dismissed H-1B Case: Software Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10190143 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JULY 14, 2020 
The Petitioner , a restaurant management software company, seeks to temporarily employ the 
Beneficiary as a "R&D Operations Analyst, Program Manager" under the H-lB nonimmigrant 
classification for specialty occupations. Immigration and Nationality Act (the Act) 
section 101(a)(15)(H)(i)(b), 8 U.S.C. § l 101(a)(15)(H)(i)(b). 
The Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish that the position qualified as a specialty occupation under any of the criteria in 8 C.F.R. § 
214.2(h)(4)(iii)(A). The matter is now before us on appeal. On appeal, the Petitioner asserts that the 
Director's decision was in error. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 
2012) . Except where a different standard is specified by law, a petitioner must prove eligibility for 
the requested immigration benefit by a preponderance of the evidence. Matter of Chawathe , 25 I&N 
Dec. 369, 375-76 (AAO 2010). Under the preponderance of the evidence standard , the evidence of 
record must establish that the petitioner's claim is "probably true." Id. at 376. Upon de nova review 
we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services . .. in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). 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 section 214(i)(l) of the Act, 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: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entty into the paiiicular 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. Cherto_ff, 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"). 
Accordingly, to determine whether the position qualifies as a specialty occupation, we look to the 
record to ascertain the services the Beneficiary will perform and whether such services require the 
theoretical and practical application of a body of highly specialized knowledge attained through at 
least a bachelor's degree or higher in a specific specialty or its equivalent. Without sufficient evidence 
regarding the duties of the proffered position, we are unable to determine whether the Beneficiary will be 
employed in an occupation that meets the statutory and regulatory definitions of a specialty occupation 
and a position that also satisfies at least one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). The duties of 
the proffered position dete1mine: ( 1) the nmmal minimum educational requirement for entry into the 
particular position, which is the focus of criterion 1; (2) industty 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 basis for petitioner asserting 
that it normally requires a degree or its equivalent, the focus of criterion 3; and (5) the degree of 
specialization and complexity of the specific duties, which is the focus of criterion 4. 
The Director is charged with determining whether the petition involves a specialty occupation as 
defined in section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director may request 
additional evidence in the course of making this determination. 8 C.F .R. § 103 .2(b )(8). In addition, 
a petitioner must establish eligibility at the time of filing the petition and must continue to be eligible 
through adjudication. 8 C.F.R. § 103.2(b)(l). 
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II. ANALYSIS 
Upon review of the totality of the record, we conclude that the Petitioner has not sufficiently 
established the substantive nature of the work the Beneficiary would perform during the intended 
period of employment, which precludes the determination of whether the proffered position qualifies 
as a specialty occupation under 8 C.F.R. § 214.2(h)(4)(h) and (iii)(A). 1 
The Petitioner was established in 2011 to offer "easy to use Android tablet-based Point of Sale and 
Customer Relationship Management" systems for restaurants and hotels. Petitioner's products help 
clients operate more efficiently and connect with their customer base. Their customers are comprised 
of cafes, fast-casual, full-service restaurants, and hotels across the U.S. At the time of filing the instant 
petition, the Petitioner purported to have 15,000 customers and was growing at a rate of 800 new 
customers monthly, with over 1,000 full-time employees. 
The record contains two versions of the duties to be perfmmed by the Beneficiary in the proffered 
position. The first comes from the initial filing of the petition, where the duties are described as 
follows: 
• Manage, end-to-end, analysis of R&D projects to assess financial and economic 
viability of new products and enhanced features; 
• Build econometric tools, dashboards, models and processes to monitor and analyze 
R&D projects and return on investment (ROI) estimates; 
• Drive complex statistical modeling development, enhancement, and maintenance 
around all aspects of the business and partner with key stakeholders within the R&D 
organization to provide strategic support and recommendations; 
• Work cross-functionally among many departments in the development and 
implementation of new product functionality based on his financial analyses; 
• Work with engineering teams to improve and automate internal engineering 
systems and processes to meet functionality of new R&D projects; and 
• Establish production schedules, perform continuous reporting and status updates, 
and coordinate with finance and legal department to ensure best practices and 
compliance with internal controls and external regulations. 
In response to the Director's September 6, 2019 request for evidence (RFE), the Petitioner submitted 
the following distinct breakdown of the duties of the position with associated percentage of time spent 
on each duty within the context of managing the delivery of Petitioner's medium-to-large software 
projects, executing critical operational tasks. and analyzing/designing I procers improvements m 
furtherance ofl 11 land business critical processes: 
• Project manage the emerging l I financial product, including running 
meetings, building/maintaining schedules and communicating status to executive 
stakeholders. [15%]; 
• Execute quarterly capitalized software analysis. [ 10%] 
1 The Petitioner submitted documentation to support the H-1B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
3 
• Manage and execute California Consumer Privacy Act (CDPA) compliance 
initiative. [5%] 
• Perform statistical work on economic models for Data Science & Business 
Intelligence team. [20%] 
• On-demand project management and operational duties. [5%] 
• Manage end-to-end analysis of R&D projects to assess financial and economic 
viability of new products and enhanced features. [ 10%] 
• Build econometric tools, dashboards, models and processes to monitor and analyze 
R&D projects and return on investment (ROI) estimates. [10%] 
• Drive complex statistical modeling development, enhancement, and maintenance 
around all aspects of the business and partner with key stakeholders within the R&D 
organization to provide strategic support and recommendations. [ I 0%] 
• Work cross-functionally among many departments in the development and 
implementation of new product functionality based on Beneficiaiy's financial 
analyses. [ 5%] 
• Work with engineering teams to improve and automate internal engineering 
systems and processes to meet functionality of new R&D projects. [5%] 
• Establish production schedules, perform continuous reporting and status updates, 
and coordinate with finance and legal department to ensure best practices and 
compliance with internal controls and external regulations. [5%] 
First, we note that the second breakdown includes five additional new duties not included in the first 
iteration of duties. According to the Petitioner's percentage breakdown, these new duties account for 
55% of the proffered position's time. The Petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. 8 C.F.R. § 103.2(b)(l). Therefore, evidence that the Petitioner creates 
after the Director issues an RFE is not considered independent and objective evidence. Moreover, the 
record is devoid of explanation for why the initial petition left out these duties accounting for 55% of 
the proffered position's time. Without a thorough understanding of why the Petitioner added 
substantial additional duties in response to the Director's RFE, these additional new duties appear to 
be post hoc amendments to bolster the record which accordingly, is evidence that carries less probative 
weight. 
Second, and more importantly, even considering the additional duties provided, the Petitioner has not 
provided sufficient details regarding the nature and scope of the Beneficiary's employment or the kind 
of substantive and probative evidence necessary to determine the actual work that the Beneficiary 
would perfmm in the position. Without a meaningful job description, the record lacks the evidence 
necessary to demonstrate that the proffered position requires a specialty occupation's level of 
knowledge in a specific discipline or field. 
More specifically, the first duty in the proffered position's post-RFE breakdown is "project manage 
the emerging I I financial product, including running meetings, building/maintaining 
schedules and communicating status to executive stakeholders," which accounts for 15% of the 
position's time. On its face, the duty lacks the specificity and detail to understand why someone 
performing this duty would require a bachelor's degree ( or higher) of education in a specific specialty. 
Even if you read this duty in the context of the proffered position's other duties, it is not clear why the 
performance of this duty would require a bachelor's level of education in a specific specialty because 
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the duty is described in such broad terms. Furthermore, the Petitioner's failure to account for other 
named business development projects (for example,! ~ in its breakdown of the 
position's duties leaves open the question of how much of the position's time would be spent project 
managing within one or the other of the Petitioner's business operations and if 15% is an accurate 
representation of the time that would be spent on this particular duty. 
Two other post-RFE duties: "execute quarterly capitalized software analysis" (accounting for 10% of 
the proffered position's time) and "perform statistical work on economic models for Data Science & 
Business Intelligence team" (accounting for 20% of the proffered position's time) appear to require 
the use of technical tools for purposes of data analysis however, the Petitioner did not explain what 
exactly these duties entail and how only an individual with a bachelor's level of education (or higher) 
in a specific specialty would be able to perfmm them. For example, the Petitioner does not define or 
provide industry definitions for terms such as "capitalized software analysis." The record does not 
include information describing what is involved in executing the software analysis. That is, it is 
unclear whether the Beneficiary will run quarterly reports, will create data for the software analysis, 
or will perform some sort of analysis. This particular task has no context and thus, we cannot ascertain 
what education is necessary to perform it. Similarly, performing statistical work on economic models 
is too vague to understand the Beneficiary's level ofresponsibility in regard to the statistical work and 
whether this work requires a bachelor's degree in a specific specialty, or its equivalent. This task also 
includes mention of two other teams (Business Intelligence and Data Science) within the Petitioner's 
organization, however based on the vague description of this task, we are unable to ascertain the 
Beneficiary's level of responsibility and interaction with these teams. The vagueness of the duty as 
described permits a reasonable interpretation to find that the qualifications needed to perform these 
tasks could be well below a bachelor's level of education and include instead certification in a specific 
computer software to carry out the statistical work and analysis needed by these other teams. As such, 
and because the two duties account for 30% of the proffered position's time, the vagueness is 
detrimental to understanding the substantive nature of the position. 
The Petitioner indicates that the Beneficiary will "manage and execute California Consumer Privacy 
Act (CDPA) compliance initiative" and "on-demand project management and operational duties," 
which each account for 5% of the proffered position's time. The CDP A is a California law aimed at 
protecting California consumers from businesses who disclose or use their personal information. The 
duty involving on-demand product management lacks detail and is amorphous. The record is unclear 
as to why these two duties are relevant to the proffered position. Neither of these duties are explained 
with enough detail or in a context to determine if an individual with a bachelor's level (or higher) of 
education in a specific specialty would be necessary to perform the duties. 
The remaining duties were all included with the initial petition and the Petitioner did not expand on 
them in its post-RFE response other than to provide the percentage of time each duty would take. The 
Director's September 6, 2019 RFE gave the Petitioner notice of the record's insufficiency as to the 
specialized and complex or unique nature of the duties as described in the initial petition. The 
Petitioner provided no further details ( other than percent of time spent) regarding the broadly described 
initial duties. As noted above, the added duties do not assist in understanding what the Beneficiary 
will be expected to do in the position. The record's overall lack of details as to the duties of the 
proffered position precludes a determination as to the specialized nature of this position. In addition, 
the Petitioner's addition of duties to the proffered position in response to the Director's RFE does not 
5 
appear to explain the initial tasks but rather creates inconsistency in the record regarding the actual 
duties the Beneficiary will be expected to perform. Moreover, the Petitioner does little to explain how 
the duties are relevant to Petitioner's business practices. 
Upon review, neither job description conveys (1) the actual work the Beneficiary will be expected to 
perfmm within the context of the Petitioner's business operations; (2) the complexity, uniqueness 
and/or specialization of the tasks; or (3) the correlation between that work and a need for a particular 
level of education of highly specialized knowledge in a specific specialty. 
On appeal, the Petitioner argues that the Director unreasonably disregarded the expert opm10n 
provided by~----~-_....,.....ofl !University. I l's opinion has been 
carefully reviewed and considered. To begin, I ~ses Petitioner's post-RF£ description to 
conclude the following: 
These duties will require, at a minimum, an employee possessing a Bachelor's 
degree in a specialty field. [The Beneficiary] has completed coursework in 
econometrics, monetary economics, international macroeconomics, finance, 
international finance, mathematical economics, and statistics, at the undergraduate 
level. His specialized coursework provides him with the quantitative and 
analytical education needed to assess the financial and economic viability of new 
products and product enhancements. Furthermore, his education in applied 
economics equips him to construct and analyze use econometric models, to build 
dashboards, and to formulate statistical analyses. He also has the training and 
experience to establish processes to monitor and analyze R&D projects and 
develop return on investment (ROI) estimates. Finally, he has the education 
required to develop and analyze complex statistical models focused on all aspects 
of the business as well as the knowledge needed to partner with key stakeholders 
within the R&D organization to provide strategic support and recommendations. 
Specifically, the courses in econometrics, mathematical economics, mathematics, 
finance, and statistics, which are foundational to a bachelor's degree in a 
quantitative discipline, such as economics or applied economics, provide [the 
Beneficiary] with the knowledge and education to be able to fulfill the duties listed 
above. 
~---~ts opinion letter included a chart listing the duties of the proffered position alongside the 
courses taken by the Beneficiary which the professor opines would qualify him to perform each 
individual duty. For instance, the professor opines that the Beneficiary's coursework in organizational 
behavior and introduction to management accounting would qualify him to perfmm the duty of 
"manage and execute California Consumer Privacy Act (CDPA) compliance initiative." In his chart, 
I I performs the same exercise for each duty of the proffered position. 
Here, I I's opinion does not offer a sufficient evidence-based analysis of the duties to 
support a conclusion that the position requires a bachelor's degree (or higher) in a specific specialty. 
I ~ s analysis and breakdown of duties alongside the Beneficiary's coursework shows that 
he confuses the ability of a person with an economics or applied economics degree to perform the 
duties of the proffered position with a degree requirement in order to perform the duties. We 
6 
understand that an individual who takes one or several of these courses may be prepared to perform 
the duties of this position; however, 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. Thus, whether or not the Beneficiary in this case has completed a specialized course of 
study directly related to the proffered position is irrelevant to the issue of whether the proffered 
position qualifies as a specialty occupation, i.e., whether the duties of the proffered position require 
the theoretical and practical application of a body of highly specialized knowledge and the attainment 
of a bachelor's degree or higher in a specific specialty, or its equivalent as required by section 214(i)(l) 
of the Act; 8 C.F.R. § 214.2(h)(4)(ii). We may, in our discretion, use opinion statements submitted by 
the Petitioner as advisory. Matter of Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). 
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. Id. Consistent with Matter of 
Caron, we assign significantly lower weight tol ~s opinion letter, as he does not offer the 
necessary analysis to establish how or why the Petitioner's generally described tasks require a 
bachelor's degree in a specific specialty, or its equivalent. I ts opinion is insufficient to 
overcome the lack of detail provided by the Petitioner's description of duties or to assist in establishing 
the position's substantive nature. 
A further issue that merits noting is that the record is not sufficient to establish that the labor condition 
application (LCA) c01Tesponds with and supports the petition. 2 On the LCA, the Petitioner designated 
the proffered position under the Standard Occupational Classification (SOC) code and title 15-2031, 
"Operations Research Analysts." However, given the lack of specificity in the Petitioner's explanation 
of the proffered position's duties, it is not possible to ascertain the nature and level of responsibility 
of the proposed position, including whether the duties as generally described correspond to the 
occupation designated on the LCA. 
Several of the duties involved could be properly classified under the SOC code and title 13-1111, 
"Management Analysts." According to O*NET, a management analyst is responsible for 
"conduct[ing] organizational studies and evaluations, design[ing] systems and procedures, 
conduct[ing] work simplification and measurement studies, and prepar[ing] operations and procedures 
manuals to assist management in operating more efficiently and effectively ... "3 For instance, the 
following duties in the proffered position's description: "manage, end-to-end, analysis of R&D 
projects to assess financial and economic viability of new products and enhanced features;" "work 
cross-functionally among many departments in the development and implementation of new product 
functionality based on his financial analyses;" "work with engineering teams to improve and automate 
internal engineering systems and processes to meet functionality of new R&D projects;" and "establish 
production schedules, perform continuous reporting and status updates, and coordinate with finance 
and legal department to ensure best practices and compliance with internal controls and external 
regulations" also appear to closely relate to those typically carried out by management analysts. The 
issue is that the Petitioner provides such a broad outline for the proposed position that the description 
could encompass the duties of either of these occupations or other occupations. We understand there 
may be overlap between various occupations, however, the information in the record is not sufficiently 
2 See 20 C.F.R. § 655.705(b); Simeio Solutions, 26 T&N Dec. at 546 n.6. 
3 See, O*NET entry for Management Analysts, https://www.onetonline.org/link/summary/13-1 l 11.00 (last visited July 01, 
2020). 
7 
detailed so that we may ascertain the substantive nature of the proposed position and whether the LCA 
corresponds to the petition. 
Notably, the relevant prevailing wage for an "Operations Research Analysts" occupation at the wage 
level on the certified LCA ($75,733 per year) is significantly lower than the relevant prevailing wage 
for a "Management Analysts" position ($119,621 per year) at the same wage level. 4 Such a wage 
disparity highlights the difference between the "Operations Research Analysts" and "Management 
Analysts" occupational categories generally, and more specific to this case, the significance of the 
Petitioner's choice of the lower paying occupational category. Again, without a meaningful, 
consistent description of the proposed duties we cannot determine if the Petitioner has properly 
categorized the proposed position on the LCA. 5 
III. CONCLUSION 
Without more specific evidence regarding the nature of the proffered position's duties, and in the 
absence of a sufficiently reliable job description, the Petitioner has not demonstrated 
the substantive nature of the work to be performed by the Beneficiary. This, therefore, precludes 
analysis of whether the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). The 
record also does not demonstrate that performing the duties described would require the theoretical 
and practical application of highly specialized knowledge and attainment of at least a bachelor's degree 
in a specific specialty or its equivalent. See section 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) 
( defining the term "specialty occupation). 
4 See FLC Data Center Online Wage Library for "Managem~nalysts," SOC code 13-1111 at 
https://www.flcdatacenter.com/OesQuickResults.aspx?code=13-l l l l&area=L_J&year=l 9&source=l. 
5 We observe that if a position is a combination of two different, but related occupations, the higher paying SOC code must 
be on the LCA. See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Polic}· Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.flcdatacenter.com/pdf/NPWHC _Guidance_ Revised_ 11 _ 2009.pdf. To permit otherwise may result in a 
petitioner paying a wage lower than that required by section 212(n)(l)(A) of the Act, 8 U.S.C. § l 182(n)(l)(A), by allowing 
that petitioner to submit an LCA for a different occupation and at a lower prevailing wage than the one being petitioned 
for. The LCA serves as the critical mechanism for enforcing section 212(n)(l) of the Act, 8 U.S.C. § l 182(n)(l). See 
Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (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]."). According to section 212(n)(l)(A) of the Act, an employer must attest that it will pay a holder of an H-lB 
visa the higher of the prevailing wage in the "area of employment" or the amount paid to other employees with similar 
experience and qualifications who are performing the same services. See 20 C.F.R. § 655.73l(a); Venkatraman v. REI 
Sys., Inc., 417 F.3d 418, 422 & n.3 (4th Cir. 2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal 
Vojtisek-Lom & Adm 'r Wage & Hour Div. v. Clean Air Tech. Int'!, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of 
Labor Admin. Rev. Bd. July 30, 2009). 
8 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is a 
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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