higher of either 
the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the employer 
to other employees with similar experience and qualifications who are performing the same services. Section 212(n)(l) 
ofthe Act; 20 C.F.R. § 655.73l(a). 
2 The "Prevailing Wage Determination Policy Guidance" issued by the Department of Labor (DOL) provides a description 
of the wage levels. DOL's wage-level guidance specifies that a Level TT designation is reserved for positions involving 
only moderately complex tasks requiring limited judgment. U.S. Dep't of Labor, Emp't & Training Admin .. Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised_ 11 _ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. Id. 
3 The Petitioner's requested employment period for the Beneficiary is from October 1, 2018 to September 1, 2021. 
2 
re1Jresentation, the contractual chain is as follows: Petitioner - (mid-vendor) 
-I !(end-client). ~-----~ 
In response to the Director's request for evidence (RFE), the Petitioner submitted its agreement with 
the mid-vendor I I. The record in response also included the end-client's letter 
confirming a master service agreement between itself and 'I I who had contracted with the 
mid-vendor who in tum had contracted with the Petitioner to provide specific services as described in 
a work order under the agreement. The record in response to the Director's RFE, thus, adds an 
additional vendor to the contractual chain, making the contractual chain as follows: Petitioner -g 
.__ ______ ____, (mid-vendor) - .__ ________ ____, (vendor manager) - ~I--------.-~ 
( end-client). The record farther included the first page of a 17-page agreement between the vendor 
manager and the mid-vendor, as well as a redacted signature page 13 of the agreement. The record 
does not include a copy of the agreement between the end-client and the vendor manager and does not 
include a complete copy of the agreement between the vendor manager and the mid-vendor. This lack 
of documentation coupled with the Petitioner's initial inconsistent representation of the contractual 
chain raises credibility concerns with the contractual chain and the actual availability of work. 
Additionally, the record includes a statement of work (SOW) signed by representatives of the 
mid-vendor and the Petitioner which identifies the end-client, the type of services as a QA Analyst, 
the Beneficiary, and the start date as July 17, 2017. The SOW does not identify an end-date and does 
not identify the specific project to which the Beneficiary will be assigned. The record also includes a 
'-----------~- Summary" which leaves the sub-contractor name blank, identifies the 
contractor as the Beneficiary, the job as a "QA Analyst II," and the end-date of the assignment as June 
30, 2019. This document which appears to be computer generated does not include signatures and it 
is unclear which party issued the assignment summary. These documents do not refer to a specific 
project to which the Beneficiary will be assigned. Thus, the record does not include corroborating 
information regarding the stage of a specific project(s), the expectation of when the project(s) will be 
completed, or the type of resources needed to complete any project. These incomplete and ambiguous 
documents are insufficient to establish that all the parties within the contractual chain agree as to the 
availability of work, the end-date of any proposed work, and the actual work the Beneficiary will be 
expected to perform as well as the Beneficiary's level of responsibility. 4 Moreover, the mid-vendor 
and the end-client present different academic requirements to perform the duties of the position. The 
inconsistencies regarding the academic requirements to perform the position raise farther concerns 
regarding the nature of the proposed work and whether the actual proposed work existed when the 
petition was filed. 
Without knowing the terms and conditions of all the agreements within the contractual chain including 
the scope and nature of agreed to services, as well as consistent and complete SOW s corroborating the 
work, we cannot ascertain the need for or the nature of the Beneficiary's work and whether such work 
is of specialty occupation caliber. 5 There is insufficient evidence of a binding obligation on the part 
of the end-client to provide work for the Beneficiary, let alone work of specialty occupation caliber 
4 It is not clear if a QA Analyst and a QA Analyst TT incorporate the same duties and level ofresponsibility. 
5 The remaining evidence submitted by the Petitioner does not fill this gap. While the record includes evidence of the 
Beneficiary's past work, this information does not establish the existence of similar work in the future. and if so. the 
duration of such work. Nor does the email correspondence or the Beneficiary's building access card satisfy the Petitioner's 
burden in this regard. 
3 
lasting through the end of the requested validity period. As the record does not include sufficient 
evidence of a binding obligation establishing the availability of work, the record does not establish the 
existence of a definite, non-speculative specialty occupation position for the Beneficiary. 
Setting aside the lack of evidence corroborating that the Petitioner has non-speculative work for the 
Beneficiary to perform throughout the requested employment period, the record lacks probative 
evidence establishing the nature of the proposed position. 
The Petitioner initially provided a perfunctory list of the Beneficiary's proposed duties with an 
estimate of the time the Beneficiary would spend performing the briefly described duties. 6 In a 
February 16, 2018 letter, the mid-vendor's representative copied the first eight duties listed on the 
Beneficiary's resume describing her past work for the Petitioner, as the Beneficiary's specific job 
responsibilities. 7 In response to the Director's RFE, the Petitioner elaborated on its initial description 
by adding narrative under each of the previously provided bullet points. 8 The Petitioner also revised 
the amount of time the Beneficiary would spend performing each duty, without explanation. The 
Petitioner also included a January 16, 2019 letter on the end-client's letterhead. The letter indicates 
that the "specific services are described in a work order under the Agreement," referring to the claimed 
agreements among the end-client, the vendor manager, and the mid-vendor. However, as noted above, 
neither the I I-Summary" nor the mid-vendor's SOW provide detail regarding 
specific duties, a project, or a project team. Although the end-client letter continues by reciting tasks 
associated with the contracted services, the tasks include the past work listed on the Beneficiary's 
resume as well as some of the tasks listed in the mid-vendor's February 16, 2018 letter. The record 
before the Director did not include sufficient, consistent evidence of the proposed work and the context 
of the work to be performed for the end-client. 
The duties generally describe a technology occupation, but because they are described without the 
context of a specific project or objective, it is not clear whether the duties will be the duties of a 
software quality assurance engineer as stated on the Form I-129 9 or will incorporate the duties of one 
6 The Petitioner, in its offer letter to the Beneficiary, listed these same duties and identified the degree requirement to 
perform these duties as a bachelor's degree in science, computer applications, computer information systems, computer 
science, electrical engineering, information technology, math, engineering, or any related field, or a suitable combination 
of equivalent education and experience. The Petitioner's belief that the position could be performed with such a broad-base 
of knowledge strongly suggests that the duties require, at most, a general bachelor's degree and thus would not be 
considered a specialty occupation. Although the Petitioner in other letters restricts the academic requirement for the 
position to a bachelor's degree in computer science, it does not offer an explanation regarding the inconsistencies among 
the offer letter, the mid-vendor's letter, the end-client's letter, and its later iteration of the minimum academic requirement 
necessary to perform the position. 
7 The mid-vendor added that the Beneficiary will also collaborate in an agile engineering environment through participation 
in various meetings. 
8 The additional narrative falls short of describing what the Beneficiary will actually do on a day-to-day basis within the 
context of a specific project or team. For example, the Petitioner claims that the Beneficiary will determine high-level 
process for testing the software application, including which code structure will be used to test the software application 
and will liaise with project leads in test planning strategy meetings to align the test strategy with the project. The Petitioner 
also adds that defining, writing, and executing SQL queries includes designing the queries, writing queries on databases 
to store, retrieve, and modify critical test data, and persisting test data to the databases to ensure the software application 
is working as expected for certain scenarios. These additions lack the necessary detail to establish the Beneficiary's actual 
role and level ofresponsibility within the end-client's organization as her role relates to a specific project or team. 
9 The "Computer Occupations, All Other" category includes the sub-category SOC code 15-1199.01, "Software Quality 
Assurance Engineers and Testers." 
4 
or more other occupations. This is important because this information necessarily impacts the wage 
level assigned on the LCA. For example, if the position in relation to a specific project or for particular 
work required by an end-client, includes special skills or other requirements, or experience, that does 
not fall within the occupational tasks and skills indicated in the Occupational Information Network's 
(O*NET) Summary Report for the occupation of "Software Quality Assurance Engineers and 
Testers," such skills, requirements, or experience may warrant an additional wage level increase. It is 
the lack of context for the Beneficiary's duties that prevents an analysis of the actual duties that will 
be required and precludes a determination that the certified LCA actually supports the position set 
forth in the petition. 
On appeal, the Petitioner submits the Beneficiary's version and explanation of the duties of the 
proposed position. We have reviewed this information, including the Beneficiary's claim that writing 
queries in JIRA, writing test scripts in JAVA, implementing the available testing framework, and 
identifying and analyzing defects are moderately complex tasks, as well as her claim that several 
courses in a computer science curriculum prepared her to perform the tasks. First, we question the 
Petitioner's reliance on the Beneficiary's explanation regarding the proposed duties and find that this 
reliance undermines the Petitioner's claim that it has actual knowledge of what the proffered position 
entails as well as its right to control the assignment of duties and level of responsibility in the proposed 
role at the end-client. Even so, the record does not include sufficient consistent detail on why or how 
the proffered position requires the Beneficiary's referenced coursework. The test to establish a 
position as a specialty occupation is not the skill set or education of a proposed beneficiary, but 
whether the position itself qualifies as a specialty occupation. The current record demonstrates, at 
most, that the duties of the position may require knowledge of a basic programming language and a 
few computer courses, but does not establish that a specific curriculum of courses leading to a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is required. 
Significantly, 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. Here, the end-client and the mid-vendor offer different versions of the 
academic requirements for the proffered position. The mid-vendor indicates that a bachelor's degree 
in a variety of computer-related fields, as well as a degree in math or any engineering discipline would 
be acceptable to perform the duties of the proffered position. The end-client states that a bachelor's 
degree in information technology, computer science, computer engineering, or a related field is the 
necessary academic requirement. The record does not include independent, objective evidence 
pointing to where the truth lies resolving these inconsistencies and ambiguities. Matter of Ho, 19 I&N 
Dec. 582, 591-592 (BIA 1988). Unresolved material inconsistencies may lead us to reevaluate the 
reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. 
Id. 
We have reviewed, the Department of Labor's Occupational Outlook Handbook, the Occupational 
Information Network, the Office of Foreign Labor Certification 2018 H-1 B statistics, as well as the 
5 
numerous articles submitted for the record. Although the articles discuss career paths and curriculums, 
the information provided does not indicate that a bachelor's degree in a specific specialty is required 
to perform the duties of a software quality assurance engineer occupation, even if that is the occupation 
proffered here. For example, the article Knowledge and Skill Requirements for Entry-Level 
Information Technology Workers: A Comparison o{Industry and Academia, discusses the results of 
surveys regarding the types of skills (technical, organizational and managerial knowledge/skills, 
interpersonal skills/traits, personal skills/traits, and experience and GPA) that information technology 
managers and faculty emphasized in hiring entry-level employees. The article does not refer to a 
particular occupation but rather discusses all types of computer-related positions. Further the article 
does not discuss or refer to university faculty or information technology managers as requiring specific 
degrees for any computer-related occupation. Many of the articles appear to be career preparation 
resources - not a study of industry-wide recruiting and hiring standards. Some of the articles generally 
discuss curriculums that may prepare a student for different technology occupations. However, the 
preparation for a particular career is not an indication that the profession or occupation has a specific 
requirement for a bachelor's degree in a specific specialty for entry. 
We also reviewed the job postings submitted to establish that a computer science or related degree is 
common in the industry, but do not find that the postings demonstrate a common education 
requirement for parallel positions. The advertisements, in the majority, provide a limited description 
of the advertised position and require bachelor's degree in computer related fields plus an additional 
five years of experience. This is inconsistent with the position described here as the Petitioner 
designated the proffered position as a wage Level II on the LCA, a wage level that falls within the two 
but no more than three years required experience range. 
Upon review of the totality of the record, the Petitioner does not provide sufficient, consistent evidence 
of the duties of the proposed position so that we may ascertain the nature and type of position, as well 
as the level of responsibility that would be required of the individual in the particular role at the 
end-client. 10 That is, the record does not establish the substantive nature of the proffered position's 
duties at the end-client or demonstrate that performing such duties 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. 
The inconsistent and ambiguous information in the record does not establish the substantive nature of 
the work to be performed by the Beneficiary at the end-client, which precludes a finding that the 
proffered position satisfies any criteria 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 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. 
10 We note that the Petitioner in its appeal briefrefers to an opinion prepared by~I -----~l however, the record 
does not include this opinion. 
6 
Upon review of the totality of the evidence submitted, the Petitioner has not established that more 
likely than not, the proffered position is a specialty occupation under any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). Moreover, the record does not establish that the Petitioner satisfied the statutory 
and regulatory definitions of specialty occupation. Therefore, further discussion of the Petitioner's 
complaints on appeal is unnecessary. 11 
ORDER: The appeal is dismissed. 
11 We decline to reach and hereby reserve the Petitioner's appellate arguments regarding the specialty occupation issue as 
well as whether the Petitioner provided an LCA that corresponds to the petition. See INS v. Bagamasbad, 429 U.S. 24, 25 
(1976) (stating that "courts and agencies are not required to make findings on issues the decision of which is unnecessary 
to the results they reach"); see also Matter of L-A-C-, 26 I&N Dec. 516,526 n.7 (BIA 2015) (declining to reach alternative 
issues on appeal where an applicant is otherwise ineligible). 
7