remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 12237796 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 11, 2021 
The Petitioner, a software development and consulting company, seeks to temporarily employ the 
Beneficiary as a "SR BI Developer /Data Analyst" 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. § 110l(a)(15)(H)(i)(b). The H-IB 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 does not 
establish that the Beneficiary is qualified for the proffered position. On appeal, the Petitioner asserts 
that the Director erred in the decision . 
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 precedent and detennine fust, whether the proffered position qualifies for 
classification as a specialty occupation, and second, whether the Beneficiary is qualified for the 
position at the time the nonimmigrant visa petition is filed. Cf Matter of Michael Hertz Assocs. , 
19 I&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].") . 
A remand is warranted because the record, as presently constituted, does not contain sufficient 
evidence to establish the substantive nature of the proffered position, and therefore whether it qualifies 
as a specialty occupation . The Petitioner describes the position as a full-time position at a third-party 
client site. The record contains documentation such as a Master Services Agreement ("MSA") 
executed between the vendor and a third-party client as well as the Statement of Work ("SOW") 
executed between the same two entities . These documents , however , do not relate to the specific 
duties the Beneficiary will perform and thus have little relevance toward establishing the substantive 
nature of the position . 
The remaining documents in the record do not establish the substantive nature of the position either 
and, instead, create more ambiguity. For instance, a vendor's November 5, 2019 letter (vendor's letter) 
verifying the Beneficiary's employment with the third-party client contains inconsistent information 
referring to the proffered position as a "Sr. Data Analyst" instead of the position title "Sr. Bi 
Developer/Data Analyst" found on the Form 1-12 9. This discrepancy leads to ambiguity regarding 
the substantive nature of the position and also to concerns regarding whether the accompanying labor 
condition application (LCA) corresponds to and supports the petition. The vendor's letter also 
contains an insufficient description of the proffered position. 1 In a February 27, 2020 letter, the third­
party client provides the same list of vaguely-worded duties listed in the vendor's letter. 
We point out that although the Petitioner's November 26, 2019 letter provides the most complete 
description of the duties of the proffered position, it falls short of establishing the specialty nature of 
the position for several reasons. First, the letter's probative value is diminished by the fact that it is 
not from the third-party client, the entity where the Beneficiary will provide her services. As 
recognized by the court inDefensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000), where the work 
is to be performed for entities other than the petitioner, evidence of the client company's job 
requirements is critical. 2 Furthermore, such evidence must be sufficiently detailed to demonstrate the 
type of work that is to be performed as well as the specialized knowledge that is necessary to perform 
that particular work. 
Secondly, the letter lacks specificity. For example, the letter describes how the Beneficiary will 
engage in a "Data Migration & Reporting" project and provides a percentage breakdown of the duties. 
However, these duties are too vaguely-worded to explain the substantive nature of the proffered 
position. The duties are also meaningfully different from the duties listed in the subsequently­
submitted third-party client letter discussed above. Finally, although the duties suggest that the 
individual in the position must have familiarity with several third-party technology tools, software, 
and programming languages, the description is not sufficiently detailed 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. These inconsistencies must be resolved with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-
592 (BIA 1988). Without consistent and probative evidence, the position's substantive nature has not 
been established. 
The Director should evaluate whether the record, as presently constituted, establishes the substantive 
nature of the proffered position such that a determination can be made as to whether the duties, as 
described, require the theoretical and practical application of highly specialized knowledge and the 
attainment of at least a bachelor's degree in a specific specialty or its equivalent. See section 214(i)(l) 
1 The vendor's letter lists vaguely-worded duties such as: 1. Analyzing and acquiring data from primary and secondary 
data sources using statistical techniques; 2. Maintaining databases and providing production support; 3. Building data flow 
architecture and data models; 4. Identify, analyze, and interpret trends in complex data sets using Tableau and few other 
Reporting Systems; 5. Figure out what questions are being asked and figure out if those questions can be answered by data; 
6. Determine technical issues with collecting and analyzing data, and design reports; 7. Working with management to 
prioritize business and information needs; and 8. Locating and defining new process improvement opportunities. The 
duties lack specific information and context to establish the substantive nature of the position. 
2 In Defensor, 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. 
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of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation). Until the record 
includes sufficient evidence establishing the proposed position is a specialty occupation, an analysis 
of the Beneficiary's qualifications would be premature. 
Accordingly, the matter will be remanded to the Director to consider the specialty occupation issue 
and enter a new decision. The Director may request any additional evidence considered pertinent to 
the new determination and any other issue. We express no opinion regarding the ultimate resolution 
of this case on remand. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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