remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 22569411 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 17, 2022 
The Petitioner seeks to employ the Beneficiary under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ l 10l(a)(l5)(H)(i)(b) . 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 California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the evidence of record does not demonstrate that the Beneficiary is qualified to 
perform services in a specialty occupation. On appeal, the Petitioner asserts that the Director erred 
when determining that the Beneficiary is not qualified to perform the services of its software developer 
position. The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the 
evidence. Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
While we conduct de nova review on appeal, we conclude that a remand is warranted in this case 
because the Director's decision is insufficient for review. Specifically, the Director is required to 
follow long-standing legal standards and determine fust, whether the proffered position qualifies for 
classification as a specialty occupation, and second, whether the Beneficiary was qualified for the 
position at the time the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 
19 l&N Dec . 558, 560 (Comm'r 1988) ("The facts of a beneficiary 's background only come at issue 
after it is found that the position in which the petitioner intends to employ him falls within [ a specialty 
occupation]."). Accordingly, the matter will be remanded to the Director for further review of the 
record and a new decision . 
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 
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 "Software Developers, 
Applications" corresponding to the standard occupational classification code (SOC) 15-1132 from the 
Occupational Information Network (O*NET), at a wage level I rate. 
A crucial aspect of this matter is whether the Petitioner has sufficiently described the duties of the 
proffered position such that we may discern the nature of the position and whether the position requires 
the theoretical and practical application of a body of highly specialized knowledge attained through at 
least a baccalaureate degree in a specific discipline. When determining whether a position is a 
specialty occupation, we look at the nature of the business offering the employment and the description 
of the specific duties of the position as it relates to the performance of those duties within the context 
of that particular employer's business operations. 
1 A petitioner submits the LCA to the U.S. Department of Labor (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. § 655.73l(a). 
2 
The Petitioner submitted duties of the proffered position that are overarching and abstract. The 
provided duties lack sufficient explanation of specific tasks, methodologies, or knowledge that would 
be required. For example, the duties to "establish monitoring of data transfers," "validate the 
programmed analysis datasets, tables, listing and figures;" "study management reports;" and "prepare 
clinical and statistical summary reports" do not describe the type of software solutions, knowledge, 
and skills the Beneficiary would need to perform these duties. Although the Petitioner stated that the 
Beneficiary will work with SAS, it did not provide sufficient explanation of how he would use this 
system and any other operations systems, languages, or tools to perform his job duties, and the 
frequency of use. The Petitioner has not established the complexity of the job duties, the amount of 
supervision required, and the level of judgment and understanding required to perform the duties. 
Furthermore, the phrases could cover a range of issues, and without additional information, do not 
provide insights into the Beneficiary's day-to-day work. These generalized tasks do not provide 
sufficient detail to determine if the position requires any specialized knowledge and whether this 
knowledge would require at least a bachelor's in a specialized field. A detailed job description should 
demonstrate the actual work the Beneficiary will perform; the complexity and uniqueness of the 
position and the duties; or that the proffered position requires at least a bachelor's degree in a specific 
specialty. 
Further, a petitioner must demonstrate that the proffered position requires a precise and specific course 
of study that relates directly and closely to the position in question. Here, the Petitioner indicated the 
minimum education required for the proffered position is a bachelor's degree "directly related to the 
specific field of endeavor." The Petitioner did not provide a specific course of study for the proffered 
position. 
The Director should further review the record to determine whether it contains sufficient evidence to 
establish the substantive nature of the position, because, as previously stated, the substantive nature of 
the work 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. See 8 C.F.R. § 214.2(h)(4)(iii)(A). 
III. CONCLUSION 
As the Petitioner was not previously accorded the opportunity to address the above, we will remand 
the record for further review of these issues. If the Director determines it is necessary, they may 
request any additional evidence considered pertinent to the new determination. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
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