remanded H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 16226115 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 28, 2021 
The Petitioner , a software related business , seeks to extend the Beneficiary's temporary employment 
as a "software engineer" 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 Vermont Service Center denied the petition , concluding that the record did not 
establish that the Beneficiary is qualified to perform services in a specialty occupation. On appeal, 
the Petitioner submits a statement and re-submits a position evaluation and asserts that the Director 
erred by denying the petition . The matter is now before us on appeal. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence . 1 The Administrative Appeals Office reviews the questions in this 
matter de novo2 but a threshold matter must be resolved before we may address the merits of the 
Director's decision and the Petitioner's appeal. The Director concluded that the Beneficiary was not 
qualified to perform the duties of a specialty occupation . However , a beneficiary 's credentials to 
perform a particular job are relevant only when the job is found to be a specialty occupation. Here the 
record is insufficient to establish the substantive nature of the proffered position , and thus to ascertain 
whether the proffered position is a specialty occupation. Accordingly , the matter will be remanded to 
the Director for further review of the record and a new decision. 
I. ANALYSIS 
The Petitioner previously filed H-lB petitions on behalf of the Beneficiary which were approved. The 
Petitioner seeks to extend the previously approved petition. However , deference to the prior approval 
cannot be given. If the previous petitions were approved based on the same position descriptions and 
evidence of the Beneficiary ' s qualifications to perform the duties of a specialty occupation as in this 
1 Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
record, the prior approvals would have constituted material error. Officers are not bound to approve 
subsequent petitions or applications seeking immigration benefits where eligibility has not been 
demonstrated strictly because of a prior approval (which may have been erroneous). See Matter of 
Church Scientology Int'l, 19 I&N Dec. 593, 597 (Comm'r 1988). A prior approval also does not 
preclude USCIS from denying an extension of an original visa petition based on a reassessment of 
eligibility for the benefit sought. See Tex. A&M Univ. v. Upchurch, 99 F. App'x 556 (5th Cir. 2004). 
In this matter, the Petitioner provided an overview of the proffered position, initially and in response 
to the Director's request for evidence (RFE). The Petitioner did not a11ocate the Beneficiary's time to 
specific tasks. Moreover, the Petitioner included tasks taken verbatim or paraphrased from the duties 
outlined in the Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook 
(Handbook) and the O*NET Summary Report for "software developers." 3 However, providing 
generic job duties for a proffered position from O*NET or the Handbook is insufficient to establish 
the substantive nature of the Petitioner's particular position. Cf Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), ajfd , 905 F.2d 41 (2d. Cir. 1990) (Specifics are an important indication 
of the nature of the Beneficiary's duties, otherwise meeting the requirements would simply be a matter 
of providing a job title or reiterating the regulation). On the labor condition application (LCA)4 
submitted in support of the H-lB petition, the Petitioner designated the proffered position under the 
standard occupational classification (SOC) code 15-1132, "Software Developers , Applications" 5 
occupation at a Level I wage. However, the duties are so vague and general we cannot ascertain either 
the application of knowledge needed to perform the position, or the occupation and wage level 
required . 
The Director may wish to review the tasks listed for the proffered position and detennine whether the 
Petitioner has clearly described the duties of the position. The Director may find that the duties do not 
include the context in which the Beneficiary will perform them, including how the generic duties will 
be implemented at the end-client's facility and how the duties relate to particular projects . Although 
the record includes a "status report" on the Beneficiary's past activities and a section on planned future 
activities, the activities described are jargon-laden and appear to incorporate the tasks of technology 
occupations other than the occupation designated on the certified LCA. Other duties feature 
non-specialty occupation work, such as attending meetings. The record does not include the 
Petitioner's organizational chait and does not include evidence of particular teams, if any, to which 
the Beneficiary will be assigned. Thus, duties that refer to interacting or conferring with others is also 
without context. Duties that include "technical support" or "technical assistance" do not include the 
detail necessary to understand the substantive nature of the position or the level of responsibility the 
position may require . 
3 See https://www.bls.gov /ooh/computer-and-infonnation-technology /software-developers.htm (last visited Sep. 28, 2021) 
and Summary Report for: 15-1132 - Software Developers , Applications , O*NET OnLine Archives , 
https://www.onetonline .org/ Archive_ ONET-SOC _ 201 O _Taxonomy_ 09 _ 2020/link/summary/15-1132.00. 
4 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-lB 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 experience and qualifications who are performing the same services. Section 212(n)(l) 
of the Act; 20 C.F.R. § 655.73l(a). 
5 The O*NET recently updated its occupational classifications . The "Software Developers , Applications " occupation is 
now identified as SOC code 15-1252. See Summary Report for: 15-1132.00 - Software Developers , Applications , O*NET 
OnLine Archives (Nov. 17, 2020), https://www.onetonline .org/Archive_ONET­
SOC _ 2010 _Taxonomy_ 09 _ 2020/link/summary / 15-1132.00. 
2 
The proposed duties also appear to focus on the usage of third-party tools and technologies. The 
Beneficiary's status report that includes a section on the planned future activities, identifies multiple 
third-party tools used for the position . 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. 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 . 
Overall, the record does not offer probative information or analysis as to how the proposed duties, the 
Beneficiary's role, and level of responsibility fit within the end-client's particular projects. Thus, 
while some of the generic duties may appear (in some instances) to comprise the duties of a specialty 
occupation, the duties are not related to any actual services the Beneficiary is expected to provide. 
Here, the record does not include sufficient details regarding the nature and scope of the Beneficiary's 
employment or substantive evidence regarding the actual work that the Beneficiary would perform . 
Without a meaningful job description, the record lacks evidence sufficiently informative to 
demonstrate that the proffered position requires a specialty occupation's level of knowledge in a 
specific discipline. Thus, the record in this matter does not establish the Petitioner or the Beneficiary's 
eligibility for this nonimmigrant visa benefit. 
Accordingly, until the record includes sufficient evidence to establish the proposed position is a 
specialty occupation, an analysis of the Beneficiary's qualifications in this matter is premature. 
Although there are substantial deficiencies 6 in the information regarding the Beneficiary's 
qualifications, it is not possible to conclude that the Beneficiary is unqualified to perform the 
non-H-IB caliber position described in the current record. 
II. CONCLUSION 
As the Petitioner was not previously accorded the opportunity to address the deficiencies in the record 
discussed above, we will remand the record for further review of these issues. The Director may 
request any additional evidence considered pertinent to the new determination. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
6 The Director may wish to address the deficiencies in the record regarding the Beneficiary's qualifications to perform the 
duties of a specialty occupation in any subsequent decision. 
3