dismissed H-1B Case: Computer Consulting

MATTER OF S-I-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
; 
DATE: JUNE 30, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer consulting firm, seeks to temporarily employ the Beneficiary as a 
"programmer analyst" under the H-1B nonimmigrant classification for specialty occupations. See 
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-1B 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 minilmim prerequisite for entr:y into the position. 
The Director of the California Service Center denied the petition, concluding that the evidence of 
record does not establish that the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in the 
decision. Upon de novo review, we will dismiss the appeal. 
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I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires:/ 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(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. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
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Matter ofS-1- Inc. 
(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 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer nonnally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" to mean not just 
any baccalaureat~- or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing 
"a degree requirement in a specific specialty" as "one that relates directly to the duties and 
responsibilities of a particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
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II. PROFFERED POSITION 
In the initial submission, the Petitioner stated that the Beneficiary will serve as a "programmer 
analyst." In response to the Director's request for evidence (RFE), the Petitioner provided the 
following description of the Beneficiary's duties: 
Job Responsibility %Time 
Develop, test, and maintain software for the most recent verswn of the 65% 
product. 
Development/Maintenance of the Administrative module of the 15% 
product. 
High level and design for the product. 10% 
Construction Use Case, Sequence diagram etc. for the product 10% 
software by analyzing the requirements of the products documents. 
III. ANALYSIS 
For the reasons set out below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. 1 Specifically, the record (1) does not describe 
1 Although some aspects of the regulatory criteria may overlap , we will address each of the criteria individually . 
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Matter ofS-1- Inc. 
the position's duties with sufficient detail; and (2) does not establish that the job duties require an 
educational background, or its equivalent, commensurate with a specialty occupation.2 
A. Labor Condition Application 
We turn first to the labor condition application (LCA) 3 submitted in support of the H -1 B petition, in 
which the Petitioner designated the proffered position under the occupational category "Computer 
Programmers" corresponding to the Standard Occupational Classification (SOC) code 15-1131 at a 
Level II. In response to the RFE and on appeal, the Petitioner states that the "most closely aligned 
position to a Programmer Analyst is a Computer Systems Analyst, SOC code 15-1121." 
To begin with, the Petitioner did not explain why it classified the proffered position under the 
occupational category "Computer Programmers" if it believed that it "most closely aligned" to the 
occupational category "Computer Systems Analysts." Importantly, while these occupational 
categories may have some general duties in common, they are distinct and separate occupational 
categories. When the duties of the proffered position involve more than one occupational category, 
the U.S. Department of Labor (DOL) provides guidance for selecting the most relevant Occupational 
Information Network (O*NET) code classification. The "Prevailing Wage Determination Policy 
Guidance" by DOL states the following: 
In determining the nature of the job offer, the first order is to review the requirements 
of the employer's job offer and determine the appropriate occupational classification. 
The O*NET description that corresponds to the employer's job offer shall be used to 
identify the appropriate occupational classification . . . . If the employer's job 
opportunity has worker requirements described in a combination of O*NET 
occupations, the [determiner] should default directly to the relevant O*NET -SOC 
occupational code for the highest paying occupation. For example, if the employer's 
job offer is for an engineer-pilot, the [determiner] shall use the education, skill and 
experience levels for the higher paying occupation when making the wage level 
determination. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert. 
do leta. gov /pdf/NPWH C _Guidance_ Revised _11_ 2 009. pdf. 
2 The Petitioner submitted documentation in support of the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B 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. See 
Matter ofSimeio Solutions, LLC, 26 l&N Dec. 542, 545-546 (AAO 2015). 
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Matter ofS-1- Inc. 
Thus, if the Petitioner believed its position was described as a combination of occupations, then 
according to DOL guidance, the Petitioner should have chosen the relevant occupational code for the 
highest paying occupation. The prevailing wage for "Computer Programmers" is lower than the 
prevailing wage for "Computer Systems Analysts." For instance, at the time the Petitioner's LCA 
was certified, the Level II prevailing wage for "Computer Systems Analysts" in the area of intended 
employment was $72,030 per year, while the Level II prevailing wage for "Computer Programmers" 
in the area of intended employment was $70,57 4 per year. Moreover, it is important to note that the 
offered wage to the Beneficiary is less than the prevailing wage for the "Computer Systems 
Analysts" occupational category. 
Under the H-IB program, a petitioner must offer the Beneficiary wages that are at least the actual 
wage level paid by the Petitioner to all other individuals with similar experience and qualifications 
for the specific employment in question, or the prevailing wage level for the occupational 
classification in the area of employment, whichever is greater, based on the best information 
available as of the time of filing the application. See section 212(n)(l)(A) of the Act, 
8 U.S.C. § 1182(n)(l)(A). 
As such, the Petitioner has. not established (1) that it submitted a certified LCA that properly 
corresponds to the claimed occupation and duties of the proffered position; and (2) that it would pay 
the Beneficiary an adequate salary for his work, as required under the Act, if the petition were 
granted. These issues preclude the approval of the petition. 
B. Position Requirements 
Furthermore, the Petitioner has provided inconsistent information regarding the mm1mum 
requirements for the proffered position.' The Petitioner initially stated that the proffered position 
requires an individual with advanced education in the field. The Petitioner did not provide any 
further specifications. Therefore, it appears that an associate's degree is sufficient. 
In response to the RFE, the Petitioner claimed that a bachelor's degree in computer 
science/engineering or related field was required for the position. However, in response to the RFE, 
the Petitioner provided copies its own job postings for the position of programmer analyst, which 
state different and varying requirements. For example, in some ofthe advertisements, the minimum 
educational requirement is an associate's degree. Notably, the Petitioner also provided a range of 
acceptable disciplines. 
On appeal, the Petitioner states that the position requires a degree in computer science, engineering, 
information technology or a closely related field. The Petitioner submitted additional job postings 
with varying requirements, which include a statement that its minimum requirement for a 
programmer analyst position is an associate's degree. 
The Petitioner did not provide an explanation for the variances in the requirements. 
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Matter ofS-1- Inc. 
C. Job Location 
( 
The Petitioner also has provided inconsistent information about the location of the Beneficiary's 
employment. While the Petitioner repeatedly claims in the record (including its letters and the LCA) 
that the Beneficiary will be employed on-site, we observe that the Petitioner submitted several of its 
own job postings for the position of programmer analyst that indicate otherwise. The Petitioner 
indicated the postings were relevant to the matter here. The postings state: "Must be willing to 
work at unanticipated worksites." 
Thus, the Petitioner has provided inconsistent information on material aspects of the proffered 
position (i.e., occupational category, academic requirements,4 location of the work), therefore, we 
cannot determine the nature of the position. Thus, the appeal must be dismissed. 
Nevertheless, assuming, for the sake of argument, that the proffered duties as described in the record 
would in fact be the duties to be performed by the Beneficiary, we will analyze them and the 
evidence of record to determine whether the proffered position as described qualifies as a specialty 
occupation pursuant to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
D. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize DOL's Occupational Outlook 
Handbook (Handbook) as an authoritative source on the duties and educational requirements of the 
wide variety of occupations that it addresses.5 
As previously discussed, .on the LCA, the Petitioner designated the proffered position under the 
occupational category "Computer Programmers" corresponding to the SOC code 15-1131.6 Thus, 
4 Further, the proffered position is not a specialty occupation because the Petitioner's evidence indicates_ that an 
associate's degree is acceptable. For this reason also, the appeal must be dismissed. 
5 
All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USCIS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
6 The Petitioner classified the proffered position at a Level II wage. We will consider this selection in our analysis of the 
position. The "Prevailing Wage Determination Policy Guidance" issued by the DOL provides a description of the wage 
levels. DOL's wage-level guidance specifies that a Level II designation is reserved for positions involving only 
moderately complex tasks requiring limited judgment. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
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Matter ofS-1- Inc. 
we reviewed the Handbook's subchapter entitled "How to Become a Computer Programmer," which 
states, in pertinent part: "Most computer programmers have a bachelor's degree in computer science 
or a related subject; however, some employers hire workers with an associate's degree." Bureau of 
Labor Statistics, U.S. Dep't of Labo'r, Occupational Outlook Handbook, Computer Programmers 
(2016-17 ed.). Thus, the Handbook does not support the Petitioner's assertion that a bachelor's 
degree is required for entry into this occupation. The Handbook reports that the occupation 
accommodates a wide spectrum of educational credentials, including less than a ba~helor's degree in 
a specific specialty. 
In the instant matter, the Petitioner has not provided documentation from a probative source to 
substantiate its assertion regarding the minimum requirement for entry into this particular position. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F .R. § 214.2(h)( 4 )(iii)(A)( 1). 
E. Second Criterion 
The second criterion presents two alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy the first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors we often consider 
include: whether the Handbook reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry attest that such firms "routinely employ and 
recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999)(quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree 
in a specific specialty, or its equivalent. We incorporate by reference the previous discussion on the 
matter. Without more, the Petitioner has not provided sufficient evidence to establish that a 
bachelor's degree in a specific specialty, or its equivalent, is common to the industry in parallel 
requirements of the Petitioner's job opportunity. !d. 
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Matter ofS-1- Inc. 
positions among similar organizations._ Thus, the Petitioner has not satisfied the first alternative 
prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In this matter, the evidence of record does not distinguish the proffered position as unique from or 
more complex than other computer programmer positions that can be performed by persons without 
at least a bachelor's degree in a specific specialty, or its equivalent. 
Again, the Petitioner has designated the proffered position as a Level II position on the LCA, 
indicating that it is a position for an employee who has a good understanding of the occupation but 
who will only perform moderately complex tasks that require limited judgment. See U.S. Dep't of 
Labor, Emp't & Training Admin., supra. Therefore, it does not appear that the position is one with 
complex or unique duties relative to other computer programmer positions, as such a higher-level 
position would likely be classified at a Level III (experienced) or Level IV (fully competent) wage 
level, requiring a significantly higher prevailing wage. 
We note that while a few related courses may be beneficial in performing certain duties of the 
position, the Petitioner has not demonstrated how an established curriculum of such courses leading 
to a baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform 
the duties of the proffered position. Upon review, the record lacks sufficiently detailed information 
to distinguish the proffered position as more complex or unique from other positions that can be 
performed by persons without at least a bachelor's degree in a specific specialty, or its equivalent. 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references the 
Beneficiary's education and experience as evidence that the proffered position is a specialty 
occupation. However, the test to establish a position as a specialty occupation is not the education or 
experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. Here, the Petitioner did not sufficiently develop 
relative complexity or uniqueness as an aspect of the duties of the position, and it did not identify 
any tasks that are so complex or unique that only a specifically degreed individual could perform 
them. Thus, it cannot be concluded that the Petitioner has satisfied the second alternative prong of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
F. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
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Matter ofS-1- Inc. 
The record must establish that a petitioner's stated degree requirement is not a matter of preference 
for high-caliber candidates but is necessitated instead by performance requirements of the position. 
See Defensor v. Meissner, 201 F.3d at 387-88. Were USCIS limited solely to reviewing the 
Petitioner's claimed self-imposed requirements, any individual with a bachelor's degree could be 
brought to the United States to perform any occupation as long as the Petitioner created a token 
degree requirement. !d. Evidence provided in support of this ·criterion may include, but is not 
limited to, documentation regarding the Petitioner's past recruitment and hiring practices, as well as 
information regarding employees who previously held the position. 
In support of this criterion, the Petitioner provided several of its own job postings. However, the 
postings provide varying academic requirements and some of the postings indicate that an 
associate's degree is acceptable for the Petitioner's programmer analyst position. Therefore, the 
evidence does not support the Petitioner's claim that it will only accept a bachelor's degree or higher 
for the proffered position. 
On appeal, the Petitioner 
submitted a list of its current programmer analysts and evidence relevant to 
10 individuals (specifically, copies of,their degrees and Form W-2, Wage and Tax Statement, for 
20 15). It is noteworthy that the list provided on appeal indicates that the Petitioner employs 90 
individuals in the position of programmer analyst - yet, the Petitioner has only provided evidence 
and educational credentials with respect to 1 0 of its employees. Therefore, the evidence 
demonstrates the educational credentials of only a small number of its programmer analysts. 
Further, the evidence does not establish that these individuals were hired into positions that are the 
same or similar to the one offered to the Beneficiary. For example, the Petitioner did not provide the 
job duties and day-to-day responsibilities for these individuals. The Petitioner also did not submit 
any information regarding the complexity of the job duties, supervisory duties (if any), independent 
judgment required or the amount of supervision received. Accordingly, it is unclear whether the 
duties and responsibilities of these individuals are the same or similar to the proffered position. 
Based on a review of the 2015 W -2 forms that the Petitioner provided, it appears that eight out of ten 
individuals are paid a significantly higher salary than the one offered to the Beneficiary at $70,574 
peryear. Forexample: =$81,911; =$131,828; =$103,811; 
= $140,766; = $119,538; = $86,830; + $90,071; and, 
$98,330. Thus, this strongly suggests that these individuals are employed in a more senior position 
than the proffered position. In addition, two employees were paid significantly less than the salary 
offered to the Beneficiary, with annual salaries of $28,950 and $49,748. Again, this strongly 
suggests that they are employed in different positions. The Petitioner did not provide an explanation 
for the variances in the wages. 
We therefore conclude that the Petitioner did not provide sufficient documentary evidence to support 
,the assertion that it normally requires at least a bachelor's degree in a specific specialty, or its 
equivalent, directly related to the duties of the position. The Petitioner has not satisfied the third 
criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A). 
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Matter ofS-1- Inc. 
G. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
Although the Petitioner generally refers to the Beneficiary's duties as "specialized," we find that the 
Petitioner has not sufficiently developed relative specialization and complexity as an aspect of the 
proffered position. The proposed duties have not been described with sufficient specificity to show 
that they are more specialized and complex than other computer programmer positions that are not 
usually associated with at least a bachelor's degree in a specific specialty, or its equivalent. We also 
incorporate our earlier discussion and analysis regarding the duties of the proffered position, and the 
designation of the position in the LCA as a Level II position, and not as the higher Level III 
(referring to "special skills or knowledge") or Level IV (referring to "complex or unusual 
problems") wage levels. Thus, the Petitioner has not demonstrated in the record that its proffered 
position is one with duties sufficiently specialized and complex to satisfy 8 C.F .R. 
§ 214.2(h)( 4)(iii)(A)( 4). 
IV. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-1-, Inc., ID# 419274 (AAO June 30, 2017) 
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