sustained H-1B Case: Software Engineering

U.S. Department of Homeland Security 
20 Mass Ave . N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: LIP4 04 089 52 188 Office: NEBRASKA SERVICE CENTER Date: $ -. j 2 JtS 
bd- 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. tj 1 1 0 l (a)(P 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
This is the decision of the Administrative Appeals Office in your case. A11 documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
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DISCUSSION: The director of the service center denied the nonimigrant visa petition and the matter is now 
before the Admimstrative Appeals Office (AAO) on appeal. The appeal will be sustained. The petition will be 
approved. 
The petitioner is a software developer that seeks to employ the beneficiary as a software engineer. The 
petitioner, therefore, endeavors to classify the benefic~ary as a nonimigrant worker in a specialty occupatim 
pursuant to section 10 1 (a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
5 1 10 1 (a)(l5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialw occupation. On appeal, 
counsel submits a brief and additional and previously submitted evidence. 
Section 214(i)&1) of the Act, 8 U.S.C. 5 1184(i)(l), defines thc tern "specialty occu;3ation" as an occupation 
that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, aad 
(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. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the 
following criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum requixment 
for enby 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 parbcular 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 ?ositios,; or 
(4) The nature of the specific duties is so specialized and complex that howTedge required 
to perform the duties is usually associated with the attainment of a baccalaureate or 
higher degree. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criter;la at 8 C.F.R. 
$ 224,2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty that is 
directly related to the proffered position. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
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director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a software engineer. Evidence of the beneficiary's 
duties includes: the Fonn 1-129; the attachments accompanying the Fonn 1-129; the corrmpany support letter; 
and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would perf- duties that entail designing software programs using techniques of computer 
science, engineering, scientific analysis, and mathematical models; designing, debugging, and implementing 
in C using Linux platform for peerEXT-"; designing, developing, and maintaining Linux Kernel based core 
products; and evaluating new technology and assisting in the ar6hitecb-u-e and design of follow-on 
enhancements and products. The petitioner requires a bachelor's degree in computer science, engineering, or 
a related technical field. 
The director determined that the proposed position is cot a specialty occupation. The director stated that the 
petitioner failed to establish that it had H-1B level work for the beneficiary at its Colorado facilitytY, as it had 
submitted no active contracts, statements of work, purchase orders, or related documentation that would show 
client requests for individual software applications, consulting, training, or technical support services in 
response to the request for evidence. According to the director, the evidence was insufficient to establish that 
the proposed position was not a computer programmer or computer support specialist, which are occupations 
that the Department of Labor's Occupational Outlook Handbook (the Handbook) indicates do not require a 
bachelor's degree. The director determined that the record failed to establish that the petitioner had suffaclent 
work for its five employees. 
On appeal, counsel states that the petitioner is a wholly owned siabsidiary of PeakData, hc. Counsel states 
that in response to the request for evidence the petitioner submitted a contractual agreement entered into with 
the beneficiary, and a consolidated federal income tax return. Counsel asserts that the petitioner is financially 
viable based on the parent company, PeakData, Lm.; that the beneficiary is an employee of the petitioner; that 
the beneficiary will continue to will work on the ~eer~~~" platform and will work on other sof'are 
programs; and that the concept of speculative employment is not in the Act or regulations. 
Upon review of the record, the petitioner has established that the proposed position is a specialty occupation. 
The petitioner has established the fourth criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A): that the name of the 
specific duties is so specialized and complex that the howledge required to perform them is usually 
associated with the attainment of a baccalaureate or higher degree. As described by the petitioner, the 
proposed duties are so specialized and complex as to require the knowledge associated with a bachelor's 
degree in computer science or software engineering. Furthennore, counsel on appeal explains that the 
beneficiary will work on the ~eer~~~" platform and other in-house software projects; thus, the petitioner has 
H-1B level projects to engage the beneficiary's services as a software engineer. 
The record estabhshes that the beneficiary is qualified for fie proposed position as he holds a master's degree in 
computer science fi-om Clemson University, South Carolina. 
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The b~rden of proof m these proceedings bests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 3 1361. 
"Sne petitioner has sustained that burden. 
8mEW: The appeal is sustained. The petition is approved.