remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10548441 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 29, 2020 
The Petitioner, an information technology solutions provider, seeks to temporarily employ the 
Beneficiary under the H-lB nonimmigrant classification for specialty occupations .1 The H-lB program 
allows a U.S . employer to temporarily employ a qualified foreign worker in a position that requires 
both : ( a) the theoretical and practical application of a body of highly specialized knowledge; and (b) 
the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a 
minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish that ( 1) the position qualifies as a specialty occupation; (2) that the Beneficiary would be 
performing services in a specialty occupation; and (3) that the Petitioner would maintain an employer­
employee relationship with the Beneficiary . 
While this appeal was pending, the U.S. District Court for the District of Columbia issued a decision 
inltserve Alliance, Inc. v. Cissna, --- F.Supp.3d---, 2020 WL 1150186 (D.D.C. 2020). Subsequently, 
U.S . Citizenship and Immigration Services (USCIS) rescinded previously issued policy guidance and 
directed its officers to apply the existing regulatory definition at 8 C.F .R. § 214.2(h)( 4 )(ii) to assess 
whether a petitioner and a beneficiary have an employer-employee relationship . USCIS Policy 
Memorandum PM-602-0114, Rescission of Policy Memoranda at 2 (June 17, 2020), 
http ://www.uscis.gov /legal-resources /policy-memoranda. 
The Petitioner, which is located in I !Missouri, will outsource the Beneficiary to work as a 
"technical consultant" for an end-client. The Beneficiary will work in three locations: at the end­
client site in Maryland, from the Beneficiary's home in Maryland, and in one of the Petitioner's 
facilities located in Virginia. The Petitioner stated that its minimum qualification for the proffered 
position is a bachelor's degree in computer science, information technology, or a closely related field, 
along with "relevant industry experience." The Petitioner has not explained what constitutes "relevant 
industry experience" or how much experience is required. 
The Director may wish to redetermine whether the Petitioner has established the substantive nature of 
the services that the Beneficiary would perform during the requested period of employment. We note 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § 110l(a)(l5)(H)(i)(b) . 
material inconsistencies within the record and a lack of specificity in the duties to be performed. If 
unresolved, these deficiencies may preclude the Director from a determination that the proffered 
position qualifies as a specialty occupation under sections 101 (a)(l 5)(H)(i)(b ), 214(i)(l) of the Act; 
8 C.F.R. § 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 
With the initial petition filing, the Petitioner provided: a list of ten bulleted duties in a support letter; 
a list entitled "Detailed Description of Responsibilities of [ the Beneficiary];" an itinerary of services 
that contained a table of additional duties along with when and where the duties will be performed; 
and an end-client letter that repeated the first six duties provided in the Petitioner's list of "Detailed 
Description of Responsibilities of [the Beneficiary]." In its RFE response, the Petitioner provided a 
list of duties contained within a Statement of Work (SOW) and another end-client letter with a new 
list of duties that contained tasks and tools, such as Black Duck, that do not appear in the Petitioner's 
iterations of the duties. It is not apparent why the Petitioner articulated the proffered position's duties 
in such a wide variety of separate lists and tables. The Director may wish to clarify whether one list 
carries more evidentiary value and accuracy in capturing the substantive nature of the position than 
another, as well as whether the Petitioner is capable of providing a single, concrete, and consolidated 
list of duties for the proffered position. 
The list of ten bulleted duties are broad and generic; service records show that they have been used in 
other H-1 B petitions from this same Petitioner. Additionally, many of these duties, indeed the entire 
list in some instances, appear verbatim in job advertisements posted by other companies and hiring 
sites, examples of which include clearedjobs.net, careers.hpe.com, and sovereigntec.com. 2 This 
information is relevant because it demonstrates that, in at least one iteration of its position duties, the 
Petitioner does not distinguish its proffered position from other generic information technology 
positions. 
Further, the Director may wish to determine whether the substantive nature of the position can be 
understood when the SOW contains several activities, deliverables, and roles, which are not clearly 
linked to the Beneficiary. None of the listed roles are "technical consultant" positions and we cannot 
determine how the proffered position fits into the end-client project as described in the SOW. Adding 
further confusion, it appears that multiple SOW roles contain elements of the proffered position. The 
Director may wish to clarify the dates of the end-client's project because the dates listed in the SOW 
differ from the dates in the Petitioner's itinerary of services. In addition to this, the project is referred 
to as "Digital Transformation" in the SOW, whereas the Petitioner called the project "Digital Services" 
in the itinerary of services. The "Exhibit A" document accompanying the Master Services Agreement 
is unsigned and redacted and therefore does not resolve these discrepancies. 
In examining the lists and tables collectively, the Director may wish to determine whether the 
Petitioner has clearly described the duties of the position. The Director may find some duty 
descriptions focus on results or outcomes, rather than the process undertaken to achieve such outcomes 
or results. Some duties are described using excessive jargon, which may obfuscate the nature of the 
duty rather than explain it. Further, as noted in the decision, some duties are either too vague or general 
2 Please v1s1t: https://clearedjobs.net/job/software-developer-sharepoint-collaboration-ts-sci-clearance-washington­
district-of-columbia-144055; https://careers.hpe.com/jobffiewlett-Packard-Enterprise-Tokyo-Tokyo/1143 713 86; and 
http://sovereigntec.com/careers/listing/jr-sql-etl-developer-database-developer/ (last visited Jul. 29, 2020). 
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to determine the substantive nature of the work. Other descriptions appear to feature non-specialty 
occupation work, such as attending meetings, tracking and prioritizing work, or making requests for 
others to do work. 
The duties indicate significant usage of third-party tools and technologies. Many of these tools are 
used to automate processes or to facilitate shortcuts to time-consuming manual functions, which 
suggests that the proffered position requires knowledge of the tool more than the functions or processes 
underlying the tool. As third-party tools and technologies need not be learned in a bachelor's degree 
program in a specific specialty, the Director may question whether knowledge sufficient to perform 
the proffered position's duties could be gained through certifications or trainings on the tools and 
technologies. Moreover, coding need not be learned in bachelor's degree programs, yet this appears 
to be a major function of the proffered position. Accordingly, the Director may question the need for 
a bachelor's degree or higher in a specific specialty in order to carry out the duties of the position. 
On the labor condition application (LCA) submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category of "Software Developers, 
Applications," corresponding to the Standard Occupational Classification code 15-1132. 3 We 
examined the information contained in the U.S. Department of Labor's (DOL) Occupational Outlook 
Handbook (Handbook) regarding the duties and educational requirements of this occupational 
category. 4 The Director may wish to explore whether there exists overlap between the duties of the 
position with those of another occupational category, that of "Computer Programmers." 5 
Among the proffered position's duties, we find descriptions related to providing active production 
support for deployment; releasing the new application services and verifying their upgrades and 
properties; addressing various concerns in the requirements; collaborating on code; reviewing code in 
an incremental approach to catch bugs and vulnerabilities in code development; promoting 
performance testing environments; conducting system and regression testing; applying common 
libraries and common code; defining and developing code templates; and deploying code to 
production. The following duties listed for the computer programmer occupational category appear 
to fit squarely within the proffered position's duties described by the Petitioner, including: 
• Update and expand existing programs 
• Test programs for errors and fix the faulty lines of computer code 
3 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-1 B 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 duties, experience, and qualifications. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.73 l(a). 
4 We do not maintain that the Handbook is the exclusive source of relevant information. That is, the occupational category 
designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered 
position, and we regularly review the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. Nevertheless, to satisfy the first criterion, the burden of proof remains on the Petitioner to 
submit sufficient evidence to support a finding that its particular position would n01mally have a minimum, specialty 
degree requirement, or its equivalent, for entry. 
5 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Programmers, 
https://www.bls.gov/ooh/computer-and-information-technology/computer-programmers.htm#tab-2 (last visited Jul. 29, 
2020). 
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• Create and test code in an integrated development environment (IDE) 
• Use code libraries, which are collections of independent lines of code, to 
simplify the writing 
Moreover, the subchapter of the Handbook entitled "What Computer Programmers Do" states, in 
relevant part that "[P]rogrammers work closely with software developers, and in some businesses their 
duties overlap. When such overlap occurs, programmers can do work that is typical of developers, 
such as designing programs." 6 
While it is acknowledge that if the proffered position has requirements described in a combination of 
occupations, the Petitioner should select the occupational category with the highest prevailing wage. 7 
Of the two categories, the one with the higher prevailing wage is "software developers, applications," 
the occupational category selected by the Petitioner. Nevertheless, the above language in the 
Handbook expressly contemplates that the computer programmers may perform the work of software 
developers. This appears relevant as the Handbook also states that the "computer programmer" 
occupation may be entered into without a bachelor's degree in a specific specialty. 8 In all 
circumstances, the Petitioner bears the burden of clearly defining its position such that we may discern 
its substantive nature. Given the foregoing, the Director may question how the proffered position 
differs from those positions falling within the computer programmer occupational category. 
The Director may also wish to consider the job postings that the Petitioner submitted for consideration 
under criterion three. The Petitioner submitted these postings for the first time on appeal in order to 
establish that the Petitioner normally requires a degree for the position. The Petitioner contends that 
the postings represent positions parallel to the proffered position. In one posting, the Petitioner seeks 
a "passionate coder" with application development experience. This phrasing raises questions as to 
whether the Petitioner seeks a computer programmer with certain experience, rather than a software 
developer. It also raises questions as to whether the Petitioner distinguishes between the two positions 
within its business. 
The Director may determine that these job postings raise substantive nature concerns, particularly 
given that the Petitioner's requirements advertised in these postings are a bachelor's degree along with 
three and even five to ten years of additional experience to qualify for the respective positions. One 
posting states that the requirement for a bachelor's degree in a specific specialty is preferred but not 
required. 9 Some of the postings indicate that the Petitioner allows experience to partially and wholly 
6 Id. 
7 20 C.F.R. § 655.705(6). 
8 The subchapter of the Handbook entitled "How to Become a Computer Programmer" states, in relevant part that "[m]ost 
computer programmers have a bachelor's degree in computer science or a related subject; however, some employers hire 
workers with an associate's degree .... " Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook 
Handbook, Computer Programmers, http://www.bls.gov/ooh/computer-and-information-technology/computer­
programmers.htm (last visited Jul. 29, 2020). The Handbook does not state that positions located within the computer 
programmer occupational category normally require a bachelor's degree in a specific field, or the equivalent for ently. 
Instead, it states that the degree requirements for jobs in this occupation vary by employer, and that some employers will 
hire workers with an associate's degree. 
9 The Petitioner's advertisement for an "entry level technical consultant" does not state that the Petitioner requires a degree 
in a specific specialty, but rather that a bachelor's degree in "MTS or CS" is preferred. Because a preference is not a 
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substitute for education. Though it is possible to obtain specialized knowledge through experience 
alone or a combination of experience and education, the Director may determine the available 
information in the job posting is insufficient to substantiate a finding that the qualifying experience is 
specialized or that the experience is equivalent to a bachelor's level of education. 
The Director may also wish to review the job postings submitted on appeal for consideration of an 
industry standard. While the Petitioner contends that these positions are parallel to the proffered 
position, nearly all of the advertised positions require experience beyond a bachelor's degree. These 
postings appear to advertise different roles than the proffered position, as evidenced by requirements for 
a bachelor's degree along with a range of between one to five years of additional experience. The Director 
may also note that these postings indicate that one employer accepts a degree in business, while another 
in analytics. If relevant, the Director may wish to explore whether these acceptable degree fields support 
the Petitioner's specialty occupation arguments. 
As previously stated, the Petitioner requires a bachelor's degree in computer science or information 
technology along with "relevant industry experience," but has not explained what constitutes "relevant 
industry experience" or how much experience is required. If all of these are parallel positions as 
claimed, the Director may wish to resolve how the Petitioner's payment of a Level I wage to the 
Beneficiary correlates to the experience the position requires. Such a wage would appear inadequate 
in many cases. If alternatively, the positions are not parallel, but rather represent different or more 
specialized positions than the proffered position, then the Director may wish to determine that the 
postings are not relevant in establishing the Petitioner's normal hiring practice or an industry standard 
for positions located within the occupational category. At minimum, the Director may question 
whether the LCA is inconsistent with the Petitioner's claims and the evidence within the record. 
Similar concerns about the LCA corresponding to the petition arise when examining the initial generic 
job duties. If the recycled job duties that were found on sites such as clearedjobs.net, careers.hpe.com, 
and sovereigntec.com are representative of the proffered position's duties as the Petitioner contends, 
the Director may wish to explore whether the Petitioner has clearly defined the minimum educational 
requirements for the proffered position. Though the Petitioner referenced the requirement of "relevant 
industry experience," the level of experience remains nebulous. If the required level of experience 
rises to the level required by the employers featured in these job postings, then the Director may 
question whether the LCA corresponds to and supports the petition. Specifically, the sites state that 
in addition to a bachelor's degree, one employer requires two to five years of experience, while the 
two other employers require three years' experience. If these positions are not parallel to the proffered 
position, then Director may determine that the Petitioner's use of recycled and generic job duties 
undermines its credibility in this matter. 
Lastly, the Director may wish to explore the adequacy of a Level I wage for an additional reason. The 
Petitioner repeatedly references to the Beneficiary's master's degree courses, particularly on appeal, 
as the reason the Beneficiary is qualified to perform the duties of the proffered position. In view of 
the foregoing, this raises questions as to the appropriate wage level. As the credibility of the 
Petitioner's articulated educational qualifications for the proffered position may already be questioned, 
requirement, we question whether this position could be considered a specialty occupation. If parallel to the proffered 
position, as claimed, the lack of a specific degree requirement undermines the Petitioner's argument that the proffered 
position is a specialty occupation. 
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the additional emphasis on the Beneficiary's master's degree education may lead the Director to 
conclude that a Level I wage is inadequate. 
Because this case is affected by the new employer-employee policy guidance, we find it appropriate 
to remand the matter for the Director to consider the question anew and to adjudicate any additional 
issues as may be necessary and appropriate. Accordingly, the following order shall be issued. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for farther 
proceedings consistent with the foregoing analysis and entry of a new decision. 
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