dismissed H-1B Case: Web Development

MATTER OF K- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 8, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a real estate company, seeks to temporarily employ the Beneficiary as a "web 
developer'' under the H-1B nonimmigrant classification. See Immigration and Nationality Act (the 
Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B program allows a U.S. 
employer to temporarily employ a qualified foreign worker in a position that requires both (a) the 
theoretical and practical application of a body of highly specialized knowledge and (b) the 
attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum 
prerequisite for entry into the position. 
The Director, Vermont Service Center, denied the petitiOn. The Director concluded that the 
evidence of record did not establish that the Petitioner would employ the Beneficiary in a specialty 
occupation position. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the proffered position requires "specialized knowledge." 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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.P.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 profTered position 
must meet one of the following criteria to qualify as a specialty occupation: 
Matter of K- LLC 
(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 
( -1) 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.P.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted 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 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-1 B petition, the Petitioner stated that the Beneficiary would serve as a '"web developer." 1 
The Petitioner stated in its support letter that the Beneficiary would perform the following duties: 
Some of the duties of this position include: designing, building and maintaining of 
our company's website; updating and back up files; apply to industry standards and 
ensure that it is compatible with browsers, devices or operating system; analyze user 
needs based on the data gathered from the website. 
1 The labor condition application (LCA) submitted in support of the instant position was certified for a job prospect 
within the "'Web Developers" occupational category, Standard Occupational Classification (SOC) code 15-1134, at a 
Level I (entry) wage rate. We will consider the selected occupational category and wage level in our analysis of the 
proffered position. More specifically, 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. A Level I wage rate is the lowest of the four assignable wage-levels. The "'Prevailing Wage Determination 
Policy Guidance" issued by the Department of Labor (DOL) describes a Level I wage rate as generally appropriate for 
positions for which the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage 
rate indicates: (1) that the Beneficiary will be expected to perform routine tasks that require limited. if any. exercise of 
judgment; (2) that he will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that 
he will receive specific instructions on required tasks and expected results. 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 _II_ 2009.pdf. 
2 
Matter of K- LLC 
In a request for evidence (RFE), the Director asked the Petitioner to provide additional information 
about the position, such as a detailed description of the proffered position to include the approximate 
percentages of time for each duty the Beneficiary will perform. The Petitioner elected not to provide 
this information, and instead stated that it had hired the Beneficiary and he had .. built a website from 
the ground up'' and that the system ··can be resold to investors as a ... solution, filling a niche at a 
caliber nonexistent in the market and creating another source of revenue for the company." 
The Petitioner did not state that the position requires any particular educational background. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below. we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent commensurate 
with a specialty occupation.2 
First. the evidence of record does not establish the depth, complexity. level of specialization. or 
substantive aspects of the matters upon which the Beneficiary would engage. Rather, the record 
contains relatively generalized and abstract descriptions that do not relate sufficient details about either 
the position or its constituent duties. Further, the Petitioner stated that the provided tasks are ··some" 
of the duties of the proffered position. This statement implies that the proffered position includes 
additional duties that are not stated by the Petitioner. 3 
Second, the Petitioner does not provide any information with regard to the order of importance 
and/or frequency of occurrence with which the Beneficiary would perform the stated duties. Thus, 
we cannot discern which tasks are primary functions of the proffered position. and which tasks are 
merely incidental to the performance of the primary functions. Thus, we cannot determine the 
substantive nature of all the proffered job duties, and whether they are of H-1 B caliber. 
Without more a meaningful description of the proffered duties and the ultimate product that the 
Beneficiary would be building and maintaining, the Petitioner has not adequately established the 
substantive nature of the proffered position. We are therefore precluded from finding that the 
proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). because it is the substantive 
2 The Petitioner submitted documentation to support the H-IB petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 There is no provision in the law for specialty occupations to include non-qualifying duties. Nevertheless, we will view 
the performance of duties that are incidental to the primary duties of the proffered position as acceptable when they are 
unpredictable, intermittent, and of a minor nature. Anything beyond such incidental duties, however. e.g., predictable, 
recurring, and substantive job duties, must be specialty occupation duties or the proffered position as a whole cannot be 
approved as a specialty occupation. Here, the record of proceedings contains insufficient information regarding the 
additional duties implied by the Petitioner. 
3 
(b)(6)
Matter of K- LLC 
nature of the work which determines ( 1) the normal minimum educational requirement for entry into the 
particular position, which is the focus of criterion 14: (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. Because the 
Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
Furthermore, the Petitioner did not state the position's minimum educational requirement. Thus, we 
cannot find that the proffered position qualifies as a specialty occupation. 5 It is incumbent upon the 
Petitioner to provide sufficient evidence to establish that the particular 
position that it proffers would 
necessitate services at a level requiring both the theoretical and practical application of a body of 
highly specialized knowledge and the attainment of at least a bachelor's degree in a specific 
specialty, or its equivalent. Section 214(i)(l) ofthe Act; 8 C.F.R. § 214.2(h)(4)(ii). The Petitioner 
has not adequately done so here. 
On appeal, the Petitioner submits three opinion letters from and 
The Petitioner asserts that these letters demonstrate that the proffered position requires 
·'specialized knowledge." However, for the reasons discussed below, we conclude that these opinion 
letters are not probative evidence to satisfying 8 C.F.R. § 214.2(h)(4)(iii)(A).6 
We first note that and state that the Petitioner was established in 1995: and 
states that the Petitioner has been in the real estate business ''for 20 years.'' In the H-1 B petition, 
the Petitioner stated that it was established in 2014. It is unclear on which information the authors 
base their opinion regarding the Petitioner 's business. The authors do not state whether they visited 
the Petitioner's business, observed or interviewed the Petitioner's employees , or observed the \Vork 
4 We further note that DOL's Occupational Outlook Handbook (Handbook) states that the typical education needed to 
become a web developer is an associate's degree. and that a high school diploma may be sufficient. The Ham/hook does 
not, therefore, indicate that the educational background, or its equivalent, is commensurate with a specialty occupation 
for these jobs. For additional information regarding the occupational category ''Web Developer." see U.S. Dcp't of 
Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2015-/6 ed., Web Developers. on the lntemet at 
http://www.bls .gov/ooh/computer-and-information-technology /print/web-developers .htm (last visited June 7. 20 16). 
5 The Petitioner stated in its RFE response that it "posted an add on looking for a web developer with database 
knowledge." This does not sufficiently explain the level and type of education needed for entry into the position. 
Although the opinion letters submitted on appeal address the position's educational requirement, we find these letters 
deficient for reasons we will discuss infra. 
6 On appeal , the Petitioner appears to assert eligibility under only one criterion: 8 C.F.R. § 214.2(h)(4)(iii)(A)(-I). which 
requires that "[t]he 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.'' However, the Petitioner cites to 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2) and then quotes the language of 8 C.F.R. § 214 .2(h)(4)(iii)(A)(-I). It therefore is not 
clear under which criterion that the Petitioner asserts eligibility . 
4 
(b)(6)
Matter of K- LLC 
product the Beneficiary has already built. Their level of familiarity with the actual job duties as they 
would be performed in the context of the Petitioner's business has therefore not been substantiated. 
In addition, the authors list job duties that arc beyond the scope of duties for a Level I, entry-level 
position under the "'Web Developers'' occupational 
classification. 7 The authors list proffered duties 
involving: designing and implementing "'web software .. for both front-end and back-end; receiving 
customer applications for production process, employee management. and other related "web 
applications"; and designing the database with high-level security and efficiency. Indeed, 
specifically characterizes the proffered position as a "'Web Application Designer/Database 
Administrator position.'' similarly states that '·[t]he Web Developer for fthe Petitioner] is a 
combination of website designer, project manager, Database Administrator and data analytical 
engineer." The information provided in the opinion letters is inconsistent with the Petitioner's 
descriptions as well as the LCA submitted to support the petition. 8 
Further. states that the proffered duties "'are not those of a lower level employee .. . but 
rather those of a professional employee with a strong background in IT concepts and principles and a 
great level of responsibility with the company." This statement is further inconsistent with the 
position's Level I wage designation that is only appropriate for a comparatively low, entry-level 
position relative to others within its occupation. Again, it is incumbent upon the Petitioner to resolve 
inconsistencies in the record through competent objective evidence pointing to where the truth lies. 
Matter ofHo, 19 I&N Dec. at 591-92. 
The authors do not indicate whether they considered. or were even aware of. the Petitioner's 
submission of an LCA for an entry-level position under the "Web Developers .. occupational 
classification. We consider this a significant omission, in that it suggests an inaccurate or 
7 The Petitioner 's designation of this position as a Level I, entry-level position undermines the claim that the position is 
particularly complex, specialized , or unique compared to other positions within the same occupation. Thus. the Level I 
wage designation does not support the claim that the Beneficiary would perform job duties not normally performed 
within the occupation. 
Nevertheless, we note that a Level I wage-designation does not preclude a proffered position from classification as a 
specialty occupation , just as a LevellY wage-designation does not definitively establish such a classification . In certain 
occupations (e.g., doctors or lav<yers), a Level I. entry-level position would still require a minimum of a bachelor's 
degree in a specific specialty, or its equivalent. for entry. Similarly. however. a Level IV wage-designation would not 
reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry 
requirement of at least a bachelor 's degree in a specific specialty, or its equivalent. That is, a position's wage level 
designation may be a relevant factor but is not itself conclusive evidence that a proffered position meets the requirements 
of section 214(i)( 1) of the Act. 
8 If the proffered position were a combination of ··web Developers,'' ''Database Administrators," and possibly other 
occupations, then the Petitioner is obligated to choose the O*NET occupation for the highest-paying occupation. 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://flcdatacenter.com /download /NPWHC _ 
Guidance_Revised_II _2009.pdf (''if the employer ' s job opportunity has worker requirements described in a 
combination of O*NET occupations, the [employer) should default directly to the relevant O*NET-SOC occupational 
code for the highest paying 
occupation"). The Petitioner has not demonstrated that the "Web Developers" occupational 
classification chosen here is the most relevant, highe st-paying occupation. 
5 
Matter of K- LLC 
incomplete review of the position in question and a faulty factual basis for the authors' ultimate 
conclusions. 9 For all the above reasons, we find that the advisory letters are not probative evidence 
of the proffered position requiring the performance of complex and specialized duties, or otherwise 
qualifying as a specialty occupation under the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). We may. in 
our discretion, use opinion statements submitted by the Petitioner as advisory. 1'vfatter of Caron Int '/, 
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. !d. 
IV. CONCLUSION 
The Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), and has not 
demonstrated that the proffered position qualifies as a specialty occupation. The burden is on the 
Petitioner to show eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of K- LLC, ID# 17339 (AAO June 8, 2016) 
9 Because the opinion letters lack probative value in this fundamental aspect, further analysis regarding the specific 
information contained in each letter is not necessary. That is, not every deficit of the letters has been addressed. 
6