remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 17441895 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 22, 2021 
The Petitioner, a software development and information technology consulting company, seeks to 
temporarily employ the Beneficiary as a "software developer" 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. § 1101(a)(15)(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 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 standards and determine first, 
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]."). 
In this instance, a remand is warranted because the record, as presently constituted, does not appear to 
have sufficient evidence to establish the substantive nature of the proffered position, and therefore 
whether it qualifies as a specialty occupation. The record appears to have three distinct versions of 
the proffered position's job duties. One version of the job duties, found on the "Detailed Job 
Description" document and on the November 2020 independent assessment letter, includes five major 
duty categories with their supplementary duties and the time the Beneficiary will spend on each major 
duty. However, with their request for evidence (RFE) response, the Petitioner provided a chart with 
eight job duties that includes, in part, new duties and a restructuring of the previously-discussed 
versions of the duties. As these duties on the chart appear to be combined, added, and/or deleted from 
the other job description, the time the Beneficiary spends on each duty does not appear to align 
between these two versions. Moreover, several other documents, including those from the vendor, 
appear to form another version of the job duties. This third version also appears to have added and 
removed duties from the other two versions. In sum, the different versions of the job duties do not 
appear to align and therefore seem to create ambiguity regarding the position's actual nature and its 
actual minimum requirements. The Petitioner does not appear to have provided any explanation for 
these inconsistencies or ambiguities. Inconsistencies must be resolved with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-592 (BIA 1988). 
Without consistent and probative evidence, the position's substantive nature does not appear to have 
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)(1) 
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 Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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