sustained H-1B Case: Software Engineering

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
iVas11ingtor1, UC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: Date: <-' ./.A , -' j; < lJF3 
n4 RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section I0 1 (a)(] S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § I lOl(a)(I S)(H)(i)(b) 
ON BEHALF OF PETI'SIONER: 
This is the decision of the Administrative Appeals Office in your case. Ail documents have been returncd to 
the office that originally decided your casc. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
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Pagc 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is now 
before thc Administrative Appeals Office (AAO) on appeai.  he 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 beneficiary as a nonirnmigrant worker in a specialty occupation 
pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C:. 
Q 1 I0 l(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief and additional and previously submitted evidence. 
Section 2!4(i)(l) of the Act, 8 U.S.C. tj 1184(i)(l), defines the term "specialty occupation" as an occupation 
that rcquires: 
(A) theoretical and practical application of a body of highly specialized knowledge, and 
(B) attainment of a bachelor's or hlgher 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. 4 214.2(h)(4)(iii)(A), to qualify as a specialty oecupa.iion, the position must meet one of the 
following criteria: 
(lj A baccalaureate or higher degree or iis equivalent is nom~ally the minimum requirement 
for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among similar 
orgznizations or, in the alternative, an employer may show that its pamcular position is 
so complex or unique that it can be performed only by an individual with a degree: 
(3) The emp!oyer normally requires a degree or its equivalent for the positior,: or 
('4) The nature of thc specific duties is so specializcd and complex that knowledge rcquireci 
to perform thc duties is usually associated with the attainment of a baccaiaureatc or 
higher degree. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
Q; 214.2(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 proceed~ng before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for add~iional evidence: (3) the petitioner's response to the director's request; (4) the 
LIN 04 089 52188 
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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 Form 1-129; the attachments accompanying the Form 1-129; the company support letter; 
and the petitioner's responsc to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail designing software programs using techniques of computer 
scicnce, engineering, scientific analysis, and mathematical models; designing, debugging, and implementing 
in C using Linux platform for ~eer~~~"; designing, developing, and maintaining Linux Kemel based core 
products; and evaluaiing new technology and assisting in the architecture and design of follow-on 
enhancements and products. The petitioner requires a bachelor's degrcc in computer science, engineering, or 
a rclated technical field. 
The direclor determined that the proposed position is not a specialty occupation. The director stated that the 
petitioner failed to establish that it had H-1B level work for the bencficiay at its Colorado facility, as it had 
submitted no active contracts, statements of work, purchase orders, or related documentation that would show 
client requcsts for individual software applications, consulting, training, or technical support services in 
response to the rcquest for evidence. According to the director, the evidence was insilfficicnt to establish that 
the proposed position was not a computer programmer or computer support specialist, which are occupations 
that the Department of Labor's ~ccu~attonal Outlook Handbook (the Handbook) indicates do not require a 
bacheior's degree. The director determined that the record failed to establish that the petitioner had sufficient 
work for its five employees. 
On appeal, counsel states that the petitioner is a wholly owned subsidiary o Counscl states 
that in response to the request for evidence the petitioner submitted a 
t 
the Seneliciary, and a consolidate x rctum. Counsel asserts that the pet~tloner is financially 
v~able based on the parent comp that the beneficiary is an employee of the petitioner; that 
the beneficmy will continue to w~ll work on the ~eer~~~ platform and will work on other software 
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. 
Thc petitioner has established the fourth criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A): that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform them is usually 
associated with the iattainrnerit of a baccalaureate or higher degree. As described by the petitioner, the 
proposed duties are so specialized and complex as to rcquire the knowledge associated with a bachelor's 
degree in compuier science or software engineering. Furthermore, counsel on appeal explains that the 
beneficiary will work on the ~eer~~'''~ platform and other in-house software projects; thus, the petitioner has 
H-IB level projects to engage the beneficiary's services as a software engineer. 
The record establishes !ha: the beneficiary is qualified for the proposcd position as he ho!ds a master's degree in 
computer science from Clemson University, South Carolina. 
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The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. 
The petitioner has sustained that burden. 
OmER: The appeal is sustained. The petition is approved.