remanded H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 17910876 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 6, 2021 
The Petitioner seeks to temporarily employ the Beneficiary as a "software engineer" 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 does not 
establish that the Beneficiary is qualified for the proffered position. On appeal, the Petitioner 2 asserts 
that the Director erred in the decision. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence . 3 While we conduct de nova review on appeal, 4 a threshold matter 5 
must be resolved before we may address the merits of the Director's decision and the Petitioner's 
appeal. As presently constituted, the record does not demonstrate that the proffered position qualifies 
as a specialty occupation. 6 Accordingly, the matter will be remanded to the Director for further review 
of the record and a new decision. 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). 
2 The Petitioner indicates that it is a Nevada corporation, however, our review of Nevada corporate records shows that the 
Petitioner 's corporate status has been revoked . We do note that the California corporate records show that the Petitioner 
is active in California. California business records show that the Petitioner is still registered in Nevada . The Petitioner 
should clarify its corporate status in any future proceedings. 
3 Section 291 of the Act; Matter ofChawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
4 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
5 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 As socs., 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].") . 
6 See 8 C.F.R. § 214.2(h)(4)(iii)(A). 
I. ANALYSTS 
The Petitioner and the end-client in this matter provided a broad overview of the proffered position. 
On the labor condition application (LCA) 7 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 Occupational Information Network's (O*NET) standard 
occupational classification (SOC) code 15-1132. 8 The Petitioner and the end-client asserted that the 
duties of the proffered position require a bachelor's degree in computer science, or a closely related 
field. 
The issue is that the described duties of the proposed position do not describe a software developer 
occupation. The duties listed in both the Petitioner and the end-client's letters describe a position 
involved in data analytics who works closely with the marketing department. Although we recognize 
that the Beneficiary will require some technological knowledge to perform the described tasks, the 
record does not include probative evidence that this knowledge is gained through bachelor's-level 
study in a specific discipline rather than through certifications in third-party technology or experience 
in the industry. Thus, we cannot conclude that the duties of the proffered position require a bachelor's 
degree in a specific specialty. 
The Petitioner must provide sufficient evidence of the nature of the proposed position so that it may 
be analyzed to determine if the duties are the duties of a software developer and further whether the 
duties as described require a bachelor's level degree in a specific discipline, or the equivalent to 
perform the duties. There are technology occupations that may be performed with a general degree 
( either at the bachelor or associate level), or with certifications or undefined experience in a particular 
program or third party software. There are also technology occupations that may require special skills, 
specific certifications, advanced knowledge, or that incorporate the duties of more than one 
occupation. 
Here, the Petitioner provides such a wide-ranging description that the duties could encompass any 
number of occupations. That is, the duties are so broadly described we cannot ascertain either the 
application of knowledge needed to perform the position or the occupation and wage level required. 
Without a detailed and more precise description as well as some context of the particular work the 
Beneficiary will perform at the end-client facility, the record does not establish that the proposed duties 
are the duties of a wage Level I "Software Developers, Applications" occupation. 9 The record does 
7 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-IB 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 perfo1ming the same services. Section 212(n)(l) 
of the Act; 20 C.F.R. § 655.73l(a). 
8 The O*NET recently updated its occupational classifications. The "Software Developers, Applications" occupation is 
now identified as SOC code 15-1252. See Summmy Rep01t for: 15-1252 - Software Developers, Applications, O*NET 
Online Archives (Nov. 17, 2020), https://www.onetonline.org/ Archive_ ONET­
SOC _ 20 l O _Taxonomy_ 09 _ 2020/link/summary/15-1132.00/. 
9 The LCA serves as the critical mechanism for enforcing section 212(n)( l) of the Act, 8 U.S.C. § l l 82(n)( l ). See Labor 
Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB Visas in Specialty Occupations 
and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United States, 65 Fed. 
Reg. 80,110, 80, 110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that the wage 
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not establish the substantive nature of the proffered position or demonstrate that performing such 
duties would require the theoretical and practical application of highly specialized knowledge and 
attainment of at least a bachelor's degree in a specific specialty or its equivalent. 
Accordingly, an analysis of the Beneficiary's qualifications in this matter is premature. A 
beneficiary's credentials to perform a particular job are relevant only when the job is first found to be 
a specialty occupation. Absent a determination that a baccalaureate or higher degree in a specific 
specialty or its equivalent is required to perform the duties of the particular position proffered here, it 
cannot be determined that the Beneficiary possesses the degree the position requires in order to 
perform it. 
As the record does not establish the substantive nature of the proffered position, the matter must be 
remanded to provide the Petitioner the opportunity to establish the position is a specialty occupation. 
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. 
protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring 
temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] with 
[DOL ]."). While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL regulations 
note that the Department of Homeland Security (DHS) (i.e., its immigration benefits branch, USCIS) is the department 
responsible for determining whether the content of an LCA filed for a particular Form 1-129 actually supports that 
petition. See 20 C.F.R. § 655.705(6). The regulation at 20 C.F.R. § 655.705(6) requires that USCIS ensure that "the 
petition is supported by an LCA which c01responds with the petition .... " 
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